D-A-C

 Cite as 

 (BIA 2019)                               Interim Decision #3958




                          Matter of D-A-C-, Respondent
                                 Decided July 26, 2019

                             U.S. Department of Justice
                      Executive Office for Immigration Review
                          Board of Immigration Appeals

  Immigration Judges have the authority to deny an application for temporary protected
status in the exercise of discretion.
FOR RESPONDENT: Mary Sameera Van Houten Harper, Esquire, Brooklyn, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joshua Lee, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:


    In a decision dated October 10, 2018, an Immigration Judge found the
respondent removable under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 

(a)(6)(A)(i) (2012), as an alien who is in the
United States without permission, and denied his application for temporary
protected status (“TPS”). The respondent has appealed from that decision. 1
The appeal will be dismissed.
    The respondent is a native and citizen of El Salvador, who entered the
United States in April 1997. On January 30, 2018, he pled guilty to attempted
endangering the welfare of a child, a class B misdemeanor under sections
110.00 and 260.10(01) of the New York Penal Law, for which he was
sentenced to 90 days in prison. An order of protection was also issued against
the respondent.
    The Immigration Judge found that the respondent is statutorily eligible
for TPS under section 244 of the Act, 8 U.S.C. § 1254a (2012). However,
he denied the application because the respondent did not establish that a
favorable exercise of discretion was warranted. The respondent challenges
the denial of his application, arguing that an Immigration Judge does not have

1
   The Immigration Judge also denied the respondent’s applications regarding his claim
that he will be persecuted in El Salvador if he is deported because, as a criminal deportee,
he would be harmed by gangs or tortured by the Government. However, the respondent
states on appeal that he does not contest the denial of these applications, so we deem any
issues in that regard waived. See Matter of Zhang, 

, 569 n.2 (BIA 2019).

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the authority to deny TPS in discretion and, alternatively, that he merits a
discretionary grant of TPS. We disagree.
     The respondent primarily argues that discretionary determinations should
be limited to forms of relief, such as waivers of inadmissibility or
cancellation of removal, where the terms “discretion” or “good moral
character” have been explicitly incorporated into the framework of the
statute. 2 However, it is not necessary for a statute to include this language
if it otherwise indicates that it has a discretionary component, as it does here.
     The plain language of section 244(a)(1)(A) of the Act provides that the
Attorney General “may grant an alien” TPS if the alien meets the statutory
eligibility requirements in section 244(c). “The word ‘may’ customarily
connotes discretion.” 3 Jama v. ICE, 

 (2005). Moreover,
in other parts of the TPS statute, Congress used the word “shall,” which
“generally imposes a nondiscretionary duty.” SAS Inst., Inc. v. Iancu, 

 (2018); see also, e.g., sections 244(a)(1)(A), (B) of the Act
(stating that the Attorney General “shall not remove the alien” while TPS
status is in effect and “shall authorize the alien to engage in employment”).
The fact that both words are in the same statute further reinforces that a
grant of TPS is intended to be discretionary. See Jama, 

(emphasizing the “inappropriateness of reading ‘may’ to mean ‘shall,’”
particularly where “‘may’ is used in contraposition to the word ‘shall’”).
     The applicable regulations also provide that an applicant “may in the
discretion of the director be granted Temporary Protected Status.” 

, 1244.2 (2019). Although these regulations refer to “the director,”
we have held that an alien may renew an application for TPS in removal
proceedings before an Immigration Judge, who has de novo review over such
applications. See Matter of Figueroa, 

 (BIA 2011).
     The respondent notes that section 242(a)(2)(B)(i) of the Act, 

(a)(2)(B)(i) (2012), divests the Federal courts of jurisdiction to review
“any judgment regarding the granting of relief under section 212(h), 212(i),
240A, 240B, or 245” of the Act and argues that if Congress had intended
TPS to be discretionary, it would have included section 244 in this provision.
Section 242(a)(2)(B)(i)’s limitation on the scope of the courts’ review
2
    Although the respondent implies that good moral character is a matter of discretion, it
is clear that an applicant for cancellation of removal or voluntary departure must establish
good moral character to be statutorily eligible for relief. See sections 240A(b)(1)(B),
240B(b)(1)(B) of the Act, 8 U.S.C. § 1229b(b)(1)(B), 1229c(b)(1)(B) (2012); Matter of
Gomez-Beltran, 

 (BIA 2019). Good moral character and discretion
are distinct issues that should be evaluated separately.
3
    Significantly, provisions for other forms of discretionary relief in the Act, including
certain waivers of inadmissibility, cancellation of removal, and voluntary departure, state
that relief “may” be granted, without including the word “discretion.” See, e.g., sections
212(e), 240A(a)–(b)(1), 240B(b)(1) of the Act.

