UPDATE: Ninth Circuit Upholds TPS Path To Legal Residency
On March 31, 2017, the Ninth Circuit held that under Temporary Protected Status, statute, a TPS recipient is deemed to be in lawful status and has satisfied the requirements of inspection and admission for the purposes of adjustment of status.
This means if your case is held in the Ninth Circuit region, you may be eligible to obtain lawful permanent residence in the United States and do not need to seek consular processing in your home country.
For many families with an immigrant family member, this may represent a golden opportunity to seek a green card legally in the United States. But there are various requirements which might still trip up an applicant for adjustment of status.
The Ninth Circuit decision covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Temporary Protected Status (TPS) was enacted in 1990. The goal was humanitarian in nature.
Under Temporary Protected Status, immigration officers are allowed to grant immigrants with temporary refuge in the United States due to an environmental disaster, armed conflict, or other severe conditions.
It would seem that the adjustment of status for TPS beneficiaries to green card status, based on love and marriage, would qualify under any definition of humanitarianism.
However, for government officials, temporary means temporary.
Love Happens, But Separation May Be Forever
The theme song for TPS beneficiaries seeking to adjust their status, over the years, may well have been an old tune by the Moments:
I found love on a two way street
And lost it on a lonely highway
Since the inception of temporary protected status, immigrants living in the United States under TPS protections, like human beings across the globe, have been subject to the love bug at a moment’s notice.
Nonetheless, the government has not been willing to disregard requirements like unlawful entry or unlawful status for such individuals.
In the government’s view, simply because an immigrant earned TPS status did not mean that he or she had been officially inspected and admitted or paroled into the U.S.
For many couples, this interpretation has hindered the efforts of U.S. citizen or lawful permanent resident spouses to legalize the status of their spouses.
TPS grantees can proceed to seek permanent residency by returning to their home country for a green card interview.
Yet, few, if any, temporary protected status beneficiaries are willing to return home while the social chaos or natural destruction which led to the TPS designation is still unresolved.
More significantly, TPS immigrants who travel abroad also need to win an I-601 waiver to forgive the time they spent here without legal permission. If the waiver, based on a showing of extreme hardship, is not granted, TPS immigrants may be forced to remain outside the U.S. a long, long time.
A Green Card Pathway For TPS Beneficiaries
Nationwide change may be near.
In Ramirez v. Dougherty, a decision issued by the District Court for the Western District of Washington, held that a grant of TPS does constitute as an “inspection and admission or parole” into the United States.
Patrick Taurel, writing for Immigration Impact, explains:
Only individuals who were “inspected and admitted or paroled” into the United States by an immigration officer may apply for LPR status from inside the United States.
Many of those who were not “inspected and admitted or paroled” into the United States (i.e. those who crossed the border without passing through an official checkpoint) must leave the country to have their paperwork processed by the U.S. consulate in the immigrant’s last place of residence abroad to obtain LPR status.
This departure, though, can trigger harsh penalties that can strand immigrants abroad for months, years, decades, and sometimes forever.
That left many TPS recipients, including those with U.S. citizen spouses, essentially fenced into the United States because departing to obtain LPR status meant running a risk of triggering the aforementioned penalties or of encountering the dangerous conditions that merited the TPS designation.
Even though the Ramirez v. Dougherty decision is not binding on all judicial districts, it does help build momentum for a long overdue change.
From Temporary Protected Status To Lawful Permanent Resident: Local Battles, National Solutions
In my view as a San Bernardino immigration lawyer, the Ramirez v. Dougherty decision reflects a dose of not only judicial rationality, but also human compassion.
For several years, I have asserted that the government’s refusal to allow Temporary Protected Status beneficiaries to become permanent residents was flawed.
On an individual basis, I have been able to persuade USCIS officers to accept my arguments. Still, as a system-wide policy, it has adversely harmed far too many TPS beneficiaries and their families.
A wholesale modification is still needed.
This ruling opens that door.
In its March 31, 2017 opinion, the Ninth Circuit addressed the differences among courts on the issue whether a TPS beneficiary has a pathway to legal residency.
The Justices noted that the Sixth Circuit, which oversees federal appeals for Kentucky, Michigan, Ohio, and Tennessee, agrees with its view that a TPS recipient should be considered as being in lawful status for purposes of adjustment of status.
They also pointed out the Eleventh Circuit, overseeing the jurisdiction of cases from Alabama, Florida, and Georgia, has taken a contrary position.
As a result of this split by appellate courts, this case may soon be headed to the Supreme Court for further review.
By the way, I hope DACA folks are taking notes. Such a precedent regarding admission, inspection, and parole could be quite beneficial to their cause someday.
To the extent some immigration programs involve conscious review and analysis of one’s status prior to allowing one to gain legal status, even if temporary, it seems that the person has been “screened” – and that screening, if all other requirements are met, should enable program beneficiaries to seek permanent residence benefits in the United States, and not abroad.
But I would be blind to overlook the liklihood of political push back.
It is quite possible, since we are now in the Age of Trump, that anti-immigrant organizations will increase their call to terminate the Temporary Protected Status program in its entirety.
The legal battle over TPS parameters, in other words, is far from over.
By Carlos Batara, Immigration Law, Policy, And Politics