                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2320
                                   ___________

Blanca Salguero-Fuentes;                *
Francisco Mejia-Aguilar,                *
                                        *
             Petitioners,               * Petition for Review of an
                                        * Order of the Board of
       v.                               * Immigration Appeals.
                                        *
                   1
Eric H. Holder, Jr. , Attorney General *
of the United States,                   *
                                        *
             Respondent.                *
                                   ___________

                             Submitted: March 10, 2009
                                Filed: June 25, 2009
                                 ___________

Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
                          ___________

BRIGHT, Circuit Judge.

      Petitioner Blanca Salguero-Fuentes seeks review of a Board of Immigration
Appeals (“BIA”) removal order, which affirmed the immigration court’s
determination that it lacked jurisdiction to consider de novo Salguero-Fuentes’s
Temporary Protected Status (“TPS”) eligibility under 8 U.S.C. § 1254a when


      1
       Eric H. Holder, Jr., has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
Salguero-Fuentes failed to exhaust her administrative remedies. We grant the petition
for review and remand the case to the BIA for further interpretation of the statutory
framework.

                                     I. Background

       On March 9, 2001, the United States Attorney General designated El Salvador
for TPS status following major earthquakes in that country. This status extends to
certain designated countries with on-going armed conflict or instability due to major
natural disasters, providing temporary humanitarian relief by protecting from removal
those aliens in the United States who are nationals of countries with TPS status. See
8 U.S.C. § 1254a et seq.

       Salguero-Fuentes, a citizen and national of El Salvador living in the United
States, filed an unsuccessful TPS application during the initial registration period in
2002 and then a second application in 2003, which the Department of Homeland
Security (“DHS”) denied for lack of sufficient evidence of eligibility. Salguero-
Fuentes then filed an untimely appeal to the DHS’s internal Administrative Appeals
Unit (“AAU”) attempting to cure the alleged evidentiary deficiencies, but failed to
perfect her AAU appeal because of its untimeliness. Several months after the AAU
denied the appeal for untimeliness, DHS served her with a charging document placing
her in removal proceedings together with her son.

       An immigration judge found Salguero-Fuentes removable as charged. The
judge ruled, applying TPS regulations, that the immigration court had no jurisdiction
to determine de novo TPS protection in the removal proceedings because Salguero-
Fuentes had not perfected an AAU appeal. Therefore, Salguero-Fuentes could not
rely on TPS eligibility in the removal proceedings.




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       Salguero-Fuentes appealed the immigration judge’s ruling to the BIA, a single
member of which affirmed the immigration judge. Salguero-Fuentes then petitioned
this Court for review, arguing that the immigration judge erred in refusing to exercise
jurisdiction over her TPS eligibility.

                                      II. Discussion

      This Court reviews the BIA’s legal determinations de novo, “according
substantial deference to the [BIA’s] interpretation of the statutes and regulations it
administers.” Regalado-Garcia v. I.N.S., 305 F.3d 784, 787 (8th Cir. 2002) (citing
Tang v. I.N.S., 223 F.3d 713, 718-19 (8th Cir. 2000)).

       Salguero-Fuentes argues that the unambiguous language in the TPS statute
expressly permits her to assert TPS protection during removal proceedings, despite her
failure to perfect an AAU appeal. She points to 8 U.S.C. § 1254a(b)(5)(B), which
requires the establishment of an administrative appeal process for applicants denied
TPS benefits, but further provides that “[s]uch [a] procedure shall not prevent an alien
from asserting protection under this section in removal proceedings.” Salguero-
Fuentes also contends that the decision in her case violates a precedential decision, In
re Barrientos, 24 I. & N. Dec. 100 (BIA 2007), which, according to Salguero-Fuentes,
interprets the relevant regulations as permitting aliens to raise TPS eligibility during
removal proceedings without first exhausting their administrative remedies.

       In response, the government requests a remand for an explanation of the BIA’s
interpretation of the relevant statutory framework. The government argues that
without such explanation, this Court cannot effectively review the agency’s
interpretation of the law. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 844 (1984).




                                          -3-
       We agree that such a remand is necessary. The BIA, in a short opinion,
affirmed the immigration court based on that court’s opinion. However, neither court
fully addressed why, under the statutory framework, the failure to perfect an AAU
appeal bars an alien from raising TPS eligibility at the removal proceedings.
Distinguishing In re Barrientos, wherein the petitioner had exhausted his
administrative remedies, the BIA here simply cited the TPS statute for the proposition
that an alien may raise TPS eligibility at removal proceedings only after exhausting
administrative remedies. Salguero-Fuentes argues that the statute clearly stands for
the opposite proposition. In the first instance, the BIA should review and interpret the
applicable statutes and decide whether an alien must exhaust administrative remedies
before being able to rely on TPS eligibility in removal proceedings.

                                     III. Conclusion

       For the foregoing reasons and for that purpose, we remand to the BIA for
further proceedings. We request an expedited determination of the matter in issue.
Petitioner, if suffering an adverse ruling, may renew an appeal to this Court.
                         ______________________________




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