MATTER OF E-R-D-

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 24,2017

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

APPLICATION: FORM I-821, APPLICATION FOR TEMPORARY PROTECTED STATUS

The Applicant, a native and citizen of Haiti, seeks Temporary Protected Status (TPS). See Immigration and Nationality Act (the Act) section 244, 8 U.S.C. § 1254a. TPS provides lawful status and protection from removal for foreign nationals of specifically designated countries who timely register (and then periodically re-register) during designated periods, satisfY residence and physical presence requirements, are admissible to the United States, were not firmly resettled in another country, and are not subject to certain criminal- and security-related bars.

The Director of the California Service Center denied the re-registration application, concluding that the record did not establish that Applicant had been continuously physically present and resident in the United States during the requisite period.

On appeal, the Applicant submits additional evidence and asserts that her departures from the United States were brief, casual, and innocent, as they were necessary to strengthen her marriage.

Upon de novo review, we will dismiss the appeal.

I. LAW

Deparment of Homeland Security (DHS) regulations, implementing the provisions of section 244 of the Act provide that an applicant who is a national of a foreign state designated by the Secretary of Homeland Security, is eligible for TPS if the applicant establishes, among other criteria, that the applicant has been continuously physically present in the United States since the effective date of the most recent designation of that foreign state and has continuously resided in the United States since a date designated qy the Secretary. 8 C.F.R. § 244.2.

The Secretary designated (January 21, 2010) and redesignated (July 23, 2011) Haiti as a country eligible for TPS. Under the redesignation, persons applying for TPS offered to Haitians (and persons without nationality who last habitually resided in Haiti) must demonstrate that they have continuously resided in the United States since January 12, 2011, and that they have been continuously physically present in the United States since July 23, 2011. The TPS designation has been extended several times, with the latest extension granted until July 22, 2017. ·

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Continuously physically present means "actual physical presence in the United States for the entire period specified in the regulations," but an applicant shall not be considered to have failed to maintain continuous physical presence because of "brief, casual, and innocent absences." 8 C.P.R. § 244.1.

Continuously resided means "residing in the United States for the entire period specified in the regulations," but an applicant shall not be considered to have failed to maintain continuous residence "because of a brief, casual and innocent absence . . . or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the [applicant]." 8 C.P.R. § 244.1.

A brief, casual, and innocent absence IS an absence from the United States that satisfies the following criteria:

(1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence;

(2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and

(3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.

8 C.F.R. § 244.1.

The Secretary shall withdraw TPS granted to a foreign national if, among other criteria, the applicant "has not remained continuously physically present in the United States from the date the applicant first was granted temporary protected status . . . . Section 244( c )(3) of the Act.

The burden of proof is on the Applicant to demonstrate eligibility by a preponderance of the evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). Applicants shall submit all documentation as required in the instructions or requested by U.S.· Citizenship and Immigration Services. 8 C.P.R. §· 244.9(a). The sufficiency of all evidence will be judged according to its relevancy, consistency, credibility, and probative value. 8 C.F.R. § 244.9(b). To meet the burden of proof, the Applicant must provide supporting documentary evidence of eligibility apart from the Applicant's own statements. !d.

II. ANALYSIS

The issue on appeal is whether the Applicant has demonstrated the requisite continuous physical presence and residence in the United States for Haitian TPS applicants. The Applicant asserts that she has been continuously physically present in the United States since July 23, 2011, and continuously resided in the United States since January 12, 2011, as required.

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The Applicant acknowledges that she departed from the United States on several occasions in 2014 and 2015, but asserts that the United States is her permanent home. The Applicant contends that she only left the United States because, after the birth of her son, the health of her marriage depended on her producing a daughter for her husband, who was working in Zambia. We find that the Applicant's absences from the United States were not brief, casual, and innocent, so that she did not maintain the requisite continuous physical presence and residence for TPS eligibility.

The Applicant's most significant departures from the United States during the continuous physical presence and residence periods were from August 2014 to January 2015 and January 2015 to July 2015, approximately five months and six months, respectively. Despite these absences, the Applicant contends that she has continuously resided in the United States, as she continued to maintain a bank account, real estate, taxes, and her education in Florida. The record contains supporting evidence of her assertions; including taxes, educational records, and other financial documents for the Applicant in Florida. Accordingly, the Applicant argues that she did not break her continuous residence and physical presence in th~ United States because she established her permanent home in the Unites States.

The Applicant asserts that she had to depart from the United States because the viability and survival of her marriage depended upon producing a daughter for her husband. The Applicant, as evidenced by supporting documentation in the record, underwent fertility treatment in Florida, which did not result in pregnancy. At the time of the Applicant's 2014 and 2015 departures from the United States, her husband was residing and working in Zambia. As such, the Applicant asserts that she went to Zambia to receive traditional herbal fertility treatments in the company of her husband. The Applicant became pregnant in November 2014, which resulted in a miscarriage, and became pregnant again in 2015, giving birth to her daughter in The Applicant acknowledges that she reentered the United States in July 2015, approximately months after her most recent pregnancy, but states that she was sick and vomiting, feared for the safety of her pregnancy, and wanted her son to finish the school year abroad. The record indicates that the Applicant requested and was granted advance parole during the periods ofher 2014 and 2015 departures from the United States.

