25 I. & N. Dec. 596
BIA2011Background
- Respondent Antonio Figueroa, a native and citizen of El Salvador, sought TPS designation under 8 U.S.C. §1254a, with USCIS initially denying due to insufficient evidence of continuous residence; DHS served a Notice to Appear on Sept. 11, 2007.
- In removal proceedings, Figueroa renewed his TPS application with a new Form I-821 and DHS produced the USCIS TPS records; he testified and was accompanied by three brothers and a brother-in-law.
- DHS questioned whether the Immigration Judge could consider new witness testimony; there was a recording issue at hearing, and the transcript later showed missing testimony from two witnesses.
- The Immigration Judge denied on May 21, 2009 for lack of sufficient continuous residence evidence; on appeal, Figueroa argued the record was incomplete and remand was warranted to secure the full transcript.
- The Board held that an IJ may consider material and relevant evidence for a renewed TPS application, but remanded because the transcript was incomplete and missing witness testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May an IJ consider non-record evidence in a renewed TPS application? | Figueroa seeks de novo review with new testimony. | DHS contends witnesses not in USCIS record may be limited. | Yes; IJ may consider new material evidence; remand for missing transcript. |
Key Cases Cited
- Matter of Lopez-Aldana, 25 I&N Dec. 49 (BIA 2009) (de novo TPS review in removal proceedings)
- Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007) (de novo review for TPS renewal)
- Matter of Henriquez Rivera, 25 I&N Dec. 575 (BIA 2011) (may obtain DHS application documents in renewal; not limiting to prior record)
- Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008) (interpretation and full consideration of applicable statutes and regulations)