27 I&N Dec. 617 (AAO 2019)
Matter of H-G-G -
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617
Matter of H-G-G-, Respondent
Decided July 31, 20191
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office
For purposes of adjustment of status under section 245 of the Act, a recipient of
Temporary Protected Status (TPS) is considered as being in and maintaining lawful status
as a nonimmigrant only during the period that TPS is in effect; a grant of TPS does not
constitute an admission, nor does it cure or otherwise impact any previous unlawful status.
ON BEHALF OF APPLICANT: Steven C. Thal, Esquire, Minnetonka, Minnesota
The Applicant, a native and citizen of El Salvador, has applied to adjust
his status to that of a lawful permanent resident pursuant to section 245 of
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1255. The Director
of the National Benefits Center, U.S. Citizenship and Immigration Services
(USCIS), denied the application, finding that the Applicant had never been
inspected and admitted or paroled into the United States and, further, that the
Applicant had not continuously maintained lawful immigration status.
Sections 245(a) and (c)(2) of the Act. The matter is now before us on
certification from the Director. See 8 C.F.R. § 103.4(a)(1).
On certification, the Applicant submits a brief as well as one from amicus
curiae.2 The Applicant asserts that his grant of TPS under section 244 of the
Act, 8 U.S.C. § 1254a, cures the deficiencies in his application. Specifically,
the Applicant claims that pursuant to specific TPS provisions, a grant of TPS
satisfies the requirements of both “inspection and admission” as well as the
continuous maintenance of lawful immigration status. As a result, he claims
he is eligible to adjust his status.
Upon de novo review, we will affirm the decision of the Director and
deny the adjustment application.
1 On July 31, 2019, U.S. Citizenship and Immigration Services designated this
Administrative Appeals Office (AAO) decision as an Adopted Decision.
2 We appreciate the thoughtful brief submitted by the American Immigration Council in
this case.
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I. BACKGROUND
The facts regarding the Applicant’s 28-year presence in the United States
are undisputed. The Applicant entered the United States without inspection
and admission or parole in August 1990, was granted TPS in 2003, and has
maintained TPS ever since. USCIS approved a Form I-130, Petition for
Alien Relative, which resulted in the Applicant’s classification under section
203(a)(3) of the Act, 8
U.S.C. § 1153(a)(3), as the derivative beneficiary of a married son or
daughter of a U.S. citizen.3 When a visa became available, he filed a Form
I-485, Application to Register Permanent Residence or Adjust Status.
It is the Applicant’s burden to establish his eligibility for adjustment of
status as a derivative of his wife’s family-based third preference visa
classification. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball
Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). To do this, the Applicant
must satisfy the complex scheme governing adjustment of status by
establishing, among other requirements, that he was inspected and admitted
or paroled, that none of the bars to adjustment of status applies, and that he
merits a favorable exercise of the Secretary’s discretion. Section 245 of the
Act; 8 C.F.R. §§ 245.1, 245.2(a)(2).
The Director determined that the Applicant’s unlawful entry made him
ineligible for adjustment because the Applicant was not inspected and
admitted or paroled, and therefore did not satisfy the threshold requirement
stated in section 245(a) of the Act. In addition, the Director found the
Applicant barred from adjustment under section 245(c)(2) of the Act, as the
Applicant did not continuously maintain lawful immigration status since
entry into the United States.4
On certification, the Applicant acknowledges that he was not inspected
and admitted into the United States when he entered in 1990 and that he did
not obtain any type of status until he received TPS in 2003. He asserts that
he is nonetheless eligible to adjust status because section 244(f)(4) of the Act
allows a TPS recipient to satisfy the requirement of inspection and admission
and to avoid the bar at section 245(c)(2).
Thus, we must consider whether a grant of TPS: (1) constitutes an
“admission” into the United States for purposes of adjustment of status under
3 The Applicant’s wife is the married daughter of a U.S. citizen and the Applicant
derives through her.
4 Not all foreign nationals are subject to the bar in section 245(c)(2), such as a U.S.
citizen’s “immediate relatives,” as that term is defined by section 201(b)(2) of the Act, 8
U.S.C. § 1151(b)(2), or special immigrants described in sections 101(a)(27)(H)-(K) of the
Act. The Applicant is not exempted through either of these categories. Nor is the
Applicant aided by the exemption at section 245(k) of the Act, which is limited to
employment-based immigrants.
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section 245(a) of the Act, and (2) excuses any failure to continuously
maintain a lawful status since entry into the United States for purposes of
section 245(c)(2).
II. LEGAL AND HISTORICAL BACKGROUND
A. Statute
The Applicant asserts that the plain statutory language permits adjustment
of status, and so we begin with that text. Specifically, section 245(a) of the
Act states in relevant part:
The status of an alien who was inspected and admitted or paroled into the United
States . . . may be adjusted by the [Secretary of Homeland Security], in [her]
discretion and under such regulations as [she] may prescribe, to that of an alien
lawfully admitted for permanent residence . . . .
8 U.S.C. § 1255(a) (emphasis added). In line with this statutory requirement,
the predecessor Immigration and Naturalization Service (INS) amended the
regulations at 8 C.F.R. § 245.1(b)(3) to provide that “[a]ny alien who was
not admitted or paroled following inspection by an immigration officer” is
ineligible to apply for adjustment of status. Aliens and Nationality;
Immigration and Nationality Act Amendments of 1981, 47 Fed. Reg. 44,233
(Oct. 7, 1982).
Section 245(c)(2) of the Act generally bars adjustment by an alien who
failed to continuously maintain a lawful status. In pertinent part, the statute
provides:
[S]ubsection (a) shall not be applicable to . . . an alien (other than an immediate
relative as defined in section 201(b) . . . ) . . . who has failed (other than through no
fault of his own or for technical reasons) to maintain continuously a lawful status
since entry into the United States . . . .
In the Immigration Act of 1990 (IMMACT90), Congress established the
TPS regime in what is now section 244 of the Act. See Pub. L. No. 101-649,
§ 302, 104 Stat. 4978 (1990). Section 244 allows the Attorney General (now
the Secretary of Homeland Security) to designate for TPS countries that are
experiencing natural disasters, armed conflict, or other extraordinary and
temporary conditions and allow nationals of such countries to remain
lawfully in the United States temporarily with work authorization.
In establishing the TPS regime, Congress provided for extraordinary
benefits and protections for covered individuals. For example, during the
period in which an individual is in valid temporary protected status, DHS
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may not remove such individual and must grant employment authorization.
Section 244(a)(1)(A)-(B) of the Act, 8 U.S.C. § 1254a(a)(1)(A)-(B). An
alien may be granted TPS even if he or she entered without inspection or
lacks lawful immigration status at the time of application. See section
244(c)(1)-(2) of the Act, 8 U.S.C. § 1254a(c)(1)-(2) (describing eligibility
criteria); Matter of Sosa Ventura, 25 I&N Dec. 391, 392 (BIA 2010).
