Francisco Lopez Aldana v. Eric Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1382
FRANCISCO LOPEZ ALDANA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 20, 2012 Decided: December 18, 2012
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring,
Maryland, for Appellant. Stuart F. Delery, Acting Assistant
Attorney General, Thomas B. Fatouros, Senior Litigation Counsel,
Janette L. Allen, Trial Attorney, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Lopez Aldana, 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 September 9, 2013.
77 Fed. Reg. 1710 (Jan. 11, 2012).
Lopez Aldana filed his application for TPS on March 8,
2005, approximately two and a half 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
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for “late initial registration” if, at 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) (2012).
Because Lopez Aldana 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.
Lopez Aldana, however, argues that the registration
requirements for TPS set forth in 8 C.F.R. § 1244.2 are overly
restrictive and conflict with Congressional intent. In
reviewing Lopez Aldana’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. Chevron, 467 U.S. at 842-
43; see Suisa, 609 F.3d at 318; Saintha v. Mukasey, 516 F.3d
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243, 251 (4th Cir. 2008). If, however, “the statute at issue 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 Lopez Aldana’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)(2) (2012), 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
4
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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