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Sixth Circuit Finds that TPS Creates Eligibility for Adjustment Under Section 245(a)

Sixth Circuit Finds that TPS Creates Eligibility for Adjustment Under Section 245(a)

By Jennie Guilfoyle

Many non-citizens with Temporary Protected Status (TPS) initially entered the United States without inspection, and over the many years they are present in the United States with TPS, some of them become immediate relatives of U.S. citizens. The question for them, at that point, is whether or not they can be eligible for adjustment of status.  One of the basic eligibility requirements for adjustment of status under INA § 245(a), the section that governs adjustment in family-based cases, is that the non-citizen have been “inspected, and admitted or paroled” into the United States. Admission at the border in a nonimmigrant category (such as B-2 or F-1) clearly fulfills this requirement, as does a grant of parole. Entry without inspection clearly does not. Advocates have argued that a grant of TPS should permit a non-citizen who entered the United States without inspection to adjust status under INA § 245(a). The Sixth Circuit recently agreed. In Flores v. USCIS No. 12-3549, slip op. at 7 (6th Cir. June 4, 2013), the Sixth Circuit held that a grant of TPS satisfies the admission-related requirements in 245(a).

The appellants in this case are a married couple, Stacey and Saady Suazo. Ms. Suazo is a U.S. citizen, while Mr. Suazo is a citizen of Honduras. He entered the United States without inspection in March 1998, and then gained TPS in 1999.  He had not left the United States since his first entry. The couple married in August 2010, and a month later Ms. Suazo filed an I-130 for her husband. The I-130 was approved, but Mr. Suazo’s application for adjustment of status was denied because Mr. Suazo had entered the United States without inspection. The couple then filed a complaint in district court. USCIS filed a motion to dismiss, which the district court granted.  The Suazos appealed that dismissal.

The court in Flores found that eligibility for adjustment is created by INA § 244(f)(4), holding that the plain language of the statute indicates that persons granted TPS have satisfied the admission-related requirements in INA § 245(a). INA § 244(f)(4) states that “for purposes of adjustment of status under section 245 and change of status under 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”  The court found that this, along with the broad inadmissibility waiver in the TPS statute, creates adjustment eligibility for those with TPS.

In so finding, the court appears to have conflated two separate eligibility requirements: that of being “inspected and admitted” and that of being “admissible.” In a footnote, the court noted that there was a dispute between the parties over the relevance of Mr. Suazo’s I-94, the document he received when he was granted TPS. The court noted that “the document is a registration document that is normally issued to aliens only upon their admission, following inspection, to the United States. Under a standard ‘inspection’ and ‘admission,’ the process only takes a few minutes. However, when receiving this form through TPS application, the process takes several months to complete, allowing the USCIS to more carefully review the case.” The court engages in no further analysis as to whether or not such careful scrutiny is the functional equivalent of an admission at the border, saying that it has already discovered adjustment eligibility in the language of INA § 244(f)(4).

The decision is notable not only for its holding, but also for the court’s stern words for the government, which it says engages in “incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition.” The government’s position – that Mr. Suazo could only become an LPR by leaving the United States and consular processing – “would be absurd. . . [this would be] a waste of energy, time, government resources, and will have negative effects on his family – United States citizens.”

Impact of the Decision

This decision is limited to the Sixth Circuit, and another circuit recently came to the opposite conclusion. In Serrano v. USCIS, 655 F.3d 1260 (11th Cir. 2011), the Eleventh Circuit found that TPS does not create an admission that would allow adjustment under 245(a) for a non-citizen who had initially entered the U.S. without inspection. Furthermore, since Mr. Suazo first applied for adjustment of status, the Board of Immigration Appeals issued a decision, Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), whose interpretation by USCIS has shifted the landscape for TPS holders who entered the United States without inspection and wish to adjust status as immediate relatives. Arrabelly held that an adjustment applicant who traveled on advance parole did not trigger the unlawful presence bar at INA § 212(a)(9)(B). USCIS’s unwritten interpretation, as reflected in numerous approved adjustments since then, as well as in a draft of new instructions for the I-131 advance parole application, is that Arrabelly applies to TPS holders who travel on advance parole. Thus, TPS holders who travel on advance parole will not trigger the three- or ten-year unlawful presence bar.  Upon returning to the United States, they will be paroled in – and may therefore satisfy the requirement in INA § 245(a) that they have been “inspected and admitted or paroled.” Thanks to Arrabelly, they will be able to adjust status without the need for an unlawful presence waiver.

A person in Mr. Suazo’s position therefore now has the option of leaving the United States without triggering an unlawful presence bar, returning lawfully to the United States, and adjusting status without the need for a waiver. This does, however, require significant time and financial resources, both for the TPS holder and for the government.  Adjustment without departing the United States will still be significantly better for TPS holders than having to travel on advance parole in order to adjust. It will be interesting to see if other circuits follow the Sixth Circuit’s reasoning in Flores, even in the wake of Arrabelly.

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