PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JORGE ANTONIO RAMOS CERVANTES;
PAOLA ANDREA RAMOS CERVANTES;
DANIEL ALEJANDRO RAMOS
CERVANTES,
Petitioners,
No. 09-1519
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals.
Argued: January 28, 2010
Decided: March 8, 2010
Before TRAXLER, Chief Judge, and KING and
GREGORY, Circuit Judges.
Petition for review denied by published opinion. Judge King
wrote the opinion, in which Judge Gregory joined. Chief
Judge Traxler wrote a separate concurring opinion.
COUNSEL
ARGUED: Sheryl Winarick, LAW OFFICE OF SHERYL
WINARICK, Washington, D.C., for Petitioners. Benjamin J.
2 CERVANTES v. HOLDER
Zeitlin, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Tony West,
Assistant Attorney General, Richard M. Evans, Assistant
Director, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
OPINION
KING, Circuit Judge:
Petitioners Jorge Ramos Cervantes, Paola Ramos Cervan-
tes, and Daniel Ramos Cervantes, who are siblings, seek
appellate review of a final order of the Board of Immigration
Appeals (the "BIA"), which rejected their attempt to forestall
removal from the United States by obtaining temporary pro-
tected status ("TPS") from the immigration authorities, pursu-
ant to 8 U.S.C. § 1254a. On appeal, Petitioners, who were
minor children, contend that the BIA erred in affirming the
ruling of an Immigration Judge (the "IJ") that they were ineli-
gible for TPS because they could not satisfy the eligibility
requirements of 8 U.S.C. § 1254a(c)(1)(A). As explained
below, we reject their contentions and deny review.
I.
The underlying facts are undisputed. The Petitioners’ par-
ents entered the United States from Honduras sometime
before December 30, 1998, while the Petitioners remained
with their grandparents in Honduras. On January 5, 1999 —
while the Petitioners were yet in Honduras — the Attorney
General designated that country for the TPS program due to
the devastation caused by Hurricane Mitch.1 TPS is autho-
1
We use "TPS" to refer to the immigration status sought by the Petition-
ers. On the other hand, we use "TPS program" to refer to the overall
administration of TPS by the federal authorities.
CERVANTES v. HOLDER 3
rized by Section 244 of the Immigration and Nationality Act
(the "INA"), which allows eligible nationals of a foreign state
to temporarily remain in the United States during the pen-
dency of that state’s designation for the TPS program. See 8
U.S.C. § 1254a. After Honduras was so designated in 1999,
the Petitioners’ parents successfully applied for TPS. To
obtain TPS, the parents were obliged to establish, inter alia,
that they: (1) had been "continuously physically present in the
United States" since December 30, 1998 (the "continuous
physical presence" requirement); and (2) had "continuously
resided in the United States" since January 5, 1999 (the "con-
tinuous residence" requirement). See 64 Fed. Reg. 524, 525
(Jan. 5, 1999).2
After the Petitioners’ grandparents became ill, the Petition-
ers left Honduras to join their parents in this country, entering
the United States illegally on September 9, 2004. The Depart-
ment of Homeland Security (the "DHS") immediately initi-
ated removal proceedings against the Petitioners, ordering
them to appear before an immigration judge to show why they
should not be removed. As a defense against such removal,
the Petitioners filed applications with the IJ for what is known
as "late initial registration" for TPS.3 A "late initial registra-
tion" allows the child of a person who was eligible for TPS
during the initial registration period to apply for TPS during
2
Under the statutory provisions applicable in 1999, the Attorney Gen-
eral was empowered to designate a foreign state for the TPS program. Pur-
suant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135, the responsibility for administering the TPS program was
transferred to the Department of Homeland Security. For ease of reference
and consistent with his status as Respondent in this appeal, we refer to the
TPS program’s administering authority as the Attorney General.
3
In addition to filing their TPS applications with the IJ, the Petitioners
filed TPS applications with DHS on April 25, 2005. In August 2006, DHS
denied those applications because the Petitioners could not demonstrate
(1) their continuous residence in the United States since December 30,
1998, and (2) their physical presence in the United States since January
5, 1999. The Petitioners did not appeal from the DHS denials.
