NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 5, 2016
Decided November 3, 2016
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 15‐3160
LUIS FLORES‐ANDRADE, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A205‐278‐576
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
O R D E R
Luis Flores‐Andrade, a 45‐year‐old Mexican citizen, petitions for review of an
order of the Board of Immigration Appeals upholding an immigration judge’s denial of
his request for cancellation of removal, see 8 U.S.C. § 1229b(b). The Board agreed with
the IJ’s conclusion that Flores‐Andrade was ineligible for relief because he had left the
United States for more than 90 days, see 8 U.S.C. § 1229b(d)(2). Flores‐Andrade contends
that he returned before the 90‐day cutoff. We dismiss Flores‐Andrade’s petition for
review in part for lack of jurisdiction and deny the remainder of the petition.
No. 15‐3160 Page 2
Flores‐Andrade entered the United States from Mexico without authorization in
1987 and eventually settled down in Elgin, Illinois. This case turns on a trip he made to
Mexico in the winter of 2011‐12. Flores‐Andrade testified that he left the United States in
late December 2011; more than 90 days later, on April 5, 2012, he was picked up by
Border Patrol officers near Laredo, Texas. Flores‐Andrade then received notice that he
was subject to removal under 8 U.S.C. § 1182(a)(6)(A) as an alien present in the United
States without authorization. He conceded removability and applied for cancellation of
removal under 8 U.S.C. § 1229b.
Cancellation of removal is a discretionary form of relief available to some
nonpermanent residents. To be eligible, applicants must establish “continuous physical
presence” in the United States for at least 10 years, with no absences exceeding 90 days
at once or 180 days in total; have “good moral character”; show that they have not been
convicted of certain immigration offenses; and demonstrate that their removal would
cause “exceptional and extremely unusual hardship” to a U.S.‐citizen or
permanent‐resident spouse, parent, or child. 8 U.S.C. § 1229b(b), (d)(2).
An IJ held a hearing to determine whether Flores‐Andrade had met the first
criterion—whether his trip to Mexico at the end of 2011 exceeded the 90‐day limit.
Flores‐Andrade testified to leaving the United States on December 28, 2011. To qualify
for relief, he therefore would have had to return by March 27, 2012. The government
submitted a Form I‐213 (“Record of Deportable/Inadmissible Alien”), completed by a
Border Patrol officer on the day of Flores‐Andrade’s capture in Texas, which reported
Flores‐Andrade as saying that he had waded across the Rio Grande into the
United States on April 3, 2012. At his hearing, however, Flores‐Andrade testified that he
had since reviewed unspecified “records” and believed that he actually had returned on
March 16 instead of April 3. When pressed to identify what documents he checked,
Flores‐Andrade clarified that on March 16 his son had seen a website showing a
“picture” of him in custody. But Flores‐Andrade also acknowledged that he did not
clearly recall his exact date of return.
The IJ dismissed Flores‐Andrade’s application for cancellation of removal,
finding no documentary or other credible evidence to support a return date of March 16.
Flores‐Andrade, the IJ added, admitted on cross‐examination “virtually all of the
narrative” on the I‐213 form.
The IJ’s decision was upheld by the Board of Immigration Appeals, which
determined that Flores‐Andrade failed under the REAL ID Act to supply reasonably
No. 15‐3160 Page 3
obtainable documentary evidence to corroborate his claim of re‐entering the country on
March 16. The REAL ID Act, enacted in 2005, provides IJs “substantial leeway” to
require applicants seeking relief from removal to present evidence that corroborates
otherwise credible testimony so long as the evidence is reasonably obtainable. See REAL
ID Act, Pub. L. No. 109–13, Div. B, Title I, § 101, 119 Stat. 231, 304–05 (2005) (codified as
amended at 8 U.S.C. § 1229a(c)); Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir.
2015). Flores‐Andrade, the Board explained, failed to submit any documentary evidence
in support of his claim, even though the IJ twice informed him before the final hearing
that he needed to supply evidence regarding the timing of his departure and re‐entry
into the United States. The Board also found the Form I‐213 to be presumptively reliable,
especially given Flores‐Andrade’s acceptance of “virtually the entire contents” of the
Form.
