Criminal Defense of Immigrants
§ 24.25 XIV. Temporary Protected Status (TPS)
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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. 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. In some cases, persons granted TPS may adjust status to lawful permanent residence. A noncitizen may re-assert his right to TPS status in removal proceedings, even if the application has already been denied by the DHS.
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, Guinea-Bissau, Honduras, Liberia, Montserrat, Nicaragua, Province of Kosovo, Rwanda, Sierra Leone, Somalia and Sudan.
Applicants are ineligible for TPS if they are inadmissible on criminal and some other grounds, including convictions of one or more crimes of moral turpitude, or of two misdemeanors or one felony. For the purposes of TPS, a “misdemeanor” does not include an offense punishable by a maximum of five days or less. The TPS waiver of certain grounds of inadmissibility does not waive criminal grounds. The person must also not come within the bars to withholding of removal (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). 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.
 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).
 INA § 244, 8 U.S.C. § 1254a, added by Immigration Act of 1990 § 302(b)(1).
 INA § 244(f)(4), 8 U.S.C. § 1254a(f)(4).
 Matter of Barrientos, 24 I. & N. Dec. 100 (BIA Mar. 1, 2007).
 For information about individual countries currently designated as TPS, see the EOIR website at http://www.usdoj.gov/eoir/vll/fedreg/tpsnet.html.
 INA § 244(c)(1)(A)(iii), 8 U.S.C. § 1254a(c)(1)(A)(iii); 8 C.F.R. § 244.3.
 8 C.F.R. § 244.4.
 8 C.F.R. § 244.1. See, e.g., Minnesota Statutes § 609.02, Subd. 4(a).
 INA § 244(c)(2)(A)(iii)(I), 8 U.S.C. § 1254a(c)(1)(A)(iii).
 8 C.F.R. § 244.4.
 For current TPS and DED countries, see http://uscis.gov/graphics/services/tps_inter.htm
RELIEF " TPS
Matter of Echeverria, 25 I&N Dec. 512 (BIA Jun. 1, 2011) (applicant for late TPS registration must independently meet all initial requirements of TPS, including being a national or habitual resident, if stateless, of a currently designated TPS country).
RELIEF " TEMPORARY PROTECTED STATUS " LATE APPLICANT MUST MEET INITIAL REGISTRATION REQUIREMENTS
Matter of Echeverria, 25 I&N Dec. 512 (BIA 2011) (late initial registrant for Temporary Protected Status must independently meet all initial registration requirements of TPS).
RELIEF " TEMPORARY PROTECTED STATUS " REQUIREMENTS
Matter of NCM, 25 I&N Dec. 535 (BIA 2011) (to be eligible for late initial registration for Temporary Protected Status an applicant filing as the child of an alien currently eligible to be a TPS registrant must establish only that he or she qualified as a child at the time of the initial registration period not at the time the application was filed).http://www.justice.gov/eoir/vll/intdec/vol25/3718.pdf http://www.justice.gov/eoir/vll/intdec/vol25/3718.pdf
RELIEF - TEMPORARY PROTECTED STATUS
Matter of Lopez-Aldana, 25 I. & N. Dec. 49 (BIA 2009) (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 DHS have been exhausted), clarifying Matter of Barrientos, 24 I. & N. Dec. 100 (BIA 2007).
RELIEF - TEMPORARY PROTECTED STATUS - NONCITIZEN MAY APPLY FOR TPS IN REMOVAL PROCEEDINGS EVEN IF TPS APPLICATION HAS PREVIOUSLY BEEN DENIED BY THE ADMINISTRATIVE APPEALS UNIT
Matter of Barrientos, 24 I. & N. Dec. 100 (BIA 2007) (INA 244(b)(5)(B), 8 U.S.C. 1254(b)(5)(B) (2000), permits a noncitizen to assert the right to Temporary Protected Status in removal proceedings, even if a TPS application has previously been denied by the Administrative Appeals Unit). Here is the link: http://www.usdoj.gov/eoir/vll/intdec/vol24/3554.pdf
RELIEF " TEMPORARY PROTECTED STATUS
Donnee v. Holder, ___ F.3d ___, 2014 WL 1856738 (1st Cir. May 9, 2014) (a grant of Temporary Protected Status by the Department of Homeland Security only served to prevent execution of the removal order; it did not affect the validity of the order).
