With the recent DHS pronouncements terminating Temporary Protected Status (TPS) for Honduras, Nicaragua, Haiti, and El Sa lvador, it is increasingly critical for those eligible to re-register and extend their status to do so. At the same time, individuals need to review whether they do, in fact, qualify to renew their TPS. Criminal convictions, in particular, may not only endanger the ability to extend one’ status but possibly expose a person to removal proceedings. According to the regulations, conviction of a felony or two or more misdemeanors committed in the United States will disqualify one from TPS.
For purposes of TPS eligibility, a felony is defined as a crime committed in the United States punishable by imprisonment for a term of more than one year, regardless of the term actually served. There is a minor exception for situations where an offense is defined by a State as a “misdemeanor” and the sentence actually imposed is one year or less (regardless of how much the person served): in such a case, the conviction will be considered a misdemeanor.
A misdemeanor is defined as a crime committed in the US that either is:
· Punishable by imprisonment for a term of one year or less, regardless of the term actually served; or
· A crime treated as a misdemeanor under the felony exception referred to above
For purposes of TPS, a crime punishable by imprisonment for a maximum term of five days or less shall not be considered a felony or misdemeanor.
It is important to note that the criminal grounds that apply to TPS are considerably more expansive than the criminal grounds of admissibility found in INA 212(a), which can also disqualify an applicant. In other words, one does not necessarily need to be convicted of a Crime Involving Moral Turpitude (“CIMT”) to be ineligible for TPS. There are, in fact, a multitude of crimes and offenses that do not necessarily meet the legal definition of “moral turpitude” but which do constitute felonies or misdemeanors. As an example, a simple Driving While Intoxicated, without any aggravating factors, is not generally considered a CIMT. However, in most states, it is considered a misdemeanor. Hence, if an individual has two or more DWIs, the TPS application will likely be denied.
Importantly, conviction of a felony or two misdemeanors is only one basis to deny a TPS application. Failure to maintain continuous physical presence or continuous residence as well as failure to meet initial registration requirements can also doom an application. But criminal issues can be especially problematic since they are more likely to be referred to the enforcement branch of immigration and trigger apprehension. Therefore, any individual who have been arrested or charged with an offense that could conceivably be considered criminal or punished by incarceration should carefully review his/his prospects with an attorney prior to filing. For more information on how to apply for or renew TPS, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.