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Matter of Ingrid Carolina DUARTE-LUNA, Respondent

Matter of Bessy Beatriz LUNA, Respondent

Decided June 20, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A parent’s continuous physical presence and continuous residence in the United States

cannot be imputed to a child for purposes of establishing the child’s eligibility for

Temporary Protected Status.

FOR RESPONDENT: Ilyce Shugall, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Aaron Keesler, Assistant

Chief Counsel

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

GRANT, Board Member:

In a decision dated August 25, 2009, an Immigration Judge granted the

respondents’ applications for Temporary Protected Status (“TPS”) under

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

(2006). The Department of Homeland Security (“DHS”) has appealed from

that decision. The respondents oppose the appeal. The appeal will be

sustained, and the record will be remanded to the Immigration Judge.

The respondents, who are natives and citizens of El Salvador, are two

sisters whose mother was granted TPS in 2001. Both respondents arrived

in the United States as minors on August 24, 2003, and were served with

notices to appear 2 days later. They subsequently filed applications for

TPS in 2005, and removal proceedings were administratively closed while

their applications were pending. The respondents’ applications were

denied and their appeals were dismissed. They subsequently filed renewed

applications, all of which were denied. Removal proceedings were then

recalendared.

In her decision, the Immigration Judge relied on two opinions of the

United States Court of Appeals for the Ninth Circuit in finding that the

continuous physical presence and continuous residence of the respondents’

mother could be imputed to them for purposes of establishing their

eligibility for TPS because they entered the United States as unemancipated
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minors. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1021−29 (9th Cir.

2005); Lepe-Guitron v. INS, 16 F.3d 1021, 1025−26 (9th Cir. 1994). The

Immigration Judge consequently found the respondents eligible for TPS

and granted their applications for that relief.

Section 244(a) of the Act does not provide for “derivative” TPS status.

However, the regulations state that an applicant for TPS who is the child of

“an alien currently eligible to be a TPS registrant” may be eligible to

receive TPS through late registration. 8 C.F.R. § 1244.2(f)(2)(iv) (2013).1

The applicant must nevertheless satisfy several additional requirements,

including continuous physical presence in the United States since

the effective date of the foreign country’s most recent designation and

continuous residence in the country since the date designated by the

Attorney General. 8 C.F.R. § 1244.2(b), (c).2

The effective date of the TPS designation of El Salvador was March 9,

2001, and the Attorney General has designated February 13, 2001, as the

date by which the alien’s continuous residence in the United States must

have begun. See Designation of El Salvador Under Temporary Protected

Status Program, 66 Fed. Reg. 14,214, 14,215 (Mar. 9, 2001). Extensions

of TPS designations do not constitute new designations of TPS.

See De Leon-Ochoa v. Att’y Gen. of U.S., 622 F.3d 341, 355−56 (3d Cir.

2010); Cervantes v. Holder, 597 F.3d 229, 234−36 (4th Cir. 2010);

Extension of the Designation of El Salvador for Temporary Protected

Status, 78 Fed. Reg. 32,418, 32,418 (May 30, 2013) (stating that applicants

must meet “all TPS eligibility criteria (including continuous residence in

the United States since February 13, 2001, and continuous physical

presence in the United States since March 9, 2001”)) (Summary). The

respondents concede that they entered the United States on August 24, 2003.

Therefore they have not continuously resided in the United States since

February 13, 2001, and have not been physically present in the

United States since March 9, 2001, as required for TPS eligibility.

Moreover, the physical presence and residence of the respondents’

mother may not be imputed to them for purposes of establishing their

1 The regulations relating to TPS applications submitted to the DHS are at 8 C.F.R.

§ 244.2 (2013).

