“Saul and I married last month. I filed a petition for his green card two weeks ago. He was born in Nicaragua. A friend told us that Saul could get a green card because of a new TPS law. He started receiving TPS in 1999. Two days ago he got a letter from the government denying his re-registration and withdrawing his TPS because he had two misdemeanor convictions. They happened in 2007 and 2008. How can he fight the denial? Is this going to cause problems for his permanent residence case?”
(Submitted by Denise D., Indio, CA)
Your question raises a lot of complicated issues. I’ll tackle them one-at-a-time.
Let’s begin with the TPS rule you mentioned. Because it is relatively new, there are some unknowns about how it might apply in Saul’s case. Thus, I’ll need to speculate a little about it could affect him.
Basically, your friend was talking about a recent court decision for immigration cases in California. In that case, Ramirez v. Brown, the court said a person who had received TPS benefits could now adjust their status to permanent resident through a U.S. citizen spouse (and a few other U.S. citizen family members).
Before that decision, most TPS beneficiaries, like Saul, had to return to their home county for an interview if they wanted a green card. There was no guarantee that they would be allowed to come back unless they were given special permission, via a family unity waiver, to legally re-enter the U.S. These types of waivers are difficult to win and cause problems for many immigrant families.
Can TPS Holders Qualify For Green Cards Even If Their TPS Status Has Ended?
In the Ramirez case, Mr. Ramirez was still in valid TPS status as he fought for the right to seek legal residency through adjustment of status in the United States.
One of the issues which the court did not address was whether the rule covers everyone who ever qualified for TPS protection. Or only those who are still receiving TPS benefits at the time when they apply for permanent residency.
My opinion is that the rule should apply to anyone who has ever won TPS, even if their TPS status ended a long time ago. But the law is unclear on this point. This is an issue which could last many, many years before we get a final opinion.
If the government decides to fight this issue, it could cause a lot of grief for TPS recipients in situations similar to Saul.
Does It Matter How TPS Was Terminated?
There’s another concern here in regards to filing for green card benefits after TPS has ended.
Does it matter how a person’s TPS status ended?
For instance, if an immigrant lost his TPS benefits after the Trump Administration officially cut off his country’s designation, that is one type of status termination.
If an immigrant lost his status because he failed to re-register, or failed to re-register on time, that’s a second type of status termination.
A third type of status termination occurs when an immigrant violated the rules for TPS and is denied the right to re-register.
Saul’s situation fits into the latter example. The government intends to deny his re-registration based on his convictions.
The convictions places him on shaky grounds.
It is possible, though not certain, the government will assert beneficiaries are no longer lawfully “admitted” – and no longer eligible to apply for adjustment of status in the United States – because they fell out of status by their own actions.
The Impact Of Two Convictions On TPS
Under Temporary Protected Status law, two misdemeanor convictions can lead to the denial of re-registration and disqualify a beneficiary from ongoing TPS benefits.
The application of this regulation can be challenged.
Even though I don’t know the details of his convictions, it is conceivable that the nature of Saul’s misdemeanors might not warrant the termination of his TPS status. He would need to promptly file a motion to reopen and reconsider the government’s decision, since there is a 30-day limit for such challenges to be filed.
Given the possible negative impact of the TPS termination on Saul’s efforts to become a green card holder, he should strongly consider looking into the possibility of contesting the decision. He should consult with an immigration attorney appears to ensure the decision to deny his re-registration and withdraw his status is not based on a legal or factual error.
On the other hand, the two misdemeanors conviction rule which disqualifies a person from TPS benefits does not disqualify a person when they seek permanent resident status.
Moreover, the types of convictions which cause termination of temporary protected status do not automatically prohibit a person from winning a green card.
This means unless Saul must still be in active TPS status at the time he seeks permanent residency, the two misdemeanors might not affect his ability to win a green card.
Why didn’t the government bring up Saul’s convictions before?
It is unclear why the government did not bring up Saul’s convictions until recently.
The convictions happened a long time ago. Since that time, Saul re-registered for Nicaragua TPS benefits every 18 months. He was continuously approved.
Why the difference this time?
It could be that it took this long for his convictions to be added into the government’s data base.
I’d like to quickly focus on what I think is a quite important aspect of the delay.
The absence of immigration fraud.
As long as Saul never omitted any relevant information on his re-registration applications, he cannot be accused of immigration fraud.
If he had been responsible for the delayed finding of his convictions, the decision would likely have noted his failure to provide requested information. Since that issue was not mentioned, the error is on the government.
You’re probably wondering if the delay can be used to fight the re-registration denial
Nope. The government’s neglect in bringing up the convictions sooner cannot be used to offset the withdrawal of Saul’s TPS status.
Whatever the reason for the delay, the government could have asserted Saul’s convictions disqualified him from TPS and filed deportation charges against him many years ago.
Instead, the delay has worked in his favor.
Thanks to the combination of the recent court decisions and your marriage, the failure to deny re-registration sooner has provided Saul with the opportunity to now defend himself against deportation charges as a beneficiary under the family-based petition you filed for him.
Of course, since the full impact of the new TPS rule is not yet clear, if Saul is summoned to immigration court, he should not represent himself.
I’m fairly sure, with you at his side, he won’t take that risk.
By Carlos A. Batara, Filed Under Q&As: Special Immigration Programs.
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