Further, an alien granted TPS while in valid nonimmigrant status may
continue to maintain that nonimmigrant status while in TPS. Section
244(a)(5) of the Act, 8 U.S.C. § 1254a(a)(5).5
For TPS recipients, section 244(f) of the Act deems TPS—solely during
the period in which the individual holds TPS—to constitute lawful
nonimmigrant status for purposes of the “maintenance of status”
requirements for adjustment and change or status:
During a period in which an alien is granted temporary protected status under this
section—
* * * *
(4) for purposes of adjustment of status under section 245 and change of status
under section 248, the alien shall be considered as being in, and maintaining, lawful
status as a nonimmigrant.
Thus, during the period in which an individual has TPS, the individual is
deemed to be in and maintaining nonimmigrant status for purposes of
adjustment and change of status eligibility.6 By contrast, the provision does
not specifically address the entirely separate requirement for adjustment of
status under section 245(a) of having been admitted or paroled into the
United States. Cf., e.g., section 245(h) of the Act (deeming a grant of special
immigrant juvenile status to constitute parole into the United States for
purposes of section 245(a)).
5 See also Memorandum from Paul W. Virtue, Acting General Counsel, INS to Terrance
O’Reilly, TPS Coordinator, INS, Advance Parole for TPS Eligible Aliens in Deportation
Proceedings, INS Gen. Counsel Op. No. 91-49, slip op. at 3 n.2, 1991 WL 1185160 (June
17, 1991) (“A grant of TPS does not vitiate the lawful status of an alien who has been
lawfully admitted as a nonimmigrant.”).
6 In addition to showing that he or she has been admitted or paroled into the United States,
an applicant who seeks to adjust status as an employment-based immigrant under section
203(b) of the Act, 8 U.S.C. § 1153(b), also must establish that he or she is “in a lawful
nonimmigrant status.” Section 245(c)(7) of the Act, 8 U.S.C. § 1255(c)(7). Likewise, to
change nonimmigrant status while in the United States, an alien must demonstrate that he
or she is “continuing to maintain” lawful nonimmigrant status. Section 248(a) of the Act,
8 U.S.C. § 1258(a). For example, if an F-1 nonimmigrant student was granted TPS while
still in her duration of stay in F-1 status, and her duration of stay subsequently expired, the
student would not be disqualified for adjustment or change of status because of the expired
F-1 status due to the protection provided by section 244(f)(4) of the Act.
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B. Administrative Authorities
The INS General Counsel issued an opinion in March 1991, shortly after
enactment of IMMACT90, advising that while section 244(f)(4) permits a
TPS beneficiary to maintain adjustment eligibility based on a previous
admission in nonimmigrant status, the section should not be construed as
meaning that a grant of TPS itself constitutes an admission to the United
States. Memorandum from Paul W. Virtue, Acting General Counsel, INS to
Jim Puleo, Assoc. Comm’r, Examinations, INS, Temporary Protected Status
and Eligibility for Adjustment of Status under Section 245, INS Gen. Counsel
Op. No. 91-27, 1991 WL 1185138 (Mar. 4, 1991) (1991 Opinion),
incorporated
at
7
USCIS
Policy
Manual
B.2(A)(5),
https://www.uscis.gov/policymanual.
The Opinion recognized that under section 244(f)(4) of the Act, a TPS
recipient would not be barred by section 245(c)(2) of the Act for failure to
continuously maintain lawful status during the period of TPS. The Opinion
further explained that section 244(f)(4) does not make lawful the TPS
recipient’s “unlawful presence in the United States prior to the granting of
TPS.” The Opinion affirmed that an individual who entered without
inspection is barred from adjustment of status by section 245(a) of the Act,
“[s]ince an alien who entered without inspection, by definition, cannot satisfy
this requirement.”7 INS Gen. Counsel Op. 91-27 at 2. The Opinion does not
articulate the reasons for this statement, but its phrasing suggests they are
self-evident. While the Opinion implied that section 244(f)(4) did not supply
the necessary admission to the United States, it did not squarely examine the
text of that unique, sui generis provision.
Subsequently, in 1991, the INS published the regulations that govern
TPS. See generally 8 C.F.R. pt. 244. In the course of promulgating the rules,
the INS received public comment asserting “that aliens granted TPS should
be allowed to adjust status in the United States, regardless of how they
entered the United States.” Temporary Protected Status, 56 Fed. Reg.
23,491, 23,495 (May 22, 1991). The INS declined to adopt the proposition,
noting Congress did not make any corresponding changes to the statutory
requirements for adjustment of status when it enacted the TPS program:
Section 245(a) provides that, in order to be eligible to adjust, the alien must have
been “inspected and admitted or paroled into the United States.” An alien who
entered the United States without inspection cannot satisfy this requirement and,
7 The Opinion also advises that an individual who departs and returns to the United States
under advance parole would meet the “paroled into” requirement under section 245(a) of
the Act, but this parole—or indeed any subsequent reentry— would not erase the bar to
adjustment of status at section 245(c)(2) of the Act. INS Gen. Counsel Op. 91-27 at 2; see
also 8 C.F.R. § 245.1(d)(3).
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therefore, would not be eligible to adjust. The Service believes the regulations are
clear on this point and will not be changed.
56 Fed. Reg. at 23,495.
DHS and its predecessor entities, for almost 25 years, have consistently
adhered to this reasonable and long-standing interpretation, except as
otherwise required by federal case law. Moreover, the Board of Immigration
Appeals (the Board) has shared in DHS’ interpretation in a number of
instances.8 As reflected in the USCIS Policy Manual, the Opinion remains
the agency’s official interpretation of the interplay between sections
244(f)(4) of the Act and 245(a) and (c).
C. Decisions by U.S. Courts of Appeals
The United States Court of Appeals for the Eighth Circuit, in whose
jurisdiction this case arises, has not addressed the issue of whether TPS
provides the inspection and admission necessary to adjust status under
section 245(a) of the Act.9 But in the last decade, the Courts of Appeals for
the Sixth, Ninth, and Eleventh Circuits have reviewed this question in cases
where the alien initially entered the United States without being inspected
8 We acknowledge that the Board has not addressed this specific issue in a precedential
decision. See, e.g., Matter of Elusme, A087-357-468 (BIA Sept. 28, 2018) (unpublished);
Matter of Orantes, A094-060-372 (BIA Dec. 10, 2014) (unpublished); Matter of
Alvarenga-Torres, A095-010-327 (BIA June 12, 2014) (unpublished); Matter of Fiallos-
Ortiz, A094-337-673 (BIA Feb. 7, 2013) (unpublished). But cf. Matter of Sosa-Ventura,
25 I&N Dec. at 391 (discussing the history of the TPS program and holding that the status
only temporarily waives certain grounds of inadmissibility).
