De Leon-Ochoa v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 09-1520
No. 09-1760
No. 09-1960
___________

EUDULIO DE LEON-OCHOA, a/k/a Roger Reyes-Oliva,
a/k/a Roger Armando Reyes-Bolivar, a/k/a Roger Armando
Reyes-Oliva,

Petitioner No. 09-1520

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent
___________

EUFEMIA FLORES-DOMINGUEZ; ARELY
MAGDALENA
RIVERA-FLORES; ELIDA YAMILET RIVERA-FLORES,

Petitioners No. 09-1760
 v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent
___________

R.E. L-P,

Petitioner No. 09-1960

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent
___________

On Petition for Review of Orders of the
Board of Immigration Appeals
(Agency No. A098-501-296)
(Agency No. A094-902-120/1/2)
(Agency No. A094-934-034)

Immigration Judge: Margaret Reichenberg
(Nos. 09-1520, 09-1760)

2
 Immigration Judge: Annie S. Garcy (No. 09-1960)
___________

Argued on July 13, 2010
___________

Before: FUENTES, ALDISERT and ROTH, Circuit Judges
(Opinion Filed: October 1, 2010)

DOUGLAS S. EAKELEY, ESQ. (ARGUED)
MAUREEN A. RUANE, ESQ.
CARL M. GREENFELD, ESQ.
KRISTIN A. MUIR, ESQ.
LOWENSTEIN SANDLER PC
65 Livingston Avenue
Roseland, NJ 07068

Attorneys for Petitioner Eudulio De Leon-Ochoa

REX CHEN, ESQ. (ARGUED)
CATHOLIC CHARITIES OF THE ARCHDIOCESE OF
NEWARK
976 Broad Street
Newark, NJ 07102

Attorney for Petitioners Eufemia Flores-Dominguez,
Arely Rivera-Flores, and Elida Rivera-Flores

AYODELE GANSALLO, ESQ. (ARGUED)
HIAS AND COUNCIL MIGRATION SERVICE OF
PHILADELPHIA

3
2100 Arch Street
Philadelphia, PA 19103

Attorney for Petitioner R.E. L-P-

TONY WEST, ESQ.
Assistant Attorney General, Civil Division

DOUGLAS E. GINSBURG, ESQ.
EMILY ANNE RADFORD, ESQ.
TERRI J. SCADRON, ESQ.
Assistant Directors

AVIVA L. POCZTER, ESQ. (ARGUED)
GREG D. MACK, ESQ.
Senior Litigation Counsel

DEREK C. JULIUS, ESQ.
Trial Attorney
JAMES A. HUNOLT, ESQ.
GARY J. NEWKIRK, ESQ.
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

Attorneys for Respondent

___________

4
 OPINION
___________

ALDISERT, Circuit Judge.

In this consolidated appeal, Petitioners Eudulio De
Leon-Ochoa, Arely and Elida Rivera-Flores, Eufemia Flores-
Dominguez, and R.E. L-P- petition for review of the Board of
Immigration Appeals’ (“BIA” or “Board”) denial of their
applications for Temporary Protected Status (“TPS”) for failure
to personally satisfy the statutory requirements of “continuous
residence” and “continuous physical presence.” 1 8 U.S.C. §
1254a. On appeal, Petitioners contend that they fulfill the
statutory requirement of “continuous residence,” 8 U.S.C. §
1254a(c)(1)(A)(ii), via imputation of their parents’ residence.
Petitioners additionally contend that they satisfy the statutory
requirement of “continuous physical presence,” 8 U.S.C. §
1254a(c)(1)(A)(i), because the statutory term “most recent
designation” rightfully is read to encompass TPS extensions as
well as designations. We disagree on both counts. Because
Petitioners fail to meet the requirements of “continuous
residence” and “continuous physical presence,” they are
statutorily ineligible for TPS. For the following reasons, we will

1
The Board had jurisdiction under 8 C.F.R. §§
1003.1(b)(3) & 1240.15. We have jurisdiction over final orders
of removal pursuant to 8 U.S.C. § 1252(a)(1).

5
deny review.2

I.

Temporary Protected Status is authorized by Section 244
of the Immigration and Nationality Act (“INA”). 8 U.S.C. §
1254a. It permits eligible nationals of a foreign state to
temporarily remain in and work in the United States while the
state is designated by the TPS program. Id. The Attorney
General, “after consultation with appropriate agencies of the
Government,” may issue a TPS designation with respect to a
foreign state under certain circumstances such as ongoing armed
conflict, natural disaster, or other conditions preventing safe
return of aliens.3 Id. § 1254a(b)(1). “There is no judicial review

2
The Government argues, in the petition for review of
Flores-Dominguez, et al., that we should dismiss this case for
lack of jurisdiction because the question whether a parent’s
residency can be imputed for purposes of the TPS program is a
nonjusticiable political question. Curiously, the Government
does not make this argument in De Leon-Ochoa and L-P-’s
petitions for review. We determine that there is no merit to this
argument.
3
Originally the Attorney General was empowered to
designate a foreign state for the TPS program. Pursuant to the
Homeland Security Act of 2002, the administration of the TPS
program was transferred to the Department of Homeland
Security. Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135; see Cervantes v. Holder, 597 F.3d 229, 231 n.2

6
of any determination of the Attorney General with respect to the
designation, or termination or extension of a designation, of a
foreign state under this subsection.” Id. § 1254a(b)(5)(A). By
statute, aliens are eligible for Temporary Protected Status if they
are nationals of a state designated under § 1254a(b)(1) and they
meet the following requirements:

(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;

(iii) the alien is admissible as an
immigrant, except as otherwise provided
under paragraph (2)(A), and is not
ineligible for temporary protected status
under paragraph (2)(B); and

(iv) to the extent and in a manner which
the Attorney General establishes, the alien
registers for the temporary protected status
under this section during a registration
period of not less than 180 days.

