Cite as 25 I&N Dec. 575 (BIA 2011) Interim Decision #3724
Matter of Pablo De Jesus HENRIQUEZ RIVERA, Respondent
Decided August 8, 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, in the appropriate circumstances, require the
Department of Homeland Security to provide the application that the applicant filed with the
FOR RESPONDENT: Lino R. Rodriguez, Jr., Esquire, Atlanta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Randall W. Duncan, Assistant
BEFORE: Board Panel: ADKINS-BLANCH and GUENDELSBERGER, Board Members;
KENDALL CLARK, Temporary Board Member.
ADKINS-BLANCH, Board Member:
In a decision dated July 7, 2010, an Immigration Judge terminated the
removal proceedings against the respondent. The Department of Homeland
Security (“DHS”) has appealed from that decision. The respondent has not
replied to the DHS’s brief on appeal. The appeal will be sustained in part and
the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of El Salvador, was not admitted
or paroled into the United States. At a hearing before the Immigration
Judge, the respondent conceded that he was inadmissible under section
212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(A)(i) (2006), and sought review of his application for Temporary
Protected Status (“TPS”) under section 244 of the Act, 8 U.S.C. § 1254a
(2006), which had been denied by the United States Citizenship and
Immigration Services (“USCIS”).
The Immigration Judge directed the DHS to file a copy of the respondent’s
administrative records. The DHS agreed to submit a copy of the USCIS’s
denial letter but declined the Immigration Judge’s request to provide theCite as 25 I&N Dec. 575 (BIA 2011) Interim Decision #3724
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.
respondent’s TPS application. Likening the consideration of the respondent’s
TPS application to the general appellate process, the Immigration Judge
determined that it was the responsibility of the DHS to provide the complete
administrative record, without which he would not review the respondent’s
TPS application. The Immigration Judge therefore terminated the proceedings,
citing the DHS’s failure to prosecute.
The question before us is whether the DHS is required to provide the
Immigration Judge with the administrative record of an applicant’s TPS
application that was adjudicated and denied by the USCIS when the applicant
has renewed his TPS application in removal proceedings. We review this
question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011).
As a general matter, it is the DHS’s burden in removal proceedings
to establish that an alien is removable. Section 240(c)(3)(A) of the Act,
8 U.S.C. § 1229a(c)(3)(A) (2006); 8 C.F.R. § 1240.8(a) (2011). Thereafter,
it is the alien’s burden to establish his eligibility for any application for relief
from removal. Section 240(c)(4)(A) of the Act; 8 C.F.R. § 1240.8(d).
To sustain that burden, the alien must comply with the applicable requirements
to submit information and documentation in support of the application for
relief, as provided by law or regulation or by the application’s instructions.
Section 240(c)(4)(B) of the Act.
The statute sets forth the eligibility requirements and standards for TPS.
Sections 244(c)(1)–(2) of the Act. The specific procedures for applying for
TPS and for seeking review of a denial of benefits are established
by regulation. See section 244(b)(5)(B) of the Act.
Generally, 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 the application
is denied, the applicant has the right to appeal to the Administrative Appeals
Unit (“AAU”). 8 C.F.R. §§ 244.10(c), 1244.10(c) (2011). If an applicant
files the proper form to appeal a denial by the director, “the administrative
record shall be forwarded to the AAU for review and decision.” 8 C.F.R.
§§ 244.10(c), 1244.10(c). If an adverse decision by the director or the AAU,Cite as 25 I&N Dec. 575 (BIA 2011) Interim Decision #3724
including withdrawal of TPS, 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 filed with an Immigration Court while the appeal is pending before
the AAU, the appeal will be dismissed and the record of proceeding will
be returned. 8 C.F.R. §§ 244.18(b), 1244.18(b) (2011). The applicable
regulation specifies that “[i]f a charging document is served on the alien
with a notice of denial or withdrawal of [TPS], an alien may renew the
application for [TPS] in deportation or exclusion proceedings.” 8 C.F.R.
§§ 244.11, 1244.11 (2011).
We have held that a TPS applicant may seek de novo review of his
application by an Immigration Judge in removal proceedings. Matter
of Lopez-Aldana, 25 I&N Dec. 49 (BIA 2009); Matter of Barrientos, 24 I&N
Dec. 100 (BIA 2007); see also section 244(b)(5)(B) of the Act. However,
we have not addressed the issue of what responsibilities, if any, the applicant
or the DHS has concerning the production of the application or other
documents with respect to that renewed application.
