2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-3-2014

Darwin Rittinhouse v. Attorney General United

States

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-1656

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 14-1656

_______________

DARWIN ONASS RITTINHOUSE,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_______________

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA A094-355-627)

Immigration Judge: Honorable Steven Morley

_______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 24, 2014

BEFORE: FUENTES, GREENBERG AND COWEN, Circuit Judges

(Filed: November 3, 2014)

_______________

OPINION*

_______________

______________ 

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

COWEN, Circuit Judge.

Darwin Onass Rittinhouse petitions for review of a decision by the Board of 

Immigration Appeals (“BIA”), which affirmed the denial by the Immigration Judge (“IJ”) 

of his application for temporary protected status (“TPS”). We will deny his petition for 

review. 

I.

A citizen of Honduras, Rittinhouse entered the United States without inspection in 

1997. In 1999, the Attorney General designated Honduras for TPS because of the 

devastation caused by Hurricane Mitch. See Designation of Honduras under Temporary 

Protected Status, 64 Fed. Reg. 524, 524-26 (Jan. 5, 1999). The Attorney General 

established an initial registration period beginning on January 5, 1999 and ending July 5, 

1999. Id. at 525. The initial registration period was then extended until August 20, 1999. 

See Extension of the Registration Period for Hondurans and Nicaraguans Under the 

Temporary Protected Status Program, 64 Fed. Reg. 42,991, 42,992 (Aug. 6, 1999).

On August 20, 1999, Rittinhouse filed with the Immigration and Naturalization 

Service (“INS”) a Form I-821 application for TPS. The INS denied this initial TPS 

application because of Rittinhouse’s failure to respond to a request for evidence 

establishing his TPS eligibility. He filed a second TPS application in 2003, but United 

States Citizenship and Immigration Services (“USCIS”) denied this application on the 

grounds that he failed to establish that he was eligible to file a late TPS application after 

the end of the initial registration period. 
3

Rittinhouse was served with a notice to appear, which charged him as removable 

for being present in the United States without having been admitted or paroled. He 

conceded the charge. In 2011, Rittinhouse reapplied for TPS. The USCIS denied his 

TPS application, concluding, inter alia, that a prior TPS application “does not meet the 

definitions for a qualifying condition” under the regulation setting forth the late 

registration requirements for the TPS scheme, 8 C.F.R. § 244.2(f). (AR148.) According 

to the USCIS, such a request does not constitute “an application for change of status, 

adjustment of status, asylum, voluntary departure, or any relief from removal” for 

purposes of § 244.2(f)(2)(ii). Rittinhouse then sought to renew his TPS application 

before the IJ. 

The IJ found Rittinhouse removable and denied his TPS application. The IJ 

specifically determined that Rittinhouse’s initial TPS application “could not constitute a 

request for . . . a change of status under 8 C.F.R. 244.2(f)(2)(ii).” (AR30.) The BIA then 

affirmed the IJ’s decision without opinion. 

II.

8 C.F.R. § 244.2(f)(2)(ii) provides that an alien may be granted TPS if the alien 

establishes that, inter alia, he or she registers for TPS “[d]uring any subsequent extension 

of such designation if at the time of the initial registration period . . . (ii) the applicant has 

an application for change of status, adjustment of status, asylum, voluntary departure, or 

any relief from removal which is pending or subject to further review or appeal.”1 

 

1 Because the BIA summarily affirmed without opinion, we review the IJ’s 
4

Rittenhouse contends that, by submitting his TPS application on August 20, 1999, he 

thereby filed “an application for change of status,” i.e., he sought a “change of status” 

from “unlawful immigration status” to “temporary protected status.” (Petitioner’s Brief at 

7). 

However, we agree with the IJ that a TPS application does not constitute an 

application for change of status for purposes of § 244.2(f)(2)(ii). As the IJ recognized, 

the regulation applies to individuals who did not file a TPS application during the initial 

registration period because they had already filed an application to change their status—

and accordingly did not believe they needed to ask for TPS in the first place. See, e.g., In 

re N-C-M-, 25 I. & N. Dec. 535, 535 (BIA 2011) (observing that “the regulations 

regarding late registration require an alien to establish that at the time of the initial 

registration period, he . . . was in a specified immigration status or had a pending 

application or request for a certain status or relief” and that § 244.2(f)(2) lists “various 

 

decision. See, e.g., Dia v. Ashcroft, 353 F.3d 228, 247-50 (3d Cir. 2003) (en banc). 

Legal questions are generally reviewed de novo. See, e.g., De Leon-Ochoa v. Attorney 

General, 622 F.3d 341, 348 (3d Cir. 2010). However, we accord Chevron deference to 

published BIA decisions interpreting “statutes [the BIA] is charged with administering.” 

Id. at 348 (citation omitted)); see also, e.g., Auer v. Robbins, 519 U.S. 452, 461 (1997) 

(stating that agency’s interpretation of own regulations is controlling unless plainly 

erroneous or inconsistent with regulation). The government acknowledges that nonprecedential agency decisions are not entitled to Chevron deference and that this Court 

has yet to decide whether such rulings are entitled to some deference under Skidmore v. 

Swift & Co., 323 U.S. 134 (1944). See, e.g., Mahn v. Attorney General, --- F.3d ---, 2014 

WL 4627976, at *2 (3d Cir. Sept. 17, 2014) (“We join our sister circuits in concluding 

that unpublished, single-member BIA decisions are not entitled to Chevron deference. At 

most, these decisions are persuasive authority.” (citing Skidmore, 323 U.S. at 140)). 

Because we agree with the IJ’s reading of the statutory and regulatory scheme at issue 

here, we need not—and do not—decide whether this reading may be entitled to any sort 
5

ways in which an alien would be considered to maintain ‘valid’ immigrant or 

nonimmigrant status for purposes of late filing for TPS” (citations omitted)); In re 

Echeverria, 25 I. & N. Dec. 512, 517 (BIA 2011) (stating that Attorney General created 

exception to cover applicants who were in status or condition that made TPS registration 

unnecessary or discouraged TPS registration). Additionally, it appears that Rittinhouse’s 

approach would allow an individual who filed a timely but unsuccessful TPS application 

to submit a series of applications that effectively seek reconsideration or reopening of the 

initial denial, despite the general limitations on motions to reopen or reconsider imposed 

by 8 C.F.R. § 103.5(a)(1)(i) (authorizing officers to exercise their discretion to excuse 

untimely filing of motion to reopen or reconsider where movant demonstrates that delay 

was reasonable and beyond the movant’s control). 

The BIA also properly disposed of Rittinhouse’s administrative appeal pursuant to 

its streamlining regulation. Given our reading of the “an application for change of status” 

language in § 244.2(f)(2)(ii), it was appropriate for the BIA member to conclude that 

“[t]he factual and legal issues raised on appeal are not so substantial that the case 

warrants the issuance of a written opinion,” 8 C.F.R. § 1003.1(e)(4)(i)(B). 

III.

For the foregoing reasons, we will deny Rittinhouse’s petition for review.

 

of deference.