06-4742-ag
Matadin v. Mukasey


                            UNITED STATES COURT OF APPEALS

                                FOR THE SECOND CIRCUIT
                             _______________________________

                                      August Term, 2007

       (Argued: October 25, 2007                               Decided: October 8, 2008)

                                   Docket No. 06-4742-ag
                             _______________________________

MICHELLE AMANDA MATADIN,

                                     Petitioner,
                       v.

MICHAEL B. MUKASEY, Attorney General of the United States,1

                                     Respondent.

_______________________________

Before: WALKER, STRAUB, and POOLER, Circuit Judges.
_______________________________

       Petitioner seeks review of a decision of the BIA, ordering her removed on the ground that

she had abandoned her lawful permanent resident status. Because the agency assigned the

burden of proof to the petitioner, whereas it should have required the government to prove

abandonment by clear, unequivocal and convincing evidence, we remand to the agency for

further proceedings.



       1
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B.
Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the
respondent in this case.

                                                   1
       Judge Walker concurs in the judgment of the Court and files a separate concurring

opinion.


                                     Harry DeMell, New York, NY, for Petitioner.

                                   Barry J. Pettinato, Senior Litigation Counsel (Francis W.
                                   Fraser, Senior Litigation Counsel, Peter D. Keisler,
                                   Assistant Attorney General, Civil Division, Office of
                                   Immigration Litigation, United States Department of
                                   Justice, Washington, D.C., for Respondent.
                           _________________________________

Pooler, Circuit Judge:

       This petition to review a decision of the Board of Immigration Appeals (“BIA”) primarily

concerns the proper allocation of the burden of proof when determining whether a lawful

permanent resident (“LPR”) has abandoned that status. Michelle Amanda Matadin seeks review

of a decision of the BIA ordering her removed on the ground that she had abandoned her lawful

permanent resident status. Because the agency allocated the burden of proof incorrectly, we

remand to the agency for further proceedings.

                                       BACKGROUND

       Matadin, a native and citizen of Guyana who had been admitted as an LPR, left for

Guyana on September 2, 1999, and did not return to the United States until April 28, 2002. The

agency found that she had abandoned her LPR status and ordered her deported.

       Matadin and her father were admitted to the United States in 1994 as lawful permanent

residents, through a sponsorship by Matadin’s aunt. Matadin was twelve years old at the time.

Upon arrival, Matadin lived with her aunt in Queens, where she attended and graduated from a

junior high school. Matadin’s mother remained in Guyana and never was admitted into this


                                                2
country as a permanent resident. Matadin’s father left New York in 1995, leaving Matadin in the

custody of her aunt, and he returned to Guyana in 1996 or 1997. Matadin testified during her

deportation hearing that she did not initially return to Guyana with her father because her home

was in the United States and she was still in junior high school when he left. On September 2,

1999, Matadin, at age 17, traveled to Guyana. She stated that the purpose of her trip was to take

care of her sick father, who had suffered a severe heart attack just prior to her departure. She

testified that she was the only person who could take care of him because her siblings all lived

outside Guyana, his siblings all lived in the United States, and he was estranged from his wife.

She testified that when she brought him home from the hospital, his heart condition was

compounded by diabetes and hypertension, leaving him unable to walk. She testified that she

remained in Guyana for the next thirty months, while she nursed him to health and attempted to

find someone to run his lumber business for him. In April 2002, at age twenty, after she had

purportedly nursed him back to health, she returned to the United States. Although her father

suffered a mild heart problem shortly before she returned home, she testified that he was doing

much better when she left him.2 According to her testimony, she remained in Guyana solely to

take care of her father and her continuing intent during her entire trip abroad was to return to her

home in the United States once she could leave him.

       During her last year in Guyana, she worked as a sales clerk, but there is no indication of


       2
          Matadin was able to obtain only scant documentary evidence of her father’s illness: a
note from a doctor stating that her father had presented himself with chest pains suggestive of
heart disease on September 29, 1999; a note from a second doctor stating that he had twice
treated her father; and a note from a third doctor stating that her father had presented himself
with moderate chest pain and abdominal pain on March 2, 2002. She testified that because of
poor record-keeping practices and frequent relocations by Guyanese doctors and clinics, this was
all the evidence she was able to obtain despite her best efforts.

                                                  3
how frequently she worked. In June 2001, while in Guyana, she married a Guyanese citizen.

