                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1651


OSCAR ANGEL DE LEON,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   May 14, 2014                      Decided:   July 30, 2014


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Petition granted and case remanded by published opinion. Judge
Motz wrote the majority opinion, in which Judge King joined.
Judge Duncan wrote a dissenting opinion.


ARGUED: Cherylle C. Corpuz, CHERYLLE C. CORPUZ, ESQ. PC,
Philadelphia, Pennsylvania, for Petitioner.  Jeffery R. Leist,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.   ON BRIEF: Stuart F. Delery, Assistant Attorney
General, Ernesto H. Molina, Jr., Assistant Director, Andrew N.
O'Malley, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
DIANA GRIBBON MOTZ, Circuit Judge:

     Oscar Angel De Leon, a Guatemalan national residing in the

United States, petitions for review of the decision of the Board

of   Immigration        Appeals     (BIA)       denying    his      application     for

“special       rule”   cancellation    of       removal    under       the   Nicaraguan

Adjustment and Central American Relief Act (NACARA).                           For the

reasons that follow, we grant the petition for review and remand

the case to the BIA for further proceedings.



                                        I.

     In    1997,       Congress    enacted      NACARA    to   amend     the    Illegal

Immigration       Reform     and   Immigrant      Responsibility         Act   of   1996

(IIRIRA).       See Appiah v. INS, 202 F.3d 704, 707 (4th Cir. 2000).

NACARA     authorizes        individuals        from      certain       countries     --

including Guatemala -- to seek discretionary relief from removal

under the       more    lenient    standards      that    predated      IIRIRA.      See

Gonzalez v. Holder, 673 F.3d 35, 37 (1st Cir. 2012).                           Congress

passed NACARA to correct a provision of IIRIRA “that would have

had the effect of changing the rules in the middle of the game

for thousands of Central Americans and others who came to the

United States because their lives and families had been torn

apart     by    war    and   oppression.”          Appiah,       202    F.3d   at    710

(quotation marks omitted).



                                            2
      Section 203 of NACARA allows aliens from Guatemala to apply

for what is known as “special rule” cancellation of removal.

8 U.S.C. § 1229b.       An applicant for special rule cancellation of

removal must satisfy a number of requirements, only one of which

is at issue here:         the applicant must prove that he was not

“apprehended at the time of entry” if he entered the United

States    on   any   occasion      after    December       31,   1990.      8   C.F.R.

§ 1240.61(a)(1).

      “Entry”    into   the    United      States    for    immigration     purposes

requires more than setting foot on American soil.                    As defined by

the BIA, “entry” requires (1) a crossing into the territorial

limits of the United States; (2) inspection and admission by an

immigration     officer       or   actual      and   intentional         evasion   of

inspection; and (3) freedom from official restraint. 1                          In re

Pierre, 14 I. & N. Dec. 467, 468 (BIA 1973).                     This case concerns

the meaning of the phrase “freedom from official restraint.”

      An alien enters free from official restraint only if he

experiences some degree of liberty in the United States before

the   government     apprehends      him.      Thus,   freedom       from   official


      1
        Although we have never formally adopted the BIA’s
definition of “entry,” our published cases addressing the entry
question comport with the BIA’s standard. See Chen Zhou Chai v.
Carroll, 48 F.3d 1331, 1343 (4th Cir. 1995); Lazarescu v. United
States, 199 F.2d 898, 900 (4th Cir. 1952). Because De Leon does
not challenge this standard, we assume, without deciding, that
it applies here.


                                           3
restraint “means that the alien who is attempting entry is no[t]

under      constraint        emanating       from    the     government       that   would

otherwise prevent [him] from physically passing on.”                            Correa v.

Thornburgh,       901       F.2d    1166,    1172   (2d     Cir.    1990).      An   alien

detained at a border crossing or customs enclosure, for example,

cannot     claim       an    “entry”      merely    because        he   has   technically

crossed into United States territory.                       See, e.g., id. at 1169;

Sidhu v. Ashcroft, 368 F.3d 1160, 1165 (9th Cir. 2004).

