Introduction: Matter of D-A-C-, 27 I&N Dec. 575 (BIA 2019)

On July 26, 2019, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of D-A-C-, 27 I&N Dec. 575 (BIA 2019) [PDF version]. The Board held that immigration judges have the authority to deny an application for temporary protected status (TPS) in the exercise of discretion. In this article, we will examine the Matter of D-A-C- decision and what it means going forward.

Factual and Procedural History: 27 I&N Dec. 575, 575-76 (BIA 2019)

The respondent, a native and citizen of El Salvador, entered the United States in April 1997.

On January 30, 2018, the respondent pled guilty to attempted endangering the welfare of a child in New York, which is a class B misdemeanor under sections 110.00 and 260.10(01) of the New York Penal Law. The respondent was sentenced to 90 days in prison as a result of the conviction. The respondent was also subject to an order of protection.

The respondent was placed in removal proceedings for being present in the United States without having been admitted or paroled. In removal proceedings, the respondent sought temporary protected status (TPS) as a qualifying national of El Salvador. The Immigration Judge found that the respondent was statutorily eligible for TPS under section 244 of the Immigration and Nationality Act (INA). However, the Immigration Judge denied the respondent’s application for TPS after concluding that the respondent failed to establish that he merited the favorable exercise of discretion for TPS. The Immigration Judge concluded that the respondent was removable under section 212(a)(6)(A)(i) of the INA for being present in the United States without having been admitted or paroled.

The respondent appealed from the decision denying his application for TPS to the BIA.

Respondent’s Arguments On Appeal: 27 I&N Dec. at 575-77 (BIA 2019)

The respondent made two arguments on appeal before the BIA.

First, the respondent argued that Immigration Judges do not have the authority to deny TPS in the exercise of discretion. That is, if the alien is statutorily eligible for TPS, the Immigration Judge must grant the application.

Second, the respondent argued that even if Immigration Judges have the authority to deny TPS in the exercise of discretion, he merited the favorable exercise of discretion based on the facts of this particular case.

For reasons we will examine, the Board rejected both of the respondent’s arguments and dismissed his appeal. In so doing, the Board clarified and effectuated rules for the adjudication of requests for TPS in removal proceedings.

BIA Concludes That Immigration Judges Have Discretion To Deny TPS: 27 I&N Dec. at 576-77

The respondent’s argument was that discretionary determinations by Immigration Judges should be limited to those forms of relief which specifically incorporate terms such as “discretion” and “good moral character” into the statutory language. (The Board disagreed with the respondent’s assertion that the determination of good moral character is discretionary.) The Board noted that the respondent’s examples of such forms of relief included waiver of inadmissibility and cancellation of removal. The Board explained, however, that “it is not necessary for a statute to include this language if it otherwise indicates that it has a discretionary component, as it does here.”

Section 244(a)(1)(A) of the INA provides that the Attorney General “may grant an alien” TPS if the alien meets the requirements for TPS under section 244(c). In Jama v. ICE, 543 U.S. 335, 346 (2005) [PDF version], the Supreme Court of the United States observed that “[t]he word ‘may’ customarily connotes discretion.” Other provisions in the TPS statute at section 244 of the INA use the word “shall.” For example, sections 244(a)(1)(A) and 244(a)(1)(B) provide, respectively, that the Attorney General “shall not remove the alien” while TPS is in effect and “shall authorize the alien to engage in employment” during TPS. The Supreme Court noted in SAS Inst., Inc. v. Iancu, 138 S.Ct 1348, 1354 (2018) [PDF version], that “[shall] generally imposes a nondiscretionary duty.” The Board drew a further inference from the fact that the TPS statute contains both the words “may” and “shall,” finding that it “further reinforces that a grant of TPS is intended to be discretionary.” The Supreme Court noted that it is inappropriate to read the word “may” to read “shall,” and particularly so in cases where a statute uses both terms. Jama, 543 U.S. at 346.