She testified that she always intended to bring her husband back to the United States, where she

planned to start a family. She testified that she did not ask the Embassy in Guyana whether she

could apply for a status adjustment on her husband’s behalf while in Guyana because she was

overwhelmed by the crisis of her father’s care. A few months after returning to the United

States, she filed on her husband’s behalf a petition to classify him as a lawful permanent resident.

Thereafter, he filed for a divorce. In a new relationship, Matadin gave birth to an American

citizen child in September 2003, whose father, she testified, continues to help support the child in

the United States. She filed an application for her own naturalization in April 2005. She has

been employed in New York as a cashier since July 2002.

        According to her testimony, Matadin has few meaningful family ties in Guyana: she has

siblings, but none of them lives in Guyana; her mother lives in Guyana, but Matadin spoke with

her only rarely while she was in Guyana and her mother has not had custody of Matadin since

Matadin came to the United States without her mother at age twelve. Regarding her father, she

testified that she is not sure whether he is still in Guyana or whether he is still alive: she testified

that she called his former neighbors to ask whether they have seen him; she called his former

place of business; she called his former doctors; she has contacted members of her family; but

she has learned only that his former residence is empty, that he no longer is at his former place of

business, and that no one knows where he is.

        Upon arriving in New York in 2001, an officer from the Department of Homeland

Security (“DHS”) took Matadin’s sworn statement, in which she indicated that she was a

permanent resident returning to her home in the United States. The DHS concluded that she had


                                                   4
abandoned her LPR status and initiated removal proceedings. She was charged with being an

immigrant not in possession of a valid entry document, in violation of 8 U.S.C.

§ 1182(a)(7)(A)(i)(I). A deportation hearing was held on May 9, 2005, and the Immigration

Judge (“IJ”) (Paul A. Defonzo) rendered an oral decision that day finding her removable as

charged. Matadin seeks review of a September 22, 2006, order of the Board of Immigration

Appeals (“BIA”), affirming the order of the IJ. See In the Matter of Michelle Amanda Matadin,

No. A44 269 993 (BIA September 22, 2006), aff’g No. A44 269 993 (Immig. Ct. N.Y. City May

9, 2005).

       At the outset of the removal hearing, the IJ informed Matadin that she bore the burden of

proof. In his oral decision, the IJ explained that when, as here, a permanent resident has been

continuously absent for more than a year prior to seeking readmission, the resident has the

burden to demonstrate that she did not abandon her lawful permanent residence during the course

of her absence.

       In the oral decision, the IJ found that Matadin “appear[ed] to have only a passing

knowledge of her father’s actual medical condition while she resided with him in Guyana.” In

support of this conclusion, the IJ cited Matadin’s inability to name the medications her father was

taking. During her testimony, she stated the number of pills he was taking and the shape and

color of the heart medication, but, more than three years after returning from Guyana, she could

not recall the name of any of the medications. The IJ next found that she owned no property in

the United States before she left,3 that she did not work in the United States before departing at



       3
        During her airport interview, Matadin stated that she did not own any property–either in
Guyana or in the United States. The IJ mentioned only her lack of property in the United States.

                                                 5
age seventeen, that she finished school in 1995 and indicated that she had no intention of

resuming studies in the United States,4 that she married a Guyanese national while in Guyana but

made no attempt to secure LPR status for him while she was in Guyana,5 that she “apparently had

no contacts with the United States” while in Guyana,6 that she had given inconsistent testimony

concerning whether her father had sustained a second heart attack,7 and that she was employed

for a year as a sales clerk in Guyana. The IJ concluded from the foregoing, and from the length

of her absence, that Matadin was not in Guyana solely to care for her father and that she had

therefore abandoned her lawful permanent residence in the United States. For this reason, the IJ


