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BIA Holds That a Parent’s Continuous Residence and Physical Presence Cannot Be Imputed To The Child For TPS Purposes

The BIA (Board of Immigration Appeals) has recently held that a parent’s physical presence and continuous residence cannot be imputed to the parent’s child who later enters the United States and seeks TPS (Temporary Protected Status).

In Matter of Duarte-Luna, 26 I&N Dec. 325 (BIA 2014), the BIA relied on a recent United States Supreme Court decision, where SCOTUS held that a parent’s residence in the US could not be imputed to the child for cancellation of removal purposes. In other words, for non lawful permeant residents to be granted cancellation of removal, they must have been in the United States for a period of 10 continuous years. If a parent has been in the U.S. for 10 years, but his or her child came into the U.S. less than 10 years ago, the parent’s 10 years of continuous residence cannot be imputed to the child, thus making him eligible for cancellation of removal. The child must have accrued the 10 years of continuous presence on his or her own.

Expanding on this U.S. Supreme Court case, the BIA held in Duarte-Luna that continuous residence and physical presence must be accrued by the child independently of the parent’s physical presence and continuous residence to satisfy the requirements of TPS. In order to be eligible for TPS, a person must have been physicaly present in the United States by a date specified by the Attorney General and must have maintained continuous residence in the United States since that date. If the child does not independently satisfy those requirements, he or she will not be eligible for TPS.

The BIA stated that although certain characteristics of the parent can be imputed to the child, physical presence and continuous residence cannot. The BIA reasoned, drawing from the Supreme Court’s reasoning, that matters involving state of mind can be imputed to the child, but objective conditions or characteristics cannot be imputed. For example, a parent’s domicile or a parent’s abandonment of lawful permanent residence is a state of mind which the courts have determined can be imputed to the child. However, physical presence and continuous residence are facts that are independent of the intent or mindset of the parent.

Unfortunately, this decision will limit the number of foreign nationals eligible to seek the safety of the United States and who are fleeing from countries undergoing serious strife. As with Duarte-Luna, this decision will affect many young children who are following behind to reunite with parents who have already sought and received the safety that TPS was designed to provide.

Read Matter of Duarte-Luna here.
Read Holder v. Martinez Gutierrez here.