4 CERVANTES v. HOLDER
a subsequent extension thereof. See 8 C.F.R.
§ 1244.2(f)(2)(iv). The Petitioners were thus entitled to seek
late initial registration, as their parents were eligible for TPS
during the initial registration period for Honduran nationals
(January 5, 1999 to August 20, 1999).
On November 16, 2007, the IJ issued an oral decision deny-
ing the Petitioners’ TPS applications and ordering them to
voluntarily depart the United States.4 The IJ concluded that,
unlike their parents, Petitioners could not satisfy the "continu-
ous physical presence" and "continuous residence" require-
ments because they did not enter the United States until
September 2004. In so ruling, the IJ rejected Petitioners’
effort to "have [TPS] imputed to them." J.A. 35 (ruling that
"imputed" TPS status "is not a part of case law, it is not a part
of regulation; indeed, it is not a part of the statute").
The Petitioners thereafter appealed the IJ’s adverse ruling
to the BIA, which, on April 6, 2009, dismissed their appeal
by way of a single-member, nonprecedential decision. See
J.A. 3-5. In that ruling, the BIA concluded that the IJ had "ap-
propriately applied the laws and regulations as written." Id. at
4. In pertinent part, the BIA adopted the IJ’s conclusion that
"Section 244 of the [INA] does not provide for ‘derivative’
[or imputed] TPS," and concluded that the Petitioners could
not satisfy the INA’s "continuous physical presence" and
"continuous residence" requirements. Id. at 3. In short, the
BIA determined that the "regulations do not provide for
waiver of the TPS residence requirements for children of cur-
rent TPS registrants." Id. at 4. Finally, the BIA, like the IJ,
rejected the Petitioners’ various policy-based arguments,
explaining that it had "no authority to consider challenges to
the regulations and the [INA]." Id. On May 6, 2009, the Peti-
tioners petitioned for review in this Court, and we possess
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
4
The IJ’s oral decision is found at J.A. 33-37. (Citations herein to "J.A.
___" refer to the Joint Appendix filed by the parties in this appeal.)
CERVANTES v. HOLDER 5
II.
Where the BIA has adopted and supplemented an IJ’s deci-
sion, as here, we review both rulings and accord them appro-
priate deference. See Niang v. Gonzales, 492 F.3d 505, 511
n.8 (4th Cir. 2007). When the issue on appeal "turns on an
interpretation of the INA — a statute that the BIA administers
— we afford the BIA deference under the familiar Chevron
standard." Midi v. Holder, 566 F.3d 132, 136 (4th Cir. 2009)
(citing Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844
(1984)); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999) ("[T]he BIA should be accorded Chevron deference as
it gives ambiguous statutory terms concrete meaning through
a process of case-by-case adjudication . . . ." (internal quota-
tion marks omitted)).
We have recognized, however, that the various courts of
appeals have failed to agree on the standard of review
accorded nonprecedential single-member BIA decisions. See
Lin v. Mukasey, 517 F.3d 685, 694-95 (4th Cir. 2008)
(observing that some "circuits have held that nonprecedential
decisions by a single member of the BIA should not be
accorded deference under Chevron"). At least two circuits
have ruled that, although such single-member decisions are
not entitled to Chevron deference, they are nevertheless enti-
tled to some "measure of respect" under the less deferential
standard of Skidmore v. Swift & Co., 323 U.S. 134 (1944). See
Carpio v. Holder, __ F.3d __, No. 08-9536, slip op. at 10
(10th Cir. Jan. 12, 2010); Barrios v. Holder, 581 F.3d 849,
859 (9th Cir. 2009). Under Skidmore deference, we assess the
"thoroughness evident in [the BIA’s] consideration, the valid-
ity of its reasoning, its consistency with earlier and later pro-
nouncements, and all those factors which give it power to
persuade, if lacking power to control." Skidmore, 323 U.S. at
140.5
5
We need not resolve in this proceeding whether nonprecedential BIA
decisions are entitled to Chevron deference, or merely to Skidmore defer-
6 CERVANTES v. HOLDER
III.