The implementing regulations, by which the Board is also bound, directly reflect the discretionary language of the statute. 8 C.F.R. 244.2, 1244.2 (2019) provides that an applicant “may in the discretion of the director be granted Temporary Protected Status.” The Board itself has held that an alien may renew an application for TPS in removal proceedings before an Immigration Judge, who has de novo (from the beginning) review authority over TPS applications. Matter of Figueroa, 25 I&N Dec. 596, 598 (BIA 2011) [PDF version].

The respondent also advanced an argument with reference to the INA provision on Federal court jurisdiction over certain determinations. Section 242(a)(2)(B)(i) of the INA precludes judicial review of “any judgment regarding the granting of relief under section 212(h)(, 212(i), 240A, 240B, or 245” of the INA. From this, the respondent reasoned that if Congress had intended TPS to be discretionary — like each form of relief listed in section 242(a)(2)(B)(i) — it would have included it among the provisions over which the Federal judiciary has no review jurisdiction. The Board rejected this argument, however, holding that the statute’s “limitation on the scope of the court’s review authority does not determine whether TPS can be denied as matter of discretion.” That is, “[t]he fact that this ancillary jurisdictional statute lists several other provisions for discretionary forms of relief in the Act does not override the plain language of section 244(a)(1)(A).”

The United States Court of Appeals for the Eleventh Circuit considered the issue of whether the decision to grant TPS is discretionary in Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1143 (11th Cir. 2009) (per curiam) [PDF version]. The Eleventh Circuit held: “The ultimate decision of whether to grant TPS to an alien is undisputedly within the discretion of the Secretary.” The Board found the Eleventh Circuit’s reasoning persuasive.

For these reasons, the Board concluded that TPS is a discretionary form of relief, and that Immigration Judges have the authority to deny TPS in the exercise of discretion.

Factors to Consider In Determining Whether Alien Merits a Favorable Exercise of Discretion: 27 I&N Dec. at 577-78 (BIA 2019)

The Board considered the factors that should be considered in determining whether to grant TPS in the exercise of discretion. It had never before considered discretionary factors for TPS specifically. In Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA 1998) [PDF version], the Board explained that “there is no inflexible standard for determining who should be granted discretionary relief, and each case must be judged on its own merits.” Regarding TPS, the Board stated: “[W]e deem it appropriate to balance the favorable and adverse factors in a manner similar to that which we have long employed in analyzing other forms of discretionary relief.”

The Board drew favorable and adverse equities from its precedent decision in Matter of Marin, 16 I&N Dec. 581 (BIA 1978) [PDF version].

The Board listed examples of favorable factors for an alien seeking TPS:

Residence of long duration in this country (particularly when the inception of residence occurred while at a young age);
Evidence of hardship to the respondent and his or her family if deportation occurs;
Service in this country’s armed forces;
A history of employment;
The existence of property and business ties;
Evidence of value and service to the community;
Proof of genuine rehabilitation if a criminal record exists; and
Other evidence attesting to the respondent’s good character.

The Board listed examples of adverse factors for an alien seeking TPS:

The nature and underlying circumstances of the grounds of [removal] that are at issue;
The presence of additional significant violations of this country’s immigration laws; and
The existence of a criminal record and, if so, its nature, recency, and seriousness; and
The presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.

In addition to these general discretionary factors articulated in Matter of Marin, the Board considered factors particular to TPS. With reference to its precedent decision in Matter of Sosa Ventura, 25 I&N Dec. 391, 394-95 (BIA 2010) [PDF version], the Board held that “[S]ince the purpose of TPS is to provide protection based on adverse conditions in an alien’s home country, it is important to also consider how those conditions might affect the alien’s potential safety if he is removed there.” Citing to Matter of C-V-T-, 22 I&N Dec. at 11, the Board explained that “[t]he ultimate consideration when balancing factors in the exercise of discretion is to determine whether a grant of relief, or in this case protection, appears to be in the best interest of the United States.” Citing to Matter of C-V-T-, 22 I&N Dec. at 11, the Board noted that there will be cases where the alien’s merely meeting the minimum eligibility requirements for TPS will suffice for warranting the favorable exercise of discretion. The Board explained that this is especially true in the case of TPS, where “there are restrictive statutory bars to eligibility for criminal conduct and the relief itself is temporary.” With that being said, “any adverse factors, including recent criminal activity, must be offset by significant additional equities.”

