Lopez-Esparza v. Holder

Esparza testified that he came to the U.S. in 1999 and returned to Mexico from late 2001 to early in 2002; again in late 2002; and finally early in 2008. In 2010 he was stopped for driving without a license, which led to the institution of removal proceedings. He applied for cancellation of removal, claiming that he has been physically present in the U.S. for a continuous period of not less than 10 years, 8 U.S.C. 1229b(b)(1)(A), which requires that the petitioner not have departed the U.S. “for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” The petitioner has the burden of proof by a preponderance of the evidence. The dates that he gave would have established that his total time in Mexico since 1999 was only 114 days, with no trip lasting longer than 90 days. The IJ denied cancellation of removal, stating that Esparza “simply cannot recall dates with the necessary specificity.” The Board of Immigration Appeals affirmed. The Seventh Circuit vacated, stating: “It’s difficult to prove a negative” especially concerning dates years in the past, with no documentation. Esparza presented his evidence, which was weak but not nothing, and all the government did was point out weaknesses. “Some evidence would seem to preponderate over no evidence.”View "Lopez-Esparza v. Holder" on Justia Law