Cite as 26 I&N Dec. 325 (BIA 2014) Interim Decision #3804
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Matter of Ingrid Carolina DUARTE-LUNA, Respondent
Matter of Bessy Beatriz LUNA, Respondent
Decided June 20, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A parent’s continuous physical presence and continuous residence in the United States
cannot be imputed to a child for purposes of establishing the child’s eligibility for
Temporary Protected Status.
FOR RESPONDENT: Ilyce Shugall, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Aaron Keesler, Assistant
Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated August 25, 2009, an Immigration Judge granted the
respondents’ applications for Temporary Protected Status (“TPS”) under
section 244(a) of the Immigration and Nationality Act, 8 U.S.C. § 1254a(a)
(2006). The Department of Homeland Security (“DHS”) has appealed from
that decision. The respondents oppose the appeal. The appeal will be
sustained, and the record will be remanded to the Immigration Judge.
The respondents, who are natives and citizens of El Salvador, are two
sisters whose mother was granted TPS in 2001. Both respondents arrived
in the United States as minors on August 24, 2003, and were served with
notices to appear 2 days later. They subsequently filed applications for
TPS in 2005, and removal proceedings were administratively closed while
their applications were pending. The respondents’ applications were
denied and their appeals were dismissed. They subsequently filed renewed
applications, all of which were denied. Removal proceedings were then
recalendared.
In her decision, the Immigration Judge relied on two opinions of the
United States Court of Appeals for the Ninth Circuit in finding that the
continuous physical presence and continuous residence of the respondents’
mother could be imputed to them for purposes of establishing their
eligibility for TPS because they entered the United States as unemancipatedCite as 26 I&N Dec. 325 (BIA 2014) Interim Decision #3804
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minors. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1021−29 (9th Cir.
2005); Lepe-Guitron v. INS, 16 F.3d 1021, 1025−26 (9th Cir. 1994). The
Immigration Judge consequently found the respondents eligible for TPS
and granted their applications for that relief.
Section 244(a) of the Act does not provide for “derivative” TPS status.
However, the regulations state that an applicant for TPS who is the child of
“an alien currently eligible to be a TPS registrant” may be eligible to
receive TPS through late registration. 8 C.F.R. § 1244.2(f)(2)(iv) (2013).1
The applicant must nevertheless satisfy several additional requirements,
including continuous physical presence in the United States since
the effective date of the foreign country’s most recent designation and
continuous residence in the country since the date designated by the
Attorney General. 8 C.F.R. § 1244.2(b), (c).2
The effective date of the TPS designation of El Salvador was March 9,
2001, and the Attorney General has designated February 13, 2001, as the
date by which the alien’s continuous residence in the United States must
have begun. See Designation of El Salvador Under Temporary Protected
Status Program, 66 Fed. Reg. 14,214, 14,215 (Mar. 9, 2001). Extensions
of TPS designations do not constitute new designations of TPS.
See De Leon-Ochoa v. Att’y Gen. of U.S., 622 F.3d 341, 355−56 (3d Cir.
2010); Cervantes v. Holder, 597 F.3d 229, 234−36 (4th Cir. 2010);
Extension of the Designation of El Salvador for Temporary Protected
Status, 78 Fed. Reg. 32,418, 32,418 (May 30, 2013) (stating that applicants
must meet “all TPS eligibility criteria (including continuous residence in
the United States since February 13, 2001, and continuous physical
presence in the United States since March 9, 2001”)) (Summary). The
respondents concede that they entered the United States on August 24, 2003.
Therefore they have not continuously resided in the United States since
February 13, 2001, and have not been physically present in the
United States since March 9, 2001, as required for TPS eligibility.
Moreover, the physical presence and residence of the respondents’
mother may not be imputed to them for purposes of establishing their
1 The regulations relating to TPS applications submitted to the DHS are at 8 C.F.R.
§ 244.2 (2013).