         The BIA has explained that official restraint “may take the

form of surveillance, unbeknownst to the alien.”                          Pierre, 14 I.

&   N.    Dec.    at    469.        Such     surveillance      constitutes       official

restraint        because      an    alien    who    is    under     surveillance     by    a

government official “lacks the freedom to go at large and mix

with the population.”               Id.     An alien kept under surveillance by

the   government        is    not    free    from    official       restraint    even     if

officials permit him to proceed some distance beyond the border

before physically intercepting him.                      See, e.g., United States v.

Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir. 2002).                              But the

critical question is whether the alien is in fact free from

official restraint, not whether or how the alien has exercised

such freedom.          In re Patel, 20 I. & N. Dec. 368, 374 (BIA 1991).

         An applicant for cancellation of removal under NACARA must

proceed through a “two-step process.”                        Rodriguez v. Gonzales,

451   F.3d    60,      62    (2d    Cir.    2006)    (per    curiam).         First,    the

                                              4
applicant bears the burden of establishing his eligibility for

relief.     That       is,   he     must    prove      by    a    preponderance            of    the

evidence    that       he    meets       all    requirements           for      special         rule

cancellation of removal -- including that he entered the United

States “free from official restraint.”                       8 U.S.C. § 1229a(c)(4);

In Re G-, 20 I. & N. Dec. 764, 770-71 (BIA 1993).                                    Second, if

the alien “satisfies the statutory requirements, the Attorney

General    in    his    discretion         decides        whether      to     grant       or    deny

relief.”         Rodriguez,        451     F.3d      at     62;    see        also    8    U.S.C.

§ 1229b(a).

      Congress has strictly limited our jurisdiction to review

the Attorney General’s resolution of NACARA applications.                                        The

denial of special rule cancellation of removal is final and “not

subject to judicial review,” except for “constitutional claims

or    questions    of       law”    arising         from    the     denial.           8    U.S.C.

§ 1252(a)(2)(B), (D); see also Barahona v. Holder, 691 F.3d 349,

353 (4th Cir. 2012).               Such “constitutional claims or questions

of law” typically arise from rulings made at the first step of

the application process -- whether the alien proved eligibility

for    relief.         We    retain       our       jurisdiction         to     review         these

constitutional and legal questions recognizing that the ultimate

granting    of     relief      is    “not       a    matter       of     right       under       any

circumstances but rather is in all cases a matter of grace” to



                                                5
be determined by the Attorney General.                     Rodriguez, 451 F.3d at

62 (quoting INS v. St. Cyr, 533 U.S. 289, 307-08 (2001)).

       We review de novo legal questions raised in petitions for

review.      Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir. 2006).

Where,      as    here,   the       BIA   “issue[s]    its   own    opinion    without

adopting the IJ’s opinion,” we review only the decision of the

BIA.   Martinez v. Holder, 740 F.3d 902, 908 (4th Cir. 2014).

       With this understanding of NACARA in mind, we turn to the

underlying facts and procedural history of this case.



                                            II.

       Born in Guatemala, De Leon first entered the United States

illegally with his uncle in 1988.                   During his early years in the

United      States   he   travelled         among    various   east    coast   states

performing agricultural work, ultimately settling in Delaware.

       In    July    2003,      a    border       patrol   agent,   Galen     Huffman,

apprehended De Leon north of the Arizona-Mexico border as he

returned to the United States from an unauthorized trip to Latin

America.         According to Agent Huffman’s written report, on July

30, he observed a pickup truck at “milepost nine” of Arivaca

Road near Sasabe, Arizona, approximately seventeen miles north

of the border.        There, he saw a number of persons attempting to

conceal themselves in the truck bed.                   Agent Huffman followed the



                                              6
truck eight more miles before stopping it at milepost seventeen

and apprehending its passengers, including De Leon.

