Aggravated Felonies

Under the Immigration Act of 1990, the Attorney General may designate Temporary Protected Status (TPS) for citizens of any foreign country encountering catastrophic events such as ongoing armed conflict, earthquake, flood or other disasters, or other extraordinary and temporary conditions.[424]  Citizens of designated countries will not be forced to return there from the U.S. for a designated period of time, which can be extended.  Additionally, they will receive employment authorization.[425]  In some cases, persons granted TPS may adjust status to lawful permanent residence.[426]

The list of designated countries changes frequently.  TPS generally is granted for only a year at a time, but often with several renewals.  For up-to-date information about which countries are currently designated for TPS and special requirements for each country’s nationals, consult the DHS website and/or the periodical Interpreter Releases, which is found in most county law libraries.  TPS presently includes countries such as Angola, Bosnia-Herzegovina, Burundi, El Salvador, Guinnea-Bissau, Honduras, Liberia, Montserrat, Nicaragua, Province of Kosovo, Rwanda, Sierra Leone, Somalia and Sudan.[427]

Applicants are ineligible for TPS if they are inadmissible on criminal and some other grounds,[428] including convictions of one or more crimes of moral turpitude, or of two misdemeanors or one felony.[429]  The TPS waiver of certain grounds of inadmissibility does not waive criminal grounds.[430]  The person must also not come within the bars to withholding of deportation (persecution of others, conviction of a particularly serious crime, committed serious non-political crime outside the U.S., or security threat to the U.S).[431]  Theoretically, a  noncitizen convicted of a non-felony aggravated felony that did not trigger inadmissibility (e.g., misdemeanor simple battery) could still apply for TPS.

Deferred Enforced Departure or DED, a program similar to TPS, also exists by presidential order.  In the past, DED was granted to noncitizens from the People’s Republic of China in the United States following the Tienanmen Square massacre, and to Liberians before they were granted TPS, among other examples.  An Immigration Judge should administratively close removal proceedings for a respondent subject to DED after removability is established.  Recipients of DED may also be eligible to work in the United States.  Currently no countries have DED status.[432]

[424] For a good summary of the requirements for, and effect of, a grant of TPS, see United States v. Orellana, 405 F.3d 360 (5th Cir. Apr. 5, 2005).

[425] INA § 244, 8 U.S.C. § 1254a, added by Immigration Act of 1990 § 302(b)(1).

[426] INA § 244(f)(4), 8 U.S.C. § 1254a(f)(4).

[427] For information about individual countries currently designated as TPS, see the EOIR website at http://www.usdoj.gov/eoir/vll/fedreg/tpsnet.html.

[428] INA § 244(c)(1)(A)(iii), 8 U.S.C. § 1254a(c)(1)(A)(iii); 8 C.F.R. § 244.3.

[429] 8 C.F.R. § 244.4.

[430] INA § 244(c)(2)(A)(iii)(I), 8 U.S.C. § 1254a(c)(1)(A)(iii).

[431] 8 C.F.R. § 244.4.  See ILRC § 11.15.

[432] For current TPS and DED countries, see http://uscis.gov/graphics/services/tps_inter.htm