A. Duration

The regulations at 8 C.F.R. § 244.1 require each TPS applicant's absence from the United States to be of short duration to meet the brief, casual, and innocent requirements. As stated, the Applicant's two longest absences from the United States since her TPS grant were approximately five and six months long. The specific dates of her departure were from August 15, 2014 to January 2, 2015, and January 24, 2015 to July 12, 2015.

The Applicant cites to case law in stating that a determination of whether to excuse a foreign national's absence from the United States is dependent upon the type of benefit requested. We do not dispute this assertion. The Applicant further asserts that in the context of TPS, there is no definitive number of days that determine whether an absence is brief, casual, and innocent. The Applicant cites to Rosenburg v. Fleuti, 374 U.S. 449 (1963) to support her assertion that she did not leave the United States to accomplish a purpose contrary to law or policy, as rather, she sought to strengthen her marriage and did

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not intend to interrupt her residence in Florida. We do not find that the Applicant departed the United States for a purpose or to engage in actions contrary to law. However, unlike the foreign national in Rosenberg v. Fleuti whose only absence from the United States was a visit of a couple of hours to Mexico, the Applicant departed from the United States for two lengthy trips of approximately five months and six months duration. We do not find that the Applicant's absences from the United States were of short duration as required to meet the brief, casual, and innocent requirements.

B. Purpose

The regulations at 8 C.P.R. § 244.1 also require each TPS applicant's absence from the United States to be reasonably calculated to accomplish the purpose for the absence. The Applicant's stated purpose for departing from the United States from August 2014 to January 2015 and January 2015 to July 2015 was to receive fertility treatment to produce a daughter for her husband.

In a statement submitted by the Applicant in September 2016, the Applicant asserts that she underwent herbal medicine fertility treatment in Zambia beginning in October 2014, became pregnant in November 2014, then became sick and suffered a miscarriage. The Applicant further asserts that after departing Zambia in January 2015, she reentered later that same month to continue her fertility treatment and became pregnant again in 2015. The Applicant submitted a letter from stating that the Applicant was seen at the pharmacy from September 2014 to March 2015, suffered a miscarriage and suspended treatment until she was medically cleared to resume treatment, then became pregnant again in 2015.

The Applicant departed the United States for Zambia on August 15, 2014 for the stated purpose of receiving fertility treatment. However, the Applicant does not address why her initial visit to a pharmacy dispensing herbal fertility medicine did not occur until September 2014, or why she did not begin her fertility treatment until October 2014, or two months after her departure. The record does not contain information concerning when the Applicant miscarried after her November 2014 pregnancy or supporting documentation for the Applicant's bacterial illness, medical clearance to resume her fertility treatment, or sickness following her 2015 pregnancy.

The letter from evidencing the Applicant's fertility treatment in Zambia is vague in discussing the dates of the Applicant's treatment, thus limiting its probative value. As stated, the letter indicates that the Applicant was seen in the pharmacy from September 2014 to March 2015 and suspended treatment due to a miscarriage until she was medically cleared to resume. The letter, however, does not mention that the Applicant was absent from Zambia from January 2, 2015 to January 24, 2015, as she returned to the United States during that time period. The letter also does not contain the dates on which the Applicant received and suspended treatment.

The Applicant asserts that after her March 2015 pregnancy, she was sick and vomiting and could not travel. The Applicant stated that she intended to return to the United States in May ofthat year, but did not want to jeopardize her pregnancy and wanted her son to finish his school year in Zambia. The Applicant did not return to the United States until July 2015. The Applicant does not indicate

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why her pregnancy would bejeopardized by returning to the United States prior to July 2015 and, as stated, the record does not contain medical documentation of her illness following her 2015 pregnancy. Remaining in Zambia for months for her son's education would not be an absence reasonably calculated to accomplish the Applicant's stated purpose of fertility treatment.

Overall, the evidence in the record does not demonstrate that her absences from the United States were reasonably calculated to accomplish her stated purpose, even if we were to conclude that they were of a short duration. Accordingly, we concur with the Director's finding that the Applicant has not demonstrated the requisite continuous physical presence and residence in the United States for TPS re-registration because her absences from the United States were not brief, casual, and innocent. As there is no indication that the Applicant's previous TPS was withdrawn, we also withdraw her TPS under 8 C.F.R. § 244.14, as she has not remained continuously physically present in the United States from the date she was granted TPS.

III. CONCLUSION

The Applicant has not overcome the basis of the Director's denial and demonstrated that she meets the TPS eligibility requirements for continuous physical presence and residence.

ORDER: The appeal is dismissed.

Cite as Matter of E-R-D-, ID# 227574 (AAO Apr. 24, 2017)

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