2 The respondents’ argument that late initial registration applicants are not required to
satisfy the continuous physical presence and residence requirements is inconsistent with
the regulations and is not persuasive. The regulations clearly state that all TPS applicants
must meet the eligibility requirements in 8 C.F.R. § 1244.2(a)−(e), which includes
continuous physical presence and continuous residence. See Temporary Protected Status,
Exception to the Registration Deadlines, 63 Fed. Reg. 63,593, 63,594 (Nov. 16, 1998)
(Supplementary Information); see also Matter of Echeverria, 25 I&N Dec. 512, 516−17
(BIA 2011).Cite as 26 I&N Dec. 325 (BIA 2014) Interim Decision #3804
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eligibility for TPS. Subsequent to the Immigration Judge’s decision in
this case, the United States Supreme Court specifically abrogated the
Ninth Circuit’s holding in Cuevas-Gaspar with respect to the residence
requirement and upheld our determination that a parent’s years of residence
may not be imputed to an alien child seeking to establish eligibility for
cancellation of removal, who must independently establish the required
period of continuous residence. Holder v. Martinez Gutierrez, 132 S. Ct.
2011 (2012); see also Matter of Montoya-Silva, 26 I&N Dec. 123, 125−26
(BIA 2013) (noting the Supreme Court’s abrogation of Cuevas-Gaspar and
reaffirming Matter of Escobar, 24 I&N Dec. 231 (BIA 2007), and Matter of
Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), which held that a parent’s
residence in the United States cannot be imputed to a child in determining
the child’s eligibility for cancellation of removal under section 240A(a)
of the Act, 8 U.S.C. § 1229b(a) (2006)). The Court found that the Board
reasonably distinguished between “matters involving an alien’s state of
mind” (such as the parent’s domicile or abandonment of lawful permanent
resident status), which can be imputed to the child, and “objective
conditions or characteristics” (such as the parent’s place of residence),
which are not imputed to the child. Holder v. Martinez Gutierrez, 132 S. Ct.
at 2020 (citing Matter of Escobar, 24 I&N Dec. at 233−34 & n.4).
Consistent with the Supreme Court’s ruling, we conclude that the
respondents must independently establish their continuous residence in the
United States since February 13, 2001, because their mother’s residence
cannot be imputed to them.
Nor can the respondents’ mother’s physical presence be imputed
to them for purposes of establishing the necessary continuous physical
presence for TPS. According to 8 C.F.R. § 1244.1, the phrase
“[c]ontinuously physically present” means “actual physical presence in the
United States for the entire period specified in the regulations,” with an
exception relating to brief, casual, and innocent absences that is not relevant
to the respondents. Because the respondents’ physical presence is an
objective condition or characteristic, and not a matter involving their state
of mind, their mother’s physical presence cannot be imputed to them.
See Saucedo-Arevalo v. Holder, 636 F.3d 532, 533 (9th Cir. 2011)
(declining to impute a parent’s physical presence for purposes of
establishing a child’s eligibility for cancellation of removal under
section 240A(b)(1)(A) of the Act); Barrios v. Holder, 581 F.3d 849,
862−65 (9th Cir. 2009) (similarly declining to impute a parent’s
physical presence for purposes of establishing eligibility for relief underCite as 26 I&N Dec. 325 (BIA 2014) Interim Decision #3804
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section 203(b) of the Nicaraguan Adjustment and Central American Relief
Act, Pub L. No. 105-100, 111 Stat. 2160, 2198 (1997)).3
The respondents have not continuously resided in the United States
since February 13, 2001, and have not been continuously physically present
since March 9, 2001. They have therefore not established their eligibility
for TPS. Accordingly, the DHS’s appeal will be sustained, and the record
will be remanded to give the respondents an opportunity to apply for any
relief for which they may be eligible.
ORDER: The appeal of the Department of Homeland Security is
sustained, and the decision of the Immigration Judge is vacated.
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.
3 Other circuit courts have found that a parent’s continuous residence or continuous
physical presence may not be imputed for purposes of establishing a child’s eligibility for
TPS. See Castillo-Enriquez v. Holder, 690 F.3d 667, 668−69 (5th Cir. 2012) (holding
that an alien cannot establish eligibility for TPS based on his parents’ continuous
residence and continuous physical presence); De Leon-Ochoa v. Att’y Gen. of U.S., 622
F.3d at 356 (stating that “the ‘continuous residence’ requirement [for TPS] cannot be met
via imputation”); Cervantes v. Holder, 597 F.3d at 236−37 (rejecting the petitioner’s
imputation theory and giving deference to the Board’s position that “each TPS registrant
must independently satisfy the continuous residence requirement”).