(4th Cir. 2010).

7
Id. § 1254a(c)(1)(A) (emphasis added). Pursuant to §
1254a(c)(2), in the determination of an alien’s admissibility for
purposes of requirement (iii), the Attorney General may waive
certain provisions of section 1182(a) for humanitarian purposes,
to assure family unity or for other public interest purposes, with
the exception of certain sections relating to criminals, drug
offenses, and national security. By the terms of the statute, this
waiver provision does not apply to the requirements of
continuous residence and physical presence. Id. § 1254a(c)(2).

The TPS statute instructs that brief, casual, and innocent
departures generally do not effect a failure to maintain
continuous physical presence and continuous physical residence
for purposes of the TPS program.4 Notably, the statute

4
Pursuant to 8 U.S.C. § 1254a(c)(4):

(4) Treatment of brief, casual, and innocent departures and
certain other absences

(A) For purposes of paragraphs (1)(A)(i) and (3)(B), an alien
shall not be considered to have failed to maintain continuous
physical presence in the United States by virtue of brief, casual,
and innocent absences from the United States, without regard to
whether such absences were authorized by the Attorney General.

(B) For purposes of paragraph (1)(A)(ii), an alien shall not be
considered to have failed to maintain continuous residence in the
United States by reason of a brief, casual, and innocent absence
described in subparagraph (A) or due merely to a brief

8
specifically prescribes that “[n]othing in this section shall be
construed as authorizing an alien to apply for admission to, or to
be admitted to, the United States in order to apply for temporary
protected status under this section.” Id. § 1254a(c)(5).

The applicable regulations repeat the requirements for
TPS and also provide for late registration, specifically by
children of eligible grantees. An alien from a designated state
may apply for Temporary Protected Status in accordance with
applicable regulations:

Except as provided in §§ 1244.3 and 1244.4, an alien
may in the discretion of the director be granted
Temporary Protected Status if the alien establishes that
he or she:

(a) Is a national, as defined in section 101(a)(21)
of the Act, of a foreign state designated under
section 244(b) of the Act;

(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
designate;

temporary trip abroad required by emergency or extenuating
circumstances outside the control of the alien.

9
 ....

(f)(1) Registers for Temporary Protected Status
during the initial registration period announced by
public notice in the Federal Register, or

(2) During any subsequent extension of
such designation 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 registrant.

(g) Has filed an application for late registration with the
appropriate Service director within a 60-day period
immediately following the expiration or termination of
conditions described in paragraph (f)(2) of this section.

8 C.F.R. § 1244.2. Under the regulations, the child or spouse of
a person who was eligible for TPS during the initial registration
period may apply for TPS during any subsequent extension
thereof.

II.

A. Eudulio De Leon-Ochoa, etc., v. Attorney General, No.
09-1520

10
 Petitioner Eudulio De Leon-Ochoa is a national and
citizen of Honduras. He entered the United States on or about
November 30, 2005, without proper documentation. He was
served with a Notice to Appear on November 30, 2005, and
charged with removability pursuant to Section 212(a)(6)(A)(i)
of the Immigration and Nationality Act (“INA”). He applied for
asylum, withholding of removal, protection under the
Convention Against Torture (“CAT”), and TPS. The IJ issued
an oral decision finding Petitioner removable on November 27,
2007.

(1) Asylum, Withholding of Removal, and CAT
Protection

At the IJ hearing, De Leon-Ochoa testified that he is part
of the Turcios family and that his family is embroiled in a blood
feud with the Najera family in Rio Chito, Honduras. Petitioner
alleged that the Najera family killed three different members of
his family and that the police failed to investigate these deaths.
Two of the death certificates omitted cause of death. Petitioner
claimed there was political tension between the two families
based on the Turcios’ support of the National Party and the
Najera’s support of the Liberal Party. Petitioner testified to
participating in politics twice between 2002 and 2004. He
claims the Liberal Party told him to move or leave his polling
station both times. He also testified that no one in his family has
held office with the National Party. Petitioner testified that the
Najera family was suspected of other political murders.

De Leon-Ochoa testified that he believed he would be
killed by the Najera family if he returned to Honduras. He

11
testified that he could not be protected due to the Najera
family’s political power and did not have anywhere to stay in
Honduras besides his hometown. Petitioner claimed his older
brother told him he has no freedom because he fears the Najera
will attack him. He admitted that his father did not have trouble
with the Najera family before his father left Honduras in 1998,
and that his father is not a member of the Turcios family.
Petitioner’s father testified that there was a blood feud between
the Turcios family and the Najera family, and described several
killings. The father conceded that neither his wife nor his sons
had problems with the Najera family. He explained that women
were not targeted in the conflict, and that the sons were not
harmed because they did not enter Najera territory. Nonetheless,
the father claimed that he still feared for his sons’ safety and that
the Najera family was still searching for them.

The IJ found Petitioner’s testimony to be credible and
consistent with his written asylum application, but ultimately
found that Petitioner did not show he was a victim of past
persecution, nor did he prove an objective fear of future
persecution. The IJ held that Petitioner failed to show a
likelihood of persecution because his immediate family had not
been harmed, he left Honduras six years after the most recent
killing of a member of the Turcios family, and there was no
evidence that the feud continued past 1996. Although the IJ
accepted that “family” could be a social group for purposes of
the statute, the IJ found that Petitioner failed to establish an
objective fear of future persecution, was not persuaded by
Petitioner’s minimal political activity, and did not believe that
the Honduran government was complicit in any of the alleged
activity. Ultimately the IJ denied Petitioner’s asylum,

12
withholding of removal and CAT claims.

