Matter of Echeverria (B.I.A. 6/1/2011)

Temporary Protected Status (“TPS”) is a humanitarian program designed to permit aliens who are present in the U.S. to remain in the country even though they may not qualify for any type of immigration benefit or asylum. TPS does not confer immigration status, but does give the beneficiary an opportunity to live and work in the U.S. for defined time periods. It is available to citizens or nationals of a foreign country which has undergone some type of natural disaster, and therefore, cannot repatriate its citizens. The last TPS designated country was Haiti, which was nearly brought to complete collapse by the earthquake in 2010.
In order to apply for TPS benefits, a person must meet some strict requirements, one of which is that he or she must apply during the initial registration period, or any subsequent extension period thereafter. If one applies during an extension period rather than the initial registration period, this is considered late registration. This is permitted under certain circumstances. TPS contemplates derivative beneficiaries as well. A spouse or child of a TPS registrant may apply for TPS as a late registrant.

The question presented by this case is whether a person seeking TPS as a derivative spouse must be from a foreign state designated for TPS eligibility. The case arose because the respondent applied for late registration of TPS benefits after she married a person from El Salvador. Her husband qualified for TPS benefits because he registered on time, and he was from a TPS designated country. The respondent, however, was from Argentina, which is not a TPS designated country. She argued that she qualified because she was the spouse of a TPS registrant, as contemplated by the TPS regulations. The immigration judge found that she did not qualify for TPS benefits because she herself was not from a TPS designated country. That is, even though applying for derivative benefits, she herself must meet all the requirements for TPS benefits. The BIA agreed with the immigration judge.
In reaching its conclusion, the BIA overruled its own decision in an earlier case which reached an opposite conclusion (a case which the BIA expressly overruled but declined to identify). This case will no doubt be appealed because there is great ambiguity in both the TPS statutes and regulations. The BIA coming to a different conclusion on the same issue in a different case not too long ago is evidence that the law is ambiguous. Also, the BIA’s conclusion doesn’t quite make sense, especially regarding the issue of derivative benefits. The whole point of derivative benefits is that the person seeking them doesn’t necessarily qualify, but is nonetheless able to piggy back on someone who does. The classic example of this is a spouse or child of an intending immigrant. To require that a derivative beneficiary must independently meet all the requirements of TPS, especially when such requirement is not expressed in the statute, seems a bit arbitrary. Because there is a large class of persons who are affected by this ruling, no doubt we will not hear the end of this issue anytime soon.