Matter of Maria Armida SOSA VENTURA, Respondent
U.S. Dеpartment of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided November 23, 2010
25 I&N Dec. 391 (BIA 2010)
Interim Decision #3702
(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 nоt 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 tо the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
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,
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 thаt the respondent was not properly in removal proceedings. See
II. ANALYSIS
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 basеd on that illegal presence, will not preclude a grant
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;
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 effeсt. 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) (stating that when statutory language is unclear, we consider legislative history to help determine congressional
The TPS scheme was created to codify and standardize a type of deferral of depоrtation called Extended Voluntary Departure or EVD, which had existed for decades to address humanitarian concerns. Id. at 9 ([E]very Administration since and including that of President Eisenhower has permitted one or more groups of otherwise deportable aliens to remain temporarily in thе United States out of concern that the forced repatriation of these individuals could endanger their lives or safety.). 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 thаt 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 reрlace 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 аre 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 intend
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
The court‘s determination in Orellana that an alien in valid TPS status is not illegally in the United States, and thus was not properly convicted of this firearms offense, is consistent with the Act and the regulations, as well as the purpose of TPS as expressed in the legislative history. The court noted that a grant of TPS allows an alien to remain lawfully in the United States for a period of time and offers aliens certain benefits, such as the opportunity to be lawfully employed. According to the court, aliens granted TPS are not part of an underground population of persons. Id. at 368. Thus, the court reasoned these individuals were not the segment of the population with which the criminal statute was concerned. Id. Accordingly, the holding in Orellana relates to the scope of
We agree with the court in Orellana that TPS renders an alien‘s presence lawful. Id. at 364; see also Okpa v. U.S. INS, 266 F.3d 313, 315 (4th Cir. 2001) (TPS allows an alien to remain in the United States legally. . . .). However, as the name indicates, TPS only provides a temporary prоtection from removal. Orellana does not contradict our determination that, given the limitations of TPS, the respondent is properly in removal proceedings. Although the court noted that the alien‘s inadmissibility was implicitly waived, there is no discussion to refute the fact that such a waiver is a narrow оne, limited to the humanitarian purposes of the TPS provisions of the Act. United States v. Orellana, 405 F.3d at 363 n.8. Moreover, the court explicitly stated that removal was precluded only so long as the registration is in effect. Id. at 363-64. In fact, the court noted that the alien in that case would ‘revert’ to his original illegal immigration status оnce his TPS was no longer effective. Id. at 366. Nothing in the court‘s discussion convinces us that our determination is not the proper one for the administration of immigration proceedings.
We also are not persuaded by the respondent‘s reliance on Matter of Rainford, 20 I&N Dec. 598, 599-600 (BIA 1992), and its rejection of the
As noted previously, the parties in this case initially agreed to administrative closure, which is used to temporarily remove a case from an Immigration Judgе‘s calendar or from the Board‘s docket. Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996). This approach is consistent with the nature of TPS. On remand, if the respondent does not want the proceedings to continue, she may request that her case be administratively closed, which requires agreement of both parties. Id. However, if thе respondent does not make such a request, or does not agree to administrative closure, the proceedings should continue, and the respondent should be provided an opportunity to apply for any relief for which she may be eligible. See Matter of Quintero, 18 I&N Dec. 348, 350 (BIA 1982). If the proceedings continue and the respondent does not apply, or is not eligible, for relief from removal, then an order of removal should be entered. See
ORDER: The appeal of the Department of Homeland Security is sustained, the decision of the Immigration Judge is vacated, and the removal proceedings against the respondent are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the forеgoing opinion and for the entry of a new decision.