Del Cid-Nolasco v. Holder ( 2010 )

09-3375-ag
Del Cid-Nolasco v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19 th day of July, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
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13 Samuel Del Cid-Nolasco,
14 Petitioner,
15
16 -v.- 09-3375-ag
17
18 Eric H. Holder Jr., United States
19 Attorney General, United States
20 Citizenship and Immigration Service,
21 Department of Homeland Security, Janet
22 Napolitano,
23 Respondents. *
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*
The Clerk of the Court is directed to amend the
official caption as noted.
1 APPEARING FOR PETITIONER: ERIN I. O’NEIL-BAKER, Hartford,
2 CT.
3
4 APPEARING FOR RESPONDENTS: JEM C. SPONZO, Trial Attorney
5 (Ada E. Bosque, Senior
6 Litigation Counsel), Office of
7 Immigration Litigation, Tony
8 West, Assistant Attorney
9 General, Civil Division, United
10 States Department of Justice,
11 Washington, DC.
12
13 Petition for review of an order of Board of Immigration
14 Appeals.
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the petition be DENIED.
17 Samuel Del Cid-Nolasco petitions for review of a July
18 10, 2009 order of the Board of Immigration Appeals, denying
19 his applications for temporary protected status and
20 voluntary departure. Del Cid-Nolasco, a Honduran who
21 entered the United States in July 1997, claimed temporary
22 protected status in his removal proceedings and applied in
23 the alternative for voluntary departure. The application
24 for temporary protected status was denied on the ground that
25 he failed to timely apply; the request for voluntary
26 departure was denied on the ground that he failed to
27 demonstrate possession of valid travel documents. He
28 petitions for review only of the denial of temporary
29 protected status. We otherwise assume the parties’
30 familiarity with the underlying facts, the case’s procedural
31 history, and the issues presented for review.
32 Temporary protected status affords eligible aliens
33 protection from removal upon a determination by the Attorney
34 General that conditions in their own country prevent their
35 safe return. 8 U.S.C. § 1254a. To obtain temporary
36 protected status, an alien must [1] be a national or
37 habitual resident of the designated state; [2] “ha[ve] been
38 continuously physically present in the United States since
39 the effective date of the most recent designation of that
40 state”; [3] “ha[ve] continuously resided in the United
41 States since such date as the Attorney General may
42 designate”; [4] be “admissible as an immigrant, except as
43 otherwise provided under [8 U.S.C. § 1254a(c)(2)(A)], and
44 . . . not ineligible for temporary protected status under [8
2
1 U.S.C. § 1254a(c)(2)(B)]”; and [5] “[r]egister[] for
2 Temporary Protected Status during the initial registration
3 period announced by public notice in the Federal Register,”
4 or satisfy one of four late registration criteria. Id.; 8
5 C.F.R. § 1244.2.
6 The Attorney General initially designated Honduras for
7 temporary protected status in 1999, due to hurricane damage.
8 64 Fed. Reg. 524 (Jan. 5, 1999). The initial registration
9 period ran from January 5 to July 5, 1999, id.; since then,
10 the designation has been extended nine times, most recently
11 in May of this year. See 75 Fed. Reg. 24,734 (May 5, 2010);
12 73 Fed. Reg. 57,133 (Oct. 1, 2008); 72 Fed. Reg. 29,529 (May
13 29, 2007); 71 Fed. Reg. 16,328 (Mar. 31, 2006); 69 Fed. Reg.
14 64,084 (Nov. 3, 2004); 68 Fed. Reg. 23,744 (May 5, 2003); 67
15 Fed. Reg. 22,451 (May 3, 2002); 66 Fed. Reg. 23,269 (May 8,
16 2001); 65 Fed. Reg. 30,438 (May 11, 2000). Each extension
17 permitted aliens who had already registered to re-register
18 for an extension of temporary protected status; none
19 permitted new registrations unless an alien satisfied one of
20 the criteria for late registration set out in 8 C.F.R.
21 § 1244.2.
22 The Board of Immigration Appeals denied Del Cid-
23 Nolasco’s application for temporary protected status on the
24 ground that he neither registered for temporary protected
25 status during the initial registration period nor satisfied
26 one of the late registration criteria. We review the
27 Board’s factual findings for substantial evidence, 8 U.S.C.
28 § 1252(b)(4)(B), and its legal conclusions de novo, “with
29 the caveat that the [Board’s] interpretations of ambiguous
30 provisions of the [Immigration and Nationality Act] are owed
31 substantial deference unless arbitrary, capricious, or
32 manifestly contrary to the statute.” Arenas-Yepes v.
33 Gonzalez, 421 F.3d 111, 114 (2d Cir. 2005) (internal
34 quotation marks omitted).
35 It is undisputed that Del Cid-Nolasco neither applied
36 for temporary protected status during the January 5 to July
37 5, 1999 initial registration period nor satisfies any of the
38 criteria for late registration. As the Board concluded, he
39 is ineligible for temporary protected status.
40 Del Cid-Nolasco alleges that he was precluded from
41 asserting his claim for temporary protected status during
42 the removal proceedings. Citing Barrientos, 24 I. & N. Dec.
43 100 (Bd. of Immigration Appeals Mar. 1, 2007), he claims
3
1 that he is entitled to de novo review of his application by
2 the Immigration Judge (“IJ”) and the Board. In Barrientos,
3 the IJ declined to consider a temporary protected status
4 application on jurisdictional grounds. But here, the IJ
5 considered Del Cid-Nolasco’s application and denied it on
6 the merits. Petitioner was in no way precluded from
7 asserting his temporary protected status claim; he did, and
8 it was denied. Contrary to petitioner’s assertions, he did
9 not establish a prima facie case of eligibility for
10 temporary protected status: His failure to either apply
11 during the initial registration period or satisfy one of the
12 criteria for late registration is fatal to his claim.
13 Finding no merit in Del Cid-Nolasco’s remaining
14 arguments, we hereby DENY his petition for review.
15
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
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