Jose Rosa v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A088-966-335. Copies to all parties and the district court/agency. [998549258].. [10-1998]

Jose Rosa v. Eric Holder, Jr.

Doc. 0

Case: 10-1998

Document: 28

Date Filed: 03/21/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-1998

JOSE WILBER ROSA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted:

March 7, 2011

Decided:

March 21, 2011

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Joseph M. Perez, Arlington, Virginia, for Petitioner. Tony West, Assistant Attorney General, Michelle G. Latour, Assistant Director, Jessica E. Sherman, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Jose Wilber Rosa, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ("Board") dismissing his appeal from the immigration

judge's denial of his application for temporary protected status ("TPS"). For the reasons set forth below, we deny the petition

for review. TPS is authorized by 8 U.S.C. § 1254a (2006), and

"allows eligible nationals of a foreign state to temporarily remain in the United States during the pendency of that state's designation for the TPS program." 229, 231 (4th Cir. 2010). Cervantes v. Holder, 597 F.3d

The Attorney General designated El

Salvador for the TPS program on March 9, 2001, based on the devastating earthquakes that the country suffered in early 2001. 66 Fed. Reg. 14214 (Mar. 9, 2001). The initial registration

period began on March 9, 2001, and ended on September 9, 2002. Id. at 14214-15. The designation has been extended on numerous 75

occasions, and is currently set to expire on March 9, 2012. Fed. Reg. 39556 (July 9, 2010).

Rosa filed his application for TPS on September 13, 2006, four years after the initial registration period ended. The regulations implementing the TPS statute, however, carve out an exception to the initial registration period and provide that an applicant may qualify for "late initial registration" if, at 2

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the time of the initial registration period:

(1) the applicant

was in valid nonimmigrant status or had been granted voluntary departure or other relief from removal; (2) the applicant had a pending application for change of status, adjustment of status, asylum, voluntary departure, or other relief from removal, or such application was subject to further review or appeal;

(3) the applicant was a parolee or had a pending request for reparole; or (4) the applicant was the spouse or child of an alien who was eligible (2010). during the to be a TPS Rosa registrant. failed to 8 C.F.R. his or

§ 1244.2(f)(2) application

Because initial

file period

registration

demonstrate his eligibility for late initial registration under § 1244.2(f)(2), the immigration judge and the Board properly

found him ineligible for TPS. Rosa, however, argues that the registration

requirements for TPS set forth in 8 C.F.R. § 1244.2 are overly restrictive and conflict with the governing statute. In

reviewing Rosa's challenge to the regulation, we employ the twostep analysis prescribed by the Supreme Court in Chevron U.S.A., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). See Suisa v. Holder, 609 F.3d 314, 318 (4th Cir. 2010). Chevron, the plain meaning of the statute controls Under if the

provision in question is unambiguous.

Suisa, 609 F.3d at 318; If,

Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). 3

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however, "the statute is silent or ambiguous with respect to the precise issue, then [the Court] must decide whether the agency's interpretation of the statute is reasonable, and thus, entitled to deference." Suisa, 609 F.3d at 318.

We have thoroughly considered Rosa's challenges to the regulation at issue and find them without merit. Because the

intent of Congress to delegate authority to the Attorney General to establish a registration deadline was clear and unambiguous, see 8 U.S.C. § 1254a(c)(1)(A)(iv) (2006), we defer to the

Attorney General's creation of the initial registration period under the first step of Chevron. Applying the second step of

Chevron, we find that the Attorney General's promulgation of 8 C.F.R. § 1244.2(f) for (2010), certain which TPS of provides for was late based and initial on a not See

registration reasonable arbitrary, Chevron,

applicants,

interpretation capricious, 467 U.S. at or

§ 1254a(c)(1)(A)(iv) contrary that to a

was

manifestly 844

law.

(providing

regulation

promulgated to fill a gap left, implicitly or explicitly, by Congress is "given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute"); Suisa, 609 F.3d at 319 (same). Accordingly, dispense with oral we deny the petition the for facts review. and We legal

argument

because

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contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED

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