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authority does not determine whether TPS can be denied as a matter of
discretion. The fact that this ancillary jurisdictional statute lists several other
provisions for discretionary forms of relief in the Act does not override the
plain language of section 244(a)(1)(A).
    The United States Court of Appeals for the Eleventh Circuit has
specifically stated that “[t]he ultimate decision of whether to grant TPS to an
alien is undisputedly within the discretion of the Secretary” of Homeland
Security pursuant to section 244(a)(1)(A) of the Act. Mejia Rodriguez v. U.S.
Dep’t of Homeland Sec., 

 (11th Cir. 2009) (per curiam).
We are unpersuaded that there are any valid reasons to read section
244(a)(1)(A) differently. We therefore conclude that TPS is a discretionary
form of relief and that Immigration Judges have the authority to deny TPS in
the exercise of discretion. See Matter of Figueroa, 

.
    We must next examine the Immigration Judge’s denial of TPS in this
case. To be statutorily eligible for TPS, the respondent must prove that he is
admissible to the United States and meets certain other requirements,
including timely registration and continuous physical presence. Section
244(c)(1)(A) of the Act. In addition, he must establish that he is not barred
from relief because he has been convicted of a felony or two or more
misdemeanors in the United States or has engaged in other serious conduct
specified in the Act. Section 244(c)(2)(B) of the Act.
    The Immigration Judge determined that the respondent is statutorily
eligible for TPS, finding that his conviction for a single misdemeanor did not
bar him from establishing eligibility. The respondent argues that this alone
warrants a grant of relief and that the Immigration Judge erred in considering
the factual circumstances underlying his conviction. The Supreme Court has
made clear, however, that an alien’s statutory eligibility for discretionary
relief “in no way limits the considerations that may guide [the exercise of]
discretion to determine who, among those eligible, will be accorded grace.”
INS v. Yueh-Shaio Yang, 

 (1996).
    It is well established that “there is no inflexible standard for determining
who should be granted discretionary relief, and each case must be judged on
its own merits.” Matter of C-V-T-, 

 (BIA 1998). Although
we have not previously decided what factors should be considered in the TPS
context, we deem it appropriate to balance the favorable and adverse factors
in a manner similar to that which we have long employed in analyzing other
forms of discretionary relief.

     For example, favorable considerations include such factors as family ties within the
     United States, residence of long duration in this country (particularly when the
     inception of residence occurred while at a young age), evidence of hardship to the
     respondent and his family if deportation occurs, service in this country’s armed
     forces, a history of employment, the existence of property or business ties, evidence

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     of value and service to the community, proof of genuine rehabilitation if a criminal
     record exists, and other evidence attesting to a respondent’s good character. Among
     the factors deemed adverse to an alien are the nature and underlying circumstances
     of the grounds of [removal] that are at issue, the presence of additional significant
     violations of this country’s immigration laws, the existence of a criminal record and,
     if so, its nature, recency, and seriousness, and the presence of other evidence
     indicative of a respondent’s bad character or undesirability as a permanent resident
     of this country.

 (citing Matter of Marin, 

 (BIA 1978)) (setting forth the
factors to be applied in exercising discretion under section 240A of the Act).
    In addition, since the purpose of TPS is to provide protection based on
adverse conditions in an alien’s home country, it is important to also
consider how those conditions might affect the alien’s potential safety if he
is removed there. See Matter of Sosa Ventura, 

, 394–95
(BIA 2010). The ultimate consideration when balancing factors in the
exercise of discretion is to determine whether a grant of relief, or in this case
protection, appears to be in the best interest of the United States. See Matter
of C-V-T-, 

; see also Matter of Mendez, 

 (BIA 1996) (considering the welfare and safety of others in this country
in making a discretionary determination).
    In some circumstances, meeting the minimum eligibility requirements for
relief may be sufficient to warrant a favorable exercise of discretion,
especially where, as here, there are restrictive statutory bars to eligibility for
criminal conduct and the relief itself is temporary. See Matter of C-V-T-,

. However, any adverse factors, including recent criminal
activity, must be offset by significant additional equities. 

   The respondent was convicted of attempting to endanger the welfare of a
child. The charging document in his case alleged that he grabbed a young
girl by the arm and that he forcibly attempted to kiss her on the lips and touch
her in an inappropriate manner. However, he testified that he never touched
the girl inappropriately and that he inadvertently kissed her lips, instead of
her cheek, in an attempt to console her after he pushed her away from a
machine he was operating while he was working in the family home.
   The Immigration Judge found that the charging document was reliable as
to the key facts that formed the basis for the respondent’s conviction and
persuasive as to his actual conduct. He also determined that the respondent
was evasive and withheld important details and that his testimony was
not consistent in all respects with a statement he gave to the police. The
Immigration Judge considered implausible the respondent’s claim that the
prosecutor added untrue facts to the charging document to convince him
to plead guilty. Stating that he was not satisfied by the respondent’s


