Rodriguez-Serrano

MEMORANDUM *

Alfonso Rodriguez-Serrano petitions for review of a decision of the Board of Immigration Appeals (the Board) and of a related decision of the Legalization Appeals Unit (the LAU). We deny both petitions.

The parties are familiar with the facts, and we confine ourselves to those central to the dispositive issue. Rodriguez-Serrano’s only chance of avoiding deportation is his claim that he was entitled to a grant of residence as a Special Agricultural Worker (SAW) under the Immigration and Naturalization Act, § 210, 8 U.S.C. § 1160 (1965). To obtain this benefit, Rodriguez-Serrano had to establish by the preponderance of the evidence that he had performed at least 90 days of seasonal agricultural service during the twelve-month period ending May 1, 1986. Id. § 1160(a)(1)(B) and (b)(3)(B)(i). Rodriguez-Serrano supplied the affidavit on Form 1-705 of one Jessie Pesina, contracting foreman at Action Produce at Willcox, Arizona, who stated that Rodriguez-Serrano had worked 123 days at this farm thinning and weeding lettuce between May 1, 1985 and May 26, 1986. Rodriguez-Serrano also submitted his own affidavit to the same effect as well as notarized letters from two…

dissenting.

I respectfully dissent. The LAU — and the majority — have placed the burden of proof on Rodriguez-Serrano to defend his eligibility for SAW status. But once an applicant for SAW status comes forward with “sufficient evidence to show the extent of [qualifying] employment as a matter of just and reasonable inference,” the governing statute explicitly shifts the burden to the government “to disprove the alien’s evidence.” 8 U.S.C. § 1160 (b)(3)(B)(iii). To rebut Rodriguez-Serrano’s ample evidence of qualifying employment, the government relied entirely on the employer’s retraction of her initial affidavit, along with a list of 54 “legitimate” workers out of 1,000 for whom she signed affidavits. The government made no attempt to verify the comprehensiveness of Pesina’s handwritten list, which for all the record shows may have simply been a list of whichever legitimate workers Pesina could remember off the top of her head. Nor did the government discredit the coworkers who wrote letters in support of Rodriguez-Serrano’s initial application. The burden was on the government, and it was not met. The LAU abused its discretion in finding otherwise. The petition for review…