Cite as 25 I&N Dec. 596 (BIA 2011) Interim Decision #3727

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Matter of Antonio FIGUEROA, Respondent

Decided September 14, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

 When an application for Temporary Protected Status that has been denied by the

United States Citizenship and Immigration Services (“USCIS”) is renewed in removal

proceedings, the Immigration Judge may consider any material and relevant evidence,

regardless of whether the evidence was previously considered in proceedings before the

USCIS. 

FOR RESPONDENT: Anne E. Doebler, Buffalo, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Steven J. Connelly, Assistant

Chief Counsel

BEFORE: Board Panel: MILLER, ADKINS-BLANCH, and GUENDELSBERGER, Board

Members.

ADKINS-BLANCH, Board Member:

In a decision dated May 21, 2009, an Immigration Judge denied the

respondent’s application for Temporary Protected Status (“TPS”) under

section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254a (2006),

but granted his request for voluntary departure. The respondent has appealed

from that decision. The record will be remanded to the Immigration Judge. 

I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a native and citizen of El Salvador, filed multiple

applications for TPS with the United States Citizenship and Immigration

Services (“USCIS”), the earliest of which was filed on or about May 21, 2001.

The USCIS denied the applications based on the respondent’s failure to submit

evidence sufficient to establish his continuous residence in the United States

since February 13, 2001. The Department of Homeland Security (“DHS”)

served the respondent with a Notice to Appear (Form I-862) on or about

September 11, 2007.

In removal proceedings, the respondent renewed his TPS application and

submitted a new Form I-821 (Application for Temporary Protected Status).

The DHS provided all the documents associated with the TPS proceedings
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597

before the USCIS. The respondent offered his own testimony, as well

as testimony from three brothers and a brother-in-law. Prior to the testimony,

counsel for the DHS questioned whether the Immigration Judge could consider

new witness testimony on a renewed TPS application. He asked that the

testimony be given limited weight but made no objection.

After the hearing, the Immigration Judge advised the parties that some

of the testimony did not record, and he reset the matter for the witnesses

to return. Shortly thereafter, the complete tapes were located, and without

taking further testimony, the Immigration Judge issued a written decision

on May 21, 2009. In his decision, the Immigration Judge found that the

respondent had not presented documentary evidence or testimony sufficient

to establish continuous residence in the United States since February 13, 2001.

On appeal, the respondent asserts that the evidence is sufficient to find the

required continuous residence. He requests that if we do not agree, we should

find the record to be incomplete and remand for further proceedings, noting

that although the Immigration Judge’s decision refers to testimony from each

of the four witnesses for the respondent, the transcript that was sent to the

parties and was associated with the record is missing the testimony from two

of them. In response, the DHS indicates that it does not oppose a remand for

the purpose of securing the entire transcript. However, the DHS asks that

we make a preliminary determination “as to whether it is proper for the

respondent to be relying on witness testimony in the renewal of his denied

TPS application before the Court, as those witnesses served no part in the

previously denied application.”

II. ISSUE

The issue before us is whether an Immigration Judge who adjudicates

an application for TPS that has been renewed in removal proceedings may

consider evidence that was not of record in the proceedings before the USCIS.

We review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011).

III. ANALYSIS

Generally, to be eligible for TPS, an alien must be a national of a foreign

state designated for TPS who (1) meets specific continuous physical presence

and continuous residence requirements, (2) is not otherwise inadmissible

or ineligible for such status, and (3) registers for such status as required

by statute and the regulations. Sections 244(c)(1), (2) of the Act; 8 C.F.R.

§§ 244.2, 1244.2 (2011). In particular, a national of El Salvador, such

as the respondent, must demonstrate continuous physical presence in the

United States since March 9, 2001, as well as continuous residence
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1 An Immigration Judge may be the initial adjudicator of a TPS application in limited

circumstances not applicable here. See Matter of Lopez-Aldana, 25 I&N Dec. 49, 51 n.1

(BIA 2009), and the regulations cited therein.

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since February 13, 2001. See Designation of El Salvador Under Temporary

Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001).

Typically, an application for TPS is filed with the USCIS.1

 See 8 C.F.R.

§§ 244.6, 244.7, 244.9, 1244.6, 1244.7, 1244.9 (2011). If an adverse decision

results in the issuance of a charging document, the notice of the decision must

also advise the applicant of his right to a de novo determination of eligibility

for TPS in subsequent proceedings before an Immigration Judge. 8 C.F.R.

§§ 244.10(c)(2), (d)(1), 244.14(b)(3), (c), 1244.10(c)(2), (d)(1), 1244.14(b)(3),

(c) (2011). If a charging document is served on the alien with a notice

of an adverse decision, the alien may renew the application for TPS

in removal proceedings. 8 C.F.R. §§ 244.11, 1244.11 (2011); see also section

244(b)(5)(B) of the Act (stating that the administrative procedure for the

review of the denial of TPS shall not prevent an alien from asserting TPS

protection in removal proceedings).

Construing the applicable statutes and regulations, we have previously

held that a TPS applicant may seek de novo review of his application by

an Immigration Judge in removal proceedings. See Matter of Lopez-Aldana,

25 I&N Dec. 49 (BIA 2009); Matter of Barrientos, 24 I&N Dec. 100 (BIA

2007). We now hold that an Immigration Judge may consider any material and

relevant evidence when adjudicating a renewed application for TPS, regardless

of whether the evidence was previously considered in proceedings before the

USCIS.