(2) Temporary Protected Status

The IJ held De Leon-Ochoa to be ineligible for TPS
because of his failure to personally satisfy the continuous
physical presence and continuous residence requirements.
Honduran TPS applicants must demonstrate continuous
residence from December 30, 1998, and they must demonstrate
physical presence from January 5, 1999. See 8 U.S.C. §
1254a(c)(1)(A)(i)-(ii) (requiring a TPS applicant to be
“continuously physically present” since the “most recent
designation” and to have “continuously resided” since the date
the Attorney General designates); 64 Fed. Reg. 524 (Jan. 5,
1999) (designating Honduras for the TPS program). Petitioner
did not arrive in the United States until November 2005, and the
IJ therefore concluded that he was prima facie ineligible for
TPS.

Petitioner appealed the IJ’s decision to the BIA, which
dismissed his appeal on January 30, 2009. The BIA found the IJ
did not err in determining that Petitioner failed to establish a
well-founded fear of persecution or a likelihood of torture
should he return to Honduras. The BIA agreed, additionally, that
Petitioner was ineligible for TPS because he could not meet the
continuous residence and physical presence requirements,
rejecting arguments based on imputation and humanitarian
concerns. The BIA dismissed his appeal and the instant petition
for review followed.

B. Eufemia Flores-Dominguez, et al., v. Attorney

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 General, No. 09-1760

Petitioners Arely Rivera-Flores, Elida Rivera-Flores, and
Eufemia Flores-Dominguez are the 14 year-old and 13 year-old
daughters and the mother of Rosa Flores, a current TPS grantee.
Petitioners are nationals and citizens of El Salvador who entered
the United States on or about November 1, 2006, without proper
documentation. They were served Notices to Appear on
November 16, 2006, and charged with removability under
Section 212(a)(6)(A)(i) of the INA. Petitioners applied to United
States Citizenship and Immigration Services (“USCIS”) for TPS
on June 10, 2007. El Salvadoran TPS applicants must establish
continuous physical presence in the United States since March
9, 2001, and continuous residence since February 13, 2001. See
8 U.S.C. § 1254a(c)(1)(A)(i)-(ii); 66 Fed. Reg. 14,214 (Mar. 9,
2001) (designating El Salvador for the TPS program). On
August 16, 2007, an IJ issued orders of removal, denying their
request for a continuance to permit adjudication of the TPS
applications. The IJ stated she had authority only to review
USCIS denial of a TPS application, with no power of de novo
review. Petitioners appealed to the BIA on September 7, 2007.
Subsequently, on November 19, 2007, USCIS sent Petitioners
a Notice of Intent to Deny, requesting additional information.
Petitioners failed to respond and USCIS denied their TPS
applications on April 10, 2008, for failure to meet the
continuous physical presence and continuous residence
requirements. On May 8, 2008, Petitioners moved for a remand
to permit the IJ to adjudicate their TPS applications. On
February 23, 2009, the BIA dismissed their appeal as moot
because USCIS had denied the TPS applications. The BIA
dismissed the Petitioners’ motion to remand for a de novo

14
review of the TPS applications for failure to meet the prima
facie statutory requirements, and the instant petition for review
followed.

C. R.E. L-P- v. Attorney General, No. 09-1960

Petitioner L-P- is the 16 year-old daughter of Maria M.
Montane, a current TPS grantee. She and her mother are
nationals and citizens of El Salvador. Petitioner entered the
United States on or about March 31, 2007, at the age of 13,
without proper documentation. She was served a Notice to
Appear on April 4, 2007, and charged with removability
pursuant to Section 212(a)(6)(A)(i) of the INA. On January 18,
2008, Petitioner filed an application for TPS with USCIS as the
child of a current TPS grantee. El Salvadoran TPS applicants
must establish continuous physical presence in the United States
since March 9, 2001, and continuous residence since February
13, 2001. See 8 U.S.C. § 1254a(c)(1)(A)(i)-(ii); 66 Fed. Reg.
14,214 (Mar. 9, 2001) (designating El Salvador for the TPS
program). Petitioner’s application was denied by USCIS for
failure to demonstrate satisfaction of the statutory requirements.
There was no administrative appeal. Petitioner asserted her
eligibility for TPS before the IJ, who denied her application by
oral decision on July 28, 2008. The IJ found that Petitioner
failed to meet the continuous physical presence and continuous
residence requirements and was therefore not eligible for TPS.
Petitioner appealed to the BIA, arguing her mother’s residency
and physical presence should be imputed to her and that the
physical presence requirement should be read to encompass the
most recent extension of TPS designation, not the date of initial
designation. She additionally argued the IJ’s denial was

15
erroneous on humanitarian grounds. The BIA dismissed the
appeal on March 6, 2009, holding that Petitioner was statutorily
ineligible for TPS and that both the BIA and IJ were constrained
by the statute and regulations and did not have the discretion to
grant TPS on humanitarian or family-unity grounds. The instant
petition for review followed.

III.

As a threshold matter, we must determine what
deference, if any, to accord the BIA’s single-member,
unpublished and nonprecedential decisions from which
Petitioners seek review. When the Board issues its own opinion,
as here, and does not adopt the IJ’s findings, we review only the
decision of the Board. Li v. Att’y Gen., 400 F.3d 157, 162 (3d
Cir. 2005). We review legal questions de novo, with appropriate
deference for the BIA’s reasonable interpretations of statutes it
is charged with administering. Silva-Rengifo v. Att’y Gen., 473
F.3d 58, 63 (3d Cir. 2007) (citing INS v. Aguirre-Aguirre, 526
U.S. 415 (1999) and Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)); see also Duvall v. Att’y
Gen., 436 F.3d 382, 386 (3d Cir. 2006) (“We have jurisdiction
to consider the decision of the Board of Immigration Appeals
under 8 U.S.C. § 1252(b)(2), and exercise plenary review over
questions of law, with due deference to the agency’s
interpretation of the Immigration and Naturalization Act
(INA).”).

