July 30, 2014 4th Circuit published opinion

De Leon v Holder

De Leon sought special rule cancellation of removal under 8 USC 1229b. The immigration board ruled de Leon was not free from official restraint when he was apprehended and thus ineligible for special rule relief. The panel, 2-1, granted De Leon’s petition for review and remanded. The majority held that De Leon could rely on government evidence to meet his burden of proof and that the government’s evidence here established freedom from official restraint as he was first spotted nine miles inside Arizona and could have mingled with the general population at some point before observation. The majority noted this conclusion is consistent with the board’s approach to freedom from restraint when that finding allows deportation and is also consistent with the weight of authority from other circuits. Then dissent argued that De Leon bore the burden of proof of the issue of freedom from official restraint, presented zero credible evidence on the issue and thus the board’s decision should be affirmed.


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