RELIEF " TPS " CONTINUOUS RESIDENCE
De Leon-Ochoa v. Attorney General of U.S., 622 F.3d 341 (3d Cir. Oct. 1, 2010) (noncitizen cannot impute continuous residence of parents in establishing eligibility for TPS under 8 U.S.C. 1254a(c)(1)(A)(ii)).
RELIEF " TPS
United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. Jan. 19, 2012) (undocumented noncitizen who applied for, and was denied, TPS prior to being found in possession of a firearm could be convicted as a "alien illegally or unlawfully in the United States" in possession of a firearm; leaving open the question of whether an undocumented noncitizen with TPS pending could be convicted under the same statute).
RELIEF - TPS
Cervantes v. Holder, 597 F.3d 229 (4th Cir. Mar. 8, 2010) (noncitizens who entered five years after Honduras was initially designated for TPS could not meet "continuous presence" requirement; parents application for TPS and continuous residence could not be imputed to minor children who entered without inspection after the initial TPS designation).
RELIEF - DEFERRED ACTION - REQUEST BY CIRCUIT COURT
Aguilar-Mejia v. Holder, 616 F.3d 699 (7th Cir. Aug. 6, 2010) ("Although we must deny Aguilar-Mejias petition, we close by noting that we are aware of the exceptional humanitarian concerns raised in this case. . . . Missing his medication for even a brief period could be a literal death sentence. As the IJ noted, "almost all of [Aguilar-Mejias] witnesses testified that . . . the treatment [for AIDS] is not easily accessed and not readily available" in the countries designated for removal. For these reasons, we respectfully encourage the Attorney General, if asked by Aguilar-Mejia, to consider "deferred action," "humanitarian parole," or any other discretionary remedy that may be granted on humanitarian grounds.")
RELIEF - TEMPORARY PROTECTED STATUS
Mejia Rodriguez v. U.S. DHS, ___ F.3d ___, 2009 WL 649731 (11th Cir. Mar. 16, 2009) (per curiam) (district court jurisdiction existed to review USCIS decision denying Temporary Protected Status, since its statutory eligibility determinations are not discretionary; Administrative Appeals Office dismissal of noncitizen's appeal of TPS denial was a "final" agency decision which the district court could review under the Administrative Procedure Act).
RELIEF - TPS - JURISDICTION
Mejia Rodriguez v. DHS, __ F.3d __ (11th Cir. Mar. 16, 2009) (district court has jurisdiction to hear appeal of CIS denial of TPS; "Decisions regarding statutory eligibility for TPS are not ones designated to be within the discretion of the Attorney General or Secretary and hence are not precluded from review by 8 U.S.C. 1252(a)(2)(B) (ii). Furthermore, the denial of TPS is not a final order of removal and thus not subject to the various other provisions within 1252 pertaining to judicial review of such removal orders. Rather, Mejia Rodriguez has shown that the AAOs decision dismissing his appeal is a final agency action for which he has exhausted all necessary administrative appeals.").
RELIEF " DEFERRED ACTION
The Immigrant Legal Resource Center and United We Dream has issued a new Practice Advisory that provides information on common issues that Deferred Action for Childhood Arrivals (DACA) renewal applicants face after traveling outside of the United States with advance parole. See www.ilrc.org. DACA recipients who traveled on advance parole report a variety of problems when they attempt to renew, including delayed adjudication and denials. This advisory provides information on how to prevent those problems and successfully renew DACA. DACA recipients are urged not to travel before or after the dates of their grant of advance parole; and are urged to apply early for renewal (before 150 days) if they traveled using advance parole.