       4
          As the IJ acknowledged, she testified that she was still in school in 1996 or 1997 when
her father left for Guyana. She did not testify that she had no intention of resuming studies in the
United States.
       5
           In her airport interview, Matadin testified that she had no applications pending with the
Immigration and Nationality Service. The IJ did not cite any rule or regulation that would allow
a lawful permanent resident, who makes a temporary trip abroad and who has therefore not
abandoned her United States residence, to file an I-130 petition in Guyana rather than in the
district of her residence in the United States. Cf. 8 C.F.R. 204.1(e)(1) (“The [I-130] petition . . .
must be filed with the Service office having jurisdiction over the place where the petitioner . . . is
residing.”).
       6
          The record is silent as to whether Matadin maintained any personal contacts in the
United States during her time in Guyana. If the IJ was using “contacts” in the broader sense
familiar from personal jurisdiction jurisprudence, the IJ was, at best, begging the question: the
question in this case is whether Matadin maintained a continual residence–a classic type of
“contact”--in the United States throughout her trip abroad. In any event, beyond her lack of
property in the United States and her continual absence from the United States during the period
in question, the record is silent as to what contacts Matadin had or lacked in the United States
during her trip abroad.
       7
          Matadin had indicated in her airport interview that her father had a second heart attack
while she was in Guyana, in March 2002, but she testified at the hearing that her father did not
have a second heart attack while she was in Guyana. The IJ did not note–but the government
does in its brief–that the medical reports she submitted indicated that her father was admitted to a
Guyanese hospital in March 2002 for moderate chest pain. Because her father left the hospital
before he could be treated, it is not clear whether or not he had a mild heart attack on that date.

                                                  6
ordered her removed.

       The BIA affirmed the IJ’s decision on September 22, 2006, adding only that the petitioner

presented no unforseen circumstances that would explain the delay in her return to the United

States, citing United States ex rel. Polymeris v. Trudell, 

(2d Cir. 1931), aff’d 

(1932).

       In both her brief to the BIA and her brief to this Court, Matadin principally contends that

the IJ erred by assigning the burden of proof to her, rather than requiring the government to prove

that she had abandoned her LPR status by clear, unequivocal and convincing evidence. Because

we agree, we vacate the order of removal and remand her case to the agency for further

proceedings.

                                           DISCUSSION

       “In cases like this, in which the BIA adopts and affirms the IJ’s opinion and supplements

it with its own conclusions, we review both the opinion of the IJ and that of the BIA.” Sansui v.

Gonzales, 

, 200 (2d Cir. 2006). “Questions of law, including what quantum of

evidence will suffice to discharge an applicant’s burden of proof, are reviewed de novo.” Zhong

v. U.S. Dept. of Justice, 

, 117 (2d Cir. 2007); see also Secaida-Rosales v. INS, 

, 307 (2d Cir. 2003) (“[U]sing an inappropriately stringent standard when evaluating an

applicant’s testimony constitutes legal, not factual, error”).

       “Generally, in order to gain admission into the United States, an immigrant must present

a valid, unexpired immigrant visa as well as a valid, unexpired passport or other travel

document.” Ahmed v. Ashcroft, 

, 612 (2d Cir. 2002) (per curiam); see 8 U.S.C. §

1181(a). “If a person fails to produce such documents, § 1182(a)(7)(A)(i)(I) requires that he or


                                                  7
she be excluded.” 

some exceptions to this rule for lawful permanent residents

returning to the United States. First, unless, inter alia, a lawful permanent resident has been

absent from the United States “for a continuous period in excess of 180 days,” she shall not be

regarded as seeking admission for immigration law purposes. 8 U.S.C. § 1101(a)(13)(C). And a

lawful permanent resident “seeking readmission after a temporary absence of less than 1 year,”

may present a “valid, unexpired Form I-551, Permanent Resident Card” in lieu of a visa. 8

C.F.R. § 211.1(a)(2). If a lawful permanent resident has remained abroad for a longer period,

however, she may still be admitted without entry documents if she qualifies as a returning

resident, i.e., “a lawful permanent resident returning from a temporary visit abroad.” 8 U.S.C. §

1181(b); 8 U.S.C. § 1101(a)(27)(A).

I. Burden of Proof

       The issue here is what burden of proof an IJ must apply in deportation hearings to

determine whether a lawful permanent resident has abandoned her LPR status. The IJ

determined that the government normally bears the burden to establish abandonment by clear,

unequivocal and convincing evidence, but that if an alien has been absent for more than one year,

the burden shifts to the alien to show that she has not abandoned her status. Matadin contends

that the IJ’s burden-shifting decision constituted legal error. The question of the applicable

burden of proof in abandonment cases is before our court for the first time.

       In support of the proposition that the burden of proof shifts to the alien after an absence of

more than one year, the IJ cited In re Huang, 19 I & N Dec. 749 (BIA 1988) and a DHS

regulation, 8 C.F.R. § 211.1(a)(2). Neither authority supports the IJ’s contention. Huang

announces no such rule. In Huang, the Board required the government to establish abandonment


                                                 8
by “clear, unequivocal, and convincing evidence” whenever the petitioner presents a “colorable

claim” to returning resident status. 

