BIA on the DHS and TPS Applications – Matter of Henriquez Rivera, 25 I & N Dec. 575 (BIA 2011)

On August 8, 2011, the Board of Immigration Appeals (BIA) held that an Immigration Judge may in appropriate circumstances require the  Department of Homeland Security “DHS” to provide the Temporary Protected Status (“TPS”) application that the applicant filed with the United States Citizenship and Immigration Service (“USCIS”).

The respondent in Matter of Henriquez is a native and citizen of El Salvador. He was not admitted or paroled. He filed for TPS with the CIS and the application got denied. At a hearing before the Immigration Court, Respondent renewed his TPS application. The Immigration Judge asked the DHS to provide Respondent’s administrative records, but the DHS submitted a copy of the denial letter and not the TPS application. The Immigration Judge terminated proceedings due to the DHS’s failure to prosecute.

The issue was whether the DHS is required to provide the IJ with the TPS application. The Board mentioned that they have not addressed the issue of what responsibilities, if any, the applicant or the DHS has concerning the production of the application or other documents with respect to the renewed TPS application. The Board also stated that regulations on TPS renewals do not specify whether the DHS or the applicant bears the responsibility of producing these documents.

The Board found that no language in the applicable TPS regulations could be construed to require the applicant to file a new application before the Immigration Judge rather than rely on the application filed with the USCIS. The Board said that the very term “renew” implies a procedure that contemplates production of the previous application. So they will not impose the burden of filing a new application on the applicant. The Board said that they may be cases where the applicant may not have copies of the TPS application and the supporting documents submitted with the CIS. In such case, the only recourse is to ask for a copy of the application form the DHS.

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