Case: 21-60875 Document: 00516704908 Page: 1 Date Filed: 04/07/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
April 7, 2023
No. 21-60875 Lyle W. Cayce
____________ Clerk
Maria Cristina Tobar,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A094 054 378
______________________________
Before Jolly, Haynes, and Graves, Circuit Judges.
E. Grady Jolly, Circuit Judge:
Maria Cristina Tobar is a native and citizen of El Salvador. An
Immigration Judge (“IJ”) denied her application for Temporary Protected
Status (“TPS”), finding that she was ineligible for such relief because she
had not satisfied the continuous physical presence requirement. Tobar
appealed to the Board of Immigration Appeals (“BIA”), which affirmed the
IJ’s decision. We find no error and DENY Tobar’s petition for review.
Case: 21-60875 Document: 00516704908 Page: 2 Date Filed: 04/07/2023
No. 21-60875
I.
Tobar is a native and citizen of El Salvador. She originally entered the
United States in 1997 under her birth name, Guadalupe Tobar. That same
year, Tobar was apprehended by immigration officials and ordered removed
in absentia. But as is often the case, Tobar remained in the United States. At
some point, she sought to adjust her immigration status by applying for
TPS—a discretionary form of relief that allows noncitizens to remain in the
United States—but she applied under a different name. Tobar was granted
TPS in 2003 under that different name and continued to renew her TPS using
that information.
TPS, however, requires noncitizens to maintain a continuous physical
presence in the United States for a set period of time. See 8 U.S.C. § 1254a;
Castillo-Enriquez v. Holder, 690 F.3d 667, 668–69 (5th Cir. 2012) (citing 8
U.S.C. § 1254a(c)(1)(A)). Leaving the country can break a noncitizen’s
continuous physical presence. See Castillo-Enriquez,
690 F.3d at 668-69
(citing 8 U.S.C. § 1254a(c)(1)(A)). That said, noncitizens may leave the
country without disturbing their continuous physical presence if their
absences from the United States are “brief, casual, and innocent.” 8 U.S.C.
§ 1254a(c)(4). According to immigration regulations, a “brief, casual, and
innocent” absence is a departure from the United States that is “of short
duration and reasonably calculated to accomplish the purpose(s) for the
absence.”
8 C.F.R. § 1244.1.
Since obtaining TPS, Tobar has departed the United States only on
one occasion, but she was out of the country for 111 days. In 2015, she quit
her job and returned to El Salvador to visit her sick father, whom she hoped
to see once more before he passed away. She considered seeking permission
from immigration officials to leave the United States but decided not to do so
because her TPS was not in her own name.
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Upon her return, Tobar was apprehended by Border Patrol Agents.
The Department of Homeland Security initiated formal removal proceedings
against her. At her hearing before the IJ, Tobar conceded to being removable
as charged. Tobar, nonetheless, sought relief from removal by applying once
more for TPS—this time using her own name. 1
At her removal hearing, the IJ determined that Tobar’s trip to El
Salvador was a problem. That is, the IJ determined that she was ineligible for
TPS because her 111-day absence disrupted her continuous physical presence
in the United States. Tobar argued that her absence did not disrupt her
presence because the absence was “brief, casual, and innocent.” The IJ,
however, disagreed and concluded that her absence was not brief, casual, and
innocent because it was not “of short duration” as required by 8 C.F.R. §
1244.1.
Tobar appealed to the BIA. The BIA affirmed the IJ’s decision,
concluding that Tobar was not statutorily eligible for TPS because her
absence did not meet the definition of “brief, casual, and innocent.” The BIA
specifically held that Tobar “did not meet her burden of establishing that a
departure of 111 days is a ‘short duration’ that was reasonably calculated to
accomplish the purpose of her absence from the United States.”
The IJ had made additional findings of fact that supported the BIA’s
holding. First, the IJ found that although Tobar’s father had been diagnosed
with cancer in 2002, Tobar had waited thirteen years to return to see him.
