No. 09-1520 v. Attorney Gen. Of The United States

• Decision Date: 01 October 2010
• Docket Number: Nos. 09-1520, 09-1760, 09-1960.,s. 09-1520, 09-1760, 09-1960.
• Citation: 622 F.3d 341
• Parties: Eudulio DE LEON-OCHOA, a/k/a Roger Reyes-Oliva, a/k/a Roger Armando Reyes-Bolivar, a/k/a Roger Armando Reyes-Oliva, Petitioner No. 09-1520 v. ATTORNEY GENERAL OF the UNITED STATES, Respondent. Eufemia Flores-Dominguez; Arely Magdalena Rivera-Flores; Elida Yamilet Rivera-Flores, Petitioners No. 09-1760 v. Attorney General of the United States, Respondent. R.E. L-P-, Petitioner No. 09-1960 v. Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

622 F.3d 341

Eudulio DE LEON-OCHOA, a/k/a Roger Reyes-Oliva, a/k/a Roger Armando Reyes-Bolivar, a/k/a Roger Armando Reyes-Oliva, Petitioner No. 09-1520

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

Eufemia Flores-Dominguez; Arely Magdalena Rivera-Flores; Elida Yamilet Rivera-Flores, Petitioners No. 09-1760

v.Attorney General of the United States, Respondent.

R.E. L-P-, Petitioner No. 09-1960

v.Attorney General of the United States, Respondent.

Nos. 09-1520, 09-1760, 09-1960.

United States Court of Appeals,Third Circuit.

Argued on July 13, 2010.

Opinion Filed: Oct. 1, 2010.

Douglas S. Eakeley, Esq. (Argued), Maureen A. Ruane, Esq., Carl M. Greenfeld, Esq., Kristin A. Muir, Esq., Lowenstein Sandler PC, Roseland, NJ, for Petitioner Eudulio De Leon-Ochoa.

Rex Chen, Esq. (Argued), Catholic Charities of the Archdiocese of Newark, Newark, NJ, for Petitioners Eufemia Flores-Dominguez, Arely Rivera-Flores, and Elida Rivera-Flores.

Ayodele Gansallo, Esq. (Argued), Hias and Council Migration Service of Philadelphia, Philadelphia, PA, for Petitioner R.E. L-P.

Tony West, Esq., Assistant Attorney General, Civil Division, Douglas E. Ginsburg, Esq., Emily Anne Radford, Esq., Terri J. Scadron, Esq., Assistant Directors, Aviva L. Poczter, Esq. (Argued), Greg D. Mack, Esq., Senior Litigation Counsel, Derek C. Julius, Esq., Trial Attorney, James A. Hunolt, Esq., Gary J. Newkirk, Esq., Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before: FUENTES, ALDISERT and ROTH, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

In this consolidated appeal, Petitioners Eudulio De Leon-Ochoa, Arely and Elida Rivera-Flores, Eufemia Flores-Dominguez, and R.E. L-P- petition for review of the Board of Immigration Appeals' (“BIA” or “Board”) denial of their applications for Temporary Protected Status (“TPS”) for failure to personally satisfy the statutory requirements of “continuous residence” and “continuous physical presence.” ¹ 8 U.S.C. § 1254a. On appeal, Petitioners contend that they fulfill the statutory requirement of “continuous residence,” 8 U.S.C. § 1254a(c)(1)(A)(ii), via imputation of their parents' residence. Petitioners additionally contend that they satisfy the statutory requirement of “continuous physical presence,” 8 U.S.C. § 1254a(c)(1)(A)(i), because the statutory term “most recent designation” rightfully is read to encompass TPS extensions as well as designations. We disagree on both counts. Because Petitioners fail to meet the requirements of “continuous residence” and “continuous physical presence,” they are statutorily ineligible for TPS. For the following reasons, we will deny review. ²

I.

Temporary Protected Status is authorized by Section 244 of the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1254a. It permits eligible nationals of a foreign state to temporarily remain in and work in the United States while the state is designated by the TPS program. Id. The Attorney General, “after consultation with appropriate agencies of the Government,” may issue a TPS designation with respect to a foreign state under certain circumstances such as ongoing armed conflict, natural disaster, or other conditions preventing safe return of aliens. ³ Id. § 1254a(b)(1). “There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Id. § 1254a(b)(5)(A). By statute, aliens are eligible for Temporary Protected Status if they are nationals of a state designated under § 1254a(b)(1) and they meet the following requirements:

(i) the alien has been continuously physically present in the United States since the effective date of the most recent designation of that state;

(ii) the alien has continuously resided in the United States since such date as the Attorney General may designate;

(iii) the alien is admissible as an immigrant, except as otherwise provided under paragraph (2)(A), and is not ineligible for temporary protected status under paragraph (2)(B); and(iv) to the extent and in a manner which the Attorney General establishes, the alien registers for the temporary protected status under this section during a registration period of not less than 180 days.