RELIEF " DEFERRED ACTION " EXPUNGEMENTS
DHS has stated that individuals with expunged convictions did not categorically fall outside the enforcement priorities. Rather, ICE has internal guidance that instructs them to weigh the expungement in determining whether to exercise prosecutorial discretion. ICE officers have the ability to implement this guidance in such a way where an individuals expunged conviction would not make them an enforcement priority. This determination is made on a case-by-case basis. DHS stated that expungement essentially functions as a positive equity and community members who potentially fall within the enforcement priorities because of one or more convictions should obtain expungements. Thanks to Jose Magaa-Salgado
RELIEF " DACA AND JUVENILE CONVICTIONS "RESOURCES
Resources on DACA and juvenile convictions include: http://nwirp.org/Documents/Resources/ILCUnderstandingCriminalBarsToDeferredAction.pdf http://www.nationalimmigrationproject.org/community/Alert%20for%20DREAMers%20applying%20for%20Deferred%20Action.pdf http://www.legalactioncenter.org/sites/default/files/fin_other_forms_of_relief_0_0.pdf
RELIEF " DEFERRED ACTION " DEFERRED ACTION FOR CHILDHOOD ARRIVALS EXPANDED " DEFERRED ACTION FOR PARENT ACCOUNTABILITY ANNOUNCED
On Nov. 20, 2014, President Obama announced that he will provide immediate relief for many of those impacted by our broken immigration system, and he is offering Congress an architecture for permanent reforms to the immigration laws. http://www.dhs.gov/immigration-action Under the new policies, the DHS will augment the successful Deferred Action for Childhood Arrivals (DACA) program by providing temporary relief for the parents of U.S. Citizens and lawful permanent residents. The new program, to be called Deferred Action for Parent Accountability (DAPA), will ensure that millions of U.S. Citizen and lawful permanent resident children will remain unified with their parents. The President also announced new enforcement policies and steps to improve the adjudication of business and family visas. http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf The criminal requirements for these new programs, under Priority 1, include two relevant subsections. First, the benefits of this Executive Action are not available to (d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status Second, the new programs exclude (e) aliens convicted of an "aggravated felony," as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction. The programs exclude those convicted of an offense classified as a felony in the convicting jurisdiction This is a broad definition, and depends on the state law definition of felony. Certain states like Maryland and Pennsylvania classify as a misdemeanor offenses for which the punishment is more than a year. Under federal law, any offense punishable by more than a year is a felony. The Executive Action defines misdemeanor under the law of the jurisdiction of conviction, which can include offenses with maxima greater than one year if state law so provides. It does not use the federal definition of misdemeanor, which provides that a misdemeanor cannot be punished by a sentence greater than one year. For example, under DACA and DAPA, a conviction for a Pennsylvania misdemeanor punishable by a two-year sentence is a misdemeanor for DACA and DAPA purposes even though it would be a felony under the definition of "felony" that applies in federal criminal cases. The exception to the general rule for state and local offenses for which immigration status is an element of the offense maintains eligibility for people in Arizona convicted of state felony offenses that targeted immigrants unfairly and, in Sheriff Joe's case, among others, unlawfully. The felony bar is not triggered by felony convictions for a state or local offense for which an essential element was the alien's immigration status In the original DACA context, advocates argued that false document felonies should count as immigration-related offenses and not counted against the immigrant. This argument was rejected. This interpretation will probably also apply in the context of the Nov. 20, 2014 Revised Enforcement Priorities. Requiring immigration status to be an essential element means that it is a fact that must be established in order to obtain a conviction under the criminal statute. Under the categorical analysis