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Rubio v. Sessions

United States Court of Appeals, Eighth Circuit

May 25, 2018

Pablo Alberto Rubio Petitioner
Jefferson B. Sessions, III Respondent

          Submitted: February 14, 2018

          Petition for Review of an Order of the Board of Immigration Appeals

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          LOKEN, Circuit Judge.

         Pablo Rubio, a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals (BIA) decision denying his application for Temporary Protected Status (TPS) and ordering his removal.[1] The BIA determined that Rubio is ineligible for TPS because he has been convicted of two or more misdemeanors. See 8 U.S.C. § 1254a(c)(2)(B)(i). Rubio argues this eligibility determination was an error of law because his convictions for violating Columbia, Missouri municipal ordinances are not "convictions" under the Immigration and Nationality Act (INA). Though the grant of TPS is discretionary, we have jurisdiction to review the threshold legal issue of statutory eligibility. See 8 U.S.C. § 1252(a)(2)(D); Mejia Rodriguez v. U.S. Dep't of Homeland Sec., 562 F.3d 1137, 1144-45 (11th Cir. 2009). We deny the petition for review.

         I. Background

         The TPS program allows nationals of designated foreign states to remain in the United States temporarily if they meet statutory eligibility requirements. See 8 U.S.C. § 1254a(a)(1). In 2001, the Immigration and Naturalization Service (INS) designated El Salvador a TPS-qualifying state after earthquakes prevented the country from adequately handling its nationals' return. See Designation of El Salvador Under [TPS] Program, 66 Fed. Reg. 14, 214 (Mar. 9, 2001). The designation was extended multiple times. See Extension of the Designation of El Salvador for [TPS], 81 Fed. Reg. 44, 645 (Jul. 8, 2016). Earlier this year, United States Citizenship and Immigration Services (USCIS, the INS successor) terminated El Salvador's designation, effective September 9, 2019. See Termination of the Designation of El Salvador for [TPS], 83 Fed. Reg. 2654 (Jan. 18, 2018).

         Rubio entered the United States in August 1999 without being admitted or paroled and later secured TPS. He was judged guilty of the municipal ordinance violations at issue in 2002, for leaving the scene of an accident, and in 2003, for driving with excessive blood alcohol content. See Columbia, Mo., Code §§ 14-91, 14-613. In 2011, he pleaded guilty in a state circuit court to driving with a suspended license, a misdemeanor offense. See Mo. Rev. Stat. § 302.321.

         In July 2012, USCIS withdrew Rubio's TPS after he did not adequately respond to the agency's request for additional information about two of his convictions. See 8 U.S.C. § 1254a(c)(3)(C); 8 C.F.R. § 1244.14(a)(3). In early 2014, the Department of Homeland Security (DHS) served a Notice to Appear that commenced removal proceedings and alleged that Rubio was removable as an "alien present in the United States without being admitted or paroled." 8 U.S.C. § 1182(a)(6)(A)(i). Rubio conceded the charge and filed a TPS application in the removal proceeding, which if granted would have avoided removal so long as he remained TPS eligible.

         An Immigration Judge (IJ) granted the application in October 2015, interpreting Missouri law as establishing that municipal ordinance violations are civil matters, not misdemeanor convictions under the TPS statute. The government moved for reconsideration. The next day, a different IJ granted the motion and denied Rubio's application in a summary order. Rubio appealed. The BIA affirmed the second IJ's decision, rejecting the first IJ's interpretation of Missouri law and concluding that Rubio's two municipal ordinance violations were TPS-disqualifying misdemeanor convictions. The BIA did not address the impact of Rubio's 2011 "conviction" for violating Mo. Rev. Stat. § 302.321 because the two misdemeanor municipal convictions rendered him TPS ineligible. As we affirm the BIA's decision, we likewise need not consider the 2011 conviction.

          II. Discussion

         Rubio bears the burden in removal proceedings to prove that he is eligible for TPS. See 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). As relevant here, the TPS statute provides that "[a]n alien shall not be eligible for temporary protected status under this section if the Attorney General finds that-(i) the alien has been convicted of any felony or 2 or more misdemeanors committed in the United States." 8 U.S.C. § 1254a(c)(2)(B)(i); see 8 C.F.R. § 1244.4(a). The statute does not define "misdemeanor, " but the term is defined in the Attorney General's TPS regulations:

Misdemeanor means a crime committed in the United States, either:
(1)Punishable by imprisonment for a term of one year or less, regardless of the term such alien ...

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