Id. § 1254a(c)(1)(A) (emphasis added). Pursuant to § 1254a(c)(2), in the determination of an alien's admissibility for purposes of requirement (iii), the Attorney General may waive certain provisions of section 1182(a) for humanitarian purposes, to assure family unity or for other public interest purposes, with the exception of certain sections relating to criminals, drug offenses, and national security. By the terms of the statute, this waiver provision does not apply to the requirements of continuous residence and physical presence. Id. § 1254a(c)(2).

The TPS statute instructs that brief, casual, and innocent departures generally do not effect a failure to maintain continuous physical presence and continuous physical residence for purposes of the TPS program. ⁴ Notably, the statute specifically prescribes that “[n]othing 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.” Id. § 1254a(c)(5).

The applicable regulations repeat the requirements for TPS and also provide for late registration, specifically by children of eligible grantees. An alien from a designated state may apply for Temporary Protected Status in accordance with applicable regulations:

Except as provided in §§ 1244.3 and 1244.4, an alien may in the discretion of the director be granted Temporary Protected Status if the alien establishes that he or she:

(a) Is a national, as defined in section 101(a)(21) of the Act, of a foreign state designated under section 244(b) of the Act;

(b) Has been continuously physically present in the United States since the effective date of the most recent designation of that foreign state;

(c) Has continuously resided in the United States since such date as the Attorney General may designate;

....

(f)(1) Registers for Temporary Protected Status during the initial registration period announced by public notice in the Federal Register, or

(2) During any subsequent extension of such designation if at the time of the initial registration period:

....

(iv) The applicant is a spouse or child of an alien currently eligible to be a TPS registrant.

(g) Has filed an application for late registration with the appropriate Service director within a 60-day period immediately following the expiration or termination of conditions described in paragraph (f)(2) of this section.

8 C.F.R. § 1244.2. Under the regulations, the child or spouse of a person who was eligible for TPS during the initial registration period may apply for TPS during any subsequent extension thereof.

II.

A. Eudulio De Leon-Ochoa, etc., v. Attorney General, No. 09-1520

Petitioner Eudulio De Leon-Ochoa is a national and citizen of Honduras. He entered the United States on or about November 30, 2005, without proper documentation. He was served with a Notice to Appear on November 30, 2005, and charged with removability pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”). He applied for asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and TPS. The IJ issued an oral decision finding Petitioner removable on November 27, 2007.

(1) Asylum, Withholding of Removal, and CAT Protection

At the IJ hearing, De Leon-Ochoa testified that he is part of the Turcios family and that his family is embroiled in a blood feud with the Najera family in Rio Chito, Honduras. Petitioner alleged that the Najera family killed three different members of his family and that the police failed to investigate these deaths. Two of the death certificates omitted cause of death. Petitioner claimed there was political tension between the two families based on the Turcios' support of the National Party and the Najera's support of the Liberal Party. Petitioner testified to participating in politics twice between 2002 and 2004. He claims the Liberal Party told him to move or leave his polling station both times. He also testified that no one in his family has held office with the National Party. Petitioner testified that the Najera family was suspected of other political murders.

De Leon-Ochoa testified that he believed he would be killed by the Najera family if he returned to Honduras. He testified that he could not be protected due to the Najera family's political power and did not have anywhere to stay in Honduras besides his hometown. Petitioner claimed his older brother told him he has no freedom because he fears the Najera will attack him. He admitted that his father did not have trouble with the Najera family before his father left Honduras in 1998, and that his father is not a member of the Turcios family. Petitioner's father testified that there was a blood feud between the Turcios family and the Najera family, and described several killings. The father conceded that neither his wife nor his sons had problems with the Najera family. He explained that women were not targeted in the conflict, and that the sons were not harmed because they did not enter Najera territory. Nonetheless, the father claimed that he still feared for his sons' safety and that the Najera family was still searching for them.

The IJ found Petitioner's testimony to be credible and consistent with his written asylum application, but ultimately found that Petitioner did not show he was a victim of past persecution, nor did he prove an objective fear of future persecution. The IJ held that Petitioner failed to show a likelihood of persecution because his immediate family had not been harmed, he left Honduras six years after the most recent killing of a member of the...