Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Tobar v. Garland (April 7, 2023) No. 21-60875 are as follows:

 

Case History

An Immigration Judge sustained a removal charge brought against the Petitioner by the Department of Homeland Security (“DHS”).

 

The Immigration Judge denied the Petitioner’s applications for relief from removal and ordered her removed.

 

The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s determination.

 

The Petitioner filed a petition for review of the BIA’s decision.

 

Facts

• The Petitioner is a native and citizen of El Salvador.  She originally entered the United States in 1997 under her birth name, Guadalupe Tobar.
• In that same year, DHS officers apprehended the Petitioner who was ultimately ordered removed in an in absentia hearing (a removal hearing conducted in the respondent’s absence) upon her failure to appear at her removal hearing.
• However, the Petitioner remained in the United States and used a different name to apply for temporary protected status (“TPS”) provided under section 244 of the Immigration and Nationality Act, as amended (“the Act”) which was granted.
• In 2015, the Petitioner quit her job and returned to El Salvador to visit her sick father.
• The Petitioner remained outside the United States for 111 days.
• Border Patrol officers apprehended the Petitioner upon her return.
• The DHS initiated formal removal proceedings against the Petitioner in which she conceded that she was subject to removal.
• The Petitioner then applied for TPS and cancellation of removal under section 240A(b) of the Act.
• The Immigration Judge determined that the Petitioner was ineligible for TPS because her 111-day absence disrupted her required continuous physical presence in the United States.  See section 244(c)(1)(i) of the Act and 8 C.F.R. § 1244.1.
• In particular, the Immigration Judge found that although the Petitioner’s father had been diagnosed with cancer in 2002, the Petitioner had waited thirteen years to return to see him; and that, although the Petitioner stated her father had passed away only a week after her return to the United States in 2015, other evidence, which the Petitioner did not seem to dispute, indicated that he did not pass away until 2017.
• The Immigration Judge also denied the Petitioner’s application for cancellation of removal.
• The Board of Immigration Appeals (“BIA”) The BIA affirmed the Immigration Judge’s decision and specifically held that the Petitioner “did not meet her burden of establishing that a departure of 111 days is a ‘short duration’ that was reasonably calculated to accomplish the purpose of her absence from the United States.”  See 8 C.F.R. § 1244.1(1).
• The Petitioner then filed a petition for review.

 

Held

Petition for Review DENIED

 

Rationale

The Petitioner did not contest denial of her cancellation of removal application.

The primary thrust of the Petitioner’s appeal was that the BIA erred in concluding that her absence did not meet the definition of a “brief, casual, and innocent absence” under 8 C.F.R. § 1244.1.

In particular, the Petitioner asserted that:

1. the BIA misinterpreted the regulation by applying a per se rule that absences exceeding three months can never be absences “of short duration and reasonably calculated to accomplish” their purposes;
2. this interpretation was legal error because there is no statutory or regulatory TPS provision indicating that a departure exceeding three months cannot qualify as a brief, casual, and innocent absence; and  
3. 111 days was a relatively short period of time in the surrounding circumstances.

The Fifth Circuit Court of Appeal reasoned as follows:

• “The BIA’s conclusions of law are reviewed de novo (legalese meaning a new decision unaffected by a previous decision).
• Deference, however, is given to the BIA’s interpretation of immigration regulations if that interpretation is reasonable.”  Barrios–Cantarero v. Holder, 772 F.3d 1019, at 1021 (5th Cir. 2014) (per curiam) (citing Hernandez-Castillo v. Moore, 436 F.3d 516, at 519 (5th Cir. 2006)). 
• In other words, when the BIA’s legal conclusion embodies an interpretation of its own ambiguous regulation, an appellate court will defer to the BIA’s interpretation unless it is plainly erroneous or inconsistent with the regulation.   See Dominion Ambulance, L.L.C. v. Azar, 968 F.3d 429, at 434 (5th Cir. 2020).
• In the absence a single, precise regulatory definition, the regulation must be interpretated in the light of given circumstances.
• Consequently, the BIA’s interpretation of the regulation in the context of this case qualifies for deference, unless it is plainly erroneous or inconsistent with the regulation.
• Nothing in the record of proceedings suggests that the BIA’s application of the regulation’s terms to the circumstances surrounding the Petitioner’s absence was plainly erroneous or inconsistent with the regulation.
• In short, on the totality of the record, it cannot be said that the BIA erred in its conclusion that Tobar failed to satisfy the continuous physical presence in the United States required to be eligible for TPS where:

1. the Petitioner quit her job before she departed;
2. she was gone for 111 days;
3. she had waited thirteen years since her father’s cancer diagnosis to visit him; and
4. the evidence, indicates that her father’s death was not imminent (i.e. the Petitioner’s father did not die until two years after her return to the United States.

