Submitted: February 14, 2018
Petition for Review of an Order of the Board of Immigration
LOKEN, BENTON, and ERICKSON, Circuit Judges.
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. 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
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).
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.
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.
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.
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
Misdemeanor means a crime committed in the United
(1)Punishable by imprisonment for a term of one year or less,
regardless of the term such alien ...