Matter of DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014) Interim Decision #3804
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.
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 unemancipated
Cite as 26 I&N Dec. 325 (BIA 2014) Interim Decision #3804
326
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…
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 unemancipated
Cite as 26 I&N Dec. 325 (BIA 2014) Interim Decision #3804
326
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…
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