     Shortly     after   De    Leon’s     apprehension        by   Agent   Huffman,

immigration     officials      released       him    on    bond.     He    currently

resides in Delaware with his wife and his three United States-

citizen children.

     In 2005, De Leon submitted an application for special rule

cancellation of removal under NACARA, as well as applications

for other forms of immigration relief.                      An immigration judge

(IJ) denied these applications and ordered De Leon removed to

Guatemala.      The BIA affirmed the IJ’s denial of De Leon’s other

applications, but concluded that the IJ provided an improper

basis for denying NACARA relief. 2                Accordingly, the BIA remanded

the case for the IJ to reconsider whether De Leon qualified for

special rule cancellation of removal under NACARA.

     In   May    2010,   the   IJ   held      a    hearing   to    reevaluate    this

issue.    The    judge   determined       that      De    Leon’s   eligibility   for

NACARA relief now depended on whether he was apprehended at his

“time of entry” when he crossed into the United States in July



     2
       The IJ had ruled that De Leon failed to document that he
registered prior to December 31, 1991 -- a prerequisite for
obtaining NACARA relief as a Guatemalan national.   But the BIA
held that De Leon’s credible testimony, in addition to a letter
from his attorney verifying that he had registered, satisfied
this criterion.


                                          7
2003.      Counsel for the government stated that she “th[ought] [De

Leon] met all of the other requirements” for NACARA eligibility.

      At     the     hearing,     the    parties    primarily        disputed    the

circumstances surrounding De Leon’s return to the United States

in July 2003.         De Leon contended that he crossed the border on

foot several days before July 30, walked for six or seven hours

within     the     United   States,     stopped    to    rest   at   a   smugglers’

“ranch,” boarded a pickup truck, and drove for three more hours

before      being     apprehended       near   Tucson,     Arizona.       But    the

government, relying on Agent Huffman’s report, maintained that

De Leon boarded a pickup truck in Mexico on July 30 and that he

was apprehended later that day when Agent Huffman first observed

the truck at milepost nine, seventeen miles north of the border.

The     government        acknowledged     that    Agent    Huffman      may    have

apprehended De Leon “a slight distance away from the border.”

But, comparing this issue to “extended border search[es],” which

officers may conduct without violating the Fourth Amendment if

they apprehend an alien within twenty-five miles of the border,

the government argued that De Leon was effectively apprehended

at the border at his “time of entry” for purposes of NACARA.

      The IJ agreed with the government.                 In an oral ruling, the

IJ pointed to numerous inconsistencies in De Leon’s testimony

and found him not credible as to “the issue of the date and

location     of     his   entry   and    the   circumstances     surrounding    his

                                           8
entry.”        The    IJ   found    that     Agent      Huffman    provided      the      most

credible      evidence      regarding       De    Leon’s       return    to    the   United

States.        That     evidence        showed   that     De    Leon    was    apprehended

“within 25 miles of the border.”                     Borrowing from the border-

search       context,      the     IJ     held    that     this    qualified         as     an

apprehension “at the border or at the functional equivalent of

the border.”          On this basis, the IJ concluded that De Leon’s

arrest constituted apprehension “at the time of his entry” into

the   United     States,     precluding          NACARA    relief.        She   therefore

again denied De Leon’s application for special rule cancellation

of removal under NACARA and ordered him removed to Guatemala.

       The    BIA     affirmed.          Perhaps     recognizing        that    different

standards govern whether border officials may search aliens near

the border without violating the Fourth Amendment and whether

such aliens have affected an “entry” for purposes of NACARA, the

BIA did not adopt the IJ’s rationale.                          But the BIA did agree

with the IJ’s “ultimate conclusion” that De Leon failed to meet

his burden of proof that he was not apprehended at his “time of

entry.”       The BIA found that Agent Huffman provided “the only

credible and reliable evidence” regarding De Leon’s entry.                                  In

light of this evidence, the BIA recognized that it appeared that

De    Leon    “crossed     into     the    territorial         limits    of    the   United

States and was intentionally evading inspection.”                             But the BIA



                                             9
held that De Leon failed to present “clear evidence that he was

ever ‘free from official restraint.’”

