SOSA VENTURA

Cite as 25 I&N Dec. 391 (BIA 2010) Interim Decision #3702

Matter of Maria Armida SOSA VENTURA, Respondent

Decided November 23, 2010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A grant of Temporary Protected Status (“TPS”) waives certain grounds of

inadmissibility or deportability solely for the limited purpose of permitting an alien

to remain and work temporarily in the United States for the period of time that TPS

is effective.

(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 not 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 to 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, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), as an alien who is in the

United States without being admitted. In proceedings before the Immigration

Judge, the respondent admitted the factual allegations in the Notice to Appear,

with the exception of the point of entry.1 During the proceedings, the DHS

1

The respondent stated that she entered at Brownsville, Texas, rather than Laredo, Texas,

as alleged in the Notice to Appear. The DHS does not dispute the respondent’s statement,

which, in any event, does not affect her removability.

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granted the respondent temporary protected status (“TPS”) under section 244

of the Act, 8 U.S.C. § 1254a (2006).

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 that the

respondent was not properly in removal proceedings. See 8 C.F.R.

§ 1003.1(d)(3)(ii) (2010); see also Matter of A-S-B-, 24 I&N Dec. 493 (BIA

2008). We will therefore vacate the order terminating the proceedings.

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 based on that illegal presence, will not preclude a grant

2

During the Immigration Judge’s discussion of legal issues with the parties, the respondent

withdrew from the joint request for administrative closure. On appeal, the respondent

contends that the Immigration Judge properly terminated the proceedings but states that

termination should have been without prejudice.

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of TPS under most circumstances. The Act permits TPS to be granted despite

an alien’s inadmissibility, but it requires a waiver of the grounds

of inadmissibility in order to qualify for TPS. With certain specified

exceptions, “the Attorney General may waive [the provisions] of section

212(a) [of the Act].” Section 244(c)(2)(A)(ii) of the Act; see also 8 C.F.R.

§ 1244.18(a) (2010). Some grounds of inadmissibility that are not subject

to waiver as a precondition of TPS involve criminal and terrorist activities.

See section 244(c)(2)(A)(iii) of the Act. Similarly, section 244(c)(2)(B)

provides that an alien is ineligible for TPS if he or she has been convicted

of any felony or two or more misdemeanors committed in the United States

or is “described in section 208(b)(2)(A)” of the Act, 8 U.S.C. § 1158(b)(2)(A)

(2006), which includes aliens who have been convicted of a particularly

serious crime, have participated in the persecution of others, or are regarded

as a danger to national security. See also 8 C.F.R. § 1244.4 (2010).3

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; 8 C.F.R. § 1244.10(f)(3) (2010); see also United States

v. Flores, 404 F.3d 320, 322-23, 327 (5th Cir. 2005); Designation

of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg.

14,214 (Mar. 9, 2001).4 The waiver therefore only serves to temporarily

protect the respondent from deportation or removal.

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 effect.” 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

3

We note that 8 C.F.R. § 1244.4(b) refers to section 243(h)(2) of the Act, which is no longer

in effect.

4

Aliens must periodically reregister to maintain their TPS status. See section 244(c)(3)(C)

of the Act. In this case, the respondent was initially granted TPS for 18 months.

5

If TPS was intended to waive removability, there would be no reason for provisions such

as section 244(d)(4) of the Act, which prevents an alien who has been granted TPS from

being detained “on the basis of the alien’s immigration status.”

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intent). In discussing the TPS statutory scheme, Congress stated that TPS

“does not create an admissions program. It is designed to protect individuals

already in the United States and gives no alien any right to come te [sic] the

United States.” H.R. Rep. No. 101-245, at 13 (1989), reprinted in 2 Igor I.

Kavass & Bernard D. Reams, Jr., The Immigration Act of 1990: A Legislative

History of Pub. L. No. 101-649, Doc. No. 17, at 13 (1997), available

at http://www.heinonline.org/HOL/Index?collection=leghis (accompanying

the Chinese Temporary Protected Status Act of 1989, H.R. 2929, 101st Cong.

(1989)).6 “The legislation also makes clear that an individual need not

relinquish any other immigration status the individual may have in order

to receive TPS, nor [is the] conferral [of TPS] considered inconsistent with any

other immigration status.” Id. at 14.

The TPS scheme was created to codify and standardize a type of deferral

of deportation 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 the

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 that 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 replace 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 are

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

6

The general TPS statutory scheme set forth in H.R. 2929, the Chinese Temporary Protected

Status Act of 1989, was later enacted with similar language as part of the Immigration Act

of 1990, Pub. L. No. 101-649, § 302, 104 Stat. 4978, 5030. However, the specific

designation of Chinese nationals as aliens eligible for TPS, which was proposed in H.R.

2929, was changed to designate nationals of El Salvador in the enacted legislation. Id.

§ 303, 104 Stat. at 5036; see also H.R. Rep. No. 101-955, at 127 (1990) (Conf. Rep.),

reprinted in 1990 U.S.C.A.A.N. 6784, 6792, 1990 WL 201613 (discussing the treatment

of certain nationals of El Salvador, China, and other countries by the Immigration Act

of 1990).

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for TPS to create a permanent immigration status in the United States. See

section 244(f)(1) of the Act; see also De Leon-Ochoa v. Att’y Gen. of U.S., 622

F.3d 341, 354 (3d Cir. 2010) (stating that TPS “is designed to temporarily

prevent removal of aliens during extraordinary and temporary conditions that

prevent safe return”).

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

18 U.S.C. § 922(g)(5)(A), which criminalizes the possession of a firearm

by aliens who are illegally or unlawfully present in the United States. Id.

at 361-62.

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 18 U.S.C. § 922(g)(5)(A) and not to the proper

disposition of proceedings under the Act when an alien is granted TPS.

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 protection

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 one,

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” once 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

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“futility doctrine.” In that case, the Board harmonized the application of the

Act in the context of adjustment of status, essentially to prevent the absurd

result of an alien being eligible for adjustment and admitted, but then

immediately becoming subject to deportation. Id; see also Matter of Briones,

24 I&N Dec. 355, 365 (BIA 2007) (discussing that any contrary interpretation

of adjustment eligibility would render the statutory language of the Act

so contradictory as to lead to an absurd result inconsistent with congressional

intent (citing Demarest v. Manspeaker, 498 U.S. 184, 190-91 (1991))). TPS

is a protection, distinct from adjustment of status or other relief under the Act.

See section 244(b)(5)(B) of the Act (providing that an alien placed in removal

proceedings may assert protection under the TPS statute). Interpreting the

effect of a grant of TPS as we do here is consistent with congressional intent.

For these reasons, we conclude that termination of the respondent’s removal

proceedings was not proper. Accordingly, the appeal of the DHS will

be sustained, the Immigration Judge’s decision will be vacated, and the

removal proceedings against the respondent will be reinstated. The record will

be remanded to the Immigration Judge for further proceedings.

As noted previously, the parties in this case initially agreed

to administrative closure, which “is used to temporarily remove a case from

an Immigration Judge’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 the 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 8 C.F.R.

§ 1240.12 (2010). However, any such removal order could not be executed

during the period in which the respondent’s TPS status is valid. Section

244(a)(1)(A) of the Act.

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 foregoing opinion and for the entry

of a new decision.

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