as outlined in the Supreme Courts decisions in Moncrieffe and Descamps, this means that a jury could not convict someone of this crime without the prosecutor proving it beyond a reasonable doubt. See Moncrieffe v Holder (2013) ___US ___, 133 S Ct 1678; Descamps v United States (2013) ___ US ___, 133 S Ct 2276. An element of a crime is distinct from the means by which a crime can be committed. For example, there are numerous means by which someone may commit the crime of identity theft, one of which could be using someone elses greencard. Just because the offense was committed by using documents that implicated immigration status " or were for a purpose involving immigration status " does not mean that it is an essential element. The key is not what the person did, or the means by which they committed the crime. The key is in the specific essential elements of the criminal offense that are that are required for conviction under the law of the jurisdiction. Two good sources to determine elements, as opposed to means, in addition to the express language of the statute are to look at jury instructions and to see if your state supreme court has addressed the issue of the definition of elements (as to which the jury must unanimously agree to conviction) as opposed to the means by which the offense was committed (as to which they do not need to do so). See the National Immigration Projects advisory on Descamps, which discusses this in greater detail. See also analysis provided by the Immigrant Legal Resource Center on this issue. The criminal bars for DACA and the definitions of felony, significant misdemeanor and misdemeanor appear to be unchanged by the new memos issued on Nov. 20 and these definitions now also apply to DAPA. Therefore, under the new Executive Action, a misdemeanor still requires a potential sentence of more than 5 days. Note, however, that the bars of the second and third priorities (including the misdemeanor bars) are not absolute. There is a provision allowing CIS/ICE to waive them under proper circumstances. Even the first priority bar can be waived, but the standard is much higher.
EXECUTIVE ACTION " EXPANDED DACA " DACA
EXECUTIVE ACTION " EXTENDED DACA TO PARENTS " DAPA
LEGISLATION " EXECUTIVE ACTION " CRIME BARS
Please see this new Advisory on DAPA crimes bars, by ILRC and NIPNLG. While the Advisory is written for criminal defenders, it includes a lot of information useful to immigration advocates. An additional Advisory for immigration practitioners is in the works. See www.nipnlg.org or see: http://www.ilrc.org/files/documents/ar-dapa-criminal-defender-advisory-1_24_final_authors.pdf
RELIEF - TEMPORARY PROTECTED STATUS - BERUNDI
"Following a review of country conditions and consultations with the Secretary of State and other appropriate Government agencies, the Secretary of Homeland Security has determined that the temporary protected status (TPS) designation for Burundi should be terminated. This termination will not take effect until May 2, 2009, to provide for an orderly transition." Federal Register, Oct. 29, 2007.
RELIEF - TEMPORARY PROTECTED STATUS - CONVICTION OF POSSESSION OF 30 GRAMS OF MARIJUANA OR LESS
The TPS statute, INA 244(c)(2)(A)(iii)(I), 8 U.S.C. 1254a(c)(2)(A)(iii)(I), states the Attorney General cannot waive INA 212(a)(2)(A) grounds of inadmissibility (controlled substance and CMT), for TPS applicants. The very next paragraph, however, provides the Attorney General cannot waive inadmissibility under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i) (reason to believe illicit drug trafficking), "except for ... a single offense of simple possession of 30 grams or less of marijuana." INA 244(c)(2)(A)(iii)(II), 8 U.S.C. 1254a(c)(2)(A)(iii)(I). "Simple possession" would not trigger inadmissibility for reason to believe, since there is no trafficking element. It could trigger inadmissibility only under INA 212(a)(2)(A). Congress must therefore be saying that TPS applicants with only a single conviction for 30 grams or less of marijuana can get TPS, unless Congress is saying that selling 30 grams or less of marijuana does not trigger inadmissibility, but possessing it does not, for TPS applicants. The regulations also provide that INA 212(a)(2)(A)(i) - the controlled substance ground of inadmissibility, cannot be waived for TPS applicants. 8 CFR 244.3(c)(1). Thanks to Bruce D. Nestor.
