BIA Holds Physical Presence of Parent Cannot be Imputed to Child for TPS Purposes

The Board of Immigration Appeals (BIA) held recently in Matter of Duarte-Luna, 26 I&N Dec. 325 (BIA 2014), that the continuous physical presence of a parent could not be imputed to a minor child for purposes of Temporary Protected Status (TPS). In the case, two sisters from El Salvador sought TPS based, in part, on the physical presence of their mother. One of the requirements for TPS is that the foreign national demonstrate continuous physical presence in the US since the most recent designation date for the individual’s home country. In Duarte-Luna, the mother was physically present on the designation date, but the minor children did not arrive in the U.S. until two years later. In some cases, such as those involving abandonment of permanent residence, a parent’s residence can be imputed to minor children. However, the BIA held that physical presence could not be imputed for TPS purposes, as there was a distinction between matters involving “state of mind,” such as one’s residence or domicile, and objective facts, such as physical presence.

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