9th Circuit Finds TPS Counts as an Admission for Adjustment of Status Eligibility
The 9th U.S. Circuit Court of Appeals recently held that a grant of Temporary Protected Status itself constitutes an “admission” for purposes of INA § 245(a) adjustment of status eligibility. Ramirez v. Brown, No. 14-35633, __ F.3d __ (9th Cir. 2017). While this is potentially promising news for TPS holders interested in adjusting to lawful permanent resident status, advocates in the 9th Circuit should wait for guidance from U.S. Citizenship and Immigration Services on how the decision will be implemented. Also, the decision requires that the TPS recipient be an immediate relative with an approved I-130 petition or be submitting an I-130 together with the adjustment of status application.
Jesus Ramirez was a TPS holder from El Salvador who initially entered without inspection. He later married a U.S. citizen and applied for LPR status. One of the requirements to adjust status under 245(a) is that the applicant was “inspected and admitted or paroled.” USCIS found that Mr. Ramirez was in a lawful non-immigrant status as a result of his TPS grant, but that he did not meet the 245(a) requirement of having been admitted. Thus, his marriage-based adjustment was denied. Ramirez challenged the denial and the district court held that his TPS grant did constitute an admission.
On appeal, the 9th Circuit agreed that USCIS had misconstrued the interplay between INA § 245(a) and the TPS statute, INA § 244. Section 244(f)(4) states that, for purposes of 245(a) adjustment, a TPS recipient “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” According to the appellate court, an individual who is in lawful nonimmigrant status must necessarily have been “admitted” to that status. The court pointed to the rigorous application process that TPS applicants undergo, which is “comparable to any other admission process.” Thus, the court found that people who enter without inspection but later receive TPS have been “admitted” and may adjust under 245(a).
What are the implications of this holding? In the past, undocumented individuals who entered without inspection were not eligible to adjust unless they had subsequently taken some action found to constitute an admission. For example, those granted TPS or Deferred Action for Childhood Arrivals who were able to leave the United States and return on advance parole were then considered to have been “admitted” for purposes of 245(a) adjustment. However, many TPS holders have in absentia deportation or removal orders that hinder their being able to leave and return on advance parole. Others may be eligible to travel with advance parole, but are forced to wait five to six months for USCIS to approve their application. Under Ramirez, TPS grantees who live in the 9th Circuit are considered “inspected and admitted or paroled,” and thus satisfy the 245(a) eligibility requirement.
The 9th Circuit is not the only court of appeals to have held that a grant of TPS is an “admission.” The 6th U.S. Circuit Court of Appeals reached the same conclusion in Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). However, the 11th Circuit has held that TPS does not constitute an admission. Serrano v. United States Attorney General, 655 F.3d 1260 (11th Cir. 2011). Because of this circuit split, the issue is ripe for consideration by the Supreme Court.
CLINIC recommends that advocates wait to see how the government will respond to the Ramirez decision before advising TPS clients in the 9th Circuit to apply for adjustment or file a motion to reopen. The Department of Homeland Security has 45 days to petition for a rehearing en banc and 60 days to file a writ of certiorari with the Supreme Court and seek a stay of the decision. In the meantime, USCIS will likely issue policy guidance as to how it will implement the Ramirez decision within the Ninth Circuit. CLINIC will provide updates as they become available.