TPS De Novo Granted: Two Misdemeanors Not Misdemeanors for TPS Purposes

A misdemeanor is not always a misdemeanor.

I recently won relief for a Salvadoran client in the Arlington Immigration Court on a de novo review of my client’s Temporary Protected Status (TPS). The Department of Homeland Security (DHS) had withdrawn my client’s TPS status on the basis that he had three misdemeanor convictions that disqualified him from the program (two misdemeanor convictions allows DHS to withdraw TPS). Under 8 CFR Section 244, our client had the right to review of his TPS eligibility by the immigration judge in removal proceedings. I argued under the regulations and two policy memoranda governing TPS that two of his three misdemeanor convictions in Virginia did not constitute a misdemeanor for purposes of TPS.

Temporary Protected Status is unique in immigration law for a number of reasons. Particularly relevant here, a beneficiary of TPS can lose their TPS and be denied re-registration for TPS on the basis of two misdemeanor convictions. Nowhere else in immigration law does a conviction for a misdemeanor, without regard to crime type, yield such severe immigration consequences. For example, a person convicted for offenses relating to driving on the Beltway at 75 mph, could hypothetically lose their TPS. Fortunately, our firm has found success in recent years arguing for a narrower reading of the terms “crime” and “misdemeanor” and these arguments have been helped by DHS guidance in the form of memoranda published in 2010 and 2011. It was through this approach that we proceeded in this case involving an individual whose TPS was withdrawn by USCIS on the basis of Reckless Driving and Public Intoxication convictions.

After a lengthy debate, the immigration judge agreed with my logic, over the Department’s objections, and reinstated my client’s TPS. Able to remain in the United States with his 6-year-old daughter, and having been a resident of the United States for 24 years, our firm is ecstatic for our client at the outcome of this case.

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