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explanations, the Immigration Judge found that his testimony regarding his
conviction was not credible, which the respondent claims was erroneous.
    An Immigration Judge “is not required to accept a respondent’s
assertions, even if plausible, where there are other permissible views of the
evidence based on the record.” Matter of D-R-, 

 (BIA
2011), remanded on other grounds, Radojkovic v. Holder, 

 (9th Cir. 2015). The Immigration Judge’s findings as to the respondent’s
conduct represent a permissible view of the evidence. There is no clear error
in these findings. See Anderson v. City of Bessemer City, N.C., 

 (1985) (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”).
   The respondent argues that he was not required to admit all the allegations
in the charging document and only pled guilty to the broad language of
section 260.10(01), that is, to attempting to act “in a manner likely to be
injurious to the physical, mental or moral welfare of a child.” In particular,
he asserts that he did not admit guilt to the inappropriate physical conduct
alleged in the charging document and that the Immigration Judge should not
have considered the allegations as true. 4
   In support of his claim, the respondent cites Padmore v. Holder, 

 (2d Cir. 2010) (per curiam), where the Second Circuit found that we
impermissibly engaged in fact-finding when we relied on information in an
arrest report and a prosecutor’s affidavit that was based on a statement by a
police officer. The alien disputed factual statements in both documents, and
the Immigration Judge made no findings in that regard. The court held that
we exceeded our authority by reversing the Immigration Judge’s grant of
discretionary relief, “not on the basis of having found clear error, but instead
based on disputed material facts with respect to which the [Immigration
Judge] reached no resolution, and which [were] analyzed in such a way as to
constitute independent factfinding.” 

 (citation omitted).
   The respondent’s reliance on that case is misplaced. Unlike in Padmore,
the Immigration Judge here found the charging document to be reliable, and
he made an adverse credibility finding regarding the respondent’s testimony,
which we have determined is not clearly erroneous. Padmore is
distinguishable and, consequently, not controlling in the respondent’s case. 5
4
   In analyzing a conviction under the categorical approach, we must assume that the
respondent committed the least of the acts criminalized by his statute of conviction. See
Moncrieffe v. Holder, 

 (2013). However, the categorical approach is not
applicable in a discretionary determination, where it is proper to consider all probative
evidence regarding the factual circumstances surrounding a conviction.
5
   Two other cases cited by the respondent are also distinguishable. Rojas v. Att’y Gen. of
U.S., 

 (3d Cir. 2013) (en banc) (rejecting the use of a police criminal
complaint to establish the fact of a conviction, except “to the extent it serves as a charging


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Significantly, the Second Circuit recognized that the Board has “authority to
review ‘police reports and complaints, even if containing hearsay and not a
part of the formal record of conviction’ because such documents ‘are
appropriately admitted for the purposes of considering an application for
discretionary relief.’” 

 at 69 (quoting Carcamo v. U.S. Dep’t of Justice,

 (2d Cir. 2007)).
    Thus, it was proper for the Immigration Judge to consider any reliable
and probative evidence regarding the respondent’s actual conduct, including
the information in the charging document, to determine the factual
circumstances underlying his conviction. See Matter of Mendez, 

 n.1 (noting that “it is proper to look to probative evidence outside
the record of conviction in inquiring as to the circumstances surrounding the
commission of the crime in order to determine whether a favorable exercise
of discretion is warranted” (citation omitted)); Matter of Grijalva, 

 (BIA 1988) (finding the admission of police reports
“especially appropriate in cases involving discretionary relief from
deportation, where all relevant factors concerning an arrest and conviction
should be considered”); see also Matter of D-R-, 25 I&N Dec. at 458
(“Immigration Judges have broad discretion to admit and consider relevant
and probative evidence.”).
    In balancing the various factors in the respondent’s case, the Immigration
Judge recognized the equities reflected in the record, including the
respondent’s residence in the United States for many years, his history of
gainful employment, and his strong ties to the community. The Immigration
Judge also noted the current country conditions in El Salvador in view of the
respondent’s claimed fear of persecution. However, the respondent has not
pursued the persecution claim on appeal or otherwise argued that a grant of
TPS is warranted because of adverse country conditions in El Salvador.
    Concluding that the serious nature of the respondent’s crime and his lack
of candor outweighed his equities, the Immigration Judge denied his
application for TPS in the exercise of discretion. Based on our consideration
of the Immigration Judge’s factual findings and our de novo review of his
discretionary determination, we agree with the Immigration Judge that denial
of the respondent’s application for TPS was appropriate. Accordingly, the
respondent’s appeal will be dismissed.
    ORDER: The appeal is dismissed.



instrument with certain indicia of reliability”); United States v. Juwa, 

(2d Cir. 2007) (finding that the district court impermissibly enhanced a criminal
defendant’s sentence “based solely on unproven charges in an indictment”).

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