We adhere to the principles of statutory construction when interpreting
regulations. Matter of F-P-R-, 24 I&N Dec. 681, 683 (BIA 2008). We look
first to a regulation’s language and are required to give effect to the
unambiguously expressed intent of the regulation. Id.; see also Chevron,
U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-43
(1984). 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 should also construe a
regulation to give effect to all of its provisions. See Matter of E-L-H-, 23 I&N
Dec. 814, 823 (BIA 2005); Matter of Masri, 22 I&N Dec. 1145, 1148 (BIA
The regulations that permit an applicant to renew his application for TPS
in removal proceedings before an Immigration Judge do not specify whether
doing so imposes on the applicant or the DHS the responsibility for the
production of documents. 8 C.F.R. §§ 244.11, 1244.11. Likewise, similar
regulations that permit the renewal of an application for other benefits
in removal proceedings do not specify the respective responsibilities of the
parties in this regard. See 8 C.F.R. §§ 209.1(e), 1209.1(e) (adjustment
of status as a refugee); 209.2(f), 1209.2(f) (adjustment of status as an asylee);
245.2(a)(5)(ii), 1245.2(a)(5)(ii) (adjustment of status under section 245 of the
Act, 8 U.S.C. § 1255 (2006)); 249.2(b), 1249.2(b) (2011) (application for
permanent residence under section 249 of the Act, 8 U.S.C. § 1259 (2006));
see also 8 C.F.R. §§ 216.4(d)(2), 1216.4(d)(2) (joint petition to remove the
conditions on residence for an alien spouse); 216.5(f), 1216.5(f) (applicationCite as 25 I&N Dec. 575 (BIA 2011) Interim Decision #3724
2 In contrast, other regulations specify that an application for asylum, suspension
of deportation, or special rule cancellation that is not granted by an asylum officer is referred
to an Immigration Judge. See 8 C.F.R. §§ 208.14(c)(1), 240.70(d), 1208.14(c)(1),
1240.70(d) (2011). We note that prior to the current referral system, the regulations
provided that an asylum application denied by an asylum officer could be renewed
in proceedings before an Immigration Judge and that only a previously filed but
unadjudicated asylum application had to be resubmitted to the Immigration Judge. See
Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg.
30,674, 30,680-81, 30,685 (July 27, 1990) (codified at 8 C.F.R. §§ 208.2(b), 208.18(b)
3 We note, however, that a respondent is not bound to file a copy of the previously filed
application but may choose to file an amended or updated application with the Immigration
for waiver of the requirement to file a joint petition to remove the conditions
on residence for an alien spouse); 216.6(d)(2), 1216.6(d)(2) (2011) (petition
by an entrepreneur to remove the conditional basis for lawful permanent
However, we find no language in the applicable TPS regulations that may
reasonably be construed as requiring an applicant to file a new application
before the Immigration Judge rather than to rely on the application filed
with the USCIS. Indeed, the very term “renew” implies a procedure that
contemplates production of the previous application. See 8 C.F.R. §§ 244.11,
1244.11. Pursuant to regulation, a TPS application consists of a completed
Form I-821 (Application for Temporary Protected Status), a Form I-765
(Application for Employment Authorization), two identification photographs,
and all documentation required by the instructions or requested by the USCIS.
8 C.F.R. §§ 244.6, 1244.6; see also 8 C.F.R. §§ 244.9, 1244.9 (stating the
supporting evidence that is required for a TPS application). Absent specific
regulatory language that requires the applicant to file a new application and
supporting documentation, we will not impose such a burden on the applicant.
In practice, an applicant who is seeking to renew a previously filed TPS
application often submits to the Immigration Court a copy of the application
that was filed with the USCIS.3
However, there are also cases in which, for
any number of reasons, the applicant may not have copies of the TPS
application and associated documents that were filed with the USCIS. In such
cases, the only recourse is to secure the documents from the USCIS
administrative record. This requirement also safeguards the integrity of the
proceedings. Construing the regulations to require the DHS to provide the
application documents ensures that, at a minimum, the Immigration Judge has
access to the documents the TPS applicant already filed with the Government.
Moreover, we find no provision in the statute or regulations that prohibits
an Immigration Judge, in appropriate circumstances, from requiring the DHSCite as 25 I&N Dec. 575 (BIA 2011) Interim Decision #3724
4 We find no language in the regulations that would preclude the DHS from submitting to the
Immigration Court other documents from an applicant’s administrative record, for example,
for purposes of rebutting information or evidence otherwise supplied in removal
to produce the TPS application that the applicant filed with the USCIS.
An Immigration Judge has the authority to regulate the course of the
hearing and to take any action consistent with applicable law and regulations
as may be appropriate. 8 C.F.R. §§ 1240.1(a)(1)(iv), (c) (2011). When, for
example, an applicant has not retained a copy of the application or is unable
to produce a complete copy, we cannot conclude that it is inappropriate
or otherwise outside the Immigration Judge’s authority to require the DHS
to provide the Immigration Court with the applicant’s TPS application,
as it is defined by regulation.4
We agree with the DHS that termination of proceedings was not proper
in this case, and to that extent the appeal will be sustained. See generally
Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007). Based on the above
discussion, we do not agree with the Immigration Judge’s determination that
the DHS is required to provide the Immigration Court with an applicant’s
complete administrative record from the USCIS. However, we conclude that
the Immigration Judge may, in the appropriate circumstances, require the DHS
to provide the application that the applicant filed with the USCIS. A remand
is necessary in this case so that the DHS may do so.
ORDER: The appeal of the Department of Homeland Security is sustained
in part, the decision of the Immigration Judge is vacated, and the removal
proceedings against the respondent are reinstated.
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.
Cite as 25 I&N Dec. 575 (BIA 2011) Interim Decision #3724