In his petition Flores‐Andrade first argues that the IJ (and the Board) “improperly
shifted the burden of proof” for establishing his eligibility for relief. He disagrees with
the conclusion that he was required to prove that he returned to the United States within
90 days of leaving in December 2011; his only burden, he says, was to prove that he had
resided in the country for at least ten years. In support, he cites Lopez‐Esparza v. Holder,
770 F.3d 606 (7th Cir. 2014), which he reads as relieving a petitioner from having to
prove exact dates of entry and exit in order to show continuous physical presence in the
country. In that decision, we granted the petition of a Mexican citizen who could not
recall the “exact start and end dates” of three trips he made to Mexico; the IJ applied the
wrong burden of proof, we concluded, because the travel dates did not affect the
outcome of whether he had been away from the United States for a total of more than
180 days. Lopez‐Esparza, 770 F.3d at 607–08. But this case is different in that
Flores‐Andrade’s exact date of re‐entry does affect the outcome; he testified to one date
of re‐entry within the 90‐day limit, while the government presented evidence showing a
different date outside the limit. Lopez‐Esparza itself recognized that the petitioner has the
burden of proving that he has not exceeded the time limits for continuous physical
presence. Id. at 608. (“The judge should have asked himself whether it was more likely
than not that Lopez‐Esparza had not exceeded the limit[.]”); see also 8 U.S.C.
§ 1229a(c)(4)(B); § 1229b(b)(1)(A), (d)(2). The IJ and the Board both properly found that
Flores‐Andrade failed to carry that burden.
Flores‐Andrade next challenges the finding that he should have supplied
evidence corroborating his purported March 16 return date, asserting that it is
unrealistic to require someone who entered the United States illegally to do so. But
under the REAL ID Act, an IJ may require a petitioner to supply reasonably obtainable
No. 15‐3160 Page 4
corroborating evidence to meet his burden of proving eligibility for relief. 8 U.S.C.
§ 1229a(c)(4)(B); Darinchuluun, 804 F.3d at 1214. We lack jurisdiction to review the factual
determinations underlying the IJ’s decision to require corroborating evidence, such as
whether evidence was reasonably obtainable. 8 U.S.C. § 1252(a)(2)(B); Adame v. Holder,
762 F.3d 667, 671–72 (7th Cir. 2014). We review only pure questions of law in the context
of cancellation‐of‐removal petitions, and the decision to require corroborating evidence
is a “mixed” rather than “pure” question of law. Adame, 762 F.3d at 672.
Flores‐Andrade also objects to the IJ’s decision to credit the information recorded
on the Form I‐213. He contends that the form’s contents, including its stated return date
of April 3, are unreliable because they contain “hearsay within hearsay,” since the form’s
author did not testify at the hearing. But we have recognized Form I‐213 as being
presumptively reliable and admissible without cross‐examination of its author.
See Antia‐Perea v. Holder, 768 F.3d 647, 658 (7th Cir. 2014); Barradas v. Holder, 582 F.3d 754,
763–64 (7th Cir. 2009). The form’s reliability may be called into question in narrow
circumstances, see Pouhova v. Holder, 726 F.3d 1007, 1013–15 (7th Cir. 2013) (Form I‐213
unreliable because of seven‐year delay between reported interview and form’s
preparation, unavailability of third‐party sources for cross‐examination, and
inconsistencies between facts described in form and in other evidence of record), but
Flores‐Andrade does not meaningfully argue that any such circumstances apply here.
And to the extent Flores‐Andrade disagrees with the IJ’s decision to credit the form over
his testimony, disagreements with the weighing of the evidence present factual, not
legal, questions, and thus are beyond our jurisdiction. See Leguizamo‐Medina v. Gonzales,
493 F.3d 772, 773–774 (7th Cir. 2007).
Flores‐Andrade also challenges several aspects of the IJ’s decision not to “credit”
his testimony, but such challenges are beside the point because the Board did not rely in
any way on the IJ’s credibility finding. The Board based its decision instead on his failure
under the REAL ID Act to corroborate his claim that he returned to this country in a
timely fashion. In any event, credibility determinations are also fact questions that also
fall outside this court’s jurisdiction. Boadi v. Holder, 706 F.3d 854, 860 (7th Cir. 2013).
We therefore DISMISS the portions of the petition for review challenging factual
findings of the IJ and the Board for lack of jurisdiction and DENY the remainder of the
petition for review.