 

Commentary

It seems clear based on the Fifth Circuit Court of Appeal’s reasoning in Tobar v. Garland that the determination of “brief, casual and innocent absence” exception to the continuous physical presence requirement for TPS under section 244 of the Act is fact driven.

Since the Fifth Circuit Court of Appeal will not disturb this type of determination unless it is plainly erroneous or inconsistent with the regulation, it is virtually essential for immigration law practitioners to somehow persuade the Immigration Judge, or alternatively the BIA, that an absence from the United States was “of short duration and reasonably calculated to accomplish the purpose for the absence.”  See 8 C.F.R. § 1244.1(1).

TPS appears to be a somewhat fragile means of avoiding removal from the United States.  I hesitate to classify it as relief from removal, because the DHS can pursue a removal order against a TPS beneficiary, even though the order cannot be executed as long as such alien holds TPS status 

That being said, in my roughly 35 years of combined experience working for United States Customs, the Immigration and Naturalization Service and the Immigration Court I feel comfortable suggesting that, generally speaking, nothing is more permanent than a temporary resident.

Perhaps, a review of the basic standards for TPS qualification might provide clarity.

To be eligible for TPS under section 244 of the Act, an applicant must prove that he or she:

1. is a national of a state designated under section 244(b)(1) of the Act (or in the case of an alien having no nationality is a person who last habitually resided in a designated state);
2. has been continuously physically present in the United States since the effective date of the most recent designation of the state;
3. has continuously resided in the United States since any date identified by the Attorney General for purposes of temporary protected status;
4. is admissible as an immigrant, except exclusion grounds under sections 212(a)(5) (aliens required to have a labor certification) and 212(a)(7)(A) (aliens required to have an immigrant visa) do not apply; and
5. has registered for temporary protected status during a registration period of not less than 180 days.

An alien who has been convicted for a felony, or two or more misdemeanors committed in the United States is not eligible for TPS.   See section 244(c)(2)(B)(i) of the Act.  Likewise, an alien described in section 208(b)(2)(A) of the Act is not eligible for TPS.  Aliens described in section 208(b)(2)(A) of the Act are aliens who have participated in persecution, have been convicted of a particularly serious crime, or there are serious reasons to believe the alien has committed a serious nonpolitical crime outside the United States prior to arrival in the United States.  

No waiver is available to a TPS applicant who is subject to exclusion under sections 212(a)(2)(A) or 212(a)(2)(B) of the Act (relating to criminals); section 212(a)(2)(C) of the Act (relating to drug offenses), except for a single offense of simple possession of 30 grams or less of marihuana; and sections 212(a)(3)(A), (B), (C), and (E) of the Act (relating to national security, Nazi persecutions, and participation in genocide).

Physical presence is not cut off by brief, casual and innocent absences from the United States.  See section 244(c)(4)(A) and (B) of the Act.

There is a tendency among some immigration attorneys to treat TPS like other forms of relief from removal.  In fact, a grant of TPS does not prevent the DHS from pursuing a removal order, even if such order cannot be executed as long as the alien enjoys TPS status. 

Therefore, it is not proper for an Immigration Judge to terminate removal proceedings based on a grant of TPS.  Matter of Sosa-Ventura, 25 I&N Dec. 391 (BIA 2010).  For example, if a respondent qualifies for TPS in immigration court proceedings and no other relief from removal is available the Immigration Judge can grant TPS and issue a removal order. 

For this same reason, it may be difficult to justify a motion to reopen removal proceedings to allow consideration of a TPS application.  Even if removal proceedings are reopened, a grant of TPS will not alter the previous disposition of the case.

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