9 A few district courts have concluded that TPS constitutes an admission for purposes of
adjustment of status under section 245(a) of the Act: Melgar v. Barr, 379 F. Supp. 3d 783
(D. Minn. 2019); Rodriguez Solorzano v. Nielsen, No. 7:17-cv00249 (W.D. Texas Jan 17,
2019); Sanchez v. Johnson, No. 16-cv-651 (D.N.J. Dec. 7, 2018); Velasquez v. Sessions,
No. 18-cv-733 (D. Minn. Nov. 21, 2018); Figueroa v. Rodriguez, No. 16-cv-8212, 2017
WL 3575284 (C.D. Cal. Aug. 10, 2017); Bonilla v. Johnson, 149 F. Supp. 3d 1135 (D.
Minn. 2016); and Medina v. Beers, 65 F. Supp. 3d 419 (E.D. Pa. 2014). We have
considered these district court decisions insofar as they are relevant to the questions before
us, but they are not binding and hence do not control the outcome here. See Camreta v.
Greene, 563 U.S. 692, 709 n.7 (2011) (“‘A decision of a federal district court judge is not
binding precedent in either a different judicial district, the same judicial district, or even
upon the same judge in a different case.’”) (quoting 18 J. Moore, et al., MOORE’S
FEDERAL PRACTICE § 134.02[1][d], p. 134-26 (3d ed. 2011)); see also Matter of K-S-,
20 I&N Dec. 715 (BIA 1993) (observing that district court decisions are not binding on the
BIA other than in the case before it).
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and admitted or paroled, later obtained TPS, and then applied to adjust to
lawful permanent resident status as the immediate relative of a U.S. citizen.10
Each court concluded that the plain language of the TPS statute alone
answers the question of whether a grant of TPS is an inspection and
admission for the purpose of section 245(a) of the Act. See Ramirez v.
Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. USCIS, 718 F.3d 548 (6th
Cir. 2013); Serrano v. U.S. Att’y Gen., 655 F.3d 1260 (11th Cir. 2011) (per
curiam). But the courts disagreed about what this plain language actually
means.
While the Eleventh Circuit determined that the plain text of section
244(f)(4) does not render a grant of TPS an admission for the purpose of
adjustment of status under section 245(a) of the Act, the Sixth and the Ninth
Circuits reached the opposite conclusion. The Sixth and the Ninth Circuits
stated that their interpretations of the plain language were consistent with
apparent congressional intent regarding the TPS program. Noting that TPS
recipients constitute a class of individuals whom Congress believed should
be accorded temporary protection from return due to extraordinary
circumstances, the Sixth Circuit inferred that this designation supports its
interpretation of the statute to allow for adjustment of status rather than
requiring the individual to return for consular processing. See Flores, 718
F.3d at 554. And the Ninth Circuit determined that allowing TPS recipients
to adjust their status to that of an alien lawfully admitted for permanent
residence “comfortably” fits within the program’s purpose to provide
temporary relief while conditions in their countries render their return unsafe,
while the Agency’s interpretation would require recipients to return to their
country, contravening that purpose. See Ramirez, 852 F.3d at 963-64.
However, in reaching these conclusions, none of the courts examined or
discussed the program’s history in their respective opinions.
D. History of TPS
Prior to the creation of TPS, the Executive Branch employed an ad hoc
mechanism known as Extended Voluntary Departure (EVD) to protect
classes of foreign nationals who could not safely return to their countries of
origin due to events that had arisen since their arrival in the United States.
Starting with Cubans during the Eisenhower Administration, the Executive
10 In the Sixth, Ninth, and Eleventh Circuits, due to the petitioners’ status as immediate
relatives of U.S. citizens, the section 245(c)(2) bar was not implicated in those cases. It
appears that no federal court has addressed the 245(c)(2) bar in conjunction with 244(f)(4).
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used EVD almost continuously in various circumstances.11 These exigencies
were not covered by the asylum laws, which extend protections only to
individuals targeted for persecution on account of their race, political
opinion, or other protected characteristics. See section 208 of the Act, 8
U.S.C. § 1158.
Congress, while appreciative of the Executive’s humanitarian actions,
expressed grave concerns regarding the tenuous statutory basis for EVD and
the lack of accompanying eligibility and procedural standards, including the
tracking of recipients for purposes of effectuating their departure at the
conclusion of their EVD. See H.R. Rep. No. 101-245, at 12 (1989) (“The
[former] INS cannot effectuate the dep[o]rtation of aliens whose EVD status
has expired, since it does not monitor those aliens’ whereabouts.”).
In addition to these overarching congressional concerns, two events in the
late 1980s drove the perceived need for a TPS-type program: the long
running civil war in El Salvador and the precipitous events in China that
followed the Chinese Government’s suppression of protests in Tiananmen
Square. The genesis of section 244(f)(4) of the Act can be traced to
congressional concern for the welfare of Chinese nationals, particularly
nonimmigrant students who were lawfully present in the United States in the
aftermath of Tiananmen Square and, as a result, were viewed with suspicion
by the Chinese government.
Although EVD had been implemented to protect eligible Chinese
nationals, Congress recognized that conditions in China were unlikely to
allow many to return before the expiration of their lawful immigration status.
As a result, members of Congress proposed legislation to preserve their
immigration status quo during the EVD period through the “Chinese
Temporary Protected Status Act of 1989” (CTPS Act), which specified that
a Chinese national with valid status need not relinquish it to receive
protection under its provisions. See H.R. 2929, 101st Cong. (1989).
Although never enacted, the CTPS Act would have provided for relief that is
similar to what later became TPS as it contemplated only temporary
protection; it did not have provisions for adjustment or other permanent
regularization of status.12 And significantly, CTPS had a provision identical
to section 244(f)(4) of the Act.
11 In testimony on October 28, 1987, an INS Associate Commissioner testified about the
long list of groups given EVD, starting in 1960 with Cubans in the wake of the Cuban
revolution, and ending with Polish nationals in 1987. H.R. Rep. 101-245 at 10 (1989).
12 Congressional efforts culminated in the enactment of the Chinese Student Protection
Act (CSPA), Pub. L. No. 102-404, 106 Stat 1969 (1992). The CSPA directly provided for
adjustment of status and included a specific provision waiving the bars at section 245(c).
See id. § 2(a)(5). A comparison with TPS demonstrates that the benefits provided by
section 244(f)(4) of the Act are considerably less advantageous than those under the CSPA.
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Debate over extending humanitarian protection to at-risk foreign
nationals featured prominently in the overall congressional deliberations that
ultimately led to the passage of the Immigration Act of 1990. While the
Senate concerned itself primarily with Chinese nationals, the House of
Representatives focused on protections for nationals of El Salvador and other
countries experiencing internal strife at that time, such as Liberia and Kuwait.
Following conference between the House and Senate, the resulting
legislation created the TPS program.13 Pub. L. No. 101-649, § 302, 104 Stat.
4978 (Nov. 29, 1990).