Under the familiar two-step Chevron inquiry, first, if the
statute is clear we must give effect to Congress’ unambiguous
intent, and, second, if the statute is silent or ambiguous with

16
respect to a specific issue, we defer to an implementing agency’s
reasonable interpretation of that statute. Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843
(1984). After United States v. Mead Corp., 533 U.S. 218 (2001),
we accord Chevron deference only to agency action
promulgated in the exercise of congressionally-delegated
authority to make rules carrying the force of law. Mead Corp.,
533 U.S. at 226-227. Agency action that does not qualify for
Chevron deference may still deserve a lesser amount of
deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944),
under which respect is granted to agency action according to its
power to persuade. Skidmore, 323 U.S. at 140. Mead
resuscitated Skidmore, because “Chevron did nothing to
eliminate Skidmore’s holding that an agency’s interpretation
may merit some deference whatever its form, given the
‘specialized experience and broader investigations and
information’ available to the agency . . . , and given the value of
uniformity in its administrative and judicial understandings of
what a national law requires.” Mead, 533 U.S. at 234-235
(citations omitted).

Although we routinely accord Chevron deference to
published decisions of the BIA, see INS v. Aguirre-Aguirre, 526
U.S. 415, 424 (1999), this Court has never announced the
deference due an unpublished decision rendered by a single
member of the BIA. In Smriko v. Ashcroft, we declined to
determine the deference due an IJ’s decision affirmed through
the BIA’s streamlining procedure, but observed in dictum that
“[a]lthough the BIA has directed us to review the IJ’s opinion in
streamlined cases, deferring to the reasoning of an IJ from
which the BIA would be free to depart in other cases would

17
seem highly problematic.” 387 F.3d 279, 289 n.6 (3d Cir. 2004).

No consensus exists among our sister Courts of Appeals
as to what quantum of deference, if any, should be accorded to
these opinions. After Mead, several Courts of Appeals
affirmatively rejected application of Chevron deference to
unpublished BIA decisions. See Quinchia v. Att’y Gen., 552
F.3d 1255, 1258 (11th Cir. 2008) (stating that an unpublished
BIA decision that does not rely on BIA or Court of Appeals
precedent does not receive Chevron deference); Rotimi v.
Gonzales, 473 F.3d 55, 57-58 (2d Cir. 2007) (holding that an
unpublished BIA decision that does not rely on precedent for its
definition of a contested term does not receive Chevron
deference, because it is not “promulgated under [the agency’s]
authority to make rules carrying the force of law”) (internal
quotation marks omitted); Garcia-Quintero v. Gonzales, 455
F.3d 1006, 1012-14 (9th Cir. 2006) (opining that an unpublished
BIA decision does not have the force of law and therefore does
not receive Chevron deference). But see Gutnik v. Gonzales,
469 F.3d 683, 689-690 (7th Cir. 2006) (according Chevron
deference to BIA’s streamlined adoption of IJ decision).

Some Courts of Appeals have declared that unpublished
opinions of the BIA are to be accorded Skidmore deference. See
Carpio v. Holder, 592 F.3d 1091, 1097-1098 (10th Cir. 2010)
(“If the interpretation is not precedential within the agency, then
the interpretation does not qualify for Chevron deference. . . .
Because the BIA’s decision does not ‘carry the force of law,’
Mead Corp., 533 U.S. at 226, we must examine the BIA’s
decision in [petitioner’s] case under the framework set forth in
Skidmore.”) (citations omitted); Barrios v. Holder, 581 F.3d

18
849, 859 (9th Cir. 2008) (“A single-member BIA panel affirmed
the IJ’s decision in an unpublished, nonprecedential decision.
Such decisions are entitled to only Skidmore, rather than
Chevron, deference.”). Many Courts of Appeals have declined
to announce a standard. See Dobrova v. Holder, 607 F.3d 297,
300 (2d Cir. 2010) (“Whether unpublished BIA opinions are
entitled to Skidmore deference or whether they are reviewed de
novo is an open question in this Circuit. . . . We need not answer
that question here, however, because even on de novo review,
we find the meaning . . . to be clear and unambiguous.”);
Cervantes v. Holder, 597 F.3d 229, 233 n.5 (4th Cir. 2010) (“We
need not resolve in this proceeding whether nonprecedential
BIA decisions are entitled to Chevron deference, or merely to
Skidmore deference. As explained below, we would deny the
petition for review under the less deferential standard of
Skidmore.”); Mushtaq v. Holder, 583 F.3d 875, 877 (5th Cir.
2009) (“We need not resolve this question, because Mushtaq’s
claim fails under either standard. Thus, we review it under the
less-deferential Skidmore standard.”); Guo Qi Wang v. Holder,
583 F.3d 86, 90 n.2 (2d Cir. 2009) (“While we have not yet
decided whether unpublished, single-member BIA decisions are
entitled to the lesser form of deference described in Skidmore,
we need not consider the issue here as we would reach the same
result reviewing this petition de novo.”) (citations omitted);
Godinez-Arroyo v. Mukasey, 540 F.3d 848, 851 (8th Cir. 2008)
(“We need not address it here, as we hold that even applying the
lesser Skidmore deference, we affirm the persuasive BIA
decision.”).

We note parenthetically that unpublished, single-member
BIA decisions have no precedential value, do not bind the BIA,

19
and therefore do not carry the force of law except as to those
parties for whom the opinion is rendered. We agree with the
Court of Appeals for the Ninth Circuit that, “[i]n light of Mead,
the ‘essential factor’ in determining whether an agency action
warrants Chevron deference is its precedential value.” Garcia-
Quintero, 455 F.3d at 1012. An unpublished BIA opinion is not
issued pursuant to the BIA’s authority to make rules carrying the
force of law. We further agree that

[t]he unpublished designation of the decision also
makes it clear that it was not issued pursuant to
the BIA’s authority to make rules that carry the
force of law. Again, according to the Board’s own
internal policies, “[u]npublished decisions are
binding on the parties to the decision but are not
considered precedent for unrelated cases.”

