Francisco Lopez Aldana v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A094-766-474 Copies to all parties and the district court/agency. [999005005].. [12-1382]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1382

FRANCISCO LOPEZ ALDANA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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

Submitted:

November 20, 2012

Decided:

December 18, 2012

Before AGEE, DAVIS, and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring,
Maryland, for Appellant.
Stuart F. Delery, Acting Assistant
Attorney General, Thomas B. Fatouros, Senior Litigation Counsel,
Janette L. Allen, Trial Attorney, Washington, D.C., for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Francisco Lopez Aldana, a native and citizen of El
Salvador,

petitions

for

review

Immigration

Appeals

(“Board”)

immigration

judge’s

denial

protected status (“TPS”).

of

an

order

dismissing

of

his

of

his

the

Board
from

appeal

application

for

of
the

temporary

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

occasions, and is currently set to expire on September 9, 2013.
77 Fed. Reg. 1710 (Jan. 11, 2012).
Lopez Aldana filed his application for TPS on March 8,
2005,

approximately

two

registration period ended.
statute,

however,

carve

and

a

half

years

after

the

initial

The regulations implementing the TPS
out

an

exception

to

the

initial

registration period and provide that an applicant may qualify
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for “late initial registration” if, at 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
to

be

a

TPS

registrant.

8

C.F.R.

§ 1244.2(f)(2)

(2012).

Because Lopez Aldana failed to file his application during the
initial registration period or demonstrate his eligibility for
late initial registration under § 1244.2(f)(2), the immigration
judge and the Board properly found him ineligible for TPS.
Lopez

Aldana,

however,

argues

that

the

registration

requirements for TPS set forth in 8 C.F.R. § 1244.2 are overly
restrictive

and

conflict

with

Congressional

intent.

In

reviewing Lopez Aldana’s challenge to the regulation, we employ
the two-step 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).

Under Chevron, the plain meaning of the statute controls if the
provision in question is unambiguous.

Chevron, 467 U.S. at 842-

43; see Suisa, 609 F.3d at 318; Saintha v. Mukasey, 516 F.3d
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243, 251 (4th Cir. 2008).

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If, however, “the statute at issue 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
challenges
merit.

to

have
the

thoroughly
regulation

considered

at

issue

and

Lopez
find

Aldana’s

them

without

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

registration period under the first step of Chevron.

initial
Applying

the second step of Chevron, we find that the Attorney General’s
promulgation of 8 C.F.R. § 1244.2(f)(2) (2012), which provides
for late initial registration for certain TPS applicants, was
based on a reasonable interpretation of § 1254a(c)(1)(A)(iv) and
was not arbitrary, capricious, or manifestly contrary to law.
See

Chevron,

467

U.S.

at

844

(providing

that

a

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

argument

the

petition

because
4

the

for
facts

review.
and

We
legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

PETITION DENIED

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