USCIS Memorandum -TPS Adjudications Involving “No Jail” or “No Incarceration

USCIS Memorandum -TPS Adjudications Involving “No Jail” or “No Incarceration

Guidance

I. “No Jail” or “No Incarceration” Certifications

A legal issue has been presented regarding whether certain categories of minor offenses fall outside the definition of a misdemeanor contained in 8 C.F.R. § 244.1 for purposes of TPS. Specifically, a legal question has been raised whether an offense certified as “no jail” or “no incarceration” in a Florida case qualifies as a misdemeanor under the regulation. One of the several grounds of ineligibility for TPS is the conviction of two or more misdemeanors, as defined in § 244.1, committed in the United States. 8 C.F.R. § 244.4(a). The definition of a misdemeanor for TPS purposes is contained in 8 C.F.R. § 244.1, which states:

Misdemeanor means a crime committed in the United States, either:

(1)

Punishable by imprisonment for a term of one year or less, regardless of the term such alien actually served, if any, or

(2)

A crime treated as a misdemeanor under the term “felony” in [8 C.F.R. § 244.1].

For purposes of this definition, any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a felony or misdemeanor.

The Department has concluded that a Florida “no jail” or “no incarceration” certification, issued pursuant to Rule 3.994 of the Florida Rules of Criminal Procedure, fundamentally changes the maximum possible sentence for an offense by removing the possibility of incarceration for that offense. As a result, the Department has further concluded that an offense with such a certification, unless withdrawn pursuant to Rule 3.111(b)(1)(C) of the Florida Rules of Criminal Procedure, does not meet the definition of a misdemeanor under 8 C.F.R. § 244.1 because it would not constitute an offense punishable by imprisonment.

If an applicant presents evidence that another state or locality has issued a “no jail,” “no incarceration,” or “no imprisonment” type certification for an offense that may be relevant to his or her TPS request, adjudicators must bring the case to the attention of USCIS counsel so that it can be determined whether, given the particular nature of such a certification and the relevant laws, it means that the offense does not qualify as a misdemeanor under 8 C.F.R. § 244.1.

Certain Offenses Not Considered “Misdemeanors” Under State and Local Laws:

As instructed during recent TPS trainings, adjudicators are reminded that they are to request USCIS counsel to review any case where it appears that the applicant may be ineligible for TPS on the basis of two misdemeanors, as defined by 8 C.F.R. § 244.1, but where one or more of the offenses at issue is not classified as a misdemeanor by the state or local jurisdiction involved. These cases present issues requiring legal determinations. In some cases, the offense(s) may ultimately be determined to be a misdemeanor for TPS purposes, but there may be other cases where either the particular offense does not meet the requirements for a “crime,” which is the initial requirement in the TPS misdemeanor definition, or other considerations apply. See, e.g., “Temporary Protected Status (TPS) adjudications involving New York traffic infractions or New York violations,” Memorandum from Donald Neufeld, Associate Director, USCIS Service Center Operations and Perry J. Rhew, Chief, USCIS Administrative Appeals Office, dated January 17, 2010. Officers are advised that this reminder to seek USCIS counsel advice in these types of cases applies to all states and localities.

Field Guidance and AFM Update, Chapter 38.1(e)(12)

Chapter 38.1(e)(12)(Grounds for Ineligibility) of the AFM is updated to add the following new subsection G:

“He or she has been convicted of two or more misdemeanors, as defined by 8 C.F.R. § 244.1, committed in the United States. (Section 244(c)(2)(B)(i) of the Act; 8 C.F.R. 244.4(a)).

In determining whether an applicant has been convicted of two or more misdemeanors, adjudicators should also refer to the guidance memoranda entitled “Temporary Protected Status adjudications involving “No Jail” or “No Incarceration” Certifications, and Reminder for cases involving certain potential misdemeanors,” dated January 21, 2011; and “Temporary Protected Status (TPS) adjudications involving New York traffic infractions or New York violations,” Memorandum from Donald Neufeld, Associate Director, USCIS Service Center Operations and Perry J. Rhew, Chief, USCIS Administrative Appeals Office, dated January 17, 2010.”