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Appellate Wars: Does A Grant Of TPS Constitute A Legal Admission?

– Posted in: Temporary Protected Status

Does a grant of Temporary Protected Status constitute a legal admission?

It depends.

It depends, in part, on where you live.

What is the significance of a legal admission for TPS beneficiaries?

And are there other admission-related issues you should concerned about?

This article will explore these issues, to help guide you through the ongoing battles over the TPS program.

A Divided Bench: Divided TPS Law 

Ninth Circuit Upholds TPS Path To Legal Residency

On March 31, 2017, the Ninth Circuit held that under Temporary Protected Status, 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 a green card through consular processing in your home country.

The Ninth Circuit decision, Ramirez v. Brown, covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Eighth Circuit Upholds TPS Path To Legal Residency

On October 26, 2020, the 8th Circuit Court of Appeals adopted a similar legal position in Velasquez v. Barr.  It has jurisdiction over cases arising in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Sixth Circuit Upholds TPS Path To Legal Residency

The same holds true for the Sixth Circuit. In Flores v, USCIS, the Sixth Circuit Court of Appeals, which oversees matters in Kentucky, Michigan, Ohio, and Tennessee, agreed TPS recipients should be considered as being in lawful status when they are seeking adjustment of status.

On the other hand, in Serrano v. U.S. Attorney General, the Eleventh Circuit Court of Appeals, with judicial authority over cases arising out of Alabama, Florida, and Georgia, reached the opposite conclusion.

On July 22, 2020, in Sanchez v. Secretary U.S. Department of Homeland Security, the Third Circuit Court of Appeals likewise held the granting of temporary protected status does not  qualify as an admission into the United States.  The Third Circuit presides over cases arising in Pennsylvania, New Jersey, and Delaware.

On February 3, 2021, in Rodriguez Solorzano v. Mayorkas, the Fifth Circuit of Appeals joined the legal choir arguing that TPS does not cure the bar to adjustment of status, because a grant of TPS does not constitute a lawful inspection and admission.  The Fifth Circuit has jurisdiction over cases from Louisiana, Mississippi, and Texas.

Will The Supreme Court Resolve The Judicial Split Of Opinion On TPS?

This division means a legal path to winning legal residency for TPS holders exists in 20 states.  The highest federal court for nine states have reached a contrary result.

As a result, TPS immigrants living in 21 states remain in limbo.

Whether USCIS offices in other states may grant lawful permanent residence to TPS beneficiaries remains an open question.

But not without a federal court challenge.

For shortly after the Velasquez decision, on November 23, 2020, the Board of Immigration Appeals held that an immigrant is considered to be admitted for purposes of adjustment of status (a) only while their TPS status remains valid and (b) only within the 6th, 8th, and 9th Circuits in Matter of Padilla Rodriguez.

SUPREME COURT UPDATE: On January 8, 2021, the Supreme Court agreed to listen to an appeal from the recent Third Circuit decision in the Sanchez case.  As noted above, the decision denied the eligibility of TPS beneficiaries to seek permanent residence since they lack inspection and admission at the time of their initial entry.

Depending on the scope of the Supreme Court decision, the split between the various federal appellate courts may be finally resolved.

H-G-G Decision Slams Door On TPS Admissions: The Appellate War Escalates

In Matter of H-G-G, the the Administrative Appeals Office (AAO) set strict parameters for USCIS offices in all states that are not under the jurisdiction of the 6th, 8th, or 9th Circuits.

Under the H-G-G decision, a grant of TPS does not:

  • Confer lawful status for TPS recipients, except during the period that TPS is in effect
  • Equate to an admission enabling beneficiaries to seek adjustment of status
  • Cure periods of prior unlawful status, prior to the grant of TPS

The H-G-G decision may not be the final word, even in the 24 states without appellate review.

However, for the meantime, it represents the controlling law for those jurisdictions.

Ironically, the H-G-G decision arose ouf of Minnesota, which is under the jurisdiction of the Eight Circuit Court of Appeals.

A few months after the H-G-G decision, USCIS further tightened the noose around the the inspection and admission requirements.


Silent USCIS Advance Parole Policy Shift Heightens Attack On TPS Grantees

To further erode a TPS recipient’s ability to win permanent residence, various USCIS offices have begun denying rules governing Advance Parole in effect since 1991.

No formal announcement regarding this modification of policy has been issued.  Yet, a few weeks ago, the American Immigration Lawyers Association reported TPS cases involving grantees who had received advance parole permission in the past are suddenly being denied.

