Background
Jose Genaro Herrera, a citizen of El Salvador, entered the United States without inspection in 1996, was later removed, and reentered without inspection in 2000. He applied for temporary protected status after El Salvador received a TPS designation, but his initial and subsequent applications were denied. Herrera did not contest his removability in the proceedings at issue.
Herrera had pleaded guilty to two Ohio traffic offenses, one in Columbus in 1997 and another in Whitehall in 2012, for driving with a temporary instruction permit without an accompanying licensed driver. The records designated both offenses “M1.” An immigration judge pretermitted Herrera’s renewed TPS application because federal law makes a person convicted of two or more misdemeanors in the United States ineligible for TPS. The Board of Immigration Appeals dismissed Herrera’s appeal, and he petitioned the Sixth Circuit for review.
The Court’s Holding
The Sixth Circuit denied the petition. It held that repeal of the Columbus ordinance in 2004 did not erase Herrera’s 1997 conviction or eliminate its effect on TPS eligibility. The ordinance’s general savings clause preserved punishments and penalties incurred before repeal, and a USCIS policy concerning pre-conviction “no jail” certifications did not apply because Herrera had been convicted and sentenced while the ordinance’s full range of penalties remained available.
The court declined to consider Herrera’s contention that the evidence did not establish his 2012 offense as a first-degree misdemeanor because he had not presented that argument to the BIA and the government invoked the statutory exhaustion requirement. It also rejected his due-process claim. The immigration judge was permitted to pretermit an application when the applicant was ineligible for relief, Herrera had not opposed pretermission or disputed the degree of his convictions before the immigration judge, and he failed to show that an evidentiary hearing likely would have changed the outcome.
Key Takeaways
- A later repeal of a criminal ordinance does not eliminate a pre-repeal conviction when an applicable savings clause preserves previously incurred penalties and punishments.
- A USCIS policy addressing offenses subject to pre-conviction “no jail” certifications did not cover a conviction entered when incarceration remained legally possible.
- An immigration argument not adequately raised before the BIA cannot be reviewed when the government properly invokes the statutory exhaustion rule.
- Pretermitting a TPS application does not violate due process absent procedural error and a showing that a hearing could have produced a substantially different result.
Why It Matters
The decision confirms that TPS applicants cannot avoid the statutory two-misdemeanor bar merely because the underlying ordinance was later repealed. The legal effect of the conviction depends on applicable savings provisions and the penalties available when the conviction occurred.
The opinion also underscores the importance of developing factual challenges before the immigration judge and preserving them before the BIA. Applicants asserting a due-process right to a hearing must identify more than speculative evidence; they must show both a procedural defect and a realistic possibility that the omitted hearing would have affected the result.