In their petition for review, the Petitioners maintain that the
IJ and BIA both erred in concluding that they could not sat-
isfy the "continuous physical presence" and "continuous resi-
dence" requirements for TPS. Those requirements are
specifically established by the INA, which provides that an
alien who is a national of a foreign state designated for the
TPS program "meets the requirements" for TPS if, inter alia:
(i) the alien has been continuously physically present
in the United States since the effective date of the
most recent designation of that state;
(ii) the alien has continuously resided in the United
States since such date as the Attorney General may
designate . . . .
8 U.S.C. § 1254a(c)(1)(A) (emphasis added). Additionally,
the Attorney General has adopted implementing regulations
for the TPS program, which provide, in pertinent part, that an
alien "may . . . be granted" TPS if he or she
(b) Has been continuously physically present in the
United States since the effective date of the most
recent designation of that foreign state;
(c) Has continuously resided in the United States
since such date as the Attorney General may desig-
nate;
***
ence. As explained below, we would deny the petition for review under
the less deferential standard of Skidmore. See, e.g., Mushtaq v. Holder,
583 F.3d 875, 877 (5th Cir. 2009) (declining to decide whether Chevron
deference applied because petitioner’s claim failed application of Skid-
more deference).
CERVANTES v. HOLDER 7
(f)(1) Registers for [TPS] during the initial registra-
tion period announced by public notice in the Fed-
eral Register, or
(2) During any subsequent extension of such des-
ignation if at the time of the initial registration
period:
***
(iv) The applicant is a spouse or child of an
alien currently eligible to be a TPS regis-
trant.
8 C.F.R. § 1244.2 (emphasis added).6
On January 5, 1999, the Attorney General first designated
Honduras for the TPS program, publishing a notice to that
effect in the Federal Register. See 64 Fed. Reg. 524 (Jan. 5,
1999). More specifically, the Attorney General’s notice pro-
vided that Honduran aliens would be eligible to apply for TPS
if they, inter alia: (1) had been "continuously physically pres-
ent" in the United States since January 5, 1999; and (2) had
"continuously resided" in the United States since December
30, 1998. Id. at 525. We address the Petitioners’ contentions
with respect to these requirements in turn.
A.
The INA’s "continuous physical presence" requirement,
which is codified at 8 U.S.C. § 1254a(c)(1)(A)(i), requires an
alien’s continuous physical presence in the United States
6
Parts 244 and 1244 of Title 8 of the Code of Federal Regulations are
identical, except that Part 244 applies to the DHS, whereas Part 1244 gov-
erns the Department of Justice and its Executive Office of Immigration
Review, which includes the immigration courts and the BIA. As this
appeal involves a petition for review of a final order of the BIA, we are
obliged to apply the provisions of Part 1244.
8 CERVANTES v. HOLDER
since the effective date of the "most recent designation" of the
relevant foreign state for the TPS program. In seeking relief
here, the Petitioners maintain that the phrase "most recent
designation" is ambiguous. Under their reading of
§ 1254a(c)(1)(A)(i), the phrase "most recent designation"
means the Attorney General’s "most recent determination and
announcement that the conditions for TPS continue to be
met." Pets.’ Br. 7. The Attorney General, on the other hand,
has consistently maintained that the phrase "most recent des-
ignation" refers to the initial designation of a foreign state for
the TPS program, and not to any subsequent extension
thereof.
After the initial designation of Honduras for the TPS pro-
gram on January 5, 1999, the Attorney General posted at least
eight additional notices in the Federal Register stating that the
conditions for TPS continued to exist and extending the origi-
nal TPS program designation for Honduras. See, e.g., 73 Fed.
Reg. 57,133, 57,134 (Oct. 1, 2008) (extending designation for
Honduras for eighth time, through July 5, 2010). In the Peti-
tioners’ view, each extension of the TPS program for a partic-
ular foreign state represents the "most recent designation."