In the past, if a TPS holder who initially entered the U.S. without inspection left the country temporarily under the approval of an Advance Parole Travel Document, the re-entry was deemed an inspection and admission.

In these situations, having been lawfully admitted, the TPS beneficiary was eligible to seek adjustment of status.

USCIS offices have long held that immigrants who entered unlawfully, then went abroad
under advance parole, are considered to be returning in same immigration status they had at the time of departure.  But now, USCIS is contending the status they are returning in is as immigrants who entered without inspection.

This seemingly subtle change has a huge effect on TPS recipients living outside the 6th and 9th circuits.  They are no longer eligible for adjustment of status.  Their re-entry is stripped of its lawful inspection and admission characterization.

Their pathway to adjust status from temporary protected status recipient to permanent resident via an interview in the United States is blocked.

To the extent this policy is enforced, officially or unofficially, a new dimension has been added to the current appellate war between the government and TPS recipients.

Hidden Content

What Is The Significance Of The “Inspection And Admission Or Parole” Provision?

So what is the practical impact of the “inspection and admission or parole” provisions of immigration law on TPS recipients?.

Here’s a brief explanation, provided by Patrick Taurel, writing for Immigration Impact.

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.

For many immigrants trapped in such circumstances, the only possible solution will be to seek a family unity I-601 waiver based on extreme hardship to their qualifying relatives.

These waivers present formidable obstacles to victory.

Under TPS, Love Happens But Separation May Be Forever

Temporary Protected Status 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 has meant temporary.

As a result, 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.

In addition, as noted above, 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 – perhaps forever.

From Temporary Protected Status To Lawful Permanent Resident: Local Battles, National Solutions

In my view as a San Bernardino immigration lawyer, the 6th, 8th, and 9th Circuit rulings reflect a dose of not only judicial rationality, but also human compassion.

For several years before these decisions, I asserted that the government’s refusal to allow Temporary Protected Status beneficiaries to become permanent residents was flawed.

On a case-by-case basis, I was able to persuade USCIS officers to accept my arguments.  Still, I realized that the absence of a a system-wide policy adversely harmed far too many TPS beneficiaries and their families.

Since my TPS law practice is in California, my clients are fortunate.  They fall under the 9th Circuit’s protection.

A wholesale modification is still needed.

It’s likely the H-G-G decision will be challenged in states across the country.  In addition, immigrant advocates will no doubt test the silent USCIS policy shift regarding advance parole in various courts.

Does the reason for TPS termination matter?

To date, cases pertaining to the issues of inspection, admission, or parole have centered on the ability for a temporary protected status holder to seek lawful permanent residency after his country’s TPS designation has been terminated.

Given the current administration’s efforts to eliminate most, if not all, TPS programs, the split of opinion between the appellate courts will lead to an increase of legal battles in various states.

But what if an immigrant loses his TPS status because he failed to re-register or was convicted of misdemeanors?

Under the rulings of the 6th, 8th, and 9th Circuits, the original TPS grant would still allow a former recipient to apply for lawful permanent residence through the adjustment of status process.

Of course, such TPS applicants will need to address other issues regarding their green card eligibility.

In the other 34 states, the period of post-TPS unlawful presence would start accruing sooner.

In Matter of D-A-C-, issued July 26, 2019, the Board of Immigration Appeals tackled how criminal convictions could affect an award of TPS benefits.  The Board held although an applicant may be eligible for a grant of temporary protected status, such a grant can be nullified in the exercise of discretion if it is deemed unmerited.

The Board took this argument a step further in the Padilla Rodriguez decision, its most TPS ruling, asserting that an immigrant is to be deemed admitted and eligible to adjust status only if his or her status is valid at the time of adjustment.

This interpretation could empower USCIS officers to issue adverse TPS decisions even within the 6th, 8th, and 9th Circuits if the immigrant’s particular TPS program has been terminated, even absent any criminal convictions.

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.

I would be blind to overlook the liklihood of political push back if DACA recipients began a similar “admissions” push.

Even after the Age of Trump concludes on January 20, 2020, anti-immigrant organizations will continue attempts to dismantle the Temporary Protected Status program in its entirety.

They will pursue to forge ahead with legal contests over the boundaries of TPS, as well as other discretionary-based programs.

The legal battle over TPS green card parameters, in other words, despite a new incoming administration, is far from over.

By Carlos Batara, Immigration Law, Policy, And Politics