     De Leon then filed this petition for review.



                                           III.

     Given our limited jurisdiction over this petition, De Leon

accepts,    as    he     must,    the   facts      as   found    in     the   proceedings

below.      Thus,       on    appeal,    he    concedes     that      he   entered      this

country on July 30, 2003, and that on that day Agent Huffman

observed him at milepost nine of Arivaca Road -- seventeen miles

north of the border -- and took him into custody eight miles

later.     De Leon similarly accepts that, in order to prove that

he was not apprehended at his “time of entry,” he must prove (1)

a crossing into United States territory, (2) admission by or

evasion    from     an       immigration       officer,    and     (3)     freedom      from

official    restraint.            De    Leon    Reply     Br.    1-2.         Further,    he

recognizes       that        official    restraint        may    take      the   form     of

government surveillance. 3

     De Leon contends that, accepting these facts and applying

these principles, the only credible evidence establishes that he


     3
        Hence, De Leon does not challenge the IJ’s adverse
credibility ruling or contend that the government bears the
burden of proof. And neither do we. Rather, we accept the IJ’s
adverse credibility ruling and evaluate whether De Leon
satisfied his burden of proof in light of the facts found below.


                                              10
entered      the     United   States    free    from       official    restraint.     He

claims the BIA erred as a matter of law in concluding otherwise.

       Because the BIA issued its own opinion without adopting the

IJ’s rationale, we review only the BIA’s opinion.                        Martinez, 740

F.3d at 908.             The BIA dismissed De Leon’s appeal on the ground

that De Leon failed to “present[] clear evidence that he was

ever       ‘free    from    official    restraint.’”          Noting    that   official

restraint “may take the form of surveillance, unbeknownst to the

alien,” the BIA reasoned that it remained unclear “at what point

[De Leon] actually entered the United States, how much time had

passed before he was spotted by Agent Huffman, and how far from

the border he had travelled before being detained.”

       The Attorney General defends the BIA’s ruling primarily by

emphasizing          the   applicable    burden       of    proof. 4     The   Attorney

General contends that, in failing to provide credible evidence

regarding          the   circumstances    of    his    entry,     De    Leon   did   not




       4
       The Attorney General also briefly contends that we must
deny this petition because De Leon assertedly challenges (1) the
agency’s findings of fact, which we lack jurisdiction to review,
and (2) the BIA’s three-part “entry” standard, which deserves
Chevron deference.   Both arguments are meritless.   First, this
case presents a pure question of law, as the many appellate
opinions assessing freedom from official restraint confirm. See
Sidhu, 368 F.3d at 1164 (citing cases).     Second, we need not
determine whether the BIA’s “entry” standard warrants Chevron
deference because, even if it does, De Leon does not challenge
this standard. Indeed, he embraces it and asks us to apply it.


                                           11
satisfy    his    burden     of   proving      an    entry     free       from    official

restraint.

       We disagree.      De Leon did indeed bear the burden of proving

that he entered the United States free from official restraint.

See Pastora v. Holder, 737 F.3d 902, 905 (4th Cir. 2013).                               But

he met that burden by relying on Agent Huffman’s written report,

which, the BIA expressly found, constituted the “only credible

and    reliable    evidence”      in    the    record    and       showed      that    Agent

Huffman “first saw” De Leon at milepost nine, seventeen miles

beyond the border.           That the government, rather than De Leon,

offered this evidence makes no difference.                         As Judge Friendly

noted long ago, a party may satisfy his burden of proof by

pointing    to    evidence    supplied        by   his   adversary.            See    United

States v. Riley, 363 F.2d 955, 958 (2d Cir. 1966) (explaining

that a defendant may meet his burden of proving an affirmative

defense    by    pointing    to     evidence       supplied    “by       the   Government

itself”).        Of course, a party will rarely introduce evidence

that   proves     his   adversary’s       case.       But     if    he    does,      nothing

prevents the adversary from using that evidence to his benefit.