Id. at 1013 (citations omitted).5

5
By brief and at oral argument, Petitioners argue that
under Cruz v. Attorney General, 452 F.3d 240, 250 (3d Cir.
2006), we are obligated to order the Board to accord
precedential value to its unpublished decision in Matter of Reyes
(BIA, Feb. 9, 2005) (unpublished), wherein a single member of
the BIA issued a nonprecedential opinion finding the spouse of
an eligible TPS applicant to be eligible for TPS under the
applicable regulations notwithstanding her failure to meet the
“nationality” requirement. Alternatively, Petitioners argue that
no deference is due the BIA’s nonprecedential opinions from
which they seek review because they effect an unexplained

20
deviation from Matter of Reyes. In Cruz, we opined that

[w]hile the unpublished BIA decisions we have
consulted are not necessarily in the category of
“selected decisions . . . designated to serve as
precedents in all proceedings involving the same
issue or issues,” 8 C.F.R. § 1003.1(g), agencies
should not move away from their previous rulings
without cogent explanation. . . . Where there is a
consistent pattern of administrative decisions on
a given issue, we would expect the BIA to
conform to that pattern or explain its departure
from it.

452 F.3d at 250 (citations omitted). Cruz and Matter of Reyes
do not assist Petitioners. First, Matter of Reyes has absolutely
no binding precedential value. Cf. Johnson v. Ashcroft, 286
F.3d 696, 700 (3d Cir. 2002) (requiring reason to depart from
established “precedents”). Second, the issues of “continuous
physical presence” and “continuous residency” are factually
distinct from that of “nationality” and therefore do not
implicate “the same issue or issues.” Cruz, 452 F.3d at 250.
Third, Matter of Reyes does not comprise a “consistent
pattern of administrative decisions on a given issue,” to which
we would expect the BIA to conform or from which a
departure should be justified. Fourth, we have before us three
consistent unpublished BIA opinions requiring late registrants
under the guidelines to personally comply with the statutory
requirements. Accordingly, under Cruz, if the BIA is required

21
 All parties before the Court failed to brief the issue of
appropriate deference for unpublished BIA decisions. This is an
open question in our Court with widespread ramifications for
appellate review of all such non-precedential BIA decisions. See
Smriko v. Ashcroft, 387 F.3d 279, 296 (3d Cir. 2004) (observing
that finding of jurisdiction to review BIA streamlining decisions
is of “substantial importance” because of the number of possible
invocations). Because it was not briefed, barely argued, and is
not dispositive for the issues before us, we decline to resolve
this question. For the reasons that follow, we hold that under any
standard of review, we cannot grant Petitioners relief.6

to explain its departure from a position taken in an
unpublished decision, it would be that of the three congruous
opinions before us today, not the anomalous position adopted
in Matter of Reyes. Finally, because “unpublished precedent
is a dubious basis for demonstrating the type of inconsistency
which would warrant rejection of deference,” De Osorio v.
INS, 10 F.3d 1034, 1042 (4th Cir. 1993), “[w]e will not bind
the BIA with a single non-precedential, unpublished decision
any more than we ourselves are bound by our own
unpublished orders.” Leal-Rodriguez v. INS, 990 F.2d 939,
946 (7th Cir. 1993).

6
Although the parties similarly failed to propose it, we
have considered remanding to the BIA for a precedential
opinion in the first instance. See Smriko, 387 F.3d 279

22
 IV.

Applying de novo review, we now turn to the arguments
of the parties. In their petitions for review, Petitioners argue that
the IJ and the BIA erred in denying Temporary Protected Status
for failure to meet the “continuous residence” and “continuous
physical presence” requirements for TPS eligibility. 8 U.S.C. §
1254a(c)(1)(A)(i)-(ii). Petitioners concede that they fail to
personally meet the statutory requirement of “continuous
residence” from “such date as the Attorney General [has]
designate[d],” but argue in their petitions that they have
constructively met the requirement through imputation of their
parents’ residence. Id. § 1254a(c)(1)(A)(ii). Petitioners contend
additionally that under the plain meaning of the statute, they

(remanding petitioner’s appeal of BIA’s streamlined affirmance
of IJ’s opinion to allow the BIA to address petitioner’s novel
issue of law, in the first instance, in a precedential opinion); see
also Dobrova v. Holder, 607 F.3d 297, 300 (2d Cir. 2010)
(“[S]ince here we determine that the text of the relevant statute
is clear, and the only question presented on appeal is a purely
legal one, remand to the BIA for precedential interpretation in
the first instance is unnecessary.”); Gutnik v. Gonzales, 469
F.3d 683, 691 (7th Cir. 2006) (reading 8 C.F.R. § 1003.1(e)(4)-
(5) together to require only that the BIA not review cases
resolving novel issues by affirmance without opinion, but not
requiring a single BIA member to refer an appeal to a three-
member panel). We decline to do so because, as in Dobrova, the
questions presented are purely legal and therefore properly
before us.

23
have met the “continuous physical presence” requirement,
because the statutory term “most recent designation”
encompasses extensions of a TPS designation. Id. §
1254a(c)(1)(A)(i). We disagree, for the reasons that follow.

A.

Petitioners argue that their parents’ undisputed
satisfaction of the “continuous residence” requirement should be
“imputed” to them for purposes of their own TPS eligibility. The
Government argues that the plain text of the statute, the
implementing regulations, and the consistent position of the
Attorney General require applicants to individually satisfy the
“continuous residence” requirement. We agree with the
Government.

