U.S. Citizenship and Immigration Services

MATTER OF A-J-P-S-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: DEC. 2 L 2017

APPLICATION: FORM 1-821, APPLICATION FOR TEMPORARY PROTECTED STATUS

The Applicant, a native and c1t1zen of Honduras, seeks review of a decision withdrawing her Temporary Protected Status (TPS). See Immigration and Nationality Act (the Act) section 244. 8 U.S.C. ~ 1254a. TPS provides lawful status and protection from removal for foreign nationals of specifically designated countries who register (and periodically re-register) during designated periods, satisfy country-specific continuous residence and physical presence requirements. arc admissible to the United States, are not firmly resettled in another country, and are not subject to certain criminal- and security-related bars.

The Director of the Vermont Service Center denied the application for re-registration and withdrew the Applicant's TPS, concluding that the Applicant did not establish that she met the continuous residence and physical presence requirements under the TPS designation for Honduras.

On appeal, the Applicant submits additional evidence and asserts that it is sufficient to shov.; she continuously resided and was physically present in the United States during the relevant time periods. and that she is therefore eligible for TPS.

Upon de novo review, we will dismiss the appeal.

I. LAW

U.S. Citizenship and Immigration Services (USCIS) may withdraw TPS at any time if it determines that the foreign national was not in fact eligible at the time TPS was granted or later becomes ineligible. 8 C.F.R. ~ 244.14(a)(1 ). An applicant for TPS has the burden of proving that he or she meets the requirements for TPS and is otherwise eligible under the provisions of section 244 of the Act. See 8 C.f.R. ~ 244.9(a)(3 ).

Department of Homeland Security regulations. implementing the provisions of section 244 of the Act provide that an applicant who is a national of a foreign state designated by the Secretary of Homeland Security. is eligible for TPS if the applicant establishes. among other criteria. that the applicant has been continuously physically present in the United States since the effective date of the most recent designation of that foreign state and has continuously resided in the United States since a date designated by the Secretary. 8 C.F.R. ~ 244.2. Persons applying for TPS offered to Hondurans

Matter of A-.1-P-S'-

must demonstrate that they have continuously resided in the United States since December 30. 1998. and that they have been continuously physically present since January 5. 1999. 1 Acceptable evidence of continuous residence may include. but is not limited to: employment records: rent receipts and utility bills: medical records: attestations by churches. unions. or other organizations: money order receipts: birth certificates of children born in the United States: bank transactions: automobile records: tax receipts; and any other relevant documents. including affidavits. 8 C.F.R. § 244.9(a)(2).

Continuously physically present means ··actual physical presence in the United States for the entire period specified in the regulations." but an applicant shall not be considered to have t~liled to maintain continuous physical presence because of .. brief~ casual. and innocent absences.·· 8 C.F.R. § 244.1.

Continuously resided means .. residing in the United States for the entire period specified in the regulations:· but an applicant shall not be considered to have tailed to maintain continuous residence '"because of a brief~ casual and innocent absence ... or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the r applicant] ... 8 C.F.R. § 244.1.

With certain exceptions. a foreign national who is inadmissible to the United States as an immigrant is ineligible for TPS. Section 244(c)(l)(A)(iii) of the Act. Any foreign national who by fraud or willfully misrepresenting a material tact, seeks to procure (or has sought to procure or has procured) a visa, other documentation. or admission into the United States or other benefit provided under the Act. is inadmissible. Section 212(a)(6)(C)(i) ofthe Act. 8 U.S.C. § 1182(a)(6)(C)(i). Moreover, an individual who made a false claim to U.S. citizenship on or after September 30. 1996. the date of enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. is inadmissible under section 212(a)(6)(C)(ii)(I) ofthe Act.

The burden of proof is on the Applicant to demonstrate eligibility by a preponderance of the evidence. See Matter o{Chcnmthe. 25 l&N Dec. 369. 376 (AAO 2010). Applicants shall submit all documentation as required in the instructions or requested by USCIS. 8 C.F.R. § 244.9(a). The sufficiency of all evidence will be judged according to its relevancy. consistency. credibility. and probative value. 8 C.F.R. § 244.9(b). To meet the burden of proof: the Applicant must provide supporting documentary evidence of eligibility apart from the Applicant's own statements. !d.

