TPS Holder Eligible for Adjustment to LPR Status Despite Entering US Without Inspection: Sixth Circuit

Practical Law Legal Update 5-531-6445 (Approx. 4 pages)

TPS Holder Eligible for Adjustment to LPR Status Despite Entering US Without Inspection: Sixth Circuit

by PLC Labor & Employment

Background

Saady Suazo is a Honduran immigrant who entered the US without inspection and has been in the US continuously since March 1998. In September 1999, Mr. Suazo was granted temporary protected status (TPS) due to his Honduran citizenship. His TPS designation has been continuously renewed since then due to him maintaining good moral character. Mr. Suazo acknowledged on his TPS application that he entered the US without inspection.

In August 2010, Suazo married Stacey Leigh Suazo, a US citizen. In September 2010, Mrs. Suazo filed an Immediate Relative I-130 Petition on behalf of Mr. Suazo. At the same time, Mr. Suazo filed an accompanying I-485 Application for Adjustment of Status, seeking to become a lawful permanent resident (LPR) under Section 1255 of Title 8 of the US Code. The Suazos had an interview with US Citizenship and Immigration Services (USCIS) in November 2010. Mrs. Suazo's I-130 Petition was approved but Mr. Suazo's LPR Application was denied because he had entered the US without inspection.

Following the denial, the Suazos filed a complaint in district court for declaratory judgment, arguing:

That USCIS wrongfully denied Mr. Suazo's LPR application.
For the district court to assume jurisdiction and approve the LPR application.
That Mr. Suazo's TPS status under Section 1254a(b)(1) of Title 8 of the US Code makes him eligible to adjust to LPR status under Section 1255 of Title 8 of the US Code.

USCIS filed a motion to dismiss for failure to state a claim on which relief can be granted and for lack of subject matter jurisdiction. The Suazos opposed the motion but the district court granted the USCIS's motion to dismiss, holding that:

It lacked jurisdiction under the Mandamus Act because the Suazos had an adequate remedy under the Administrative Procedures Act (APA).
The Suazos failed to state a claim under the APA.

The district court reasoned that the adjustment of status statute (8 U.S.C. § 1255) precludes a TPS beneficiary who entered the US without inspection, as a matter of law, from adjusting his TPS status to LPR.

The Suazos appealed to the Sixth Circuit.

Outcome

The Sixth Circuit reviewed the Suazos' APA claim, considering whether the TPS provision, and specifically Section 1254a(f)(4) of Title 8 of the US Code, creates a path to LPR status under Section 1255 (the adjustment of status statute). The Sixth Circuit:

Reversed the district court's judgment.
Remanded the case to USCIS for further proceedings with respect to the APA claim.
Declined to address the mandamus claim at this stage.

The adjustment of status statute allows adjustment to LPR (green card) status of individuals who are "inspected and admitted or paroled" into the US and who have a basis for the status, such as an approved immigration petition (like Mr. Suazo's approved petition by his US citizen wife). By its terms, the statute bars adjustment by people like Mr. Suazo who enter the US without inspection (8 U.S.C. § 1255). The TPS statute, however, includes a section specifying that individuals holding valid TPS status are considered to be in and holding lawful status for purposes of the adjustment statute (8 U.S.C. § 1254(f)(4)).

USCIS argued that Mr. Suazo cannot adjust to LPR status because he entered the US without inspection and therefore cannot satisfy the threshold of being "admitted or paroled" or "admissible." In finding for the Suazos, the Sixth Circuit held that:

The plain language of the statute, its specific context and the context of the statute as a whole, shows that a TPS beneficiary does have a pathway to LPR status.
Although it is usually necessary to be "admitted" or "admissible," TPS beneficiaries are afforded an exception under the TPS statute which operates as an admissibility waiver.

The Sixth Circuit further stated that:

USCIS's interpretation of Section 1254a(f) is unduly narrow and ignores the plain language of the statute.
The only thing preventing Mr. Suazo from adjusting his status is the USCIS's incorrect interpretation of the interplay between Section 1255 and Section 1254a(f)(4).
Congress's intention supports the Sixth Circuit's holding, because TPS beneficiaries are a class of people that Congress chose to protect due to an extraordinary circumstance.
As its holding is based in the plain language of the statute, it need not defer to the agency interpretation.

In its opinion, the Sixth Circuit also considered the two opinions that the parties relied on (United States v. Orellana and Serrano v. U.S. Attorney Gen.). The Sixth Circuit held that:

Neither case is binding or particularly helpful.
Serrano can be distinguished because the petitioner in Serrano did not disclose on his TPS application that he entered the country without inspection.

Finally, the Sixth Circuit reasoned that policy considerations support its interpretation because if the statutes had been interpreted as USCIS had argued they should be, the result would be absurd. If Mr. Suazo had to leave the US, be readmitted, and go through the immigration process all over again it would be a waste of government resources and a strain on his family.

Practical Implications

At least in the Sixth Circuit, individuals in TPS status who were not inspected and admitted or paroled into the US are eligible for adjustment of status if they apply for it and an immigrant visa is available to them.

TPS Holder Eligible for Adjustment to LPR Status Despite Entering US Without Inspection: Sixth Circuit | Practical Law