Marcial Lopez v. Jeff Sessions, 851 F.3d 626

Background

Marcial Lopez, a Guatemalan national, crossed the Rio Grande near Brownsville, TX on May 24, 2001, and was arrested ~31 minutes later about a mile from the border. He initially lied about his identity and briefly returned to Mexico before reentering undetected the later time at issue.
DHS initiated removal in 2008; Lopez applied for (1) special-rule cancellation under the Nicaraguan Adjustment and Central American Relief Act (NACARA) and (2) ordinary cancellation of removal.
The Immigration Judge and the BIA ruled Lopez failed to prove (a) he "was not apprehended at the time of entry" (a NACARA eligibility requirement) and (b) that his removal would cause "exceptional and extremely unusual hardship" to his qualifying relative (his U.S. citizen daughter).
The central legal question was whether surveillance (continuous monitoring) by government agents between crossing and arrest constitutes "apprehended at the time of entry," and who bears the burden to prove or rebut surveillance.
The Sixth Circuit held surveillance is typically evidence only the government can produce and treated it as an affirmative defense; the BIA erred by denying Lopez eligibility solely for failing to disprove surveillance without a factual finding that surveillance occurred.
The court vacated the BIA’s ruling on special-rule cancellation eligibility and remanded for the BIA to determine whether surveillance (official restraint) occurred; the hardship denial for ordinary cancellation was not disturbed because it involved discretionary fact‑weighing beyond the court’s review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Lopez was "apprehended at the time of entry" due to surveillance between crossing and arrest	Lopez argued he evaded inspection and there is no evidence he was under surveillance; absence of physical stoppage suffices to show freedom from official restraint	Government would argue agents could have surveilled him and that capture close in time/distance supports finding of restraint	Court: Surveillance is an affirmative defense the government must prove; BIA erred by denying eligibility without finding surveillance occurred — vacated and remanded for factual resolution
Whether Lopez established "exceptional and extremely unusual hardship" to his U.S. citizen daughter (ordinary cancellation)	Lopez argued record (health, educational, security concerns in Guatemala) shows exceptional hardship	Government/BIA argued hardships did not rise substantially beyond ordinary consequences of removal	Court: Denial upheld; reviewing court lacks jurisdiction to second‑guess the BIA’s discretionary, fact‑intensive hardship weighing

Key Cases Cited

Ruiz v. Gonzales, 455 F.3d 661 (6th Cir. 2006) (discussing agency discretion over NACARA special‑rule cancellation)
Ettienne v. Holder, 659 F.3d 513 (6th Cir. 2011) (limits on appellate review of discretionary hardship determinations)
Aburto‑Rocha v. Mukasey, 535 F.3d 500 (6th Cir. 2008) (jurisdiction to review non‑discretionary, precedent‑dictated decisions)
De Leon v. Holder, 761 F.3d 336 (4th Cir. 2014) (treatment of "apprehended at the time of entry" as question of law/fact)
Ramos‑Godinez, 273 F.3d 820 (9th Cir. 2001) (surveillance/continuous observation negates "entry" for reentry prosecutions)
Catellanos‑Garcia, 270 F.3d 773 (9th Cir. 2001) (arrest near border may still permit finding of completed entry absent evidence of surveillance)
Cheng v. INS, 534 F.2d 1018 (2d Cir. 1976) (brief departure from sight of officials can constitute completed entry)
Encinco Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agency may not adopt inconsistent interpretations without reasoned explanation)
Sad v. INS, 246 F.3d 811 (6th Cir. 2001) (agency discretion to grant or deny relief after eligibility is established)