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Late Initial Registration For TPS: An Unduly Restrictive Procedure?

by Joseph M. Perez

An Immigration Judge, based upon the Department of Homeland Security's (DHS) "late initial" registration regulations1, denied Respondent's request for Temporary Protective Status (TPS) which he asserted in removal proceedings. Respondent now asks the Board of Immigration Appeals (BIA) to explain the meaning of the phrase "without qualification" that it used in the case of In re William Osmin Barrientos.2

1. Facts.

Respondent is a national of El Salvador who has resided in the United States continuously since February 13, 2001 and who has been physically present in the United States continuously since March 9, 20013. As part of the application process, Respondent provided his fingerprints which have not produced any "hits." Respondent has not been convicted, in the United States, of any felony or 2 or more misdemeanors.

Respondent first applied for TPS on September 13, 2006. On July 3, 2007, the Unites States Citizenship and Immigration Service (USCIS) denied the application because Respondent had not established that he was entitled to "late initial" registration. USCIS served Respondent with a Notice to Appear on November 29, 2007. On November 24, 2008, Respondent filed an application for TPS with the Immigration Court. An Immigration Judge (IJ) denied Respondent's entitlement to TPS on April 30, 2009. Respondent filed a timely appeal with the BIA.

The facts of this Appeal present an anomalous situation where the United States government is conducting a proceeding whose purpose is to remove Respondent to El Salvador which the same government has determined is experiencing "a substantial, but temporary, disruption in living conditions . . . and that El Salvador continues to be unable to handle adequately the return of its nationals."4

2. Temporary Protected Status.

Section 302 of the Immigration Act of 1990 (IMMACT90)5 authorized the Attorney General (now the Secretary of Homeland Security) to grant TPS to nationals of designated countries who are temporarily unable to return safely to their home country because of ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions.6 During the period for which a country has been designated for TPS, beneficiaries may not be deported and may obtain work authorization.7 IMMACT90 303 designated El Salvador as a state whose citizens were eligible for TPS.8

3. Eligibility.

To be eligible for TPS an alien must: a)be a national of a state designated for TPS; b)have been continuously physically present in the United States since the effective date of the most recent designation of that state; c)have continuously resided in the United States since such date as the Attorney General may designate; and d)register for temporary protected status during a period of not less than 180 days established by the Attorney General.9 Certain aliens are ineligible for TPS by statute for, among other things, the conviction of any felony or 2 or more misdemeanors committed in the United States.10

4. Regulations.

In addition to the statutory criteria, DHS has added the following regulatory requirements: an alien must register for TPS during the initial registration period;11 and may, under "late initial" registration procedures, register for TPS during any subsequent extension of the designation period.12 An alien must register annually for TPS.13

An alien is eligible for "late initial" registration if, during the initial registration period: a)the applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal; b)the applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal; c)the applicant is a parolee or has a pending request for reparole; or d)the applicant is a spouse or child of an alien currently eligible to be a TPS registrant.14

5. TPS is a Humanitarian Benefit.

It cannot be disputed that TPS is a humanitarian benefit because it provides a temporary safe haven for nationals whose "countries are experiencing temporary negative conditions such as armed conflict or environmental disasters, that make it difficult for the nationals to return safely or for the countries to accept their return."15 Consistent with its humanitarian purpose, the Immigration and Nationality Act (INA) guarantees that an alien will not be prevented "from asserting [TPS] protection . . . in removal proceedings if the alien demonstrates that the alien is a national of a state designated [for TPS protection]."16 Legislation granting a humanitarian benefit is to be liberally construed to achieve its purpose. Moses v. Falstaff Brewing Corp.17

6. In re William Osmin Barrientos.18

In Barrientos, the Board BIA found the scope of INA 244(b)(5)(B) to be broad, and, for purposes of a Chevron analysis,19 unambiguous: "The statute provides, without qualification, that administrative procedures will not prevent an alien from asserting his right to TPS in removal proceedings."20