RELIEF - TEMPORARY PROTECTED STATUS - AGGRAVATED FELONY NOT A BAR IF ONLY ONE MISDEMEANOR
Temporary Protected Status is barred by convictions for one felony or two misdemeanors. Therefore, a single aggravated felony conviction does not bar TPS if it is a misdemeanor, so long as it does not otherwise trigger inadmissibility, for example, as a CMT or controlled substances conviction. "The statute provides, without qualification, that administrative procedures will not prevent an alien from asserting his right to TPS in removal proceedings." In re Barrientos 24 I. & N. Dec. 100, 102 (BIA 2007). "A charging document may be issued against an alien granted Temporary Protected Status on grounds of deportability or excludability which would have rendered the alien statutorily ineligible for such status pursuant to 1244.3(c) and 244.4." 8 C.F.R. 1244.18. Thanks to Jonathan Moore.
RELIEF - TEMPORARY PROTECTED STATUS - MISDEMEANOR BAR - DEFINITION OF MISDEMEANOR NOW EXCLUDES NY TRAFFIC INFRACTIONS
USCIS has recently changed its policy of arguing that New York state violations and traffic infractions are misdemeanors for TPS purposes, even though they are not classified as misdemeanors under state law. It has issued a policy directive indicating that they no longer consider most New York state traffic infractions and violations to be misdemeanors for this purpose. TPS applicants may nonethless be barred from TPS due to other grounds of inadmissibility based on criminal activity or convictions. These other grounds generally cannot be waived. USCIS will issue approvals of TPS and the related work authorization for individuals whose cases are currently pending before USCIS, who would otherwise have been denied under its old policy. USCIS will also not deny an individual for failure to re-register if the failure to do so was related to an improper denial of TPS in the past. Individuals who have previously been denied TPS improperly (and for whom other bars do not apply) should file a motion to reopen with the appropriate Service Center. USCIS indicates that although the filing fee or a fee waiver request must be submitted front, it will refund the filing fee for those individuals who were improperly denied TPS on these grounds. Please see the memo from U.S. Citizenship and Immigration Services for more information on procedures. See USCIS Memorandum from Donald Neufeld, Associate Director, Service Center Operations, Temporary Protected Status (TPS) Adjudications Involving NY Traffic Infractions or NY Violations (Jan. 17, 2010). http://www.aila.org/content/default.aspx?docid=31047 AILA Doc. No. 10012266.
RELIEF " DEFERRED ACTION " DREAM ACT CASES " CRIMINAL REQUIREMENTS " SIGNIFICANT MISDEMEANORS
What offenses qualify as a significant misdemeanor? A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment or even no imprisonment that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, larceny, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.
DEFERRED ACTION " DREAM ACT " PRACTICE ADVISORY
American Immigration Council, Legal Action Center and National Immigration Project of the National Lawyers Guild, Practice Advisory, Deferred Action For Childhood Arrivals (Aug. 20, 2012), http://www.legalactioncenter.org/sites/default/files/practice_advisory_dreamers_8-13-12_fin_0.pdf The Legal Action Center (LAC) released an updated version of the Practice Advisory, Deferred Action for Childhood Arrivals, which includes links to the application forms and updated information about the application process This Practice Advisory analyzes DHS guidance regarding the eligibility criteria and application process for the Obama administrations initiative to grant deferred action to certain individuals who came to the United States as children. It also offers strategic advice for attorneys representing individuals who may qualify for deferred action for childhood arrivals. The LAC issued this advisory jointly with the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild.
DEFERRED ACTION " DREAM " RESOURCES
DACA Criminal Bars Chart. This one-page chart provides a brief overview of how a criminal history can affect an individuals application for Deferred Action. The chart is intended as a general reference and corresponds with the longer DACA Criminal Bars FAQ. http://www.ilrc.org/resources/daca-criminal-bars-chart Updated: Practice Advisory for Criminal Defenders: Certain Criminal Offenses May Bar Persons from Applying for the New Deferred Action Status Program Announced by President Obama. This advisory reviews the general requirements of the DACA program to help defenders identify eligible clients. It outlines defense strategies to preserve a clients possible eligibility for DACA. https://www.ilrc.org/resources/practice-advisory-for-criminal-defenders-certain-criminal-offenses-may-bar-persons-from-ap