Accordingly, Petitioners contend that their relevant date for
the "continuous physical presence" requirement — i.e., the
effective date of the "most recent designation" of Honduras
for the TPS program — is the date of the most recent exten-
sion of the TPS program designation for Honduras, that is,
October 1, 2008. Thus, Petitioners maintain that they satisfy
the "continuous physical presence" requirement because they
have been present in the United States since September 2004.
The Petitioners argue that, given this asserted ambiguity,
we are obliged to determine "whether the agency’s interpreta-
tion of [§ 1254a(c)(1)(A)(i)] is based on a reasonable con-
struction of the statute or if the agency’s interpretation serves
to frustrate the intent of Congress." Pets.’ Br. 12. In support
of their position, Petitioners rely on the legislative history of
the TPS program, contending that "Congress’ key priority and
CERVANTES v. HOLDER 9
underlying intent was to protect the nuclear family unit and to
promote family unity." Id. at 15. Accordingly, the Petitioners
maintain that this Court should "interpret [‘most recent desig-
nation’] to mean the most recent determination and announce-
ment by the [Attorney General] that the conditions for a TPS
designation continue to be met." Id. at 16.
Assuming that Skidmore deference (as opposed to Chevron
deference) is appropriate here, we nonetheless defer to the
BIA’s construction of the "continuous physical presence"
requirement — including the statutory phrase "most recent
designation" — if that construction has the "power to per-
suade." See Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944). Notably, the BIA has construed the phrase "most
recent designation" to mean only the initial designation of a
foreign state for the TPS program, and the Attorney General
has consistently adhered to that reading. Indeed, each of the
eight TPS program extension notices with respect to Hondu-
ras in the Federal Register has stated that aliens may be eligi-
ble, if they satisfy the statutory eligibility requirements, for
"late initial" TPS registration. Thus, those extension notices
have expressly required late initial registrants to indepen-
dently demonstrate their continuous residence in the United
States since December 30, 1998, and their continuous physi-
cal presence here since January 5, 1999. See, e.g., 73 Fed.
Reg. 57,133, 57,136 (Oct. 1, 2008).
Moreover, since 1998, when the regulations providing for
late initial TPS registration were first adopted, the Attorney
General has consistently applied this interpretation of the TPS
program’s eligibility requirements. In a 1998 Federal Register
notice outlining the late initial registration process, the Immi-
gration and Naturalization Service (the "INS") explained that
it was adopting a suggestion that would allow children of TPS
registrants to apply for TPS despite not having done so during
the initial registration period. The INS explained, however,
that such late initial registrants were obliged to independently
satisfy the statutory requirements for TPS:
10 CERVANTES v. HOLDER
The Service does not agree with the request
[advanced in a public comment] that those who do
not meet the basic eligibility requirements, including
physical presence in the United States by the date
specified in the TPS Federal Register notice, should
be eligible for initial late registration.
63 Fed. Reg. 63,593, 63,594 (Nov. 16, 1998). Indeed, the INS
was emphatic that those applying for late initial TPS registra-
tion (such as the Petitioners),
must meet all other requirements of TPS including
presence in the United States at the time the foreign
state in question was designated for TPS. This rule
is not intended to extend protection to persons who
arrived in the United States, whether legally or ille-
gally, after the designation was made . . . .
Id. (emphasis added).
In this context, we must view the Attorney General’s con-
sistent interpretation of the "continuous physical presence"
requirement as persuasive.7 Thus, the statutory phrase "most
recent designation" merely distinguishes the current designa-
tion of a foreign state for the TPS program from any prior
TPS program designations of that same foreign state. For
example, if a new tragedy were to befall Honduras, leading to
a new TPS program designation in 2010, the phrase "most
7
We are also impressed by the fact that the statutory process through
which the Attorney General designates a foreign state for the TPS program
supports the BIA’s interpretation. The INA provides that the Attorney
General’s TPS program designation takes "effect upon the date of publica-
tion of the designation." 8 U.S.C. § 1254a(b)(2). Such a designation is
subject to periodic review, and if the Attorney General continues to
believe that the conditions for TPS are satisfied, "the period of designation
of the foreign state is extended for an additional period of 6 months (or,
in the discretion of the Attorney General, a period of 12 or 18 months)."