The legislative history of TPS not only reflects a desire for humanitarian
protection, but also emphasizes its temporary nature and the standardized
process for granting and ultimately terminating such protection. A Senate
Conference Report sets forth the congressional purpose. For example, noting
that few nationals of El Salvador were receiving asylum despite the civil
strife in their native country, Senator DeConcini said:
[N]ationals of El Salvador who have been continuously present in the United States
since September 19, 1990, would be granted [TPS] for 18 months . . . . Such a
registration system provides a means by which the United States can maintain
accurate records of Salvadorans in this country while at the same time provide them
with safe haven. In addition, it will facilitate the return of Salvadorans when the
period of temporary protected status expires.
136 Cong. Rec. S17106-01, S17108, 1990 WL 165401 (Conf. Rep.). With
respect to a path to permanent residence, the Senator emphasized:
[T]his legislation is not a substitute for political asylum. This bill would not grant
permanent resident alien status. . . . What this bill will provide is a temporary safe
haven in the United States until conditions in El Salvador are such that refugees may
return to their home country safely.
Id. at S17108-09 (emphasis added).
III. ANALYSIS
At the outset, we acknowledge the contrary judicial authority and
respectfully disagree with the courts that have interpreted section 244(f)(4)
of the Act in a manner inconsistent with long-standing USCIS and INS
See INS Gen. Counsel Op. 93-59, 1993 WL 1504006, at 2 (Aug. 17, 1993), incorporated
at 7 USCIS Policy Manual B.2(A)(5).
13 Congress did, however, strongly urge the Administration to extend TPS to those
countries and stated its expectation that the EVD for Chinese would be extended until 1994.
See 1990 U.S.C.C.A.N. 6784, 6792.
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policy. Furthermore, we are mindful of the humanitarian considerations that
may influence DHS’s TPS determination for a foreign country. However,
neither the contrary judicial opinions nor the sympathetic humanitarian
circumstances persuade us that USCIS, and its predecessor INS, have
decided this question incorrectly as a matter of law.
A. Statutory Text
“Our first step in interpreting a statute is to determine whether the
language at issue has a plain and unambiguous meaning with regard to the
particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997). “The plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which that language
is used, and the broader context of the statute as a whole.” Id. at 341. We
are required to apply the plain language of the Act, avoiding the creation of
ambiguity where none exists. See K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988) (“If the statute is clear and unambiguous ‘that is the end of
the matter, for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”’ (citations omitted)).
We begin with the language of section 245 of the Act, the operative
statute by which the Applicant seeks to achieve lawful permanent residence.
Section 245(a) of the Act unambiguously authorizes the Secretary of
Homeland Security to adjust the “status of an alien who was inspected and
admitted or paroled into the United States . . . to that of an alien lawfully
admitted for permanent residence.” (Emphasis added.)
In turn, section 244(a) of the Act provides that an alien who is granted
TPS is not subject to removal “from the United States during the period in
which such status is in effect,” is authorized to engage in employment in the
United States, and is provided documentation of that authorization. Section
244(f)(4), in pertinent part, provides that “[d]uring a period in which an alien
is granted temporary protected status . . . for purposes of adjustment of status
under section 245 . . . the alien shall be considered as being in, and
maintaining, lawful status as a nonimmigrant” (emphasis added).
On its face, section 244(f)(4) of the Act does not provide for the
inspection, admission, or parole of an alien, as the terms are entirely absent.
See Dean v. United States, 556 U.S. 568, 572 (2009) (declining to “‘read[]
words or elements into a statute that do not appear on its face’” (quoting
Bates v. United States, 522 U.S. 23, 29 (1997))). Instead, the use of the
phrase “considered as being in and maintaining” lawful status serves as
implicit recognition that the individual is not in fact in such status. We
observe that section 244(f)(4) does not confer actual nonimmigrant status—
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as amicus curiae has acknowledged—and says nothing about retroactive
application.
Consequently, we agree with the INS’ original statutory justification for
refusing to allow aliens granted TPS to adjust status in the United States,
“regardless of how they entered the United States.” 56 Fed. Reg. at 23,495.
As observed in 1991, Congress did not amend the statutory requirements for
adjustment of status when it enacted the TPS program—the alien must still
have been inspected and admitted or paroled into the United States. And in
accord with the plain language of section 244(f)(4), TPS does not waive or
make lawful the recipient’s “unlawful presence in the United States prior to
the granting of TPS.” INS Gen. Counsel Op. 91-27 at 2.
Based on the plain language of the statute, we conclude that section
244(f)(4) of the Act does not confer a broad remedy for prior immigration
violations, but instead serves a limited and specific purpose: it maintains the
status quo, ensuring that individuals who maintained a lawful immigration
status prior to TPS are not penalized if that status expires during the time in
which they are in TPS. See Guerrero v. Nielsen, 742 F. App’x 793, 797 (5th
Cir. 2018) (rejecting assertion that section 244(f)(4) “‘unambiguously’
permits TPS-holders to adjust their status ‘regardless of prior manner of
entry,’” since “that is not what the statute says. Instead of offering TPS-
holders carte blanche to become lawful permanent residents, [section
244(f)(4)] extends to them the more narrowly-crafted benefit of ‘lawful
status as a nonimmigrant’”). This allows applicants who are otherwise
eligible to adjust status, but whose original nonimmigrant status lapsed
during the period of their TPS, to avoid the bar prescribed at section 245(c)(2)
of the Act for failure to maintain continuously their lawful nonimmigrant
status since entry into the United States.
This limited exemption comports with the statute’s text, and with the
humanitarian purpose of the TPS program, by preserving the legal status of
those individuals who never violated the immigration laws, but who would
have lost their original nonimmigrant status if they remained in the United
States due to circumstances beyond their control.
Stated another way, the plain interplay of the statutory provisions ensures
that those who were eligible to adjust their status before receiving TPS
remain so; it does not mean that persons ineligible for adjustment due to prior
immigration violations have that ineligibility waived by a grant of TPS. The
plain language of the statute does not reflect any intent to confer advantages
to those persons without lawful status beyond providing temporary
protection from removal; instead, it is clear that Congress sought an orderly
departure regime. “TPS does not create an admissions program. It is
designed to protect individuals already in the United States and gives no alien
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any right to come [to] the United States.” Matter of Sosa-Ventura, 25 I&N
Dec. at 394 (internal citation omitted).
Although congressional silence is not always determinative, we find that
it nonetheless “is clear that Congress had an intention on the precise question
at issue.” Negusie v. Holder, 555 U.S. 511, 518 (2009); see Annachamy v.
Holder, 733 F.3d 254, 260 (9th Cir. 2013) (“Although silence is certainly not
conclusive as to whether an exception exists, the statutory framework makes
clear that no exception was intended.”) (citations omitted). If Congress
intended to deem a grant of TPS to constitute an admission or parole for
adjustment or change of status purposes, it could have included language
akin to that of section 245(h)(1), clarifying that a special immigrant juvenile
(SIJ) “shall be deemed, for purposes of subsection (a) of [section 245], to
have been paroled into the United States.”14 8 U.S.C. § 1255(h)(1); see I.N.S.
v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (“‘Where Congress includes
particular language in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’” (quoting Russello v.