       We applied this principle in United States v. Hicks, 748

F.2d 854, 857 (4th Cir. 1984), where “evidence adduced by the

government”      --   but   never      once   mentioned       by    the    defendant     --

nevertheless provided a basis for the defendant to assert an

alibi defense.          Numerous other cases confirm that a party may

                                          12
rely on its opponent’s evidence to make its own case.                               See,

e.g., United States v. Hairston, 64 F.3d 491, 495 (9th Cir.

1995) (defendant could assert alibi defense even though evidence

supporting it was introduced by government); United States v.

Ortiz-Rengifo,     832    F.2d    722,     725     (2d   Cir.   1987)     (government

could rely on evidence supplied by the defendant to carry its

burden of proof); United States v. Webster, 769 F.2d 487, 490

(8th    Cir.   1985)     (defendant       could     rely   on    “‘any’     evidence,

whether ‘defense’ evidence or ‘government’ evidence,” to make

his case); In re Brogna, 589 F.2d 24, 27 (1st Cir. 1978) (the

“government’s     own    evidence     .    .   .    without     more”    satisfied    a

witness’s burden of establishing Fifth Amendment privilege).

       The Attorney General offers no reason why this principle

does not apply in the immigration context, and we see none.

Indeed, recent case law suggests that it does indeed apply in

that context.      The Third Circuit, for example, has held that

State   Department      country   reports        “are    probative       evidence   and

can,    by   themselves,    provide       sufficient       proof    to    sustain    an

alien’s burden” -- without so much as hinting that the alien

must supply this evidence himself.                 Zubeda v. Ashcroft, 333 F.3d

463, 477 (3d Cir. 2003).           A number of other courts have relied

on documents submitted by the government as evidence helping to

demonstrate an alien’s eligibility for relief.                     See, e.g., Gomes

v. Gonzales, 473 F.3d 746, 756 (7th Cir. 2007) (granting asylum

                                          13
applicant’s          petition      for   review      in   part    because   “the   State

Department Reports themselves” helped establish a well-founded

fear of persecution); Chanchavac v. INS, 207 F.3d 584, 592 (9th

Cir. 2000) (noting that evidence introduced by the INS “gives us

further reason to believe [the alien’s] fears are warranted”).

       Given that government surveillance can amount to official

restraint, De Leon came under restraint as soon as Agent Huffman

spotted him at milepost nine -- where the BIA found that Agent

Huffman “first saw” him and began following him.                            The BIA did

not suggest, let alone find, that before arriving at milepost

nine       De   Leon    was    under     any    “constraint       emanating   from   the

government that would otherwise prevent [him] from physically

passing on.”           Correa, 901 F.2d at 1172.                 Before any government

official first observed him, De Leon necessarily enjoyed the

“freedom        to     go     at    large      and    mix   with      the   population”

unconstrained by government surveillance.                         Pierre, 14 I. & N.

Dec. at 469.           He therefore entered free from official restraint. 5


       5
       The BIA’s citation to Pierre, 14 I. & N. Dec. at 469 --
which parenthetically noted that official restraint “may take
the form of surveillance, unbeknownst to the alien” -- could be
construed as holding that an alien must also prove that no
government official observed him without his knowledge. De Leon
argues that this would impose an insurmountable burden, and that
no alien could hope to qualify for NACARA relief under this
approach. The Attorney General does not disagree. Indeed, the
Attorney General expressly rejects as “incorrect” any contention
that the BIA imposes this “additional burden.”    Att’y Gen. Br.
29. The Attorney General suggests that the language from Pierre
(Continued)
                                               14
     The BIA remarked that neither Agent Huffman’s report nor De

Leon’s testimony established where De Leon crossed the border or

the distance he travelled before ultimately being apprehended at

milepost nine.     Although it is not clear, the BIA may have

relied on the absence of evidence on these points to hold that

De Leon did not enter the country free from official restraint.