Huang made no exception for petitioners who had

been continually absent for more than a year. Nor does 8 C.F.R. § 211.1(a)(2) provide that the

burden of proof shifts to the alien after a one-year absence. As mentioned above, that regulation

provides only that a returning permanent resident may present a valid I-551 form in lieu of a visa.

Indeed, we have found no statute or regulation that speaks to the burden of proof applicable to

determining whether an alien who has been absent more than a year has abandoned her LPR

status. This is not surprising because “the question of what degree of proof is required in

deportation proceedings . . . is the kind of question which has traditionally been left to the

judiciary to resolve.” Woodby v. INS, 

, 284 (1966).

        Where, as here, there is no explicit, contrary directive from Congress, “no deportation

order may be entered” against a resident alien “unless it is found by clear, unequivocal, and

convincing evidence that the facts alleged as grounds for deportation are true.” 

see

also Berenyi v. Immigration Dir., 

, 636-37 (1967) (“When the Government seeks to

strip a person of citizenship already acquired, or deport a resident alien and send him from our

shores, it carries the heavy burden of proving its case by ‘clear, unequivocal, and convincing

evidence.’ . . . [T]hat status, once granted, cannot lightly be taken away . . . .” (footnotes

omitted)); Francis v. Gonzales, 

, 138-39 (2d Cir. 2006) (holding that, when seeking

to deport an LPR because a criminal conviction rendered her inadmissible at the time her status

was adjusted, the government must prove the conviction by “clear, unequivocal and convincing

evidence). Because Matadin left the country as a LPR and the sole question, which is colorable,

is whether she abandoned that status during her trip abroad, the DHS bore the burden of proving


                                                   9
by clear, unequivocal and convincing evidence that Matadin had abandoned her LPR status.

       Two circuits that have reached this issue, subsequent to the enactment of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, have concluded that the

government must prove abandonment by clear, unequivocal and convincing evidence. See Hana

v. Gonzales, 

, 476 (6th Cir. 2005) (“Our task in this case . . . is to determine

whether we are compelled to conclude that, contrary to the Board’s finding, the record does not

contain clear, unequivocal, and convincing evidence that [the petitioner] abandoned her LPR

status in the United States.”); Khodagholian v. Ashcroft, 

, 1006 (9th Cir. 2003)

(same). In each of these cases, this burden applied notwithstanding lengthy absences from the

country: in Hana, the petitioner had been absent for over a year when she returned, and for most

of the previous four and a half 

; in Khodagholian, the petitioner had

been absent for fifteen 

. The BIA and the Ninth Circuit have held that

this burden applies whenever the applicant presents a “colorable claim” to returning resident

status. Matter of Huang, 19 I. & N. at 754; 

. We agree. Once

the IJ determined that Matadin’s claim to returning resident status was colorable, the IJ should

have required the government to prove abandonment by clear, unequivocal and convincing

evidence. It was legal error not to do so.

II. Remand

       Where, as here, the agency’s decision is beset by error, “[a] court of appeals is not

generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach

its own conclusions based on such an inquiry.” Gonzales v. Thomas, 

, 186 (2006)

(internal quotation marks omitted). “Rather, the proper course, except in rare circumstances, is


                                                 10
to remand to the agency for additional investigation or explanation.” 

marks omitted). We have held that we may deny a petition for review of an order of deportation,

notwithstanding errors, when we have assured confidence that the agency would have reached

the same decision had it not erred. See, e.g., Xiao Ji Chen v. U.S. Dep’t of Justice, 

,

338-39 (2d Cir. 2006). But Gonzales and Chenery teach that this course is proper only in rare

circumstances. See SEC v. Chenery, 

, 88 (1943) (“For purposes of affirming no less

than reversing its orders, an appellate court cannot intrude upon the domain which Congress has

exclusively entrusted to an administrative agency.”). This is not such a rare circumstance.

       “[T]he determinative issue” in the deportation hearing was whether the alien’s trip

qualified as a “temporary visit abroad.” 