When interpreting statutes and regulations, we look first to the plain

meaning of the language and are required to give effect to unambiguously

expressed intent. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-43 (1984); Matter of F-P-R-, 24 I&N Dec. 681, 683 (BIA 2008).

Executive intent is presumed to be expressed by the ordinary meaning

of the words used. Matter of F-P-R-, 24 I&N Dec. at 683; see also INS

v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). We also construe a statute

or regulation to give effect to all of its provisions. Matter of E-L-H-, 23 I&N

Dec. 814, 823 (BIA 2005); Matter of Masri, 22 I&N Dec. 1145, 1148 (BIA

1999).

We find no language in the applicable statute or regulations that restricts

the evidence the Immigration Judge may consider when adjudicating

a renewed application for TPS. Section 244(b)(5)(B) of the Act; 8 C.F.R.

§§ 244.11, 1244.11. Moreover, we find no support elsewhere in the law

or other regulations for such restriction. In fact, Immigration Judges, who

exercise the powers and duties delegated by the Attorney General of the
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2 We reached a similar conclusion in Matter of Herrera del Orden, 25 I&N Dec. 589 (BIA

2011) (involving the renewal in removal proceedings of the DHS’s denial of a waiver of the

joint filing requirement for a petition to remove the conditional basis of lawful permanent

resident status).

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United States, have broad authority over the manner in which they conduct

proceedings. In deciding individual cases, an Immigration Judge must

exercise his or her independent judgment and discretion and may take any

action consistent with the Act and regulations that is appropriate and necessary

for the disposition of such cases. 8 C.F.R. § 1003.10(b) (2011). In particular,

an Immigration Judge conducting removal proceedings has the authority

to receive and consider material and relevant evidence, question the alien and

any other witnesses, and generally take any action consistent with applicable

law and regulations as may be appropriate. Section 240(b)(1) of the Act,

8 U.S.C. § 1229a(b)(1) (2006); 8 C.F.R. §§ 1003.10(b), 1240.1(a)(1)(iv), (c)

(2011). 

We have held that when an application for TPS that has been denied by the

USCIS is renewed in removal proceedings, an Immigration Judge may, in the

appropriate circumstances, require the DHS to provide the application that the

applicant filed with the USCIS. Matter of Henriquez Rivera, 25 I&N Dec.

575 (BIA 2011). In that case, we stated that such a policy ensures that,

at a minimum, the Immigration Judge has all the documents considered

by the USCIS. Id. at 578. However, we did not explicitly or implicitly limit

the Immigration Judge’s consideration to only those documents; in fact, our

decision contemplated the situation where, as here, the respondent provides

a new or amended application. Id. Similarly, our previous precedents

addressing the TPS issue have specified that the respondent receives de novo

consideration of his TPS application by the Immigration Judge. See Matter

of Lopez-Aldana, 25 I&N Dec. at 51; Matter of Barrientos, 24 I&N Dec.

at 102. To limit the evidence before the Immigration Judge to that which was

previously considered by the USCIS would result in de facto appellate review

of the USCIS decision, which is inconsistent with the law and regulations

as we have construed them.2

 

In addition to the powers and duties of the Immigration Judge, we must also

consider the rights and burdens of the respondent. A respondent in removal

proceedings has the statutory right to a reasonable opportunity to present

evidence on his or her own behalf. Section 240(b)(4)(B) of the Act;

see also C.F.R. § 1240.10(a)(4) (2011). It is also an alien’s burden to prove

eligibility for any requested relief from removal. Section 240(c)(4)(A)

of the Act; 8 C.F.R. § 1240.8(d) (2011). Absent some specific provision that

prohibits the introduction of new evidence before the Immigration Judge,

we decline to potentially impair a respondent’s ability to satisfy this burden
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3 We would reach the same conclusion were the DHS seeking to present evidence in removal

proceedings that was not before the USCIS.

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of proof by limiting the right to present evidence on his or her behalf

in support of a renewed TPS application.3

 

In this case, the USCIS denied the respondent’s application for TPS.

He renewed that application in removal proceedings before the Immigration

Judge, submitting additional evidence in the form of witness testimony

relevant to his burden to prove his continuous residence in the United States

since February 13, 2001. We conclude that the Immigration Judge may

properly consider that testimony in adjudicating the respondent’s TPS

application. However, notwithstanding the Immigration Judge’s summary

of the witness testimony in the decision on appeal, the record shows that the

testimony from two of the witnesses has not been transcribed. We therefore

agree with the respondent that a remand is required. 

IV. CONCLUSION

An Immigration Judge who adjudicates a renewed application for TPS

in removal proceedings may consider any material and relevant evidence,

whether or not it was previously before the USCIS. Because the transcript

of proceedings before the Immigration Judge in this case is incomplete,

a remand is required to secure the missing testimony, which may include

holding a new hearing, if necessary. Accordingly, the record will be remanded

to the Immigration Judge.

ORDER: The record is remanded to the Immigration Judge for further

proceedings consistent with the foregoing opinion and for the entry of a new

decision.