1 See Designation of Honduras Under Temporar)' Protected S'tatus. 64 Fed. Reg. 524 (.Jan. 5, 1999). This designation

has since been extended several times. with the latest extension valid until .January 5. 2018. s·ee 81 Fed. Reg. 30331 (May 16. 2016).

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II. ANALYSIS

The issue before us is whether the Applicant has established that she continuously resided in the United States since December 30, I 998, and was continuously physically present in the United States since January 5, 1999.

The Director determined that the evidence initially submitted, which consisted of a handwritten money transfer order, a copy of a money ordeL and one affidavit. was insufficient to show that the Applicant satisfied the continuous residence and physical presence requirements. The Director further found that the Applicant's removals from the United States in August 1998, when she sought entry falsely claiming she was a U.S. citizen, and in September 1998, when she attempted entry with a fraudulently obtained permanent resident card, raised questions regarding her claims of residence in the United States since November 1998. Based on this information, the Director issued a notice of intent to deny (NOID), requesting the Applicant to provide additional evidence that she was in the United States during the relevant time periods. In response, the Applicant submitted a handwritten customer receipt dated in December 1998, and copies of TPS applications she tiled with USC IS in May 1999. The Director concluded, however, that the evidence considered in the aggregate was insufficient to show that the Applicant continuously resided and was physically present in the United States as required, in view of the fact that she was twice removed from the United States shortly before her claimed entry without inspection.

On appeal, the Applicant argues that US CIS has never before questioned the validity of her TPS, and that she did not purposely concealed her removals from the United States. She avers that the Director's request for evidence from almost 20 years ago placed an undue burden on her and was arbitrary, as she did not have a fixed address or employment then, and was unable to present the types of documents listed in the TPS regulations. The Applicant states further that the fact she was removed from the United States in and 1998 is irrelevant to her eligibility for TPS, as she has consistently represented in TPS proceedings that she last entered the United States without inspection in November 1998, ajier the date of the last removal. The Applicant submits additional evidence, consisting of a personal statement, two affidavits. and a copy of her child's birth certificate, and asserts that this evidence, when considered with the documents previously provided, demonstrates her continuous residence in the United States since December 1998.

We have reviewed the entire record, including the evidence the Applicant submits on appeal, and find that it is insufficient to show her continuous residence and physical presence in the United States during the time periods prescribed for Honduras. We also conclude that the Applicant is ineligible for TPS because she has not established admissibility to the United States as an immigrant.

A. Authority to Withdraw TPS

The Applicant argues that because she was granted TPS in 2000 and she has been able to periodically re-register such status based on the evidence she initially submitted, the fact that the Director deemed this evidence insufficient for the purposes of her most recent re-registration seems

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Matter ofA-.1-P-S-

arbitrary. She further avers that the Director erred in issuing the NOlO contrary to the 2013 USCIS guidance,2 which provides that a request for evidence should not be made when the evidence already submitted establishes eligibility or ineligibility in all respects for the particular benefit request. We do not find this argument persuasive.

As stated above, USC IS may withdraw TPS at any time, if it is determined that the foreign national was not eligible for such status. Here, in the course of adjudicating the Applicant's re-registration application, the Director determined that the evidence previously submitted did not establish that the Applicant was eligible for TPS. We concur with the Director that this evidence, which consisted only of the Applicant's representation on the Form 1-821 that she entered the United States in November 1998; a handwritten. faded money transfer receipt with the re-traced date of--11/29/98; .. a copy of a May 1999 money order; and a November 1999 affidavit from an individual who attested he had known the Applicant and her family for over four years, did not support a finding that the Applicant likely resided in the United States since December 30. 1998. and that this residence was continuous. Accordingly, we find that, as the evidence already submitted did not establish eligibility, the issuance of a NOID in this case to give the Applicant an opportunity to supplement the record was consistent with USCIS policy. We recognize that producing relevant evidence may have been challenging due to the passage of time; however. as stated above, it is the Applicant's burden to establish by a preponderance of the evidence that she is eligible for TPS.

B. Continuous Residence and Physical Presence

Moreover, we find that the evidence the Applicant presented to show continuous residence in the United States since December 30, 1998, and continuous physical presence in the United States since January 5, 1999, is insufficient to satisfy the preponderance of the evidence standard, which requires the Applicant to demonstrate that her claim is "'probably true.·· Matter of'Chcnrathe, supra.

