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Leon-Ochoa v. Attorney General of the United States

October 1, 2010

EUDULIO DE LEON-OCHOA, A/K/A ROGER REYES-OLIVA, A/K/A ROGER ARMANDO REYES-BOLIVAR, A/K/A ROGER ARMANDO REYES-OLIVA, PETITIONER NO. 09-1520
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT
EUFEMIA FLORES-DOMINGUEZ; ARELY MAGDALENA RIVERA-FLORES; ELIDA YAMILET RIVERA-FLORES, PETITIONERS NO. 09-1760
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT
R.E. L-P, PETITIONER NO. 09-1960
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review of Orders of the Board of Immigration Appeals (Agency Nos. A098-501-296, A094-902-120/1/2& A094-934-034) Immigration Judge: Margaret Reichenberg (Nos. 09-1520, 09-1760) Immigration Judge: Annie S. Garcy (No. 09-1960).

The opinion of the court was delivered by: Aldisert, Circuit Judge.

PRECEDENTIAL

Argued on July 13, 2010

Before: FUENTES, ALDISERT and ROTH, Circuit Judges

OPINION

In this consolidated appeal, Petitioners Eudulio De Leon-Ochoa, Arely and Elida Rivera-Flores, Eufemia FloresDominguez, and R.E. L-P- petition for review of the Board of Immigration Appeals' ("BIA" or "Board") denial of their applications for Temporary Protected Status ("TPS") for failure to personally satisfy the statutory requirements of "continuous residence" and "continuous physical presence."*fn1 8 U.S.C. § 1254a. On appeal, Petitioners contend that they fulfill the statutory requirement of "continuous residence," 8 U.S.C. § 1254a(c)(1)(A)(ii), via imputation of their parents' residence. Petitioners additionally contend that they satisfy the statutory requirement of "continuous physical presence," 8 U.S.C. § 1254a(c)(1)(A)(i), because the statutory term "most recent designation" rightfully is read to encompass TPS extensions as well as designations. We disagree on both counts. Because Petitioners fail to meet the requirements of "continuous residence" and "continuous physical presence," they are statutorily ineligible for TPS. For the following reasons, we will deny review.*fn2

I.

Temporary Protected Status is authorized by Section 244 of the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1254a. It permits eligible nationals of a foreign state to temporarily remain in and work in the United States while the state is designated by the TPS program. Id. The Attorney General, "after consultation with appropriate agencies of the Government," may issue a TPS designation with respect to a foreign state under certain circumstances such as ongoing armed conflict, natural disaster, or other conditions preventing safe return of aliens.*fn3 Id. § 1254a(b)(1). "There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection." Id. § 1254a(b)(5)(A). By statute, aliens are eligible for Temporary Protected Status if they are nationals of a state designated under § 1254a(b)(1) and they meet the following requirements:

(i) the alien has been continuously physically present in the United States since the effective date of the most recent designation of that state;

(ii) the alien has continuously residedin the United States since such date as the Attorney General may designate;

(iii) the alien is admissible as an immigrant, except as otherwise provided under paragraph (2)(A), and is not ineligible for temporary protected status under paragraph (2)(B); and

(iv) to the extent and in a manner which the Attorney General establishes, the alien registers for the temporary protected status under this section during a registration period of not less than 180 days.

Id. § 1254a(c)(1)(A) (emphasis added). Pursuant to § 1254a(c)(2), in the determination of an alien's admissibility for purposes of requirement (iii), the Attorney General may waive certain provisions of section 1182(a) for humanitarian purposes, to assure family unity or for other public interest purposes, with the exception of certain sections relating to criminals, drug offenses, and national security. By the terms of the statute, this waiver provision does not apply to the requirements of continuous residence and physical presence. Id. § 1254a(c)(2).

The TPS statute instructs that brief, casual, and innocent departures generally do not effect a failure to maintain continuous physical presence and continuous physical residence for purposes of the TPS program.*fn4 Notably, the statute specifically prescribes that "[n]othing 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." Id. § 1254a(c)(5).

The applicable regulations repeat the requirements for TPS and also provide for late registration, specifically by children of eligible grantees. An alien from a designated state may apply for Temporary Protected Status in accordance with applicable regulations:

Except as provided in §§ 1244.3 and 1244.4, an alien may in the discretion of the director be granted Temporary Protected Status if the alien establishes that he or she:

(a) Is a national, as defined in section 101(a)(21) of the Act, of a foreign state designated under section 244(b) of the Act;

(b) Has been continuously physically present in the United States since the effective date of the most recent designation of that foreign state;

(c) Has continuously resided in the United States since such date as the Attorney General may designate;

(f)(1) Registers for Temporary Protected Status during the initial registration period announced by public notice in the Federal Register, or

(2) During any subsequent extension of such designation if at the time of the initial registration period:

(iv) The applicant is a spouse or child of an alien currently eligible to be a TPS registrant.

(g) Has filed an application for late registration with the appropriate Service director within a 60-day period immediately following the expiration or termination of conditions described in paragraph (f)(2) of this section.

8 C.F.R. ยง 1244.2. Under the regulations, the child or spouse of a person who was eligible for TPS during the initial registration period may apply for ...


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