1.

We note at the outset that we are only the second Court
of Appeals to address the question of imputation for the
purposes of the TPS program. In a case running on all fours with
our own, the Court of Appeals for the Fourth Circuit recently
affirmed, under the less deferential Skidmore standard, a single-
member, nonprecedential opinion of the BIA rejecting the
petitioner’s argument that he met the statutory TPS requirements
via imputation. Cervantes v. Holder, 597 F.3d 229 (4th Cir.
2010). Relying on statements in the Federal Register that a late
registration is “not intended to extend to persons who arrived in
the United States . . . after the [TPS] designation was made” and
the failure of the statute to affirmatively permit imputation, the
Cervantes court found the BIA’s construction permissible under
Skidmore deference. Id. at 237 (quoting 63 Fed. Reg. 63,593,
63,594 (Nov. 16, 1998)). As in Cervantes, Petitioners urge us to
rely on a series of cases out of the Court of Appeals for the
Ninth Circuit to distinguish both Cervantes and our own

24
precedent in Augustin v. Attorney General, 520 F.3d 264 (3d
Cir. 2008). We decline to do so.

Petitioners rely primarily on a line of case law,
interpreting several incarnations of the cancellation of removal
statute, permitting imputation for both domicile and residency.
This line originates with Lepe-Guitron v. INS, 16 F.3d 1021 (9th
Cir. 1994), in which the Court of Appeals for the Ninth Circuit
held that a parent’s domicile is imputed to an unemancipated
minor child for the purposes of the domicile requirement of the
statutory precursor to the current cancellation of removal statute.
Id. at 1022. According to the court, domicile “incorporates the
concept familiar in other areas of law,” impelling the conclusion
that a child’s domicile follows that of his or her parents because
children are legally incapable of forming the requisite intent. Id.
at 1025 (quotations and citations omitted). That court has since
equated parental domicile to residence as used in the
cancellation of removal statute. See Mercado-Zazueta v. Holder,
580 F.3d 1102 (9th Cir. 2009) (permitting imputation of parent’s
lawful permanent resident status to satisfy cancellation of
removal statute’s five-year requirement of lawful permanent
residence); Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.
2005) (permitting imputation of parent’s residence to satisfy
seven-year continuous residence requirement for cancellation of
removal).7

7
In 2007, the BIA declined to apply Cuevas-Gaspar,
refusing to impute a parent’s residency to satisfy the seven-year
residence requirement of the cancellation of removal statute.
Escobar, 24 I. & N. Dec. 231 (BIA 2007); see also Augustin,
520 F.3d at 269 (discussing Escobar). The BIA expressly
disagreed with Cuevas-Gaspar, agreeing instead with the
position of the dissenting opinion and finding that residence
differs from domicile because it contains no element of intent,
and thus imputation is not proper. Escobar, 24 I. & N. Dec. at

25
 Under our own precedent in Augustin, we disagree. In
Augustin, under Chevron deference, we affirmed the BIA’s
refusal to impute a parent’s lawful permanent resident status to
an alien for purposes of cancellation of removal. Augustin, 520
F.3d at 270; see also Cervantes, 597 F.3d at 236-237; Deus v.
Holder, 591 F.3d 807, 811-812 (5th Cir. 2009) (affirming BIA’s
refusal to impute parent’s “residence”); Cuevas-Gaspar, 430
F.3d at 1032 (Fernandez, J., dissenting) (“[T]here is no legal
reason for us to turn to [petitioner’s] parents to determine
[petitioner’s] intent[.]”). We observed that the INA, as amended,
did not expressly address the issue of imputation. Augustin, 520
F.3d at 269. It neither permitted it nor disallowed it. We
determined the BIA’s interpretation to be a reasonable
construction of the statute. Id. at 270-272. We distinguished
residence from domicile, because under the INA, residence is
defined as an alien’s “principal, actual dwelling place in fact,
without regard to intent.” 8 U.S.C. § 1101(a)(33) (emphasis

233. The petitioner appealed the BIA’s adverse ruling to the
Ninth Circuit which subsequently filed Escobar v. Holder, 567
F.3d 466 (9th Cir. 2009), overturning the BIA. Apparently
unbeknownst to the Ninth Circuit, however, the BIA re-opened
the case on April 21, 2009, to hear argument on the respondent’s
prior motion to suppress, unrelated to Escobar’s TPS
application. 2009 WL 1364840 (BIA Apr. 21, 2009)
(unpublished decision). The Ninth Circuit then vacated its
opinion in Escobar v. Holder and dismissed the petition for
rehearing as moot. Escobar v. Holder, 572 F.3d 957 (9th Cir.
2009). The Ninth Circuit was not to be deterred. In Mercado-
Zazueta v. Holder, the Ninth Circuit quoted verbatim the vast
majority of the vacated Escobar opinion, 567 F.3d 466, thereby
resuscitating it. 580 F.3d 1102 (9th Cir. 2009). The BIA
continues to rely on Escobar outside the jurisdiction of the Ninth
Circuit. See, e.g., Ramirez-Vargas, 24 I. & N. Dec. 599 (BIA
2008).

26
added). Thus, “any authority regarding the imputation of a
‘domicile’ is unavailing to the Petitioners [in establishing the
statutory ‘residence’].” Cervantes, 597 F.3d at 236 (citing
Augustin, 520 F.3d at 271). In Augustin, we rejected the Ninth
Circuit’s trajectory, and Petitioners before us present no
compelling argument for a change in course.

2.

