CA2 on Physical Presence: Hernandez v. Holder

CA2 on Physical Presence: Hernandez v. Holder

"As the government concedes, the IJ made no adverse credibility determination in this case. Without such a finding, this Court assumes that Hernandez’s testimony is credible. See 8 U.S.C. § 1229a(c)(4)(C) (“[I]f no adverse credibility determination is explicitly made, the applicant . . . shall have a rebuttable presumption of credibility on appeal.”). Hernandez testified repeatedly that he arrived in this country on July 15, 1996 and has never left since that date. Hernandez also introduced the birth certificate of his oldest child, on which Hernandez is listed as the father. The child was born in New York on March 16, 1998 to an American citizen. In combination with Hernandez’s own testimony that he entered in July of 1996, the birth certificate constitutes strong circumstantial evidence that Hernandez was present in this country about nine months prior to March of 1998, i.e., in June of 1997. Hernandez also offered proof of his address in Connecticut from 2001 to 2006 and other evidence of his presence in the United States in the 2000s. Taking these pieces of evidence together, and in the absence of any evidence from the government tending to disprove Hernandez’s presence, we find that the record permits only one reasonable conclusion: that Hernandez was continuously present in the United States from July of 1996 onward. We will therefore remand the case to the agency, where Hernandez will be able to present the new evidence of hardship in an attempt to reopen his case." - Hernandez v. Holder, Nov. 25, 2013.  [Hats off to Kevin E. Dehghani!]