The BIA did not define the exact contours of the phrase "without qualification." However, the facts in the present case appear to parallel the facts in Barrientos, i.e., neither Respondent registered for TPS during the initial registration period and neither was found eligible for "late initial" registration. If the same "late initial" registration analysis used by the IJ to deny TPS in the present case were applied to the facts of Barrientos, then Respondent Barrientos should have been ineligible for TPS because he failed to register during the initial period. Notwithstanding the fact that Respondent Barrientos failed to satisfy the threshold issue of eligibility for initial or "late initial" registration, DHS never challenged his entitlement to TPS on procedural grounds21 and the BIA never addressed the issue.22 The present case asks the BIA to address the issue because the IJ, with the concurrence of the Trial Attorney, denied Respondent's assertion of TPS on procedural grounds.23

7. Conclusion.

Regulations administrating a humanitarian benefits should be the crafted in the least restrictive manner. DHS has constructed a regulatory framework which restricts Respondent, and others, from receiving the protection contemplated by INA 244.

It is undisputed that Respondent is eligible for TPS. It is also undisputed that he registered for TPS.24 However, the IJ found Respondent removable because he was ineligible for "late initial" registration.25 Respondent is entitled to TPS protection for statutory reasons which cannot be distinguished meaningfully from the regulatory reasons contained in the "late initial" registration procedures. Even if Respondent's case were distinguishable, the distinction does not serve a purpose consistent with the humanitarian purpose of the statutory grant of TPS.26

To the extent that the "late initial" registration procedures interfere with receipt of humanitarian relief they represent a narrow and unduly restrictive interpretation of the INA. Humanitarian legislation should not be interpreted or applied in a narrow or grudging manner.27

End Notes

18 C.F.R. 244.2(f)(2).

2"The statute provides, without qualification, that administrative procedures will not prevent an alien from asserting his right to TPS in removal proceedings."Barrientos, 24 I&N Dec. at 102 (emphasis added).

3These facts were not contested by the Trial Attorney and accepted by the IJ.

473 Fed. Reg. 57,128, 57,129 (Oct. 1, 2008). The same government has designated El Salvador for TPS from 1990 to 1992, IMMACT90 303(a), and continuously since March 9, 2001, 73 Fed. Reg. at 57,129).

5Pub. L. 101-649, 104 Stat. 4978 at 5030-36.

6Immigration and Nationality Act (INA) 244(a)(1).


8104 Stat. at 5036. Section 308(b)(7) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 recodefied INA 244A as the present INA 244. Pub. L. 104-208, 110 Stat. 3009.

9INA 244(c).

10INA 244(c)(2)(B).

118 C.F.R. 244.2(f)(1).

128 C.F.R. 244.2(f)(2).

138 C.F.R. 244.17(a).

148 C.F.R. 244.2(f)(2).

15Question 1, USCIS Frequently Asked Questions, September 24, 2008.

16INA 244(b)(5)(B).

17525 F.2d 92, 93 (8th Cir. 1975); accord Morelli v. CEDEL, 141 F.3d 39, 43 (2d Cir. 1998)(statutory construction of humanitarian legislation should not undermine its intent unless Congress has clearly expressed a contrary intent); see also Morante-Novarro v. T & Y Pine Straw, Inc., 350 F.3d 1163, 1166 (11th Cir. 2003)(Migrant and Seasonal Agricultural Workers Protection Act is a remedial statute and should be construed broadly to effect its humanitarian purpose); Herman v. Fabri-Centers of America, 308 F.3d 580, 585 (6th Cir. 2002)(Fair Labor Standards Act is remedial and humanitarian in purpose and must not to be interpreted or applied in a narrow or grudging manner), citing Tennessee C., I. & R. Co. v. Muscoda, 321 U.S. 590, 597 (1944).

1824 I&N Dec. 100 (BIA 2007)

19Once the court determines that "the intent of Congress is clear, that is the end of the [analysis,] for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984).

20Barrientos, 24 I&N Dec. at 102 (emphasis added).