The dissent similarly finds importance in the asserted lack of

evidence as to the “circumstances of De Leon’s entry” -- i.e.,

“when and how he entered the United States.” 6

     But, as the BIA’s own published precedent establishes, the

“circumstances”   that   the   BIA   and   the   dissent   find   critical



merely affirms the undisputed proposition that government
surveillance alone -- as opposed to physical apprehension -- can
constitute official restraint.     We agree with the Attorney
General that Pierre does not require an alien to meet the
impossible burden of proving that no government official
observed him “unbeknownst to [himself].”        The only other
appellate court to address the question, albeit in a case where
the government bore the burden of proof, came to the same
conclusion.   See United States v. Castellanos-Garcia, 270 F.3d
773, 776 (9th Cir. 2001).
     6
       The dissent suggests that De Leon cannot prevail for one
additional reason:     his asserted failure to offer credible
evidence as to “whether he was observed by a government
official” at the time of his entry.   The BIA, however, did not
deny relief on this ground.    Rather, the BIA’s sole rationale
for denying De Leon’s claim was that discussed in text above --
that De Leon had failed to present “clear evidence that he was
ever ‘free from official restraint’ as it is unclear at what
point [he] actually entered the United States, how much time had
passed before he was spotted by Agent Huffman, and how far from
the border he had travelled before being detained.” Of course,
we cannot uphold the BIA’s ruling on a ground never relied on by
the agency. See SEC v. Chenery Corp., 318 U.S. 80, 94 (1943).


                                     15
simply do not bear on the issue of official restraint.                              In the

case of In re Z-, 20 I. & N. Dec. 707 (BIA 1993), for example,

the BIA concluded that an alien who disembarked illegally in San

Francisco and was apprehended some time later “somewhere in the

vicinity” of the harbor entered free from official restraint.

Id. at 707, 713.            As in this case, the alien bore the burden of

proving freedom from official restraint.                     Id. at 710.         And as in

this case, the record did not reflect the distance the alien

travelled, the precise amount of time he spent in the country

before being apprehended, or how he occupied this time.                            But the

BIA   found      it    sufficient        that    he    “could    have     exercised”      his

freedom to move about the city.                       Id. at 714 (emphasis added).

Whether     he        chose     to   exercise         this      freedom    was     “of    no

consequence.”          Id. 7

      The     BIA     has      adhered    to    this    approach     in    a     number   of

unpublished decisions affirmed by courts of appeals.                           See, e.g.,


      7
       The dissent contends that our reliance on In re Z- is
misplaced.   But we rely on In re Z- only to show that the BIA
itself has previously recognized the irrelevance of the specific
factors on which it relied here in denying De Leon relief; i.e.
the absence of evidence of “the point [at which De Leon]
actually entered the United States, how much time had passed
before he was spotted by Agent Huffman, and how far from the
border he travelled before being detained.”         The dissent
apparently believes the BIA should have denied De Leon’s claim
on the ground that he failed to establish “a lapse in time
between his unwitnessed entry and his apprehension.”     But the
BIA did not deny relief on this ground and so we cannot affirm
the BIA on this basis. See supra n.6.


                                                16
Nyirenda v. INS, 279 F.3d 620, 624-25 (8th Cir. 2002); Cheng v.

INS, 534 F.2d 1018, 1019 (2d Cir. 1976) (per curiam).                                 Some of

these cases arose under a different statutory provision whereby

a finding that the alien entered free from official restraint

rendered     the   alien      deportable        --        the   outcome     the    government

sought in those cases.                 Here, by contrast, a finding that De

Leon entered free from official restraint would qualify him for

cancellation of removal -- an outcome the government opposes.

