Rosa v. Holder , 418 F. App'x 248 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1998
JOSE WILBER ROSA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 7, 2011 Decided: March 21, 2011
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Joseph M. Perez, Arlington, Virginia, for Petitioner. Tony
West, Assistant Attorney General, Michelle G. Latour, Assistant
Director, Jessica E. Sherman, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Wilber Rosa, a native and citizen of El Salvador,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s denial of his application for temporary protected status
(“TPS”). For the reasons set forth below, we deny the petition
for review.
TPS is authorized by 8 U.S.C. § 1254a (2006), and
“allows eligible nationals of a foreign state to temporarily
remain in the United States during the pendency of that state’s
designation for the TPS program.” Cervantes v. Holder, 597 F.3d
229, 231 (4th Cir. 2010). The Attorney General designated El
Salvador for the TPS program on March 9, 2001, based on the
devastating earthquakes that the country suffered in early 2001.
66 Fed. Reg. 14214 (Mar. 9, 2001). The initial registration
period began on March 9, 2001, and ended on September 9, 2002.
Id. at 14214-15. The designation has been extended on numerous
occasions, and is currently set to expire on March 9, 2012. 75
Fed. Reg. 39556 (July 9, 2010).
Rosa filed his application for TPS on September 13,
2006, four years after the initial registration period ended.
The regulations implementing the TPS statute, however, carve out
an exception to the initial registration period and provide that
an applicant may qualify for “late initial registration” if, at
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the time of the initial registration period: (1) the applicant
was in valid nonimmigrant status or had been granted voluntary
departure or other relief from removal; (2) the applicant had a
pending application for change of status, adjustment of status,
asylum, voluntary departure, or other relief from removal, or
such application was subject to further review or appeal;
(3) the applicant was a parolee or had a pending request for
reparole; or (4) the applicant was the spouse or child of an
alien who was eligible to be a TPS registrant. 8 C.F.R.
§ 1244.2(f)(2) (2010). Because Rosa failed to file his
application during the initial registration period or
demonstrate his eligibility for late initial registration under
§ 1244.2(f)(2), the immigration judge and the Board properly
found him ineligible for TPS.
Rosa, however, argues that the registration
requirements for TPS set forth in 8 C.F.R. § 1244.2 are overly
restrictive and conflict with the governing statute. In
reviewing Rosa’s challenge to the regulation, we employ the two-
step analysis prescribed by the Supreme Court in Chevron U.S.A.,
Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
See Suisa v. Holder, 609 F.3d 314, 318 (4th Cir. 2010). Under
Chevron, the plain meaning of the statute controls if the
provision in question is unambiguous. Suisa, 609 F.3d at 318;
Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). If,
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however, “the statute is silent or ambiguous with respect to the
precise issue, then [the Court] must decide whether the agency’s
interpretation of the statute is reasonable, and thus, entitled
to deference.” Suisa, 609 F.3d at 318.
We have thoroughly considered Rosa’s challenges to the
regulation at issue and find them without merit. Because the
intent of Congress to delegate authority to the Attorney General
to establish a registration deadline was clear and unambiguous,
see 8 U.S.C. § 1254a(c)(1)(A)(iv) (2006), we defer to the
Attorney General’s creation of the initial registration period
under the first step of Chevron. Applying the second step of
Chevron, we find that the Attorney General’s promulgation of 8
C.F.R. § 1244.2(f) (2010), which provides for late initial
registration for certain TPS applicants, was based on a
reasonable interpretation of § 1254a(c)(1)(A)(iv) and was not
arbitrary, capricious, or manifestly contrary to law. See
Chevron, 467 U.S. at 844 (providing that a regulation
promulgated to fill a gap left, implicitly or explicitly, by
Congress is “given controlling weight unless [it is] arbitrary,
capricious, or manifestly contrary to the statute”); Suisa, 609
F.3d at 319 (same).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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