21DHS did not argue that de novo review was precluded by the threshold registration issue. In re Barrientos, 24 I&N Dec. at 100 n.1. DHS argued instead "that the Immigration Judge lacked jurisdiction to consider the TPS application." Id. at 101.

22In the present case, neither the Trial Attorney nor IJ cited any statute, regulation, procedure or case law to support the proposition that ineligibility for "late initial" registration was a bar to de novo review, in removal proceedings, of entitlement TPS . DHS never issued a clarifying regulation in the wake of Barrientos. The Trial Attorney's arguments against de novo review in the present case represent DHS's litigating position which is not, per se, entitled to Chevron deference. See, e.g., Sec'y of Labor, MSHA v. Nat'l Cement Co., 494 F.3d 1066,1073 (DC Cir. 2007)(agency's litigating position not entitled to Chevron deference where it's interpretation incorrectly treated statute as unambiguous); Ashcroft v. Ali, 346 F.3d 873, 885 (9th Cir. 2003)(agency litigating position inconsistent with regulations and policy not entitled to deference), citing Defenders of Wildlife v. Norton, 258 F.3d 1136, 1145 n.11 (9th Cir.2001); William Bros, Inc., v. Pate, 833 F.2d 261, 265 (11th Cir. 1987)(clarifying regulations and not litigation positions are the proper means to express agency policy); see also, Dir. OWCP v. General Dynamics Corp., 982 F.2d 790, 797 (2d Cir. 1992)(deference does not extend to agency's application of statute to the particular facts of every case).

23"In sum, the government noted that Title 8, Code of Federal Regulations Part 244.2(f)(2) allows initial registration for certain applicants during any extension of Temporary Protected Status at its designation, provided that at the time of the initial registration period of March 9, 2001 through September 9 of 2002, the applicant [was in one of the statuses described in 8 C.F.R. 244.2(f)(2)] . . . . The Respondent in this case has not set forth any evidence that he meets any of the qualifying conditions listed above at the time of the initial registration period." Slip op. at 3.

24See supra, Section 1.

25The grounds for "late initial" registration listed in 8 C.F.R. 244.2(f)(2) appear to relate to status and, and any particular status is not a pre-requisite for TPS, e.g., INA 244(c)(2)(A)(ii)(Attorney General may, for humanitarian purposes, waive any provision of INA 212(a) relating to inadmissibility).

26The IJ interpretation that ineligibility for "late initial" registration acts as a bar to further review of entitlement to TPS renders review under INA 244(C)(5)(B) meaningless. Interpreting one section of a statute in a manner which renders another section meaningless violates a fundamental principle of statutory construction. In re Estate of Covington, 450 F.3d 917, 924 (9th Cir. 2006)(regulatory interpretation must not render another regulation superfluous); Berry v. U.S., 516 U.S. 137, 146 (1995)(statutory construction assumes that Congress intended each term to have meaning). Statutory language must be read in its context and with a view to its place in the overall statutory scheme because it is only by reading the language in context that its meaning will become evident. Food and Drug Administrat. v. Brown & Williamson Tobacco Corp., 529 U.S. at 133. See Lin v. U.S. Dep't of Justice, 949 F.3d 296, 318 (2nd Cir. 2007)(Katzmann, J., concurring)(amendment must be interpreted within statutory scheme of which it is a part); Bailey v. United States, 516 U.S. 137, 145 (1995)(in addition to its bare meaning the placement and purpose of a word must be considered within the statutory scheme).

27Herman v. Fabri-Centers of America, 308 F.3d 580, 585 (6th Cir. 2002).

About The Author

Joseph M. Perez a graduate of George Mason University School of Law, is a practicing attorney in Arlington, Virginia. Mr. Perez handles a broad range of basic immigration matters, including all visa categories and forms of relief. His practice frequently involves appellant work at all levels, including USCIS/AAU and the Board of Immigration Appeals. Mr. Perez can be reached at Law Offices of Joseph M. Perez, PLLC, 933 North Kenmore Street, Suite 401-A, Arlington, VA 22201 with phone number: (703) 807-0350.

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