United States, 464 U.S. 16, 23 (1983))); cf. Trump v. Hawaii, 138 S. Ct. 2392,
2414 (2018) (observing that “[h]ad Congress instead intended in [section
202(a)(1)(A) of the Act, 8 U.S.C.] § 1152(a)(1)(A) to constrain the
President’s power to determine who may enter the country, it could easily
have chosen language directed to that end,” as Congress had done in other
provisions).
Moreover, the Department’s long-standing reading of section 244(f)(4) is
entirely compatible with the statutory scheme. In providing for certain
protections relating to adjustment or change of status, Congress may well
have been most concerned with aliens who already had been admitted (e.g.,
in nonimmigrant status) rather than those who had entered without
inspection.15 In a similar context, the Ninth Circuit Court of Appeals upheld
14 Congress established the SIJ status in the same legislation in which it created the TPS
regime, IMMACT90. The next year, Congress added the “deeming” language in section
245(h)(1) to eliminate a barrier to adjustment of status for children granted SIJ status. See
Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.
L. No. 102-232, § 302. Congress, however, did not similarly amend the TPS provisions
notwithstanding its presumed awareness of INS’s contemporaneous interpretation as
evidenced in the 1991 General Counsel opinion and the 1991 implementing regulations.
15 Indeed, the legislative history of section 244(f)(4) bears evidence of such a policy focus.
Section 244(f)(4) has its origins in section 3 of the Emergency Chinese Immigration Relief
Act of 1989 (ECIRA), H.R. 2712, 101st Cong., 1st Sess. (1989). In July 1989, a month or
so after ECIRA was introduced, the Chinese Temporary Protected Status Act of 1989
(Chinese TPS Act) was introduced, containing the precise language now reflected in
section 244(f)(4). See H.R. 2929, § 2(a), 101st Cong., 1st Sess. (1989). The focus of both
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the former INS’s interpretation of a similar provision in the Chinese Student
Protection Act of 1992 (CSPA), Pub. L. No. 102-404, 106 Stat. 1969, in
which Congress exempted covered Chinese nationals from certain
adjustment of status requirements but did not expressly waive the “inspected
and admitted and paroled” requirement. Yu Xian Tang v. Reno, 77 F.3d 1194,
1197-98 (9th Cir. 1996) (construing CSPA § 2). There, the court observed
that in so limiting the scope of the CSPA provisions facilitating adjustment
of status, Congress reasonably focused on individuals who had lawfully
entered.
The absence of language expressly deeming a TPS grant to constitute an
admission or parole for adjustment or change of status purposes therefore is
telling. Even assuming arguendo that the statute is “silent” on the issue, that
silence should not be interpreted as requiring a particular result even if such
a result would generally promote humanitarian aims. See Holder v. Martinez
Gutierrez, 132 S. Ct. 2011, 2019 (2012) (“We cannot read a silent statute as
requiring (not merely allowing) imputation year just because that would be
family friendly.”). Congress itself has not sought to “correct” the agency’s
construction of section 244(f)(4), which DHS and the former INS have held
for nearly 30 years. Although Congress, since 1991, has amended section
245(a) and enacted certain provisions to exempt certain populations from the
“inspected and admitted or paroled” requirement,16 it has not done so with
respect to aliens with TPS notwithstanding the agency’s long-standing,
contemporaneous interpretation.
1. “Whole Statute” Interpretation Confirms that TPS is not an Admission
Adopting an interpretation that TPS is an “admission” for purposes of
section 245(a) of the Act, as the Applicant proposes, would have us read the
ECIRA and the Chinese TPS Act, both proposed in the wake of the events in Tiananmen
Square, was to protect Chinese nationals who were lawfully present in the United States.
Congress later enacted the Chinese Student Protection Act of 1992 (CSPA), Pub. L. No.
102-404, 106 Stat. 1969. While the CSPA exempted covered Chinese nationals from
certain eligibility requirements for adjustment of status, it did not do so with respect to the
“inspected and admitted or paroled” requirement. See Yu Xian Tang v. Reno, 77 F.3d 1194,
1197-98 (9th Cir. 1996). “The CSPA contains express exemptions from several standard
immigration provisions . . . . Noticeably absent from this list is any mention of § 245(a),
and we decline Lin’s invitation to read into the CSPA an exemption that Congress failed
to include.” Qi-Zhuo v. Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995).
16 For example, in 2000, Congress amended section 245(a) to exempt Violence Against
Women Act (VAWA) selfpetitioners from the “inspected and admitted or paroled”
requirement. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No.
106–386, § 1502; see also section 101(a)(51) of the Act, 8 U.S.C. § 1101(a)(51) (defining
“VAWA self-petitioner”).
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TPS statutory provisions at section 244(f) of the Act as negating or cancelling
out the threshold requirements and statutory bars for adjustment of status
under section 245 of the Act. However, the “ordinary assumption” is “that
Congress, when drafting a statute, gives each provision independent
meaning.” Torres v. Lynch, 136 S. Ct. 1619, 1628 n.8 (2016). Accordingly,
we are instructed to “‘interpret the statute as a symmetrical and coherent
regulatory scheme’” and “to fit, if possible, all parts into an harmonious
whole.” Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 103 (2012) (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).
“[W]e must, as usual, ‘interpret the relevant words not in a vacuum, but with
reference to the statutory context.’” Torres, 136 S. Ct. at 1626 (quoting
Abramski v. United States, 573 U.S. 169, 134 S. Ct. 2259, 2267 (2014)).
If two statutory provisions touch on the same topic, we must, if possible,
read them so as to give effect to both, unless the text or legislative history of
the later statute indicates otherwise. We do not construe the provisions in
isolation, but must read them in the context of the entire scheme of the Act
so that the whole may be harmonized and retain effectiveness. See Gustafson
v. Alloyd Co., Inc., 513 U.S. 561, 574-75 (1995) (providing that when
interpreting a statute, one should avoid a reading that renders words
altogether redundant). Furthermore, we are guided, when reading the statute
as a whole, by prefatory language existing in the statute, which in in this case
provides a temporal scope for each of the parallel phrases set forth in section
244(f) of the Act. Cf. Parm v. Nat’l Bank of Cal., Nat’l Ass’n, 835 F.3d 1331,
1336 (11th Cir. 2016) (noting that “[w]hen the syntax involves something
other than a parallel series of nouns or verbs, a prepositive or postpositive
modifier normally applies to only the nearest reasonable referent”).
