Flores-Andrade v. Lynch

670 F. App'x 402
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 3, 2016
DocketNo. 15-3160
StatusPublished

This text of 670 F. App'x 402 (Flores-Andrade v. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flores-Andrade v. Lynch, 670 F. App'x 402 (7th Cir. 2016).

Opinion

ORDER

Luis Flores-Andrade, a 45-year-old Mexican citizen, petitions for review of an order of the Board of Immigration Appeals upholding an immigration judge’s denial of his request for cancellation of removal, see 8 U.S.C. § 1229b(b). The Board agreed with the IJ’s conclusion that Flores-An-drade was ineligible for relief because he had left the United States for more than 90 days, see 8 U.S.C. § 1229b(d)(2). Flores-Andrade contends that he returned before the 90-day cutoff. We dismiss Flores-Andrade’s petition for review in part for lack of jurisdiction and deny the remainder of the petition.

Flores-Andrade entered the United States from Mexico without authorization in 1987 and eventually settled down in Elgin, Illinois. This case turns on a trip he made to Mexico in the winter of 2011-12. Flores-Andrade testified that he left the United States in late December 2011; more than 90 days later, on April 5,2012, he was picked up by Border Patrol officers near Laredo, Texas. Flores-Andrade then received notice that he was subject to removal under 8 U.S.C. § 1182(a)(6)(A) as an alien present in the United States without authorization. He conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b.

[403]*403Cancellation of removal is a discretionary form of relief available to some non-permanent residents. To be eligible, applicants must establish “continuous physical presence” in the United States for at least 10 years, with no absences exceeding 90 days at once or 180 days in total; have “good moral character”; show that they have not been convicted of certain immigration offenses; and demonstrate that their removal would cause “exceptional and extremely unusual hardship” to a U.S.-citizen or permanent-resident spouse, parent, or child. 8 U.S.C. § 1229b(b), (d)(2).

An IJ held a hearing to determine whether Flores-Andrade had met the first criterion—whether his trip to Mexico at the end of 2011 exceeded the 90-day limit. Flores-Andrade testified to leaving the United States on December 28, 2011. To qualify for relief, he therefore would have had to return by March 27, 2012. The government submitted a Form 1-213 (“Record of Deportable/Inadmissible Alien”), completed by a Border Patrol officer on the day of Flores-Andrade’s capture in Texas, which reported Flores-An-drade as saying that he had waded across the Rio Grande into the United States on April 3, 2012. At his hearing, however, Flores-Andrade testified that he had since reviewed unspecified “records” and believed that he actually had returned on March 16 instead of April 3. When pressed to identify what documents he checked, Flores-Andrade clarified that on March 16 his son had seen a website showing a "picture” of him in custody. But Flores-Andrade also acknowledged that he did not clearly recall his exact date of return.

The IJ dismissed Flores-Andrade’s application for cancellation of removal, finding no documentary or other credible evidence to support a return date of March 16. Flores-Andrade, the IJ added, admitted on cross-examination “virtually all of the narrative” on the 1-213 form.

The IJ’s decision was upheld by the Board of Immigration Appeals, which determined that Flores-Andrade failed under the REAL ID Act to supply reasonably obtainable documentary evidence to corroborate his claim of re-entering the country on March 16. The REAL ID Act, enacted in 2005, provides IJs “substantial leeway” to require applicants seeking relief from removal to present evidence that corroborates otherwise credible testimony so long as the evidence is reasonably obtainable. See REAL ID Act, Pub. L. No. 109-13, Div. B, Title I, § 101, 119 Stat. 231, 304-05 (2005) (codified as amended at 8 U.S.C. § 1229a(c)); Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir. 2015). Flores-Andrade, the Board explained, failed to submit any documentary evidence in support of his claim, even though the IJ twice informed him before the final hearing that he needed to supply evidence regarding the timing of his departure and reentry into the United States. The Board also found the Form 1-213 to be presumptively reliable, especially given Flores-An-drade’s acceptance of “virtually the entire contents” of the Form.

In his petition Flores-Andrade first argues that the IJ (and the Board) “improperly shifted the burden of proof’ for establishing his eligibility for relief. He disagrees with the conclusion that he was required to prove that he returned to the United States within 90 days of leaving in December 2011; his only burden, he says, was to prove that he had resided in the country for at least ten years. In support, he cites Lopez-Esparza v. Holder, 770 F.3d 606 (7th Cir. 2014), which he reads as relieving a petitioner from having to prove exact dates of entry and exit in order to show continuous physical presence in the country. In that decision, we [404]*404granted the petition of a Mexican citizen who could not recall the “exact start and end dates” of three trips he made to Mexico; the IJ applied the wrong burden of proof, we concluded, because the travel dates did not affect the outcome of whether he had been away from the United States for a total of more than 180 days. Lopez-Esparza, 770 F.3d at 607-08. But this case is different in that Flores-Andrade’s exact date of re-entry does affect the outcome; he testified to one date of re-entry within the 90-day limit, while the government presented evidence showing a different date outside the limit. Lopez-Esparza itself recognized that the petitioner has the burden of proving that he has not exceeded the time limits for continuous physical presence. Id. at 608. (“The judge should have asked himself whether it was more likely than not that Lopez-Esparza had not exceeded the lim-ite.]”); see also 8 U.S.C. § 1229a(c)(4)(B); § 1229b(b)(1)(A), (d)(2). The IJ and the Board both properly found that Flores-Andrade failed to carry that burden.

Flores-Andrade next challenges the finding that he should have supplied evidence corroborating his purported March 16 return date, asserting that it is unrealistic to require someone who entered the United States illegally to do so. But under the REAL ID Act, an IJ may require a petitioner to supply reasonably obtainable corroborating evidence to meet his burden of proving eligibility for relief. 8 U.S.C. § 1229a(c)(4)(B); Darinchuluun, 804 F.3d at 1214. We lack jurisdiction to review the factual determinations underlying the IJ’s decision to require corroborating evidence, such as whether evidence was reasonably obtainable. 8 U.S.C. § 1252

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Bluebook (online)
670 F. App'x 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flores-andrade-v-lynch-ca7-2016.