Mauricio-Vasquez v. Whitaker (P)

Contrary to the Board of Immigration Appeals’ finding, the Department of Homeland Security did not prove by clear and convincing evidence that the petitioner’s date of admission to the U.S. was less than five years before he committed Virginia felony abduction.

It was the Department’s burden to prove that the petitioner last entered the U.S. in 2000 without inspection and was therefore not admitted until 2008; this determines whether his 2012 felony abduction offense fell within the five-year window for removability. But the record contains essentially unrebutted evidence showing instead that he was in Peru from 1999 to 2001 and presented himself for inspection in 2002. This evidence would compel any reasonable adjudicator to conclude that the Department failed to prove the petitioner was admitted in 2008. He is therefore not removable.

Accordingly, the petition for review of his removability determination is granted, and his removal order is vacated. Remanded to the Board to terminate removal proceedings.

Mauricio-Vasquez v. Whitaker (P), No. 17-2209, Dec. 6, 2018. 4th Cir. (Diaz) from BIA.

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published


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