27 I. & N. Dec. 575
BIA2019Background
- Respondent, a Salvadoran who entered the U.S. in 1997, pled guilty (Jan 30, 2018) to attempted endangering the welfare of a child (N.Y. Penal Law §§ 110.00, 260.10(01)) and received 90 days’ imprisonment; an order of protection was issued.
- An Immigration Judge (IJ) found respondent removable under INA § 212(a)(6)(A)(i) and concluded he was statutorily eligible for Temporary Protected Status (TPS) under INA § 244 but denied TPS in the exercise of discretion.
- Respondent appealed, arguing (1) an IJ lacks authority to deny TPS as a discretionary matter and (2) even if discretionary, he merited TPS on the equities.
- The Board analyzed statutory text and regulations, concluded TPS grants are discretionary, and that IJs have authority to adjudicate TPS applications in removal proceedings.
- The IJ considered both the charging document and respondent’s testimony, found the charging document reliable, disbelieved respondent’s explanations, and determined his crime’s seriousness and lack of candor outweighed favorable equities.
- The Board reviewed the IJ’s credibility and discretionary balancing de novo and dismissed the appeal, affirming denial of TPS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TPS is discretionary and IJs may deny TPS in exercise of discretion | Respondent: TPS not discretionary unless statute expressly incorporates "discretion" or "good moral character"; IJs lack authority to deny TPS | Government/Board: INA § 244(a)(1)(A) uses "may grant," regulations state TPS "may in the discretion of the director be granted," and prior BIA precedent permits IJ adjudication | Held: TPS is discretionary; IJs have authority to deny TPS in removal proceedings |
| Whether the IJ may consider facts outside the conviction record when exercising discretion | Respondent: IJ improperly relied on charging document and factual allegations beyond the guilty plea; reliance on police reports was impermissible (citing Padmore) | Government/Board: IJ may consider reliable, probative evidence (charging documents, police reports) to assess circumstances of the conviction for discretionary relief | Held: IJ may consider such evidence; here charging document was reliable and IJ’s adverse credibility finding was permissible |
| Whether respondent’s single misdemeanor conviction barred TPS eligibility | Respondent: single misdemeanor does not bar TPS and thus warrants grant | Government/Board: Single misdemeanor does not bar statutory eligibility but statutory eligibility does not compel a favorable discretionary grant | Held: Statutorily eligible but eligibility alone does not require grant; discretion governs |
| Whether the IJ’s denial of TPS was an appropriate exercise of discretion | Respondent: equities (long residence, employment, ties) outweigh adverse factors; IJ erred in credibility findings | Government/Board: respondent’s crime serious, testimony evasive, lack of candor, and charging facts outweigh equities | Held: Denial affirmed — serious nature of offense and lack of candor outweighed equities |
Key Cases Cited
- Jama v. ICE, 543 U.S. 335 (2005) ("may" generally connotes discretion)
- SAS Institute, Inc. v. Iancu, 138 S. Ct. 1348 (2018) (contrast of "may" and "shall" in statutory interpretation)
- Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137 (11th Cir. 2009) (concluding TPS grant is within Secretary's discretion)
- INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996) (statutory eligibility does not limit discretionary considerations)
- Padmore v. Holder, 609 F.3d 62 (2d Cir. 2010) (limits on using police reports where IJ made no factual findings; distinguishes improper factfinding)
- Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985) (standard for reviewing factual findings: two permissible views precludes clear error)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach in analyzing convictions)