BIA: IJ can’t terminate removal proceedings based on TPS grant; decision threatens to increase court backlog

In a recent decision the BIA held that an IJ may not terminate removal proceedings simply because the respondent was granted Temporary Protected Status (TPS). Matter of Sosa Ventura, 25 I&N Dec. 391 (BIA 2010) (Grant, Malphrus, and Mullane). Board member Malphrus wrote the BIA’s decision.

This case involved a citizen of El Salvador who was put into removal proceedings and charged as removable for being in the United States without being admitted.INA § 212(a)(6)(A)(i).The respondent conceded the factual allegations, but sought and received TPS from DHS. Matter of Sosa Ventura, 25 I&N Dec. at 391-92. Though the parties jointly moved for administrative closure of proceedings, “the Immigration Judge did not agree with this approach and terminated the proceedings with prejudice.” Matter of Sosa Ventura, 25 I&N Dec. at 392.

The BIA disagreed with the IJ’s approach. “The Immigration Judge determined that the grant of TPS rendered the respondent admissible, or somehow eliminated the charge of inadmissibility, and therefore, that she was not properly subject to removal proceedings.” Matter of Sosa Ventura, 25 I&N Dec. at 392. This, the BIA held, is incorrect because TPS does not cure inadmissibility. “[A] grant of TPS does not affect an alien’s admissibility or inadmissibility for purposes of the Immigration and Nationality Act generally.” Matter of Sosa Ventura, 25 I&N Dec. at 392.

All that TPS does, the BIA went on, is temporarily prevent the removal of an otherwise removable individual: “Thus, the respondent is protected from execution of a removal order during the time her TPS status is valid, but she remains removable based on the charge of inadmissibility in the Notice to Appear.” Matter of Sosa Ventura, 25 I&N Dec. at 393.

Consequently, an individual who is charged as removable and is not eligible for relief from removal or does not request relief should be ordered removed even though the TPS grant prevents removal from actually occurring. “If the proceedings continue and the respondent does not apply, or is not eligible, for relief from removal, then an order of removal should be entered. However, any such removal order could not be executed during the period in which the respondent’s TPS status is valid.” Matter of Sosa Ventura, 25 I&N Dec. at 396 (internal citations omitted). The respondent, the BIA adds, “may request that her case be administratively closed, which requires agreement of both parties.” Matter of Sosa Ventura, 25 I&N Dec. at 396 (citing Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996)).

This decision threatens to increase the backlog that already plagues immigration court dockets by severely limiting the ability of IJ’s to remove cases off their dockets when there is clearly no chance that the person will be removed from the country. The BIA will now require courts to go through the motions of ordering a person removed even when everyone knows that the person is protected from removal through TPS. The BIA’s position thus requires courts to perform a futile exercise that results only in bigger dockets.

This is no small problem given that immigration courts are severely backlogged. The Transactional Records Access Clearinghouse at Syracuse University recently reported that “The number of cases awaiting resolution before the Immigration Courts reached a new all time high of 261,083 matters by the end of September 2010….” By requiring administrative closure to move a TPS case off an immigration court’s docket, the BIA has effectively given DHS the power to dictate whether courts are required to deal with cases where the result is predetermined: the respondent will be able to stay in the country no matter what the court decides because TPS prevents removal even if a removal order is entered.