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DE LEON v. HOLDER, NO. 13-1651

Decided: July 30, 2014

The Fourth Circuit held that for cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), an illegal immigrant enters the United States free from restraint if a government agent first observes the immigrant miles after the immigrant has crossed into the U.S. Based on its holding, the Court granted a Guatemalan immigrant’s petition for review of the Board of Immigration Appeal’s (BIA) decision, and remanded his application for relief.

Appellant Oscar De Leon, a Guatemalan citizen, entered the United States illegally in 1988 and ultimately settled in Delaware. In 2003, upon returning from a trip to Latin America, a border patrol agent apprehended De Leon north of the Arizona-Mexico border. De Leon, who is married and has three United States-citizen children, applied for cancellation of removal under NACARA. Under section 203 of NACARA, illegal immigrants from Guatemala may apply for the special rule that allows cancellation of removal if they are able to meet the statutory requirements. One requirement is that individuals who enter the United States after December 31, 1990, must prove that they were not “apprehended at the time of entry.” 8 C.F.R. § 1240.619(a)(1). Entry, as defined by the BIA, requires (1) crossing into the United States, (2) admission into the country after inspection by an immigration officer, or intentional evasion of inspection, and (3) freedom from official restraint. In re Pierre, 14 I&N Dec. 467, 468 (BIA 1973). Freedom from restraint requires that the individual enjoy some amount of liberty after crossing into the United States prior to apprehension. An immigration judge (IJ) denied De Leon’s application, and found that De Leon failed to prove that he entered the country free from official restraint. As a result, the IJ ordered that De Leon be removed to Guatemala

The Fourth Circuit reasoned that the border patrol agent’s report stated that the agent first observed De Leon approximately twenty miles north of the Arizona-Mexico border, and that this fact satisfied De Leon’s burden of proof that he entered the county free from official restraint. The Court remanded the case to the BIA for application of the proper legal standard to De Leon’s application, and clarified that the Court had no opinion as to whether De Leon satisfied the additional requirements for NACARA eligibility.

Full Opinion

Amanda K. Reasoner