The    BIA   cannot       apply    its   official-restraint               standard     broadly

when    broadness     favors       the      government’s         position      and    narrowly

when it does not.            If an agency follows “by settled course of

adjudication[]        a     general      policy          by     which    its   exercise      of

discretion will be governed, an irrational departure from that

policy” constitutes grounds for reversal.                               INS v. Yueh-Shaio

Yang, 519 U.S. 26, 32 (1996).                  Indeed, an agency may depart from

its own precedent only if it offers a “reasoned explanation” for

doing so.      FCC v. Fox Television Stations, Inc., 556 U.S. 502,

516    (2009).        The    BIA       failed       to     provide      such   a     “reasoned

explanation” here.

       We finally note that every circuit to consider the issue

has concluded that an alien first observed by a government agent

miles (or less) beyond the United States border has entered free

from    official      restraint        --    regardless          of     whether    the     party

bearing      the   burden         of   proof        has       offered    evidence     of     the

                                               17
“circumstances”           of    the    alien’s      entry.         See    United       States   v.

Cruz-Escoto, 476 F.3d 1081, 1085-86 (9th Cir. 2007) (alien first

observed 150 yards beyond the border entered free from official

restraint even where officer “did not see [the alien] cross the

border and could not say how or where [the alien] entered the

United States”); Nyirenda, 279 F.3d at 624 (alien stopped after

driving      “out    of     sight”       for   two    miles    in        the    United    States

entered free from official restraint); Castellanos-Garcia, 270

F.3d at 774-76 (alien first seen walking “at least 100 yards

from       the    border”      entered     free      from    official          restraint    even

though      neither       party       submitted     evidence       “about       [the    alien’s]

exact point of entry”); Cheng, 534 F.2d at 1019 (alien first

discovered driving less than a mile beyond the border entered

free       from     official          restraint);        United      States        v.    Martin-

Plascencia,         532        F.2d    1316,      1317      (9th     Cir.       1976)     (alien

apprehended         fifty      yards     beyond      the    border       entered    free    from

official restraint). 8                We decline to disregard this overwhelming

body of precedent by holding to the contrary.


       8
       A narrow circuit division has emerged regarding aliens who
cross the border unseen but are detected mere yards away.
Compare United States v. Cruz-Escoto, 476 F.3d 1081, 1085-86
(9th Cir. 2007) (aliens “who evade government observation while
crossing the border are deemed to be free from official
restraint, regardless of the distance they travel between entry
and arrest”) with Yang v. Maugans, 68 F.3d 1540, 1550 (3d Cir.
1995) (“the mere fact that [an alien] may have eluded the gaze
of law enforcement for a brief period of time” after entry “is
(Continued)
                                               18
                                      IV.

       For all of these reasons, we grant the petition for review

and remand the case to the BIA to consider De Leon’s application

for NACARA relief in light of the proper legal standard.                         We

express   no   opinion   as   to    whether    De   Leon     meets    all   of   the

criteria for NACARA eligibility.             If he is eligible for NACARA

relief, such eligibility “in no way limits the considerations

that    may    guide   the    Attorney      General    in    exercising      [his]

discretion     to   determine”     whether    to    accord    De     Leon   relief.

Yueh-Shaio Yang, 519 U.S. at 31.              The Attorney General retains

his authority to determine whether De Leon should be granted

special rule cancellation of removal.



                                      PETITION GRANTED AND CASE REMANDED




insufficient, in and of itself, to establish freedom from
official restraint”).   We need not pick a side in this debate,
however, because neither line of precedent undermines the
conclusion that an alien who rode in a car, undetected, for at
least seventeen miles into the United States entered the country
“free from official restraint.”