Categorical Approach Does Not Apply: 27 I&N Dec. 579 n.5

In considering whether a conviction falls under a specific provision of the INA, the immigration courts and BIA are generally required to apply what is called the “categorical approach,” which we discuss in some detail in a topic index [see index]. For example, in order to be eligible for TPS, an alien must be admissible. If there is a question as to whether an alien was subject to a criminal inadmissibility provision, the Immigration Judge may be required to apply the categorical approach (depending on the particular inadmissibility ground), considering only whether the language of the statute of conviction fell under the language in the INA, without relying upon charging documents or other ancillary materials. The respondent here essentially argued for a similar approach for determining whether he should be granted TPS. In this case, however, the question was not whether the respondent was eligible for TPS, but whether he merited TPS in the favorable exercise of discretion. Thus, in a footnote, the Board explained that “the categorical approach is not applicable in a discretionary determination, where it is proper to consider all probative evidence regarding the factual circumstances surrounding a conviction.”

Applying Test to Instant Case: 27 I&N Dec. at 577, 578-80 (BIA 2019)

The respondent argued that the Immigration Judge erred in considering the underlying facts of his conviction in addition to the language of the statute of conviction itself. The Board rejected this concern with reference to the Supreme Court’s decision in INS v. Yueh-Shaio Yang, 519 U.S. 26, 31 (1996) [PDF version], wherein the Court held that when considering an alien’s eligibility for statutory discretionary relief, the adjudicator is not limited in what factors he or she may consider.

The respondent was actually convicted of attempting to endanger the welfare of a child. The charging document alleged that the respondent grabbed a young girl by the arm and forcibly attempted to kiss her on the lips or touch her in an inappropriate manner. The respondent testified in removal proceedings that he had never touched the girl inappropriately and had only inadvertently kissed her on the lips instead of her cheek.

The Immigration Judge found that the charging document was reliable as to the facts underlying the respondent’s conviction and persuasive as to his actual conduct. The Immigration Judge was unpersuaded by the respondent’s testimony, finding it evasive and inconsistent in pertinent respects. The Immigration Judge concluded that the respondent’s claim that the prosecutor had added untrue facts to the charging document to convince him to plead guilty was implausible. The Immigration Judge also found that the respondent’s testimony regarding the conviction was not credible. The respondent argued on appeal that the Immigration Judge’s findings were erroneous.

The Board found that there was no clear error in the Immigration Judge’s conclusions regarding the respondent’s testimony and lack of credibility. In Matter of D-R-, 25 I&N Dec. 445, 455 (BIA 2011) [PDF version] [see article], the Board held that the Immigration Judge is not required to accept the respondent’s assertions where there are other permissible views of the evidence. The Supreme Court held in Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985) [PDF version] , that where there are two permissible views of the evidence, the factfinder’s choice between them is not clearly erroneous. Because the Board concluded that the Immigration Judge’s findings regarding the respondent’s conduct were a permissible view of the evidence, the Board held that there was no clear error in the Immigration Judge’s findings.