Following these fundamental principles, we do not agree with the Flores
and Ramirez courts that section 244(f)(4) of the Act, by its plain language,
means that TPS recipients satisfy the requirements for inspection and
admission or parole, or for maintenance of lawful status, under sections
245(a) and (c)(2) of the Act respectively. See Ramirez, 852 F.3d at 964
(holding that section 244(f)(4) of the Act provides that a TPS recipient is
considered “inspected and admitted” under section 245(a) of the Act);
Flores, 718 F.3d at 554 (holding that section 244(f)(4) of the Act provides
that a TPS recipient is considered being in lawful nonimmigrant status and
thus meets the three requirements in section 245(a) of the Act). To the
contrary, the plain and unambiguous language of the statute indicates that the
lawful-status benefit for TPS grantees set forth in section 244(f)(4) of the Act
applies only to the time period in which an alien has TPS. The prefatory
phrase “during a period in which an alien is granted temporary protected
status” is a temporal qualifier for the lawful-status benefit under section
244(f)(4).
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Unlike the Eleventh Circuit in Serrano, both the Flores and Ramirez
courts minimized or departed from the actual “inspected and admitted” and
“continuous maintenance of lawful status” language of section 245 and
instead took recourse in their theories of the intent underlying the TPS
provisions. We respectfully disagree with the Flores and Ramirez courts as
they reach an interpretation that is foreclosed by clear congressional intent.
Conversely, the Serrano court’s conclusion—that “[t]he plain language
of [section 245(a)] limits eligibility for status adjustment to an alien who has
been inspected and admitted or paroled”— reads the statutory provisions in
a manner that preserves the statutory scheme and leaves the threshold
requirements of section 245(a) and the bars to adjustment unaffected. 17
Serrano, 655 F.3d at 1265; see Husted v. A. Philip Randolph, 138 S. Ct. 1833,
1842 (2018) (“If possible, ‘we must interpret the statute to give effect to both
provisions[.]’” (quoting Ricci v. DeStefano, 557 U.S. 557, 580 (2009))).
2. The Legislative History Supports Conclusion that TPS Prevents
Removal and Does Not Confer an Admission
Again, the rules of statutory construction compel us to consider the design
of the statute as a whole. K Mart Corp., 486 U.S. at 297. In doing so, we
find it instructive to examine the legislative history and its role in the Act.
Such statements can be “helpful to corroborate and underscore a reasonable
interpretation of the statute.” Matter of Punu, 22 I&N Dec. 224, 226-27 (BIA
1998) (citing Weinberger v. Rossi, 456 U.S. 25, 32 (1982)).
While the Applicant asserts broadly that Congress intended to permit
adjustment of status for those not otherwise eligible for it, this argument is
directly contradicted by the legislative history, the declared objective, and
the distinct features of section 244(f) of the Act, all of which underscore the
transitory nature of TPS.
In contrast with other humanitarian provisions, the legislative history
evidences a concern only for facilitating TPS recipients’ orderly departure
from the United States, not their ability to remain after their status terminates.
See, e.g., 136 Cong. Rec. at S17108-09; H.R. Rep. No. 101-245 at 12. The
Applicant has not established, and we are not aware of, any specific
17 The court in Flores and certain others, such as the district court in this jurisdiction,
distinguished Serrano without analysis, finding it “crucial” that the foreign national in that
case had not disclosed his unlawful entry, while the applicants in their cases had done so.
718 F.3d at 555; see also Bonilla, 149 F. Supp. 3d at 1141. As the Ninth Circuit in Ramirez
observed, however, that distinction “has no bearing on the Eleventh Circuit’s conclusion
that [section 244(f)(4)] does not override [section 245(a)]’s threshold ‘inspected and
admitted’ requirement.” 852 F.3d at 959. Importantly, the Eleventh Circuit has not
departed from its reasoning in Serrano in the ensuing seven years. See Duron v. Stul, 724
F. App’x 791 (11th Cir. 2018).
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indication that Congress intended to afford foreign nationals who unlawfully
entered the United States with favored immigration status beyond temporary
protection.
Looking beyond section 244(f)(4) of the Act to other provisions of the
statute, we conclude that TPS, by its nature, does not create a path to
permanent residence. For example, section 244(f)(1) of the Act specifies
that, during the period in which a foreign national is granted TPS, he or she
“shall not be considered to be permanently residing in the United States
under color of law.” And section 244(h) of the Act, titled “Limitation on
Consideration in the Senate of Legislation Adjusting Status,” requires a
special act of Congress to permit TPS recipients as a class to adjust status to
that of a lawful permanent resident.18 While the legislative history is silent
on the reasons for the addition of section 244(h), it is clear that Congress
intended to sharply limit its own ability to afford TPS recipients with
permanent resident status in the United States. Section 244, as a whole, and
section 244(f) and (h) in particular, demonstrate that Congress intended, in
general, that most TPS recipients who entered unlawfully would be ineligible
to adjust under section 245 of the Act, but also intended to preserve eligibility
for those who entered lawfully.
The limited scope of the TPS benefit is further reflected in the
requirements of periodic review, extension, and eventual termination of a
country’s designation for TPS, which are laid out in section 244(b)(3) of the
Act. When the conditions in a designated country no longer meet the
requirements for designation, TPS is terminated, and protection from
removal ceases. Those individuals who were in unlawful status before
receiving TPS are expected to return to their home countries, or revert to their
initial unlawful status if they do not. See generally Matter of Sosa-Ventura,
25 I&N Dec. at 3945 (setting forth the history of the TPS program and
concluding that “Congress clearly did not intend for TPS to create a
permanent immigration status in the United States”). This temporary
permission to remain and work in the United States for humanitarian reasons,
irrespective of one’s immigration status before TPS, with the expectation of
a later departure when conditions improve, is the hallmark of the TPS
framework. See id. at 393-95.
By contrast, the differences between TPS and the CSPA illustrate that,
when Congress intends to create a means to adjust status for humanitarian
reasons, it does so explicitly. When Congress enacted CSPA in 1992, it
18 Specifically, this provision restricts the Senate from considering any bill, resolution, or
amendment that would provide for adjustment to lawful temporary or permanent status for
TPS recipients, and further provides that this bar may not be waived or suspended absent
a vote of three-fifths of the Members.
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specifically waived the bars contained at 245(c) of the Act in clear and
unambiguous language. See Pub. L. No. 102-404, § 2(a)(5) (“Section 245(c)
of such Act shall not apply.”).19 In addition to CSPA, other provisions in the
Act reflect clear congressional intent to cure some or all of a foreign
national’s ineligibilities under section 245. For example, section 245(g) and
(h) of the Act explicitly state that foreign nationals under those provisions
are “deemed . . . to have been paroled into the United States.” And section
245(i)(1) of the Act explicitly waives section 245(a) and (c).
We recognize that the court in Ramirez rejected this argument, observing
that these provisions were enacted after the creation of TPS, and further
noting that there was no requirement that Congress “draft an elegant statute.”
852 F.3d at 963. While true, “‘[w]e assume that Congress is aware of
existing law when it passes legislation[.]’” Hall v. United States, 566 U.S.
506, 516 (2012) (quoting Miles v. Apex Marine Corp., 498 U.S. 19, 32
(1990)). When Congress enacted the CSPA, it understood that TPS
recipients under section 244 enjoyed no similar provisions waiving the
section 245(c) bars or deeming them to be paroled.
