Matter Of Maria Armida Sosa Ventura, Respondent
| Citation | 25 I&N Dec. 391 |
| Decision Date | 23 November 2010 |
| Docket Number | NO.: #3702,: #3702 |
| Parties | Matter of Maria Armida SOSA VENTURA, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) A grant of Temporary Protected Status ("TPS") waives certain grounds of inadmissibility or deportability solely for the limited purpose of permitting an alien to remain and work temporarily in the United States for the period of time that TPS is effective.
(2) It is not proper to terminate an alien's removal proceedings based on a grant of TPS.
FOR RESPONDENT: Roy K. Petty, Esquire, Dallas, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Margaret M. Price, Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MALPHRUS, Board Member:
In a decision dated September 17, 2007, an Immigration Judge found that the respondent was not properly in removal proceedings and terminated the proceedings with prejudice. The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained, the proceedings will be reinstated, and the record will be remanded to the Immigration Judge.
The respondent is a native and citizen of El Salvador. On February 6, 2007, the DHS issued a Notice to Appear (Form I-862), charging that the respondent is removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), as an alien who is in the United States without being admitted. In proceedings before the Immigration Judge, the respondent admitted the factual allegations in the Notice to Appear, with the exception of the point of entry.1 During the proceedings, the DHSgranted the respondent temporary protected status ("TPS") under section 244 of the Act, 8 U.S.C. § 1254a (2006).
Both parties initially requested administrative closure at the master calendar hearing that was held subsequent to the grant of TPS. However, the Immigration Judge did not agree with this approach and terminated the proceedings with prejudice.2 Upon de novo review of the legal issues in this case, we find that the Immigration Judge erred in determining that the respondent was not properly in removal proceedings. See 8 C.F.R. § 1003.1(d)(3)(ii) (2010); see also Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). We will therefore vacate the order terminating the proceedings.
Section 212(a)(6)(A)(i) of the Act provides that "[a]n alien who is present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible." The respondent admitted the factual allegations supporting the charge that she is removable under this section of the Act. She also admitted on her TPS application that she entered without inspection. We conclude that the respondent is inadmissible and therefore subject to removal under section 212(a)(6)(A)(i) of the Act.
The Immigration Judge determined that the grant of TPS rendered the respondent admissible, or somehow eliminated the charge of inadmissibility, and, therefore, that she was not properly subject to removal proceedings. The Act does not provide for such a result. There is nothing in the language of the statute to indicate that a grant of TPS renders an alien admissible to the United States. According to section 244(c)(5) of the Act, "Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for temporary protected status under this section." Moreover, "[d]uring a period in which an alien is granted temporary protected status... the alien shall not be considered to be permanently residing in the United States under color of law." Section 244(f)(1) of the Act (emphasis added). Thus, a grant of TPS does not affect an alien's admissibility or inadmissibility for purposes of the Immigration and Nationality Act generally.
On the other hand, an alien's presence without admission, or inadmissibility based on that illegal presence, will not preclude a grantof TPS under most circumstances. The Act permits TPS to be granted despite an alien's inadmissibility, but it requires a waiver of the grounds of inadmissibility in order to qualify for TPS. With certain specified exceptions, "the Attorney General may waive [the provisions] of section 212(a) [of the Act]." Section 244(c)(2)(A)(ii) of the Act; see also 8 C.F.R. § 1244.18(a) (2010). Some grounds of inadmissibility that are not subject to waiver as a precondition of TPS involve criminal and terrorist activities. See section 244(c)(2)(A)(iii) of the Act. Similarly, section 244(c)(2)(B) provides that an alien is ineligible for TPS if he or she has been convicted of any felony or two or more misdemeanors committed in the United States or is "described in section 208(b)(2)(A)" of the Act, 8 U.S.C. § 1158(b)(2)(A) (2006), which includes aliens who have been convicted of a particularly serious crime, have participated in the persecution of others, or are regarded as a danger to national security. See also 8 C.F.R. § 1244.4 (2010).3
Because the respondent has been granted TPS, her inadmissibility has been waived for the specific purposes of the TPS statutory scheme. However, the waiver is a limited one, the purpose of which is to permit certain aliens, such as the respondent, to remain in the United States with work authorization, but only for the period of time that TPS is effective. See sections 244(a)(1), (2), (c)(5) of the Act; 8 C.F.R. § 1244.10(f)(3) (2010); see also United States v. Flores, 404 F.3d 320, 322-23, 327 (5th Cir. 2005); Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14, 214 (Mar. 9, 2001).4 The waiver therefore only serves to temporarily protect the respondent from deportation or removal.
The Act specifically states that the Attorney General may grant "temporary protected status in the United States and shall not remove the alien from the United States during the period in which such status is in effect." Section 244(a)(1)(A) of the Act (emphasis added). Thus, the respondent is protected from execution of a removal order during the time her TPS status is valid, but she remains removable based on the charge of inadmissibility in the Notice to Appear.5
Our conclusion is based on the statutory language as a whole and is supported by the legislative history of TPS. See, e.g., Matter of Avila-Perez, 24 I&N Dec. 78, 83 (BIA 2007) (). In discussing the TPS statutory scheme, Congress stated that TPS H.R. Rep. No. 101-245, at 13 (1989), reprinted in 2 Igor I. Kavass & Bernard D. Reams, Jr., The Immigration Act of 1990: A Legislative History ofPub. L. No. 101-649, Doc. No. 17, at 13 (1997), available at http: //www.heinonline.org/HOL/Index?collection=leghis(accompanying the Chinese Temporary Protected Status Act of 1989, H.R. 2929, 101st Cong. (1989)).6 "The legislation also makes clear that an individual need not relinquish any other immigration status the individual may have in order to receive TPS, nor [is the] conferral [of TPS] considered inconsistent with any other immigration status." Id. at 14.
The TPS scheme was created to codify and standardize a type of deferral of deportation called "Extended Voluntary Departure" or "EVD," which had existed for decades to address humanitarian concerns. Id. at 9 (). EVD was granted in the discretion of the Attorney General, upon the recommendation of the Secretary of State. Id. at 10. It was premised upon the recognition that individuals fleeing life-threatening natural disasters, such as drought or famine, or "the existence of a generalized state of violence within a country" did not establish a basis for claiming persecution and were therefore not entitled to either asylum or withholding of removal. Id. at 8.
However, EVD was considered an "ad hoc" approach. Id. Congress saw fit to replace it with a statute that would address the problems that were inherent in the program at the time, including the lack of transparency and the inability of the Government to effectuate the deportation of aliens when appropriate. Id. at 12. Thus, TPS was intended to allow aliens who are nationals of designated foreign states in certain humanitarian circumstances to remain in a lawful manner and not be forced to depart the United States during the period that TPS is effective. Congress clearly did not intendfor TPS to create a permanent immigration status in the United States. See section 244(f)(1) of the Act; see also De Leon-Ochoa v. Att'y Gen. of U.S., 622 F.3d 341, 354 (3d Cir. 2010) ().
The Immigration Judge concluded, and the respondent has argued, that termination of the removal proceedings was appropriate, relying primarily on United States v. Orellana, 405 F.3d 360 (5th Cir. 2005). However, we agree with the DHS that Orellana involves a criminal matter that did not address the issue before us. Specifically, the issue in that case concerned 18 U.S.C. § 922(g)(5)(A), which criminalizes the possession of a firearm by aliens who are illegally or unlawfully present in the United States. Id. at 361-62.
The court's determination in Orellana that an alien in valid TPS...
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