The respondent argued that he was not required to admit all of the allegations in the charging document when he pled guilty to section 260.10(01) of the New York Penal Laws. Specifically, the respondent took the position that he did not admit guilt to the inappropriate physical conduct with a child alleged in the charging document. For this reason, the respondent argued that the Immigration Judge should not have considered the allegations true in determining whether to grant the respondent TPS. In support of his position, the respondent cited to the decision of the United States Court of Appeals for the Second Circuit — in which jurisdiction [see article] the instant case arose — in Padmore v. Holder, 609 F.3d 62 (2d Cir. 2010) (per curiam) [PDF version]. In Padmore, the Second Circuit found that the Board engaged in impermissible fact-finding when it relied on information in an arrest report and a prosecutor’s affidavit that was based on a statement by a police officer. The alien in that case had disputed factual statements in the arrest report and the prosecutor’s affidavit, and the Immigration Judge had made no findings of fact on that issue. The Second Circuit thus held that the Board exceeded its appellate authority when it reversed the Immigration Judge’s granting relief based on its own view of the facts.

The Board in the instant matter took the view that the respondent’s reliance upon Padmore was unavailing. In that case, the Second Circuit faulted the Board for making its own factual findings to reverse the decision of the Immigration Judge. In the instant case, the Board upheld the decision of the immigration judge having concluded that the Immigration Judge’s factual findings were not clearly erroneous. In this way, the Board found that Padmore was both distinguishable and also not controlling in the respondent’s case. Furthermore, the Second Circuit held that Board may review police reports and complaints, even if they contain hearsay, when considering an alien’s application for discretionary relief. Padmore, 609 F.3d at 69.

For these reasons, the Board concluded that it was proper for the Immigration Judge to consider any and all reliable and probative evidence of the respondent’s actual conduct when determining whether the respondent merited the granting of TPS in the exercise of discretion. Thus, the Immigration Judge properly considered the information in the charging document. In Matter of Mendez, 21 I&N Dec. 296, 303 n.1 (BIA 1996) [PDF version], the Board noted that it is proper to look at evidence outside the record of conviction to ascertain the circumstances behind a crime when considering eligibility for a discretionary form of relief. The Board had previously held that reviewing police reports specifically is appropriate when considering whether an alien merits discretionary relief from deportation. Matter of Grijalva, 19 I&N Dec. 713, 722 (1988) [PDF version].

The Board explained that the Immigration Judge recognized both positive and negative equities for the respondent in the record. The Immigration Judge noted that the respondent had a long period of residence in the United States, a history of gainful employment, and strong ties to the community. Furthermore, the Immigration Judge also discussed the current conditions in El Salvador in the context of the respondent’s separate applications for asylum and withholding of removal (not argued before the BIA on appeal). The respondent did not claim before the Immigration Judge or argue before the BIA that TPS was warranted based on current country conditions in El Salvador.

Notwithstanding the respondent’s positive equities, the Board agreed with the Immigration Judge that those equities were outweighed by the seriousness of the respondent’s criminal conduct and his lack of candor. Thus, the Board concluded that the Immigration Judge’s decision denying TPS was appropriate, and dismissed the respondent’s appeal.

Conclusion

Matter of D-A-C- is significant in two respects. First, the Board recognized that the decision whether to grant TPS is discretionary. This means that even if an alien in removal proceedings checks all the boxes for TPS eligibility, the Immigration Judge may still opt to deny TPS in the exercise of his or her discretion. Second, in light of finding that the decision whether to grant TPS is discretionary, the Board set forth positive and negative factors that should be taken into account when rendering a decision. In addition to general factors that the Immigration Judge should always consider when deciding whether discretionary relief is warranted, the Immigration Judge should also consider TPS-specific factors related to the conditions in the respondent’s home country. In considering whether an alien’s criminal or immigration conduct outweighs factors in favor of granting TPS, the Immigration Judge is permitted to look at all reliable and probative evidence of the alien’s actual conduct.

A noncitizen in removal proceedings should always consult with an experienced immigration attorney for case-specific guidance. An attorney will be able to determine which forms of relief, if any, a client may be eligible for under statute. If the noncitizen is statutorily eligible for relief, an attorney may help him or her present the best case for obtaining such relief.