TPS and Dual Nationality When the Operative Nationality is that of a non-TPS Country

 

Introduction: Eligibility for Temporary Protected Status (TPS) for Dual Nationals Who Enter the United States as a National of a non-TPS Country

dual nationalityIn order to qualify for temporary protected status (TPS), an alien must be present in the United States when his or her country of nationality (or country of last habitual residence if he or she does not have a country of nationality) is designated for TPS. The Board of Immigration Appeal's decision in Matter of Ognibene [PDF version] established that for purpose of changing status to E2 treaty investor status, the operative nationality of an alien is the nationality that he or she claimed upon entering the United States as a nonimmigrant.1 Although the issues are not entirely the same for dual nationals seeking TPS, the principles of Matter of Ognibene have been broadly applied to dual nationals whose operative nationality is determined to be that of the non-TPS designated country. In this article, we will look at how immigration adjudicators have handled TPS applications by such dual nationals.

Precedent Decision on Operative Nationality: Matter of Ognibene

In Matter of Ognibene, the BIA held that a dual national of Canada and Italy who had been admitted to the United States as a nonimmigrant from Canada could not use his claimed Italian nationality to change to E2 treaty investor status. The BIA articulated the principle that the sole and operative nationality of an alien for purpose of a change of status application would be the nationality that the alien established when he or she was admitted into the United States as a nonimmigrant.

To learn more about Matter of Ognibene and its applicability to E visas, please follow this link.

Dual Nationality and TPS: Legal Opinions

In 1992, the General Counsel of the Immigration and Nationality Service (INS)2 issued a legal opinion [PDF version] concerning TPS applicants with dual nationalities.3 This legal opinion is still relied upon by immigration adjudicators today.

The question posed was the following:

“May the Service deny an application for Temporary Protected Status (TPS) in the case of an alien who, although a national of a foreign state designated for TPS, is also a national of another foreign state that has not been designated for TPS?”

Specifically, the memo addressed the case of four aliens who applied for TPS as nationals of Lebanon (Lebanon was designated for TPS at the time of the legal opinion, although it is not anymore) but who had been admitted to the United States as nationals of Venezuela.

The opinion quickly distinguished the eligibility requirements for TPS from the eligibility requirements for asylees or refugees. Namely, in order to be granted asylee or refugee status, an alien must be unable or unwilling to return to “any country of [his or her] nationality.”4 There is no parallel requirement for TPS eligibility, so the opinion found that statute does not preclude a dual national who is a national of one country that is designated for TPS and another country that is not from being eligible for TPS.

The opinion suggested two ways in which immigration adjudicators could handle the TPS claims of persons who enter the United States as nationals of a country designated for TPS, and then seek TPS using their other nationalities.

Firstly, the opinion suggested that adjudicators could follow the reasoning from Matter of Ognibene. Under this rubric, the four aliens who entered as nationals of Venezuela would only be considered nationals of Venezuela for immigration purposes, and would not be able to subsequently “claim a different nationality in order to manipulate their status under our immigration laws.” Secondly, the opinion suggested that adjudicators could require each of the applicants to provide evidence establishing affirmatively that they were nationals of Lebanon, which would be the minimum threshold requirement for establishing eligibility for TPS.

Ultimately, the opinion held that adjudicators were not required to resolve each of the applicant's nationality in order to deny their applications as an act of discretion. The opinion held that adjudicators were not required to resolve each of the applicant's nationality in order to deny their applications as an act of discretion.5 It further stated that doing so would not be an abuse of discretion because of the “limited purpose and temporary nature of TPS” and that “TPS is not a provision designed to create a general right to remain in the United States.”

With regard to the four nationals of Venezuela who were seeking TPS as nationals of Lebanon, the opinion concluded by noting that the circumstances that led to Lebanon's TPS designation would have no bearing on the applicants' ability to return to their homes in Venezuela, and accordingly that denying their applications would be within the discretion of immigration adjudicators and would not frustrate the purpose of TPS.