Second, the IJ found that although Tobar stated her father had passed away
only a week after her return to the United States in 2015, other evidence,
which she does not seem to dispute, indicated that he did not pass away until
_____________________
1
Tobar also sought relief by applying for cancellation of removal, which the IJ denied. On
appeal to the BIA, Tobar did not contest the denial of cancellation of removal.
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No. 21-60875
2017. Thus, resting on such findings, the BIA concluded that the evidence
did “not establish that it was necessary for her to remain for that length of
time.” Accordingly, the BIA affirmed the IJ’s decision and denied Tobar
relief. This petition for review followed.
II.
Generally, we review only the final decision of the BIA. Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012) (citing Wang v. Holder,
569 F.3d 531, 536 (5th Cir. 2009)). Here, the BIA issued its own opinion and
elaborated on its own reasoning, so we review the BIA’s decision. Orellana-Monson,
685 F.3d at 517. “The BIA’s conclusions of law are reviewed de
novo, although deference is given to the BIA’s interpretation of immigration
regulations if that interpretation is reasonable.” Barrios–Cantarero v. Holder,
772 F.3d 1019, 1021 (5th Cir. 2014) (per curiam) (citing Hernandez-Castillo v.
Moore,
436 F.3d 516,519 (5th Cir. 2006)). That is, when the BIA’s legal
conclusion embodies an interpretation of its own ambiguous regulation, we
defer to the BIA’s interpretation unless it is “plainly erroneous or
inconsistent with the regulation.” See Dominion Ambulance, L.L.C. v. Azar,
968 F.3d 429, 434 (5th Cir. 2020) (cleaned up) (quoting Chase Bank USA,
N.A. v. McCoy,
562 U.S. 195, 208 (2011)).
III.
On appeal, Tobar’s primary contention is that the BIA erred in
concluding that her absence did not meet the definition of a “brief, casual,
and innocent absence” under 8 C.F.R. § 1244.1. In her view, the BIA
misinterpreted the regulation by applying a per se rule that absences
exceeding three months can never be absences “of short duration and
reasonably calculated to accomplish” their purposes. Tobar contends that
this interpretation was legal error because there is no statutory or regulatory
TPS provision indicating that a departure exceeding three months cannot
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No. 21-60875
qualify as a brief, casual, and innocent absence. She further argues that 111
days was a relatively short period of time given the circumstances.
We can agree that the phrase “of short duration and reasonably
calculated to accomplish the purpose(s) for the absence” is not further
defined in § 1244.1, nor is it defined in similar regulatory provisions. The lack
of a single, precise definition indicates, however, that the regulation is
malleable—that is, it is to be interpretated in the light of given circumstances.
Consequently, we defer to the BIA’s interpretation of the regulation in the
context of this case unless it is plainly erroneous or inconsistent with the
regulation.
Here, we see nothing suggesting that the BIA’s application of the
regulation’s terms to the circumstances surrounding Tobar’s absence was
plainly erroneous or inconsistent with the regulation itself. Dominion
Ambulance, 968 F.3d at 434; Corzo-Rodriguez v. Holder, 559 F. App’x 358, 362
(5th Cir. 2014) (per curiam) (deferring to BIA’s interpretation of regulation
when it was not plainly erroneous). The BIA came to its determination that
Tobar’s absence from the United States was not “of short duration and
reasonably calculated to accomplish” her purpose of visiting her sick father
in the light of a factual record that shows: (1) that she quit her job before she
departed; (2) that she was gone for 111 days; (3) that she had waited thirteen
years since her father’s cancer diagnosis to visit him; and (4) that the
evidence, contrary to what she said, indicated that his death was not
imminent—he did not die until two years after her return to the United
States. Thus, on the totality of the record before us, we cannot say that the
BIA erred in its conclusion that Tobar failed to satisfy the continuous
physical presence in the United States required to be eligible for TPS.
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IV.
For the reasons given above, Tobar’s petition for review of the BIA’s
decision is
DENIED.
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