Temporary Protected Status (TPS) – What You Don’t Know Can Hurt You

After the January 12, 2010 earthquake in Haiti, the US Government designated Haiti as a country experiencing “extraordinary and temporary conditions” that prevent its nationals from returning to the country safely.  Consequently, Haitian nationals are eligible to apply for Temporary Protected Status in the US, in  order to avoid removal and to obtain Employment Authorization.

As usual, however, the devil is always in the details.  Haitians who have previously been arrested for a crime should know that even relatively minor past brushes with the criminal law could render them ineligible for TPS and could lead not only to a denial of their application for TPS but possibly even to removal/deportation from the country.  And the standard is a tough one –

TPS may not be granted to anyone who has been:

  1. convicted of any felony here in the United States.  The regulations define a felony for this purpose as any crime “punishable by imprisonment for a term of more than one year, regardless of the term actually served.”
  2. convicted of 2 or more misdemeanors here in the United States.  The regulations define a misdemeanor for this purpose as any crime “punishable by imprisonment for a term of one year or less, regardless of the term such alien actually served.”  The terms also includes crimes punishable by imprisonment for longer than one year but that are defined by the State as a misdemeanor, provided that the sentence actually imposed in one year or less.  On the other hand the regulations specifically exclude from this definition crimes that are punishable for a maximum term of 5 days or less. Fortunately for New Yorkers, the Department of Homeland Security has recently instructed its staff that certain no-criminal violations should not be considered disqualifying misdemeanors even where the maximum potential sentenced exceeded five days and the disposition involved a “beyond a reasonable doubt” standard of proof, because to do otherwise would “be in tension with the humanitarian purpose of the TPS program and would lead to incongruous results.”  It is not clear yet whether DHS will apply this reasoning to similar non-criminal dispositions in other states.  But to be on the safe side, if you have had any contact with the criminal law, however slight, contact an attorney who can help ensure that your application for TPS does not end in deportation.
  3. convicted of or admitted a single misdemeanor or lesser violation of law that involves a controlled substance or crime involving moral turpitude
  4. conduct that would otherwise render an alien inadmissible to the US, such as drug addiciton, prostitution, falsely claiming US citizenship, immigration fraud etc.
  5. convicted of or engaged in conduct that is a bar to asylum, such as participating in the persecution of another person or having been convicted of a “particularly serious crime” nonpolitical crime outside the US.

Clients who have consulted me about TPS have sometimes been surprised to hear that conduct that they had long since forgotten about or thought was irrelevant could possibly come back to haunt them on their application for TPS.  So don’t take a chance.  If you have had any encounter with the Law, no matter how minor, Click here to contact Karyn Schiller today for a free consultation.

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