                                      19
DUNCAN, Circuit Judge, dissenting:

     It is undisputed that De Leon presents no credible evidence

to carry his burden of proving freedom from official restraint

upon entry into the United States as required by NACARA.                 8

U.S.C. § 1229a(c)(4); In re G-, 20 I. & N. Dec. 764, 770-71 (BIA

1993).    Although the majority recites that fact, it fails to

recognize its analytical significance.         To be clear, I am not,

as the majority mistakenly appears to believe, requiring De Leon

to   prove   a   negative--i.e.   that   he   was   not   under   official

restraint prior to being observed by Agent Huffman.               I simply

seek to hold him to his statutory burden of presenting some

credible evidence regarding the circumstances of his entry into

the United States.     Because he presents none, not even as to the

passage of time, I respectfully dissent.

     To establish freedom from official restraint, an applicant

must prove that he was “free[] to go at large and mix with the

population” between the time he entered the United States and

the time he was apprehended.      In re Pierre, 14 I. & N. Dec. 467,

469 (BIA 1973).      The government acknowledged at oral argument,

that had De Leon been found credible by the Immigration Judge,

his testimony would have established the circumstances of his

entry, and I agree.     See Matter of G, 20 I. & N. 764, 777 (BIA

1993).



                                   20
      Indeed, as the BIA explained below, the law requires only

that De Leon establish the circumstances of his entry into the

United States by providing some credible evidence regarding when

and   how   he    entered       the   United      States.     Joint     Appendix         4-5.

Here, because De Leon is not credible, we have evidence only of

his   apprehension        by    Agent     Huffman.      We    know    nothing       of   the

circumstances       of    De     Leon’s     entry,    including      whether     he      was

observed by a government official. *                 The absence of evidence is

not   evidence      of    absence.           Yet,    the     majority    finds       Agent

Huffman’s        report        sufficient      to    establish       that      De        Leon

      *
       In In re Z, 20 I. & N. Dec. 707 (1993), the BIA found both
the circumstances of the applicant's entry into the United
States and the fact that the record established a lapse in time
between his unwitnessed entry and his apprehension relevant in
holding that the applicant carried his burden of proving freedom
from official restraint.   Id. at 708, 713-14.    Contrary to the
majority's contention, therefore, the BIA quite properly applied
its precedent in holding that De Leon failed to establish
freedom from official restraint because he failed to present any
comparable evidence, or, in fact, any evidence at all to carry
his burden of proof.    I would equally properly affirm for that
reason.

     I also feel compelled to once point out yet again that the
only thing I would to do is hold De Leon to his statutory burden
of presenting some credible evidence regarding the circumstances
of his entry into the United States.    Had De Leon himself been
credible, this would have been enough. The majority strains to
give the impression that the dissent would create some
untethered obligation out of whole cloth, as opposed to
recognizing--as it does not--the burden of proof imposed by law.
Were the majority to point to some legally cognizable evidence
of the circumstances of entry, I would gladly yield.          It
proffers    none--not   the    proverbial   scintilla.       And
mischaracterizing the dissent will not fill that analytical
void.


                                             21
“necessarily     enjoyed”          freedom     from     official    restraint      before

being observed by Agent Huffman at “milepost nine.”                           Maj. Op.

14.    There    is     no    basis     whatsoever        in   the   record    for      this

assumption, particularly when it is drawn in favor of the party

bearing the statutory burden of proof.

      Where     “there        is     no      clear      evidence     of     the        facts

determinative of the entry issue, th[e] case[] ultimately must

be resolved on where the burden of proof lies.”                        Matter of G-,

20 I. & N. at 777.            Here, the adverse credibility ruling means

that we have no evidence regarding De Leon’s entry.                          By holding

that De Leon nonetheless prevails, the majority necessarily and

without   explanation         shifts      to      the   government    the    burden      of

proving what happened before De Leon was apprehended.                             This is

contrary to law.

      Because    the        majority      ignores       the   significance        of     the

adverse credibility ruling and, as a result, misallocates the

burden of proof, I respectfully dissent.




                                             22
