ECHEVERRIA
25 I. & N. Dec. 512
| BIA | 2011Background
- Respondent Ruth R. Echeverria is a native and citizen of Argentina who entered the U.S. in 1998 as a nonimmigrant and overstayed.
- Her spouse obtained TPS as a national of El Salvador during the initial registration period and renewed TPS subsequently.
- Respondent applied for TPS as the spouse of an alien currently eligible to be a TPS registrant, seeking late initial registration under 8 C.F.R. § 1244.2(f)(2)(iv).
- DHS denied TPS, concluding she was not a national of a designated state and thus not eligible for TPS at all, even as a derivative applicant.
- Immigration Judge denied TPS for lack of independent nationality, and respondent’s motion for reconsideration was denied; the Board dismissed the appeal.
- The Board reviews whether a derivative spouse must be from a designated foreign state and must independently meet TPS requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a derivative TPS applicant must be a national of a designated state | Echeverria argues she is eligible as spouse of an eligible TPS registrant | DHS contends TPS requires independent nationality of a designated state | Derivative status insufficient; independent nationality required |
| Whether late initial registration permits TPS for a non-national derivative | Echeverria relies on policy allowing late initial registration for spouses/children | Regulations require all initial TPS criteria to be met; late registration does not override nationality rule | No authority to grant TPS to non-nationals via late initial registration |
| Interpretation of 8 C.F.R. § 1244.2(f)(1) vs (f)(2) conjunctive/disjunctive structure | Respondent asserts broad allowance under (f)(2) for spouses of eligible registrants | The Board reads (f)(2) as separate prerequisites for late initial registration, not substitutes for (a)-(e) | (f)(2) prerequisites are separate; must still satisfy (a)-(e) |
Key Cases Cited
- De Leon-Ochoa v. Att’y Gen. of the U.S., 622 F.3d 341 (3d Cir. 2010) (TPS applicants must be nationals of a designated state and meet §244(c)(1)(A) requirements)
- Cervantes v. Holder, 597 F.3d 229 (4th Cir. 2010) (reading TPS eligibility as conjunctive with designation rules)
- Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871 (2011) (agency interpretations of its own regulations given deference unless plainly erroneous)
- Sosa-Ventura, 25 I&N Dec. 391 (BIA 2010) (discusses TPS registration and eligibility framework)