On July 26, 2019, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an order by an Immigration Judge (IJ), finding a respondent removable per INA §212(a)(6)(A)(i) as one in the United States without permission and denying respondent’s application for temporary protected status (TPS). Respondent had previously pled guilty to attempted endangering the welfare of a child, a class B misdemeanor under the New York Penal Law, resulting in a jail term of 90 days and the issuance of an order of protection. Although the IJ found respondent statutorily eligible for TPS under INA §244, he denied the application on the ground respondent had failed to establish that he warranted a favorable exercise of discretion. Respondent argued on appeal that the IJ did not have the authority to deny TPS as a matter of discretion and, alternatively, that he is deserving of a discretionary grant of TPS. The BIA disagreed.
Respondent’s primary contention was that discretionary determinations are limited to forms of relief like waivers of inadmissibility or cancellation of removal, where the terms “discretion” or “good moral character” are explicitly incorporated into the statute; the Board found it is not necessary for a statute to contain such language if “it otherwise indicates that it has a discretionary component”, like §244. The BIA noted that §244(a)(1)(A) provides that the Attorney General “may grant” TPS where the applicant meets the statutory eligibility requirements and that the word “may” customarily connotes discretion. Additionally, in other parts of the TPS statute, Congress used the word “shall,” imposing a nondiscretionary duty, the implication being that Congress knew what it was doing in making only certain components of the statute mandatory. The opinion thus held “that TPS is a discretionary form of relief and that Immigration Judges have the authority to deny TPS in the exercise of discretion.”
As to what factors are to be considered in determining who should be granted TPS, the Board deemed it appropriate to “balance the favorable and adverse factors in a manner similar to that which we have long employed in analyzing other forms of discretionary relief.” The ultimate consideration, it stated, in exercising discretion is to determine where a grant of relief or protection appears to be in the best interests of the U.S. As such, the IJ’s findings as to the respondent’s conduct were found to “represent a permissible view of the evidence” and there was no clear error in these findings.
Lastly, in responding to respondent’s argument that he did not admit guilt to the inappropriate physical conduct alleged in the charging document, and that the IJ should not have treated those allegations as true, i.e., that he was not required to admit all allegations in the complaint but had only pled to the broad language of the penal law section, the BIA, in a footnote, noted that normally in analyzing a conviction under the categorical approach, it assumes that the respondent committed the least of the acts criminalized by the conviction statute, citing to Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). Here, however, the categorical approach is not applicable as this is a discretionary determination, where “it is proper to consider all probative evidence regarding the factual circumstances surrounding a conviction.” The appeal was therefore dismissed. Matter of D-A-C-, 27 I & N Dec. 575 (BIA 2019).
