The Board of Immigration Appeals (BIA) recently held that immigration judges (IJs) have the authority to deny an application for Temporary Protected Status (TPS) in the exercise of discretion. Matter of D-A-C-, 27 I&N Dec. 575 (BIA 2019). Moreover, the BIA found it was proper to consider the facts underlying the applicant’s misdemeanor conviction — as contained in the charging document — even though the resulting conviction did not disqualify the applicant from TPS eligibility under the statute.

Matter of D-A-C- involved a Salvadoran TPS applicant with a 2018 misdemeanor conviction for attempting to endanger the welfare of the child. The IJ found that the respondent was statutorily eligible for TPS since a single misdemeanor is not a bar to relief. However, the judge denied the application based on the respondent’s failure to establish he warranted a favorable exercise of discretion. In support of its holding, the BIA pointed to the plain language of the TPS statute and implementing regulation. INA § 244(a)(1)(A) provides that the Attorney General “may grant” a non-citizen TPS if he or she meets the statutory requirements in INA § 244(c), but uses the word “shall” in other parts of the statute. Likewise, 8 CFR § 244.2 provides that an applicant “may in the discretion of the director be granted” TPS. The BIA also cited to an Eleventh Circuit Court of Appeals decision in which the court stated that “[t]he ultimate decision of whether to grant TPS to an alien is undisputedly within the discretion of the Secretary of Homeland Security.”  Mejia Rodriguez V. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1143 (11^th Cir. 2009) (per curiam).

Currently, the I-821 application does not request evidence that the TPS applicant warrants a favorable exercise of discretion, nor have practitioners typically submitted evidence of positive discretionary factors where an applicant meets the statutory eligibility requirements for TPS. Based on this ruling, practitioners should be prepared for possible requests for evidence or denials in cases where the adjudicator determines that the adverse factors in a particular case outweigh the favorable factors. In cases where there are adverse factors, including recent criminal activity, advocates may want to consider providing evidence of “significant additional equities.” This could be evidence of specific hardship to the applicant or their family, if the applicant is removed, or evidence of the applicant’s positive contributions to the community.

After concluding that TPS is discretionary and that IJs have the authority to deny TPS as an exercise of discretion, the BIA then examined the immigration judge’s specific denial of TPS to Mr. D-A-C. As a single misdemeanor, the respondent’s conviction for attempting to endanger the welfare of a child did not prevent him from showing eligibility for TPS under INA § 244. However, the charging document in his criminal case suggested that the facts underlying his conviction included inappropriate physical conduct with a young girl. The respondent argued that he only pled guilty to “attempting to act ‘in a manner likely to be injurious to the physical, mental or moral welfare of a child’” and that the allegations in the charging document were not true. However, since the IJ found the charging document to be reliable and determined that the respondent’s testimony was not credible, the BIA found there was no clear error. Instead, the BIA held it was proper for the judge “to consider any reliable and probative evidence regarding the respondent’s actual conduct, including the information in the charging document, to determine the actual circumstances underlying his conviction.” Thus, in balancing the negative and positive factors, a discretionary denial was appropriate, since the serious nature of Mr. D-A-C-’s crime and his lack of candor outweighed his long-time residence in the United States, stable employment history, strong community ties and adverse current country conditions in El Salvador.

This decision affirms the cause for concern in submitting arrest reports, charging documents and other potentially prejudicial documents to immigration benefit adjudicators. Even if such documents are not relevant to eligibility for a particular benefit or form of relief, they can still be used to justify a discretionary denial, as they were in Matter of D-A-C-. For guidance about how to respond when USCIS or an immigration judge requests to review an arrest report, please see CLINIC’s Practice Advisory on Requests for Arrest Reports in Immigration Matters (July 29, 2019), which you can request here.