1

Eric H. Holder, Jr., has been appointed to serve as Attorney General of the

United States, and is substituted as respondent pursuant to Federal Rule of Appellate

Procedure 43(c).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2320

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Blanca Salguero-Fuentes; *

Francisco Mejia-Aguilar, *

*

Petitioners, * Petition for Review of an 

* Order of the Board of

v. * Immigration Appeals.

*

Eric H. Holder, Jr.1

, Attorney General *

of the United States, *

*

Respondent. *

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Submitted: March 10, 2009

Filed: June 25, 2009

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Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.

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BRIGHT, Circuit Judge.

Petitioner Blanca Salguero-Fuentes seeks review of a Board of Immigration

Appeals (“BIA”) removal order, which affirmed the immigration court’s

determination that it lacked jurisdiction to consider de novo Salguero-Fuentes’s

Temporary Protected Status (“TPS”) eligibility under 8 U.S.C. § 1254a when
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Salguero-Fuentes failed to exhaust her administrative remedies. We grant the petition

for review and remand the case to the BIA for further interpretation of the statutory

framework. 

I. Background

On March 9, 2001, the United States Attorney General designated El Salvador

for TPS status following major earthquakes in that country. This status extends to

certain designated countries with on-going armed conflict or instability due to major

natural disasters, providing temporary humanitarian relief by protecting from removal

those aliens in the United States who are nationals of countries with TPS status. See

8 U.S.C. § 1254a et seq. 

Salguero-Fuentes, a citizen and national of El Salvador living in the United

States, filed an unsuccessful TPS application during the initial registration period in

2002 and then a second application in 2003, which the Department of Homeland

Security (“DHS”) denied for lack of sufficient evidence of eligibility. SalgueroFuentes then filed an untimely appeal to the DHS’s internal Administrative Appeals

Unit (“AAU”) attempting to cure the alleged evidentiary deficiencies, but failed to

perfect her AAU appeal because of its untimeliness. Several months after the AAU

denied the appeal for untimeliness, DHS served her with a charging document placing

her in removal proceedings together with her son.

 

An immigration judge found Salguero-Fuentes removable as charged. The

judge ruled, applying TPS regulations, that the immigration court had no jurisdiction

to determine de novo TPS protection in the removal proceedings because SalgueroFuentes had not perfected an AAU appeal. Therefore, Salguero-Fuentes could not

rely on TPS eligibility in the removal proceedings. 
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Salguero-Fuentes appealed the immigration judge’s ruling to the BIA, a single

member of which affirmed the immigration judge. Salguero-Fuentes then petitioned

this Court for review, arguing that the immigration judge erred in refusing to exercise

jurisdiction over her TPS eligibility.

II. Discussion

This Court reviews the BIA’s legal determinations de novo, “according

substantial deference to the [BIA’s] interpretation of the statutes and regulations it

administers.” Regalado-Garcia v. I.N.S., 305 F.3d 784, 787 (8th Cir. 2002) (citing

Tang v. I.N.S., 223 F.3d 713, 718-19 (8th Cir. 2000)). 

Salguero-Fuentes argues that the unambiguous language in the TPS statute

expressly permits her to assert TPS protection during removal proceedings, despite her

failure to perfect an AAU appeal. She points to 8 U.S.C. § 1254a(b)(5)(B), which

requires the establishment of an administrative appeal process for applicants denied

TPS benefits, but further provides that “[s]uch [a] procedure shall not prevent an alien

from asserting protection under this section in removal proceedings.” SalgueroFuentes also contends that the decision in her case violates a precedential decision, In

re Barrientos, 24 I. & N. Dec. 100 (BIA 2007), which, according to Salguero-Fuentes,

interprets the relevant regulations as permitting aliens to raise TPS eligibility during

removal proceedings without first exhausting their administrative remedies. 

In response, the government requests a remand for an explanation of the BIA’s

interpretation of the relevant statutory framework. The government argues that

without such explanation, this Court cannot effectively review the agency’s

interpretation of the law. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 844 (1984). 
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We agree that such a remand is necessary. The BIA, in a short opinion,

affirmed the immigration court based on that court’s opinion. However, neither court

fully addressed why, under the statutory framework, the failure to perfect an AAU

appeal bars an alien from raising TPS eligibility at the removal proceedings.

Distinguishing In re Barrientos, wherein the petitioner had exhausted his

administrative remedies, the BIA here simply cited the TPS statute for the proposition

that an alien may raise TPS eligibility at removal proceedings only after exhausting

administrative remedies. Salguero-Fuentes argues that the statute clearly stands for

the opposite proposition. In the first instance, the BIA should review and interpret the

applicable statutes and decide whether an alien must exhaust administrative remedies

before being able to rely on TPS eligibility in removal proceedings. 

III. Conclusion

For the foregoing reasons and for that purpose, we remand to the BIA for

further proceedings. We request an expedited determination of the matter in issue.

Petitioner, if suffering an adverse ruling, may renew an appeal to this Court.

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