Id. § 1254a(b)(3)(C).
CERVANTES v. HOLDER 11
recent designation" would simply indicate that "continuous
physical presence" was required since the effective date of the
2010 designation — i.e., the most recent designation of Hon-
duras for the TPS program — as opposed to the effective date
of the 1999 designation.
Importantly, the Petitioners have been unable to offer any
convincing support for otherwise interpreting the phrase
"most recent designation."8 Because their proposed interpreta-
tion of that phrase is belied by the relevant statutory language
and is contrary to the Attorney General’s consistent interpre-
tation thereof, we reject the suggestion that we adopt a differ-
ent interpretation than that adopted by the BIA. Simply put,
applying Skidmore deference, the BIA’s construction of the
INA is persuasive. As such, even Skidmore deference compels
us to conclude that the BIA did not err in determining that the
Petitioners are unable to satisfy the "continuous physical pres-
ence" requirement for TPS.
B.
Even if the Petitioners could satisfy the "continuous physi-
cal presence" requirement for TPS, they would also be
obliged to satisfy the "continuous residence" requirement,
which is codified at 8 U.S.C. § 1254a(c)(1)(A)(ii). Under the
"continuous residence" requirement, a TPS applicant must
have continuously resided in this country since a date desig-
nated by the Attorney General, which was, in this instance,
December 30, 1998.
8
In support of their position on the "continuous physical presence"
requirement, the Petitioners emphasize the legislative history of the TPS
program, contending that the "primary and fundamental intent" of Con-
gress was to "promote family unity, family reunification, and protection
of the nuclear family." Pets.’ Br. 13. This legislative history, however,
sheds no light on the meaning of the phrase "most recent designation," but
merely focuses on the program’s broad goals.
12 CERVANTES v. HOLDER
The Petitioners maintain that, although they did not actu-
ally reside in the United States until September 2004, the BIA
should have "imputed" their parents’ United States residence
to them, because they were minor children of parents who
continuously resided here since December 30, 1998. The
Attorney General, by contrast, contends that the INA and the
applicable regulations unambiguously mandate that each TPS
applicant independently satisfy the "continuous residence"
requirement, such that the residence of the Petitioners’ parents
cannot be imputed to them.
In support of their "imputation" or "derivative residence"
theory, the Petitioners rely on decisions from other circuits, as
well as their argument that the intention of Congress in autho-
rizing the TPS program was to protect "family unity." First,
Petitioners rely on decisions that have imputed the domicile
of parents to their minor children. See, e.g., Lepe-Guitron v.
I.N.S., 16 F.3d 1021, 1025 (9th Cir. 1994) ("[W]e are
impelled to the conclusion — unremarkable at common law
— that a child’s domicile follows that of his or her parents.").
Unfortunately for Petitioners, the term "domicile" has a far
different meaning than "residence." Indeed, the imputation of
parents’ domicile to their minor children flows from the
notion that such "children are, legally speaking, incapable of
forming the necessary intent" to establish domicile. Lepe-
Guitron, 16 F.3d at 1025. Because the INA’s "continuous res-
idence" requirement concerns "residence" only (rather than
"domicile"), any authority regarding the imputation of a "do-
micile" is unavailing to the Petitioners. See Augustin v. Attor-
ney Gen. of the U.S., 520 F.3d 264, 271 (3d Cir. 2008)
(distinguishing between statutory terms "domicile" and "resi-
dence").
As further support for imputing their parental residence to
their TPS applications, the Petitioners rely on the Ninth Cir-
cuit’s decision in Cuevas-Gaspar v. Gonzales, which
extended the concept of imputing a parental domicile to a
"residence," as that term is used in another INA provision. See
CERVANTES v. HOLDER 13
430 F.3d 1013, 1021 (9th Cir. 2005). We agree with two of
our sister circuits, however, that have specifically rejected the
reasoning of Cuevas-Gaspar. See Deus v. Holder, 591 F.3d
807, 811 (5th Cir. 2009) (affirming BIA’s refusal to impute
parent’s "residence" to petitioner); Augustin, 520 F.3d at 271
(same). In short, there is a crucial distinction between a "do-
micile" and a "residence." Put simply, children cannot legally
form their own domiciles, but can have their own residences,
separate and apart from that of their parents. See Augustin,
520 F.3d at 271. Moreover, the Cuevas-Gaspar decision is
factually distinguishable. There, Cuevas-Gaspar had entered
the United States with his mother, who obtained permanent
resident status while he was yet a child. See 430 F.3d at 1016.