2 The respondents’ argument that late initial registration applicants are not required to

satisfy the continuous physical presence and residence requirements is inconsistent with

the regulations and is not persuasive. The regulations clearly state that all TPS applicants

must meet the eligibility requirements in 8 C.F.R. § 1244.2(a)−(e), which includes

continuous physical presence and continuous residence. See Temporary Protected Status,

Exception to the Registration Deadlines, 63 Fed. Reg. 63,593, 63,594 (Nov. 16, 1998)

(Supplementary Information); see also Matter of Echeverria, 25 I&N Dec. 512, 516−17

(BIA 2011).
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eligibility for TPS. Subsequent to the Immigration Judge’s decision in

this case, the United States Supreme Court specifically abrogated the

Ninth Circuit’s holding in Cuevas-Gaspar with respect to the residence

requirement and upheld our determination that a parent’s years of residence

may not be imputed to an alien child seeking to establish eligibility for

cancellation of removal, who must independently establish the required

period of continuous residence. Holder v. Martinez Gutierrez, 132 S. Ct.

2011 (2012); see also Matter of Montoya-Silva, 26 I&N Dec. 123, 125−26

(BIA 2013) (noting the Supreme Court’s abrogation of Cuevas-Gaspar and

reaffirming Matter of Escobar, 24 I&N Dec. 231 (BIA 2007), and Matter of

Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), which held that a parent’s

residence in the United States cannot be imputed to a child in determining

the child’s eligibility for cancellation of removal under section 240A(a)

of the Act, 8 U.S.C. § 1229b(a) (2006)). The Court found that the Board

reasonably distinguished between “matters involving an alien’s state of

mind” (such as the parent’s domicile or abandonment of lawful permanent

resident status), which can be imputed to the child, and “objective

conditions or characteristics” (such as the parent’s place of residence),

which are not imputed to the child. Holder v. Martinez Gutierrez, 132 S. Ct.

at 2020 (citing Matter of Escobar, 24 I&N Dec. at 233−34 & n.4).

Consistent with the Supreme Court’s ruling, we conclude that the

respondents must independently establish their continuous residence in the

United States since February 13, 2001, because their mother’s residence

cannot be imputed to them.

Nor can the respondents’ mother’s physical presence be imputed

to them for purposes of establishing the necessary continuous physical

presence for TPS. According to 8 C.F.R. § 1244.1, the phrase

“[c]ontinuously physically present” means “actual physical presence in the

United States for the entire period specified in the regulations,” with an

exception relating to brief, casual, and innocent absences that is not relevant

to the respondents. Because the respondents’ physical presence is an

objective condition or characteristic, and not a matter involving their state

of mind, their mother’s physical presence cannot be imputed to them.

See Saucedo-Arevalo v. Holder, 636 F.3d 532, 533 (9th Cir. 2011)

(declining to impute a parent’s physical presence for purposes of

establishing a child’s eligibility for cancellation of removal under

section 240A(b)(1)(A) of the Act); Barrios v. Holder, 581 F.3d 849,

862−65 (9th Cir. 2009) (similarly declining to impute a parent’s

physical presence for purposes of establishing eligibility for relief under
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section 203(b) of the Nicaraguan Adjustment and Central American Relief

Act, Pub L. No. 105-100, 111 Stat. 2160, 2198 (1997)).3

The respondents have not continuously resided in the United States

since February 13, 2001, and have not been continuously physically present

since March 9, 2001. They have therefore not established their eligibility

for TPS. Accordingly, the DHS’s appeal will be sustained, and the record

will be remanded to give the respondents an opportunity to apply for any

relief for which they may be eligible.

ORDER: The appeal of the Department of Homeland Security is

sustained, and the decision of the Immigration Judge is vacated.

FURTHER 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.

3 Other circuit courts have found that a parent’s continuous residence or continuous

physical presence may not be imputed for purposes of establishing a child’s eligibility for

TPS. See Castillo-Enriquez v. Holder, 690 F.3d 667, 668−69 (5th Cir. 2012) (holding

that an alien cannot establish eligibility for TPS based on his parents’ continuous

residence and continuous physical presence); De Leon-Ochoa v. Att’y Gen. of U.S., 622

F.3d at 356 (stating that “the ‘continuous residence’ requirement [for TPS] cannot be met

via imputation”); Cervantes v. Holder, 597 F.3d at 236−37 (rejecting the petitioner’s

imputation theory and giving deference to the Board’s position that “each TPS registrant

must independently satisfy the continuous residence requirement”).