concurring in the judgment:
The issue in this case is how an immigration judge should proceed in determining whether an alien is a returning resident. Specifically, the question is who bears the burden of proof in these circumstances: must the government show that the alien abandoned her LPR status, or is it incumbent on the alien to show that no such abandonment occurred? In In re Huang, 19 I. & N. Dec. 749 (BIA 1988), the BIA decided this question by adopting a two-step analysis. First, the alien must demonstrate “a colorable claim to returning resident status.” Id. at 754. If she does so, the burden shifts to the government to “show that the applicant should be deprived of her status as a lawful permanent resident.” Id. The IJ initially followed this procedure, but then departed from it and shifted the burden back to Matadin because she had remained out of the United States for over a year. I concur in the judgment because I agree that the IJ erred in doing so; neither Huang nor any other case, statute, or regulation supports the novel burden-shifting rule applied by the IJ in this case.
I part ways with my colleagues, however, as to the significance of In re Huang. The majority relies heavily on Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), but Woodby offers no guidance as to the proper allocation of the burden of proof because it was undisputed in that case that the government bore the burden. See id. at 277, 87 S.Ct. 483 (“The question presented by these cases is what burden of proof the Government must sustain in deportation proceedings.”). However, in Huang, the BIA expressly decided the issue presented by this case.
It is beyond cavil that “[w]hen reviewing the BIA’s interpretation of statutes that it administers, we apply the Chevron [U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ] principles.” Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 304 (2d Cir.2007) (en banc). However, the question of whether the Huang decision involves statutory interpretation or otherwise triggers our Chevron analysis presents more difficulty; commentators refer to this inquiry, which “must be made in deciding whether courts should turn to the Chevron framework at all,” as Chevron “step zero.” Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833, 836 (2001); see also Cass R. Sunstein, Chevron Step Zero, 92 Va. L.Rev. 187, 191 (2006) (noting that these inquiries currently constitute “the most important and confusing questions” in the development of Chevron doctrine). In Huang, the BIA, citing 8 U.S.C. § 1361, noted that “the burden of proving admissi*94bility is generally on the applicant in exclusion proceedings,” but held that this burden shifted to the government when, as in this case, the applicant demonstrated “a colorable claim to returning resident status.” Huang, 19 I. & N. Dec. at 754. Thus, it is certainly possible to view the Huang decision as one interpreting the Immigration and Naturalization Act, and therefore conclude that we must determine whether this decision commands deference under the familiar two-step analysis of Chevron.
I would not reach the thorny question of what amount of deference the BIA’s Huang decision commands because, even if we assume that we could review the matter de novo, I believe the Huang decision articulates the proper framework for allocating the burden of proof in this case. Nothing in the parties’ briefs or the majority opinion suggests that the analysis in Huang is erroneous. It is equally clear that the IJ’s decision to shift the burden back to Matadin was erroneous in light of Huang.
The only remaining question is whether remand would be futile. We have found futility where, e.g., “the untainted evidence in support [of] the IJ’s conclusion is so ‘overwhelming’ that there is no realistic possibility of a different result on remand.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006). In this case, the question of futility is exceedingly close, as most of the evidence aside from Mata-din’s testimony suggests that her trip was not a temporary visit. First, while the length of stay is not dispositive, a thirty-one month absence strongly suggests that a trip is not temporary, and abandonment has been found based on shorter trips. See Singh v. Ashcroft 100 Fed.Appx. 628 (9th Cir.2004) (unpublished opinion) (23 months); Iqbal v. Ashcroft, 84 Fed.Appx. 391 (5th Cir.2003) (unpublished per cu-riam) (25 months, according to the parties’ briefs). Second, none of Matadin’s parents or siblings resided in the United States at the time of her departure and, during her stay in Guyana, both of her parents lived there. In addition, she married a Guyanese man during her visit, and did not even explore the possibility of either her or her husband returning to the U.S. while in Guyana. Cf. Hana v. Gonzales, 400 F.3d 472, 474, 476 (6th Cir.2005) (finding alien’s diligence while abroad in attempting to secure entry visas for family, and in obtaining her own reentry visa prior to departure, critical to finding of intent to return); United States ex rel. Polymeris v. Trudell, 49 F.2d 730, 731 (2d Cir.1931) (finding a temporary visit when aliens, upon leaving, “executed an affidavit showing their intention to return within six months,” and contacted the American Consul before that period expired when “it became apparent that they needed to remain longer”). For the two years prior to her departure, she did not pursue any study or employment, but she did take a job after she arrived in Guyana. And before leaving the U.S., she had spent twelve years in Guyana, and only five years in the U.S.
The only evidence offered in support of a finding of a temporary visit is Matadin’s claim that she left the U.S. to care for her father and intended to return as soon as he recovered his health. The extrinsic evidence of her father’s health, however, does not suggest either a downturn prior to September 1999 (when Matadin allegedly left the U.S. to care for him) or an upturn around April 2002 (when she returned to the U.S.). The documents Mata-din attempted to introduce at the hearing (letters from Mr. Matadin’s doctors) only indicate that her father was examined for heart pains on September 29, 1999, almost one month after Matadin had already left the U.S. In addition, at her entry interview *95with INS at JFK Airport, she stated that her father had had a second heart attack on March 15, roughly a month before she left Guyana, which would suggest that she left, contrary to her testimony, in spite of her father’s ill health.
Nevertheless, the IJ improperly concluded that Matadin bore the burden of proof and the accompanying risk of non-persuasion. It is possible that a reasonable factfinder could find the evidence as to the nature of Matadin’s trip equivocal, in which case the party who does not bear the burden of proof should prevail. As a result, Matadin’s failure to introduce persuasive evidence of her continuous intent to return to the United States does not necessarily doom her claim, just as a criminal defendant may prevail without adducing any evidence at all. Accordingly, I concur in the judgment vacating the BIA’s decision and remanding to the agency for further proceedings.