In response to the Director's NOlO, the Applicant submitted a copy of a handwritten customer receipt dated in December 1998, and evidence that she applied for TPS in May 1999. The Director determined, however. that the receipt, which does not indicate where it was issued, was insufficient to overcome the deficiencies in the evidence previously provided. We agree with this determination. as the only other documentation of the Applicant's presence in the United States in 1998 is the

money transfer receipt on which "11 /29/1998" was traced over a faded illegible date. Furthermore, even if we were to give some probative value to the two receipts. they are. without more, insufficient to show that the Applicant's residence in the United States since December 1998 continued through May 1999, when she applied for TPS. Although the Applicant also submitted an affidavit of an acquaintance with the initial application. the aftidavit merits little weight as it states only that the affiant had known the Applicant and her family for four years (since 1995). The affiant does not explain how he met the Applicant, nor does he claim that the Applicant was in the United States during the time they knew each other. On appeal, the Applicant submits another affidavit

2 USCIS Policy Memorandum PM-602-0085, Requests j(Jr Evidence and Notices of' Intent to Deny (June 3, 20 13).

https:/ /www. usc i s.gov /Ia ws/po I icy-memoranda.

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from the same individuaL who now states he had known the Applicant since 1998. Because the two affidavits are inconsistent in terms of when the atliant and the Applicant met. and do not otTer information about the Applicant's residence in the United States. we cannot give them significant weight. The Applicant also submits an affidavit from her friend. who claims he met her in 1999 in California. However. as the atTianfs statement concerns the time period after December 1998. it is not probative in establishing the Applicant's continuous residence in the United States before then. Similarly, the fact that the Applicant applied for TPS in May 1999 and had since re-registered her status over the years does not overcome the lack of sufficient evidence to establish her residence in the United States since December 30. 1998, or her continuous physical presence since January 5. 1999.

We find. therefore, that as the Applicant has not demonstrated she meets the continuous residence and physical presence requirements for TPS, she has not overcome the reason for the TPS withdrawal.

C. Inadmissibility

The Applicant states that the Director improperly concluded that her prior removals from the United States were relevant to her residence in the United States. We find however, that although the removals occurred before the Applicant's claimed November 1998 entry into the United States. they are nevertheless pertinent to her eligibility for TPS. The Director did not specifically address this issue in the withdrawal decision. but the record shows that the Applicant is inadmissible to the United States as an immigrant and ineligible for TPS on that basis.

The record reflects that the Applicant applied for admission to the United States in 1998. under a ditTerent name, representing before an immigration inspector that she was a citizen of the United States. When asked for identification or a birth certificate. she stated she left those documents at home. After a period of questioning. the Applicant stated under oath that she was born in Mexico to Mexican citizen parents, and admitted that she was not a U.S. citizen. The Applicant was determined to be inadmissible to the United States. in part, pursuant to section 212(a)(6)(C)(ii) of the Act. as a foreign national who made a false claim to U.S. citizenship. and expeditiously removed from the United States.

The record further shows that in 1998, the Applicant attempted to enter the United States with a permanent resident card issued to another individual. In secondary inspection. she again claimed Mexican citizenship and the same name as a month before. She was expeditiously removed from the United States based on a finding of inadmissibility under section 212(a)(6)(C)(i) ofthe Act as a foreign national who sought to obtain admission to the United States by fraud or willfully misrepresenting a material fact.

The above grounds of inadmissibility may be waived for humanitarian purposes. to assure family unity. or when it is otherwise in the public interest in the case of individual TPS applicants. Section 244( c )(2)(A) of the Act. However, as the record does not indicate that the Applicant applied f()r or

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was granted a waiver of inadmissibility she remains inadmissible to the United States and. thus. is ineligible for TPS on this additional basis.

III. CONCLUSION

The Applicant has not established that she is eligible for TPS because she has not demonstrated that she met the continuous residence and physical presence requirements for TPS. and because she is inadmissible to the United States as an immigrant. Accordingly. the Applicanfs TPS remains withdrawn.

ORDER: The appeal is dismissed.

Cite as Matter ofA-.!-P-S-. 10# 675084 (AAO Dec. 21, 2017)