3. Section 244(f)(4) Does Not Confer Lawful Immigration Status
The Applicant also advances a more technical interpretation reached by
the Flores and Ramirez courts. Specifically, the Applicant asserts that, by
operation of section 244(f)(4) of the Act, he satisfies the eligibility
requirements provided at section 245, including the threshold requirements
of inspection and admission at section 245(a) as well as the inapplicability of
the various bars at section 245(c).
Like the Flores and Ramirez courts, the Applicant and amicus curiae
maintain that “being in” nonimmigrant status means that an individual must
have been inspected and admitted, because an individual must necessarily
have been admitted in order to “be in” nonimmigrant status under the
requirements of section 214(a)(1) of the Act, 8 U.S.C. § 1184(a)(1). See
Ramirez, 852 F.3d at 960 (“[B]y the very nature of obtaining lawful
nonimmigrant status, the alien goes through inspection and is deemed
‘admitted.’”).
The Applicant asserts that a grant of TPS is an entry, inspection, and
admission, as evidenced by the Form I-94, “Arrival/Departure Record,” that
he received when his TPS application was approved. He further states that,
as a result of this new “entry,” any prior unlawful entry or unlawful
presence—or any other inadmissibility issue—was waived when his TPS
was approved. But the notion that a grant of TPS is an entry or admission is
contradicted by the statute, which requires an applicant to be physically
19 See also supra notes 13-15 and accompanying text.
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present in the United States in order to seek TPS. Section 244(c)(1)(A)(i) of
the Act; 8 C.F.R. § 244.2(b); see also section 244(c)(5) of the Act (providing
that “nothing in [the TPS statute] shall be construed as authorizing an alien
to apply for admission to, or to be admitted to, the United States in order to
apply for [TPS]”).20 “We simply will not read into an unambiguous statutory
requirement an exception that converts [the TPS] statute into a program of
entry for an alien.” De Leon Ochoa v. Att’y Gen. of U.S., 622 F.3d 341, 353-
54 (3d Cir. 2010).
We do not agree with the Applicant’s claim that the court in Flores found
the issuance of the Form I-94 as persuasive evidence that USCIS considers a
grant of TPS to be equivalent to an admission. In fact, the court in Flores
expressly declined to address the relevance of the Form I-94, as “the plain
language of the statute answers the question.” 718 F.3d at 554 n.3; see also
Matter of Castillo-Padilla, 25 I&N Dec. 257, 261-62 (BIA 2010) (looking to
the description on the face of the Form I-94 to conclude that it did not
establish that the foreign national was granted parole).
We are not persuaded by the Applicant’s claim that section 244(f)(4) of
the Act confers lawful nonimmigrant status and thus equates the date he was
granted TPS to a date of “inspection and admission” for adjustment purposes.
We also disagree with the similar claim advanced by amicus curiae, who
asserts that a TPS recipient should be deemed to be a person with valid
nonimmigrant status and therefore also considered to have been admitted
(and consequently should not be required to demonstrate that he or she was,
in fact, admitted).
We discern no basis for either of the two suppositions and conclude the
Applicant’s interpretation is foreclosed by the plain language of the statute,
as well as the statutory scheme, legislative history, and purpose of TPS.
While it is true that inspection and admission generally lead to lawful
immigration status, it does not follow that having a lawful status results in
one’s inspection and admission. See Matter of Castillo-Angulo, 27 I&N Dec.
194, 200 (BIA 2018) (citing section 212(a)(7) of the Act, 8 U.S.C. §
1182(a)(7), to conclude that, “[w]hen an alien seeks admission at the border,
an immigration official admits the alien only upon a determination that he or
she is lawfully entitled to enter the United States”); see also section 235(a)(3)
of the Act (requiring all applicants for admission to be inspected). For
20 The term “entry” was previously defined as the “coming of an alien into the United
States, from a foreign port or place or from an outlying possession” in section 101(a)(13)
of the Act. See Matter of Agour, 26 I&N Dec. 566, 571-72 (BIA 2015). In 1996, Congress
replaced the definition of “entry” with the terms “admission” and “admitted,” which were
first defined by section 301 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-
575.
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example, a grant of asylum places the individual in valid immigration status
but is not an “admission.” Matter of V-X-, 26 I&N Dec. 147 (BIA 2013).
And a grant of benefits under the Family Unity Program confers a “status”
for immigration purposes, but does not constitute an “admission.” Matter of
Fajardo Espinoza, 26 I&N Dec. 603 (BIA 2015).
The court in Ramirez notes that the terms “admitted” and “admission”
cover more than inspection and admission at a port of entry, as the language
in the definition at section 101(a)(13)(A) of the Act might otherwise suggest.
See Ramirez, 852 F.3d at 960-961 (citing cases). But while an “admission”
may extend beyond a customary entry into the United States with a valid
visa, alternative constructions of this term occur in the context of adjustment
of status to place those who adjust status from within the United States into
the same position as those who are “lawfully admitted for permanent
residence,” as defined at section 101(a)(20) of the Act.
Such a construction is reasonable, and necessary to avoid absurd results.
Fajardo Espinoza, 26 I&N Dec. at 607; see also Matter of Rosas-Ramirez,
22 I&N Dec. 616, 621 (BIA 1999) (noting that if a foreign national who
entered without inspection and later adjusted to lawful permanent resident
status was not deemed admitted, then he or she would remain susceptible to
removal under the Act as an alien present without having been admitted or
paroled). On the other hand, no bizarre or absurd results are created when
we say that an individual who has been granted temporary lawful status—a
status that is only effective for limited periods and purposes—has not been
“admitted’ by virtue of obtaining that status while present in the United
States. See Matter of Reza, 25 I&N Dec. 296, 299 (BIA 2010).
The Ninth Circuit was also persuaded by the claim that the TPS
application and review process, which includes nationality, identity, and
admissibility requirements, was sufficiently rigorous and similar to an
inspection to be considered an admission. See Ramirez, 852 F.3d at 960.
However, we are not swayed by the fact that the adjudication of an
individual’s application for TPS involves an assessment of the relevant
eligibility factors. The commonality of factors, without more, does not
equate TPS with being “admitted,” as many immigration benefit
adjudications involve a similar inquiry.
And while the definition of “admission” is not inflexible of meaning, to
suggest that it encompasses the adjudication of applications for explicitly
temporary immigration benefits would stretch that definition too far. The
definition at section 101(a)(13)(A) of the Act is limited in scope and
specifically requires the “lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.” See generally
Burgess v. United States, 553 U.S. 124, 130 (2008) (concluding that where
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Congress expressly defines a statutory term, that definition “excludes any
meaning that is not stated” (quotation marks omitted)).
