Wilson Rosendo Aguilar v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4239
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WILSON ROSENDO AGUILAR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-826-883)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 16, 2009
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed: November 5, 2009)
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OPINION
_________
PER CURIAM
Wilson Aguilar petitions for review of the Board of Immigration Appeals’ (“BIA”)
final order of removal. For the reasons that follow, we will deny the petition.

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I.
Aguilar, a native and citizen of Honduras, entered the United States without
inspection in May 1998. In May 2003, he married Reyna de Los Angeles Molina, a
Salvadorian national with Temporary Protected Status (“TPS”) under 8 U.S.C. § 1254a.
In August 2006, the Department of Homeland Security issued Aguilar a Notice to Appear,
charging him with being subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). A
few weeks later, Aguilar applied for TPS based on his status as Molina’s spouse. In
January 2007, U.S. Citizenship and Immigration Services (“USCIS”) denied Aguilar’s
TPS application. USCIS concluded that Aguilar submitted his application after the initial
registration period (i.e., after September 9, 2002), and that he failed to qualify for late
initial filing under 8 C.F.R. § 244.2 because he was not married to a TPS registrant at the
time of the initial registration period.
Aguilar subsequently renewed his request for TPS in his removal proceeding
before the Immigration Judge (“IJ”). He argued that 8 C.F.R. § 1244.2 – the Executive
Office for Immigration Review’s applicable regulation, which is identical to
§ 244.2 – required that he be married to a TPS registrant at the present time, not at the
time of the initial registration period. The IJ rejected this argument, concluding that the
regulation required an applicant to be married to a TPS registrant at the time of the initial
registration period. Accordingly, the IJ denied Aguilar’s TPS application and ordered his
removal from the United States. The BIA affirmed on appeal, agreeing with the IJ’s

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reading of the regulation. Aguilar now petitions this Court to review the BIA’s decision.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). Although we exercise de novo review over constitutional claims and
questions of law, Yusupov v. Att’y Gen. of the U.S., 518 F.3d 185, 197 (3d Cir. 2008),
we must afford appropriate deference to an agency’s interpretation of its own regulations.
See Abdulai v. Ashcroft, 239 F.3d 542, 552 (3d Cir. 2001). Indeed, we have held that
“[a]n agency’s interpretation of its own regulation is ‘controlling . . . unless it is plainly
erroneous or inconsistent with the regulation.’” Id. (quoting Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 414 (1945)).
Aguilar challenges the BIA’s affirmance of the IJ’s interpretation of § 1244.2.
This section provides that an alien may be granted TPS if he, inter alia,
(f)(1) Registers for Temporary Protected Status during the
initial registration period announced by public notice in the
Federal Register, or
(2) During any subsequent extension of such designation if at
the time of the initial registration period:
(i) The applicant is a nonimmigrant or has been granted
voluntary departure status or any relief from removal;
(ii) The applicant has an application for change of status,
adjustment of status, asylum, voluntary departure, or any
relief from removal which is pending or subject to further
review or appeal;
(iii) The applicant is a parolee or has a pending request for

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reparole; or
(iv) The applicant is a spouse or child of an alien currently
eligible to be a TPS registrant.
8 C.F.R. § 1244.2(f)(1), (2) (emphasis added). Aguilar argues that the language “at the
time of the initial registration period” applies to subparagraphs (i), (ii), and (iii), but not
(iv) because only this last subparagraph is worded in the present tense. This interpretation
is completely at odds with the plain language of the regulation, as each subparagraph is
worded, at least in part, in the present tense, and there is nothing in the regulation
suggesting that “at the time of the initial registration period” does not apply to each
subparagraph. Although Aguilar alternatively argues that the regulation is ambiguous and
therefore should be construed in his favor, we believe there is no such ambiguity. We
conclude that the BIA did not err in affirming the IJ’s interpretation of this regulation.
Aguilar’s constitutional claims also lack merit. He first argues that § 1244.2
violates due process because it is void for vagueness. Even assuming that he can raise
such a challenge, see Huarcaya v. Mukasey, 550 F.3d 224, 230 (2d Cir. 2008) (per
curiam) (noting that petitioner’s “ability to maintain a void-for-vagueness challenge to a
civil regulation that provides immigration benefits is not clear”), his claim fails because
§ 1244.2’s meaning is clear. He also contends that the regulation violates the Equal
Protection and Due Process Clauses of the Fifth Amendment because it differentiates
between aliens who were married at the time of the initial registration period and aliens
who were married at the time of the late registration period. “[D]isparate treatment of

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different groups of aliens triggers only rational basis review under equal protection
doctrine.” DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1999). We have stated that,
“[u]nder this minimal standard of review, a classification is accorded ‘a strong
presumption of validity’ and the government has no obligation to produce evidence to
sustain its rationality.” Id. (quoting Heller v. Doe, 509 U.S. 312, 319 (1993)). Moreover,
“[o]nce a facially legitimate reason for the classification is found . . . we must rule the
classification constitutional.” Id.
In support of § 1244.2’s constitutionality, the Government asserts that the
regulation
help[s] to promote family unity among those family members
who were otherwise eligible for TPS, but were not included
on the initial registration application. It was not wholly
irrational to exclude aliens who married TPS registrants after
the initial registration period because those aliens were not
left off the initial application. By limiting the late registration
exception to aliens who were spouses at the time of the initial
registration period, the INS promoted family unity without
encouraging abuses of the system, such as entering into
marriage solely to benefit from the late TPS registration.
(Brief for Respondent at 22.) We conclude that this reasoning is facially legitimate, and
therefore uphold the regulation’s distinction between aliens married during the initial
registration period and aliens married during the late registration period.
In light of the above, Aguilar’s petition for review will be denied. Aguilar’s
“Motion for Emergency Stay of Removal/Deportation/Exclusion” and motion for oral
argument are also denied.

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