The Administrative Appeals Office Applies the Genco Opinion and Matter of Ognibene

In handling similar cases to the four nationals of Venezuela and Lebanon discussed in the opinion, the Administrative Appeals Office (AAO) have applied both Matter of Ognibene and the opinion in evaluating similar TPS applications.6 They have consistently denied TPS applications when it is established that the dual national applicant's operative nationality is that of a country not designated for TPS. The AAO relied upon both in the three decisions that we will examine.

In August of 2007, the AAO dismissed appeals of nationals of Lebanon, which was no longer designated for TPS, who sought TPS as nationals of Liberia.

In the first decision [PDF version], the TPS applicant entered the United States on B2 status with a Lebanese passport that indicated that she was a national of Palestine.7 Furthermore, her visa, which was issued by the U.S. consulate in Monrovia, Liberia, also showed her nationality to be Palestinian. Because the District Director who evaluated her TPS application determined that her operative nationality was Palestinian, the AAO upheld his decision as a matter of discretion and dismissed her appeal.

The second decision [PDF version] again relied upon Matter of Ognibene and the opinion in finding that a man applying for TPS as a national of Liberia was ineligible for TPS.8 The applicant had a passport from Lebanon and obtained his B2 visa from the Consulate in Monrovia which showed his nationality to be Lebanese. The AAO upheld the District Director's determination that the applicant's operative nationality was Lebanese, and that he was therefore ineligible for TPS as a national of Liberia.

The final decision [PDF version] that we will look at was decided by the AAO in 2012.9 It concerned a national of Mexico who applied for TPS as a national of Haiti due to her parent having been a citizen of Haiti. The applicant in this case entered without inspection (EWI) as opposed to the first two cases we discussed where the applicants entered on B2 visas. The AAO used the precedent from Matter of Ognibene along with the opinion to assess the case. The AAO noted that the record showed the applicant had claimed she was a national and citizen of Mexico throughout her immigration proceedings, and thus that her Mexican nationality was correctly considered her operative nationality in proceedings. Therefore, the AAO dismissed her appeal and held that she was ineligible for TPS because her operative nationality was that of Mexico.

Conclusion: Eligibility for Temporary Protected Status (TPS) for Dual Nationals Who Enter the United States as a National of a non-TPS Country

Based upon the precedent in Matter of Ogibene, the legacy INS legal opinion on the subject, and numerous AAO decisions, it is clear that where an alien's operative nationality is not that of a country designated for TPS, he or she will be very likely be unsuccessful in appealing to a second nationality for TPS eligibility.

Dual nationals who have the operative nationality of a country designated for TPS will be in a far better position to be granted TPS. However, as a USCIS Q&A on the Syrian TPS program explains [PDF version], the applicant would have to demonstrate that he or she is not subject to the firm resettlement asylum bar that also applies to TPS applications.10

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  1. Matter of Ognibene, 18 I&N Dec. 425 (BIA 1983)
  2. INS was replaced in 2003 by USCIS, ICE, and CBP.
  3. Genco Op. No 92-34 (INS), 1992 WL 1369373
  4. INA § 101(a)(42)(A)
  5. The memo cited INA § 244(a)(1), (1)(A) “The attorney general … may grant the alien temporary protected status” to emphasize the discretionary nature of TPS.
  6. The AAO also cities Chee Kin Jang v. Reno, 113 F.3d 1074 (9th Cir. 1997) in all three cases. This decision by the Ninth Circuit held that a dual national of China and Belize could not benefit from a special adjustment of status program that existed for Chinese nationals (Chinese Student Protection Act) because he had not declared Chinese nationality for his last entry into the United States.
  7. Matter of __, (AAO, Aug. 22, 2007), WL 5338940
  8. Matter of __, (AAO, Aug. 31, 2007), WL 5339362
  9. Matter of __, (AAO, Dec. 4, 2012), WL 8526681
  10. USCIS, “Questions and Answers: Designation of Syria for Temporary Protected Status,” (Mar. 29, 2012)