. Given that the agency’s

decision was beset by legal error, the question is whether we can have assured confidence that the

agency, on remand, would conclude that Matadin’s trip was not a temporary visit abroad. We

can have no such confidence. If Matadin’s claimed reason for remaining in Guyana were

accepted, her trip would seem to qualify as a temporary trip abroad under our case law. See

(“When the length of the visit is not fixed by some early event but

instead relies upon an event with a reasonable possibility of occurring within a short period of

time, what constitutes a temporary visit ‘cannot be defined in terms of elapsed time alone. Then

the intention of the visitor, when it can be determined, will control.’” (quoting United States ex

rel. Polymeris v. Trudell, 

, 732 (2d Cir. 1931)); 

(The

petitioners “brought themselves well within the claimed status as immigrants once lawfully

admitted who were returning from a temporary visit abroad” when “[t]hey always intended to

come back as soon as they could,” but the timing of their return “depended upon the condition of


                                                11
health of [a petitioner’s] husband” and, after he died, “upon the time required for them to remain

to attend to the settlement of his estate. Surely this was all a matter of time which might be

relatively short,” even though their return ultimately was delayed by several years).

       Therefore, the deportation order against Matadin must be based, if on anything, on the

factual findings in this case. But the agency has not made any relevant factual findings. As

discussed, the IJ and the BIA applied an erroneous legal standard in making the factual findings

and in determining whether Matadin had abandoned her LPR status. In light of this erroneous

standard of proof, the IJ’s factual finding that Matadin was not in Guyana solely to care for her

sick father meant only that, according to the IJ, Matadin had not shown by a preponderance of the

evidence that she was in Guyana solely to care for sick father. This was not a suitable, or

relevant, factual finding. Rather, the relevant factual inquiry was whether it could be “found by

clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation

[were] true.” 

; see also Huang, 19 I. & N. Dec. at 754 (adopting rule of

Woodby that “in deportation hearings [against those with a colorable claim to returning resident

status] the Service must establish facts supporting deportability by clear, unequivocal, and

convincing evidence” (emphasis added)).

       Because “we may not enforce [an agency’s] order by applying a legal standard the

[agency] did not adopt,” NLRB v. Kentucky River Cmty. Care, Inc., 

, 721 (2001),

we may not ourselves engage in fact-finding under the appropriate legal standard to determine

whether Matadin had abandoned her status. See Jigme Wangchuck v. DHS, 

,

531-533 (2d Cir. 2006) (holding that remand was necessary under Kentucky River when agency

had applied inappropriately low burden of proof); see also 

, 286


                                                12
(remanding to the agency, without any futility analysis, when the agency assigned an

inappropriately low burden of proof to the government); cf. Cao He Lin v. United States DOJ,

, 400 (2d Cir. 2005) (“To assume a hypothetical basis for the IJ’s determination,

even one based in the record, would usurp her role.”). The BIA’s conclusion that Matadin

abandoned her LPR status therefore cannot stand. Because “[t]he matter requires determining the

facts,” 

, and because the agency has not yet determined the facts

utilizing the appropriate burden of proof, we follow the ordinary remand rule and vacate and

remand to the agency for further factual findings.

       For the foregoing reasons, the petition for review is GRANTED; the decision of the BIA

is VACATED; and the case is REMANDED for further proceedings consistent with this opinion.

The stay previously granted by this court is VACATED as moot.




                                                13
No. 06-4742-ag
Matadin v. Mukasey

WALKER, Circuit Judge, 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 1989), the BIA decided this question by adopting a two-

step analysis.     First, the alien must demonstrate “a colorable

claim to returning resident status.”     

  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.”   

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

                                  14
Woodby v. INS, 

(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

(“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., 

(1984)] principles.”   Shi Liang Lin v. U.S. Dept. of Justice,

, 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, 

. 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 admissibility is

generally on the applicant in exclusion proceedings,” but held



                                15
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, 

,

338 (2d Cir. 2006).    In this case, the question of futility is

exceedingly close, as most of the evidence aside from Matadin’s

testimony suggests that her trip was not a temporary visit.

First, while the length of stay is not dispositive, a thirty-one



                                 16
month absence strongly suggests that a trip is not temporary, and

abandonment has been found based on shorter trips.   See Singh v.

Ashcroft 100 F. App’x 628 (9th Cir. 2004) (unpublished opinion)

(23 months); Iqbal v. Ashcroft, 84 F. App’x 391 (5th Cir. 2003)

(unpublished per curiam) (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, 

,

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, 

, 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.



                                17
     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

Matadin 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

with 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 nonpersuasion.

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



                                 18
concur in the judgment vacating the BIA’s decision and remanding

to the agency for further proceedings.




                               19