Immigration — cancellation of removal

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U.S. Court of Appeals for the 7th Circuit

Civil

Immigration — cancellation of removal

Where no evidence supported a finding that an alien had maintained continuous residence for 10 years, the denial of cancellation of removal must be vacated.

“Even if this is wrong, it would not save the ruling denying Lopez-Esparza’s petition for review. Our ground for setting aside that ruling is not that the administrative law judge erred in finding that Lopez-Esparza had failed to carry his burden of proof, but that the judge applied the wrong standard— the standard, of his invention, that imperfect recollection precludes a finding of continuous residence. That was a legal error. Perfect recollection isn’t part of the burden of proving continuous residence, and it couldn’t be because it would be inconsistent with the preponderance standard. 8 C.F.R. § 1240.8(d). A witness‘s testimony may reveal a bad memory without necessarily vitiating his testimony and so preventing him from carrying his burden of proof. The order of the Board of Immigration Appeals is vacated and the case remanded to the Board.”

Vacated and Remanded.

13-3376 Lopez-Esparza v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Posner, J.