As in Augustin, Petitioners here fail to identify statutory
language, regulatory language, or legislative history even
suggesting, much less mandating, that a parent’s residency be
imputed to minor children for purposes of satisfying the TPS
requirements. Although we are sympathetic to their plight,
Petitioners have failed to persuade us that the plain language of
the statute does not control. On our reading, the statutory
requirements of TPS “could not be more clear.” Cuevas-Gaspar,
430 F.3d at 1032 (Fernandez, J., dissenting). A TPS applicant
must show that he or she “has continuously resided in the United
States since such date as the Attorney General may designate.”
8 U.S.C. § 1254a(c)(1)(A)(ii) (emphasis added). We have
recognized that the Chevron inquiry ends if Congress has
spoken directly to the question at issue, in which case “both the
agency and the court must give effect to the plain language of
the statute.” Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.
2008). Although we do not here apply Chevron deference, we
review the statute to determine whether Congress has directly
spoken to the question at issue.

a.

Petitioners contend that § 1254a is “ambiguous”
regarding imputation simply because the statute does not
explicitly permit or disallow it, and there is therefore no “plain
meaning.” We disagree. The statute unquestionably articulates

27
a requirement that a TPS applicant continuously reside in the
United States from the date designated by the Attorney General.
The statute then specifies that brief, casual, and innocent
departures generally do not effect a failure to maintain
continuous residence for purposes of the TPS program. 8 U.S.C.
§ 1254a(c)(4). Notably, § 1254a(c)(4) makes no mention of
alternate methods of satisfying the residence requirements. We
do not consider § 1254a to be “ambiguous” merely because it
does not expressly forbid every possible mechanism for
functional – but not actual – satisfaction of statutory
requirements. Else, near every statute would be “ambiguous”
and courts would have unfettered freedom to fashion creative
mechanisms for satisfying the otherwise clear requirements
mandated by Congress. This we decline to do.

b.

By the terms of the statute, the TPS program was
designed to shield aliens already in the country from removal
when a natural disaster or similar occurrence has rendered
removal unsafe. 8 U.S.C. § 1254a(b)(1). We simply will not
read into an unambiguous statutory requirement an exception
that converts this statute into a program of entry for an alien. Id.
§ 1254a(c)(5) (“Nothing in this section shall be construed as
authorizing an alien to apply for admission to, or to be admitted
to, the United States in order to apply for temporary protected
status under this section.”). And, although we agree with
Petitioners that our immigration framework values family unity,
we cannot on that basis alone read into the unambiguous TPS
statute an instruction by Congress to permit satisfaction of clear
statutory requirements via the disputed mechanism of
imputation.8 Compare Augustin, 520 F.3d 264, with Cuevas-

8
Petitioners argue that under the statutory scheme, the IJ
and BIA have discretion to grant TPS for humanitarian reasons,

28
Gaspar, 430 F.3d 1013.

c.

Petitioners attempt to evade our compelling precedent in
Augustin by distinguishing the underlying statutory frameworks.
We are unpersuaded. On the contrary, we find the different
purposes of the statutes to render imputation even less
appropriate for the TPS program than for cancellation of
removal. The cancellation of removal residency requirement is
designed to gauge the extent of an alien’s ties to the United
States. A minor’s parent’s residence in the United States, though
not dispositive, is relevant to a minor’s ties to the country. The
TPS program, by contrast, is designed to temporarily prevent
removal of aliens during extraordinary and temporary conditions
that prevent safe return. 8 U.S.C. 1254a(b)(1)(C). A minor’s
parent’s residence in the United States is not relevant to whether
that minor can be “safely returned” at the time of the initial
designation. As in Augustin, “[a]lthough [this] ruling does deny
relief to certain aliens, that alone cannot render [it]
unreasonable. Congress restricted relief to those aliens who had
[continuously resided in the United States from the designated
date.] The BIA’s refusal to create an exception simply heeds the
statute’s plain requirements.” Augustin, 520 F.3d at 271.

and moreover they erred in not exercising it. This is
demonstrably false. The provision cited by Petitioners, 8 U.S.C.
§ 1254a(c)(2)(A)(ii), permits waiver of provisions of § 1182,
which applies exclusively to 8 U.S.C. § 1254a(c)(1)(A)(iii)’s
requirement that the applicant be admissible as an immigrant,
“except as otherwise provided under paragraph (2)(A).”
(emphasis added). This provision is inapplicable to the
“continuous residence” and “continuous physical presence”
requirements at issue here. 8 U.S.C. § 1254a(c)(1)(A)(i)-(ii).

29
 3.

Finally, our conclusion as to the plain language of the
statutory requirements is bolstered by the consistent position of
the Attorney General and the BIA. See, e.g., 73 Fed. Reg.
57,128, 57,132 (Oct. 1, 2008) (explaining that extension of TPS
eligibility for nationals of El Salvador does not expand
eligibility to those who have not continuously resided in the
United States since February 13, 2001, and who have not been
continuously present since March 9, 2001); 63 Fed. Reg. 63,593,
63,594 (Nov. 16, 1998) (stating that late registration is not
intended to extend to persons who arrived in the United States
after the program designation was made); see also Escobar, 24
I. & N. Dec. 231 (BIA 2007) (rejecting Cuevas-Gaspar and
refusing to allow imputation for residency requirement of
cancellation of removal). The Cervantes court was similarly
persuaded, observing that “since 1998, when the regulations
providing for late initial TPS registration were first adopted, the
Attorney General has consistently applied this interpretation”
and “the INS was emphatic that those applying for late initial
TPS registration . . . 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.” Cervantes v. Holder,
597 F.3d 229, 235 (4th Cir. 2010) (citations and quotations
omitted).

B.

Petitioners additionally contend that the phrase “most
recent designation” under the “continuous physical presence”
requirement, 8 U.S.C. § 1254a(c)(1)(A)(i), should be read to
refer not to the initial designation of a state for TPS, but instead
to the most recent extension of a state’s TPS designation.
Petitioners’ argument is unavailing.

30
 Under the plain language of the statutory scheme, an
extension of TPS does not constitute a “designation.”
Designation of a foreign state for TPS takes effect “upon the
date of publication of the designation.” 8 U.S.C. § 1254a(b)(2).
The statute specifically provides for an “[e]xtension of
designation,” stating that the Attorney General may extend the
period of designation. Id. § 1254a(b)(3)(C). To the extent
Petitioners seek to emphasize the phrase “most recent,” we
agree with the Court of Appeals for the Fourth Circuit that “the
statutory phrase ‘most recent designation’ merely distinguishes
the current designation of a foreign state for the TPS program
from any prior TPS program designations of that same foreign
state.” Cervantes, 597 F.3d at 235 (providing as an example the
possibility of two separate disasters in the same state leading to
two separate designations).

Indeed, reading “most recent designation” to apply to
each extension would convert the TPS program into a program
of entry, whereby each extension of TPS would continually and
substantially expand the category of eligible aliens. We decline
to read the statute in a manner so at odds with its narrowly
circumscribed requirements regarding eligibility for Temporary
Protected Status. See 8 U.S.C. § 1254a(c)(1)(A).

Additionally, while not dispositive to our reading of the
statute, we note that the BIA and Attorney General have taken
the consistent position that an extension of TPS does not change
the date of designation for purposes of the “continuous physical
presence” requirement. See, e.g., 72 Fed. Reg. 29,529, 29,533
(May 29, 2007) (“An extension of a TPS designation does not
change the required dates of continuous residence and
continuous physical presence . . .”) (emphasis added); see also
Cervantes, 597 F.3d at 234-235 (summarizing the BIA and
Attorney General’s consistent position and observing that the
extension notices have expressly required registrants to meet the

31
dates set by the original designation of TPS).

C.

Without the necessity of resorting to Chevron or even
Skidmore deference, we determine that Congress spoke
unambiguously when it required that TPS applicants
demonstrate continuous residency from the date designated by
the Attorney General and continuous physical presence from the
most recent designation. “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 unambiguously expressed intent of
Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-843 (1984). “[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. Att’y Gen., 557 F.3d
147, 156 (3d Cir. 2009) (en banc) (quoting Sun Wen Chen v.
Att’y Gen., 491 F.3d 100, 113 (3d Cir. 2007), overruled on other
grounds by Lin-Zheng, 557 F.3d 147). We are in accord with the
Cervantes concurrence, and reach “the same result [as the
Cervantes court] simply by concluding that Congress spoke
unambiguously as to this particular requirement for temporary
protected status.” Cervantes, 597 F.3d at 237-238 (Traxler, C.J.,
concurring) (citing Gen. Dynamics Land Sys., Inc. v. Cline, 540
U.S. 581, 600 (2004) (“[D]eference to [the agency’s] statutory
interpretation is called for only when the devices of judicial
construction have been tried and found to yield no clear sense of
congressional intent.”)); see also Cuevas-Gaspar, 430 F.3d at
1032 (Fernandez, J., dissenting).

We hold that the “continuous residence” requirement
cannot be met via imputation and that the statutory term “most
recent designation” applies to the original designation of a state
for TPS and not to subsequent extensions. Accordingly, because

32
Petitioners have indisputably failed to personally satisfy the
“continuous residence” and “continuous physical presence”
requirements, they are statutorily ineligible for TPS and
therefore we will deny their petitions for review. See 8 U.S.C.
§ 1254a(c)(1)(A)(i)-(ii).

V.

We are left with the matter of De Leon-Ochoa’s petition
for review of the BIA’s denial of his applications for asylum,
withholding of removal, and CAT protection. For the reasons
that follow, we will deny review of the BIA’s order on this
issue.

We review the BIA’s decision for substantial evidence,
and factual determinations are “conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). An alien may be granted
asylum if he is a “refugee” who is “unable or unwilling” to
return to his native country “because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion . . .” 8 U.S.C. § 1101(a)(42). De Leon-Ochoa conceded
that he did not suffer past persecution and therefore to prevail on
his claim he must establish a well-founded fear of persecution
if returned to Honduras, by demonstrating both a subjective and
an objective fear of future persecution. See, e.g., Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).

We have reviewed the record and conclude that there was
substantial evidence to support the IJ and BIA’s denial of De
Leon-Ochoa’s application for asylum. Petitioner claims he is in
danger of future persecution based on a long-standing inter-
family blood feud. His contentions are belied by the record.
Petitioner’s brothers have remained in Honduras, unmolested.

33
Petitioner himself lived in Honduras for six years after the last
alleged feud-based murder, unmolested. Petitioner’s own
documentary evidence indicates that the blood feud upon which
his asylum claim is premised ended in 1996, and he has
presented no evidence of additional inter-family strife in the last
decade. Accordingly, we cannot conclude that the IJ and BIA
erred in denying De Leon-Ochoa’s application for asylum. De
Leon-Ochoa’s failure to meet his burden of proof for asylum
necessarily impels the conclusion that he cannot satisfy his
burden of proof for withholding of removal. See, e.g., Guo v.
Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004).

Finally, to qualify for protection under the CAT, De
Leon-Ochoa must prove that “it is more likely than not that he
[] would be tortured if removed to [Honduras].” 8 C.F.R. §
1208.16(c)(2); see Sevoian v. Ashcroft, 290 F.3d 166, 174-175
(3d Cir. 2002). Petitioner has identified no evidence to compel
the conclusion that it is more likely than not that he will be
tortured upon return to Honduras. Accordingly, we agree with
the BIA’s denial of his application for protection under the CAT
and will deny the petition for review.

*****

For the foregoing reasons, we will deny the petitions for
review.9

9
We note that the attorneys representing Petitioners on
these petitions for review have done so on a pro-bono basis and
we thank them for these services, which have been in the highest
tradition of the bar.

34