3rd & 4th Circuit Courts on Temporary Protected Status (TPS)


Recently the 3rd Circuit and previously the 4th Circuit Court of Appeals have issued precedential decisions pertaining to Temporary Protected Status (TPS).  Both decisions were limiting interpretations of the TPS regulations, thereby reducing the number of foreign national who are eligible for TPS.

The Fourth Circuit Court of Appeals which presides over Virginia, West Virginia, North Carolina, South Carolina found in Cervantes v. Holder, 597 F.3d 229 (4th Cir. 2010) that Petitioners, who were minor children, were ineligible for TPS because they could not satisfy the eligibility requirements of 8 U.S.C. § 1254a(c)(1)(A).  The Court felt the petitioners could not satisfy the "continuous physical presence" requirement for TPS, and further nor could they prove their "continuous residence" since the TPS designation date.  The Court rejected the notion that applicants only need prove such presence and residence since the "most recent designation" of TPS (which is renewed approximately every 12 to 18 months), and further rejected that the parents' residence is "imputed" on the children.  The theory of "imputation" or "derivative residence," though supported throughout in immigration laws, was rejected by the Fourth Circuit which distinguished between the concept of "domicile" with that of "residence."  The Court found that actual physical residence was actually required and could not be imputed to the child from parent.  Decision below:

Similarly, the Third Circuit Court of Appeals which presides over New Jersey, Pennsylvania and Delaware found that the “continuous residence” requirement cannot be met via imputation from parent to child and that the statutory term “most recent designation” applies to the original designation of a state for TPS and not to subsequent extensions. Petitioners need to personally satisfy the “continuous residence” and “continuous physical presence” requirements for statutory eligibility for TPS.

Ricky Malik, Esq.