Case: 21-60875 Document: 00516704908 Page: 1 Date Filed: 04/07/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED April 7, 2023 No. 21-60875 Lyle W. Cayce ____________ Clerk Maria Cristina Tobar, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. ______________________________ Petition for Review of an Order of the Board of Immigration Appeals Agency No. A094 054 378 ______________________________ Before Jolly, Haynes, and Graves, Circuit Judges. E. Grady Jolly, Circuit Judge: Maria Cristina Tobar is a native and citizen of El Salvador. An Immigration Judge (“IJ”) denied her application for Temporary Protected Status (“TPS”), finding that she was ineligible for such relief because she had not satisfied the continuous physical presence requirement. Tobar appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s decision. We find no error and DENY Tobar’s petition for review. Case: 21-60875 Document: 00516704908 Page: 2 Date Filed: 04/07/2023 No. 21-60875 I. Tobar is a native and citizen of El Salvador. She originally entered the United States in 1997 under her birth name, Guadalupe Tobar. That same year, Tobar was apprehended by immigration officials and ordered removed in absentia. But as is often the case, Tobar remained in the United States. At some point, she sought to adjust her immigration status by applying for TPS—a discretionary form of relief that allows noncitizens to remain in the United States—but she applied under a different name. Tobar was granted TPS in 2003 under that different name and continued to renew her TPS using that information. TPS, however, requires noncitizens to maintain a continuous physical presence in the United States for a set period of time. See 8 U.S.C. § 1254a; Castillo-Enriquez v. Holder, 690 F.3d 667, 668–69 (5th Cir. 2012) (citing 8 U.S.C. § 1254a(c)(1)(A)). Leaving the country can break a noncitizen’s continuous physical presence. See Castillo-Enriquez, 690 F.3d at 668-69 (citing 8 U.S.C. § 1254a(c)(1)(A)). That said, noncitizens may leave the country without disturbing their continuous physical presence if their absences from the United States are “brief, casual, and innocent.” 8 U.S.C. § 1254a(c)(4). According to immigration regulations, a “brief, casual, and innocent” absence is a departure from the United States that is “of short duration and reasonably calculated to accomplish the purpose(s) for the absence.” 8 C.F.R. § 1244.1. Since obtaining TPS, Tobar has departed the United States only on one occasion, but she was out of the country for 111 days. In 2015, she quit her job and returned to El Salvador to visit her sick father, whom she hoped to see once more before he passed away. She considered seeking permission from immigration officials to leave the United States but decided not to do so because her TPS was not in her own name. 2 Case: 21-60875 Document: 00516704908 Page: 3 Date Filed: 04/07/2023 No. 21-60875 Upon her return, Tobar was apprehended by Border Patrol Agents. The Department of Homeland Security initiated formal removal proceedings against her. At her hearing before the IJ, Tobar …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals