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CA7 (Posner) on Burden of Proof: Lopez-Esparza v. Holder

October 23, 2014 (1 min read)

"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." - Lopez-Esparza v. Holder, Oct. 23, 2014.  [Hats off to Isuf Kola!]