On Petition for Review from the
Board of Immigration Appeals.
No. A 071 899 431.
Argued: March 9, 2017
Decided and Filed: March 21, 2017
Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
SUTTON, Circuit Judge. Marcial Lopez, a native and citizen of Guatemala, contests a
decision by the Board of Immigration Appeals that prohibits him from staying in this country.
Under the immigration laws, it usually counts against the individual if he enters the country free
from governmental detection or restraint—if, that is, he sneaks across the border. See, e.g.,
8 U.S.C. § 1326(a). But under the “special rule cancellation” of removal provisions of the
Nicaraguan Adjustment and Central American Relief Act, it favors the individual if he sneaks
across the border without detection or restraint. In the words of the Act, he must show that he
has “not been apprehended at the time of entry” since 1990.
The burden is on the applicant to make this showing. That’s easy enough when it comes
to presenting evidence that no government official has physically stopped him when he tried to
cross the border during that period of time. But another form of official restraint at the border is
continued surveillance as the individual enters the country. What then? Must the individual
submit evidence that he does not have and should not have—that government agents were not
tracking his movement as he made his way into the country? The applicant cannot be asked to
prove what he cannot obtain. Instead, once the applicant has met his burden by showing that no
one physically stopped him at the border during that period of time, the government is free to put
on any surveillance evidence in the nature of an affirmative defense. That’s not what the Board
of Immigration Appeals did here. It simply held that Lopez had failed to meet his burden of
proof and incorrectly rejected his petition on that ground alone. For these reasons and others
elaborated below, we grant the petition for review in part and deny it in part.