After removal proceedings were initiated against him,
Cuevas-Gaspar sought to have imputed to him his mother’s
permanent resident status, in order to satisfy the seven-year
continuous residence requirement of the cancellation of
removal statute. See 8 U.S.C. § 1229b(a). Thus, Cuevas-
Gaspar had personally resided in the United States during the
period for which he sought imputation. Here, the Petitioners
did not personally reside with their parents in the United
States during the pertinent period. Instead, Petitioners contin-
ued to live "in Honduras with their grandparents and attended
school." Pets.’ Br. 2. Thus, unlike Cuevas-Gaspar, the Peti-
tioners resided in Honduras — not in the United States —
during the time frame in question.
As with the "continuous physical presence" requirement,
the Attorney General has consistently interpreted the phrase
"continuous residence" as independently applicable to minor
children. Thus, although late initial registration allows chil-
dren to apply for TPS if their parents were eligible during the
initial registration period, a late registration is "not intended
to extend to persons who arrived in the United States . . . after
the [TPS program] designation was made." See 63 Fed. Reg.
63,593, 63,594 (Nov. 16, 1998) (emphasis added). And the
Petitioners arrived here in September 2004, over five years
14 CERVANTES v. HOLDER
after the Attorney General designated Honduras for the TPS
program.
Because the INA does not specify that parents’ residences
may be imputed to their minor children, the BIA’s consistent
position — that each TPS registrant must independently sat-
isfy the "continuous residence" requirement — is entitled to
at least Skidmore deference.9 Thus, the BIA did not err in
determining that the Petitioners are unable to satisfy the TPS
eligibility requirements because they have not continuously
resided in the United States since December 30, 1998.
IV.
Pursuant to the foregoing, we deny the petition for review.
PETITION FOR REVIEW DENIED
TRAXLER, Chief Judge, concurring:
I concur fully in parts I, II, III.A, and IV of Judge King’s
well-written opinion, and I concur in part III.B as to the result.
I write separately only to note that in section III.B., where my
colleagues defer to the agency’s interpretation of the "contin-
uously resided" requirement set forth in 8 U.S.C.
§ 1254a(c)(1)(A)(ii), I would reach the same result simply by
concluding that Congress spoke unambiguously as to this par-
ticular requirement for temporary protected status. See Gen-
eral Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600
(2004) ("[D]eference to [the agency’s] statutory interpretation
9
In support of their imputation theory, the Petitioners also rely on the
canon of statutory construction providing that any ambiguities with
respect to the INA should be resolved in favor of the alien. See I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987). This canon is unavailing
here, however, as it is a tool of last resort, applicable only when "none of
the other canons of statutory construction is capable of resolving the stat-
ute’s meaning and the BIA has not offered a reasonable interpretation of
the statute." Ruiz-Almanzar v. Ridge, 485 F.3d 193, 198 (2d Cir. 2007).
CERVANTES v. HOLDER 15
is called for only when the devices of judicial construction
have been tried and found to yield no clear sense of congres-
sional intent."). "[A] statute’s silence on a given issue does
not confer gap-filling power on an agency unless the question
is in fact a gap—an ambiguity tied up with the provisions of
the statute." Lin-Zheng v. Attorney Gen., 557 F.3d 147, 156
(3d Cir. 2009) (en banc) (internal quotation marks omitted).
Because I find no ambiguity to be explained or gap to be
filled in § 1254a(c)(1)(A)(ii), I would not resort to the
Board’s interpretation. See Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) ("If the
intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the unam-
biguously expressed intent of Congress.").