Pablo Rubio v. Jefferson Sessions, III

United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-1902 ___________________________ Pablo Alberto Rubio lllllllllllllllllllllPetitioner v. Jefferson B. Sessions, III lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: February 14, 2018 Filed: May 25, 2018 ____________ Before LOKEN, BENTON, and ERICKSON, Circuit Judges. ____________ LOKEN, Circuit Judge. Pablo Rubio, a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals (BIA) decision denying his application for Temporary Protected Status (TPS) and ordering his removal.1 The BIA determined that Rubio is ineligible for TPS because he has been convicted of two or more misdemeanors. See 8 U.S.C. § 1254a(c)(2)(B)(i). Rubio argues this eligibility determination was an error of law because his convictions for violating Columbia, Missouri municipal ordinances are not “convictions” under the Immigration and Nationality Act (INA). Though the grant of TPS is discretionary, we have jurisdiction to review the threshold legal issue of statutory eligibility. See 8 U.S.C. § 1252(a)(2)(D); Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1144-45 (11th Cir. 2009). We deny the petition for review. I. Background The TPS program allows nationals of designated foreign states to remain in the United States temporarily if they meet statutory eligibility requirements. See 8 U.S.C. § 1254a(a)(1). In 2001, the Immigration and Naturalization Service (INS) designated El Salvador a TPS-qualifying state after earthquakes prevented the country from adequately handling its nationals’ return. See Designation of El Salvador Under [TPS] Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001). The designation was extended multiple times. See Extension of the Designation of El Salvador for [TPS], 81 Fed. Reg. 44,645 (Jul. 8, 2016). Earlier this year, United States Citizenship and Immigration Services (USCIS, the INS successor) terminated El Salvador’s designation, effective September 9, 2019. See Termination of the Designation of El Salvador for [TPS], 83 Fed. Reg. 2654 (Jan. 18, 2018). Rubio entered the United States in August 1999 without being admitted or paroled and later secured TPS. He was judged guilty of the municipal ordinance 1 The BIA’s order permitted Rubio to voluntarily depart the United States. When he filed this petition for review, the BIA’s alternative final order of removal became effective. See 8 C.F.R. § 1240.26(i). -2- violations at issue in 2002, for leaving the scene of an accident, and in 2003, for driving with excessive blood alcohol content. See Columbia, Mo., Code §§ 14-91, 14-613. In 2011, he pleaded guilty in a state circuit court to driving with a suspended license, a misdemeanor offense. See Mo. Rev. Stat. § 302.321. In July 2012, USCIS withdrew Rubio’s TPS after he did not adequately respond to the agency’s request for additional information about two of his convictions. See 8 U.S.C. § 1254a(c)(3)(C); 8 C.F.R. § 1244.14(a)(3). In early 2014, the Department of Homeland Security (DHS) served a Notice to Appear that commenced removal proceedings and alleged that Rubio was removable as an “alien present in the United States without being admitted or ...

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