Cite as 25 I&N Dec. 49 (BIA 2009) Interim Decision #3649
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Matter of Ismael LOPEZ-ALDANA, Respondent
File A094 762 120 – Bloomington, Minnesota
Decided July 15, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An applicant for Temporary Protected Status may seek de novo review by an
Immigration Judge in removal proceedings, regardless of whether all appeal rights before the
Department of Homeland Security have been exhausted. Matter of Barrientos, 24 I&N Dec.
100 (BIA 2007), clarified.
FOR RESPONDENT: Marcus A. Jarvis, Esquire, Burnsville, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Daniel J. Pornschloegl,
Assistant Chief Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated October 7, 2008, an Immigration Judge found the
respondent removable as charged, concluded that she lacked jurisdiction to
review his request for Temporary Protected Status (“TPS”) under
section 244(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C.
§ 1254a(b)(5)(B) (2006), denied voluntary departure, and ordered the
respondent removed from the United States to El Salvador. The respondent
has timely appealed from that decision. The appeal will be sustained and the
record will be remanded to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of El Salvador. The record reflects
that he first applied for TPS in 2002 and that his application was denied by the
Vermont Service Center on July 15, 2003. The respondent filed subsequent
applications that were also denied, but there is no indication that he ever filed
an appeal with the Administrative Appeals Unit (“AAU”).
The Department of Homeland Security (“DHS”) initiated removal
proceedings against the respondent with the issuance of a Notice to Appear
(Form I-862) dated August 4, 2008, charging that he is subject to removalCite as 25 I&N Dec. 49 (BIA 2009) Interim Decision #3649
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under section 212(a)(6)(A)(i) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006),
as an alien who is present in the United States without being admitted or
paroled. At a hearing before the Immigration Judge, the respondent conceded
that he is removable, but he sought review of his application for TPS. Counsel
for the DHS argued that the Immigration Judge lacked jurisdiction to consider
the respondent’s TPS application.
The Immigration Judge found that she did not have jurisdiction to consider
the respondent’s TPS application, citing our decision in Matter of Barrientos,
24 I&N Dec. 100 (BIA 2007). According to her reading of that case, the
regulations at 8 C.F.R. § 1244.10 (2008) provide that an Immigration Judge
only has jurisdiction to consider the denial of a TPS application in two
situations: (1) where the denial is based on the applicant’s deportability or
excludability and is accompanied by a charging document, and (2) where the
AAU dismisses the alien’s appeal and issues a charging document. Since the
record did not indicate that the respondent appealed the denial of his TPS
application to the AAU or that he was served with a charging document along
with the initial denial of TPS, the Immigration Judge found that she lacked
jurisdiction to review the respondent’s application.
II. ANALYSIS
Section 244(b)(5)(B) of the Act provides the following in regard to an
alien’s right to review of a decision to deny TPS:
The Attorney General shall establish an administrative procedure for the review of the
denial of benefits to aliens under this subsection. Such procedure shall not prevent
an alien from asserting protection under this section in removal proceedings if the
alien demonstrates that the alien is a national of a state designated [for TPS].
In Matter of Barrientos, 24 I&N Dec. 100, we noted that section
244(b)(5)(B) clearly provides that administrative procedures for the denial of
TPS benefits cannot prevent an alien from asserting the right to TPS in
removal proceedings. In that case, the Immigration Judge had ruled that where
an alien has exhausted his right to an internal administrative review of his
TPS application by taking an appeal from the initial denial to the AAU,
an Immigration Judge no longer has jurisdiction to conduct a de novo review
of the application. We reversed that ruling and held that “the regulations
must be read as providing de novo review of eligibility for TPS in removal
proceedings, even if an appeal has previously been denied by the
Administrative Appeals Unit.” Id. at 102.
The Immigration Judge in this case interpreted our holding in Barrientos as
limiting an Immigration Judge’s jurisdiction to conduct de novo review of a
denied TPS application in removal proceedings to circumstances in which anCite as 25 I&N Dec. 49 (BIA 2009) Interim Decision #3649
1 It appears that the regulations also envision that an Immigration Judge will be the initial
adjudicator of a TPS application in certain limited circumstances. For example, the
regulations provide that the filing of a charging document with the Immigration Court
renders any other administrative adjudication or review inapplicable and that the alien’s
eligibility for TPS will then be determined in the proceedings before the Immigration Judge.
See 8 C.F.R. §§ 244.18(b), 1244.18(b). Also, where an alien has a pending proceeding
before an Immigration Judge or the Board at the time a foreign state is designated under
section 244(b) of the Act, the alien will have the opportunity to submit an application to the
designated director within the DHS, but where the basis of the charging document, if
established, would render the alien ineligible for TPS, eligibility would be determined during
the pending proceedings. See 8 C.F.R. §§ 244.7(d), 1244.7(d) (2009).
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alien has exhausted all internal administrative appeal rights with the DHS.
Because of the particular facts in Barrientos, our decision could be so
construed, and, in fact, we have subsequently issued some unpublished orders
that have followed the limited reading of our holding reflected in the
Immigration Judge’s decision in this case.
However, we now clarify that our decision in Barrientos was not intended
to restrict an Immigration Judge’s jurisdiction to review a TPS application to
the two situations described by the Immigration Judge. Neither section
244(b)(5) of the Act nor the regulations require the exhaustion of internal
DHS appeal procedures before an Immigration Judge may conduct a de novo
review of an alien’s eligibility for TPS. See C.F.R. §§ 244.10(d)(1), 244.11,
1244.10(d)(1), 1244.11 (2009). Instead, the Act simply provides that any
administrative procedure for the review of the denial of TPS benefits shall not
prevent an alien from asserting TPS protection in removal proceedings if the
alien demonstrates that he or she is a national of a state designated under
section 244(b)(1). Section 244(b)(5)(B) of the Act. Moreover, 8 C.F.R.
§§ 244.18(b) and 1244.18(b) (2009) provide that an alien has the right to a
de novo determination of his or her eligibility for TPS in removal proceedings
and that in the event that such proceedings are initiated while an appeal before
the AAU is pending, the “appeal shall be dismissed and the record of
proceeding returned to the jurisdiction where the charging document was
filed.”1
These regulations, which were cited in Barrientos, support our reading
of that decision and undermine the argument that de novo review can occur
only after the exhaustion of internal AAU appeal rights. We therefore
conclude that since the respondent’s application for TPS was adjudicated and
denied by the DHS, he may assert his right to review of his application before
the Immigration Judge, even though he took no appeal to the AAU.
Based on the foregoing, we will sustain the respondent’s appeal and remand
the record to the Immigration Judge to conduct a de novo review of the
respondent’s TPS application. In light of our decision to remand, we find it
unnecessary to address the respondent’s other arguments on appeal.Cite as 25 I&N Dec. 49 (BIA 2009) Interim Decision #3649
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ORDER: The appeal is sustained.
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.