B. Narrow Interpretation is Appropriate
Looking at the structure of the statutes, both the Ninth and Sixth Circuits
considered it significant that section 244(f)(4) speaks to “purposes of
adjustment of status under section 245” and does not delimit its impact to
only section 245(c)(2). Both courts noted that Congress could have so
drafted it if desired. Observing that the title of section 245 of the Act is
“Adjustment of status of nonimmigrant to that of person admitted for
permanent residence,” the Ramirez court found that this language was echoed
in section 244(f)(4), which specifies that persons with TPS should be
considered in “lawful status as a nonimmigrant,” and then inferred that this
similarity signaled congressional intent that TPS recipients could avail
themselves of section 245 to adjust their status. See Ramirez, 852 F.3d at
961.
While the court in Ramirez commented that a narrower interpretation
“does not leave [section 244(f)(4)] to do much work,” id. at 962 n.3, we
believe that limited reach is exactly what Congress intended: limiting
operation of that provision to the requirement of continuous maintenance of
lawful status, as provided at section 245(c)(2), so as not to disadvantage
foreign nationals who could otherwise fall out of their lawful status while
under TPS.21
While it is true that section 244(f)(4) refers to section 245 generally,
section 245 includes a long list of various requirements, including those of
inspection and admission or parole, and of maintaining continuous lawful
immigration status. Section 244(f)(4) does not waive all the requirements of
section 245; it only speaks to maintaining lawful status while under TPS.
And while the TPS provisions do in fact plainly allow for those with that
status to adjust under section 245 if they otherwise meet the statutory
requirements, neither the language of section 244(f)(4) nor the legislative
history of TPS suggests that Congress had any intent to waive the
21 DHS statistics indicate that in fiscal year 2016 alone, a total of 238,087 preference aliens
were admitted as lawful permanent residents. See Table 6. Persons Obtaining Lawful
Permanent Resident Status by Type and Major Class of Admission: Fiscal Years 2014 to
2016, available at https://www.dhs.gov/immigration-statistics/yearbook/2016/table6. So
with respect to the potential pool of preference aliens, see sections 203(a)-(b) of the Act,
section 244(f)(4) may have plenty of work to potentially do, to the extent that there are
non-immediate relative TPS recipients who are seeking to adjust their status under section
245(a). See Duron v. Stul, supra (involving non-immediate relative); Barralaga v. Akins,
No. 17-cv21582, 2018 WL 2187687 (S.D. Fla. Jan. 8, 2018) (involving non-immediate
relative).
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requirements of lawful admission and maintenance of lawful status for those
who did not meet them in the first instance.
Even though a TPS recipient is considered to be in lawful status, the
nature of that person’s unlawful entry remains unchanged. See Serrano, 655
F.3d at 1265 (“That an alien with [TPS] has ‘lawful status as a nonimmigrant’
for purposes of adjusting his status does not change [section 245(a)]’s
threshold requirement that he is eligible for adjustment of status only if he
was initially inspected and admitted or paroled.”). And section 244(f)(4)
says nothing about retroactively transforming prior unlawful status into
lawful status.
The Applicant claims that USCIS has argued elsewhere that section
244(f)(4) of the Act waives section 245(c) for all TPS recipients, pointing to
the U.S. District Court decision in Bonilla v. Johnson, 149 F. Supp. 3d at
1140 (concluding that an alien who enters the country without inspection,
admission, or parole, but who is subsequently granted TPS, is eligible to
adjust status provided that all other eligibility criteria are met). However, in
addition to Bonilla being non-precedential because it is a district court case,22
it also does not support the Applicant’s characterization of the agency’s
position. To the contrary, the Government’s position in Bonilla appears
consistent with the long-standing USCIS and INS interpretation. See Motion
for Judgment as a Matter of Law at 16, Bonilla v. Johnson, id. (“The TPS
statute only addresses one bar – maintenance of lawful status – to the
exclusion of others. That is, Congress eliminated this bar with respect to
‘inspected and admitted or paroled’ aliens who were subsequently granted
TPS, as [sections 244(f)(4) and 245(c)(2) of the Act] contemplate. It did not
eliminate the rest of [section 245(c)(2)], . . . nor did it affect any other
provisions of [section 245(c)].”).23
Accordingly, we conclude that while the text of section 244(f)(4)
addresses adjustment of status under section 245 generally, its operation is
limited to curing unlawful status that accrues only during the period of TPS.
We find nothing in the statutory scheme or the legislative history to suggest
that Congress intended to also confer new eligibilities on those who did not
have them in the first place. 24 Indeed, the statutory framework and
legislative history contain a significant amount of evidence to the contrary.
22 See Camreta v. Greene, supra; Matter of K-S-, supra.
23 Moreover, no finding or conclusion in Bonilla can be conclusive in this case, as the
doctrine of nonmutual collateral estoppel does not apply to the Government. United States
v. Mendoza, 464 U.S. 154 (1984).
24 This interpretation is not weakened by the fact that section 245(c)(2) does not apply to
aliens who are the “immediate relatives” of U.S. citizens under section 201(b)(2)(A) of the
Act, so that section 244(f)(4) would not benefit such an individual independently. That the
immigration laws provide greater flexibilities to the immediate relatives of U.S. citizens is
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C. No Absurd Results
In application, our reading means that an individual who was inspected
and admitted in a nonimmigrant status, but who failed to maintain that status
subsequent to obtaining TPS, can satisfy section 245(a) of the Act and avoid
the bar at 245(c)(2).
The Applicant, however, is not such an individual because he initially
entered the United States without inspection. Consequently, even if he were
to be deemed to have been “admitted or paroled” based on an erroneous
reading of section 244(f)(4), the section 245(c)(2) bar for failure to
continuously maintain lawful status since the initial entry into the United
States would still apply due to the period of time in unlawful status prior to
being granted TPS, making him ineligible to adjust status. See 8 C.F.R. §
245.1(b)(6), (d)(3) (providing that the departure and subsequent reentry of a
foreign national who has at any time failed to maintain a lawful immigration
status on any previous entry into the United States does not erase the bar at
section 245(c)(2) of the Act); see also 7 USCIS Policy Manual B.4(D)
(providing that the violation is not required to have occurred during any
particular period of time). For these reasons, USCIS counts any violation
that occurs after any entry into the United States. This may include violations
that occur after the applicant files the adjustment application. See 7 USCIS
Policy Manual B.4(G). It does not matter how much time has passed since
that entry or whether the person subsequently left the United States and
returned lawfully.
We acknowledge that an individual—like the Applicant—may have
accrued a lengthy residence and related equities in the United States, but
these personal considerations are not part of the precise statutory question we
resolve in this decision. Any individual who entered without inspection and
admission or parole generally would be ineligible for adjustment of status
under section 245(a), and any individual who failed to continuously maintain
a lawful status despite some period of lawful status during his or her stay in
the United States would normally be barred under section 245(c) from
adjusting status under section 245(a). Thus, we perceive no absurd result.
reasonable, and the overlap here coincidental. The fact remains that the interplay of section
244(f)(4) and section 245 in general, and section 245(c)(2) in particular, serve to ensure
that persons with lawful immigration status who obtain TPS are not disadvantaged by doing
so.
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D. Even Assuming Some Ambiguity in Section 244(f)(4), the Provision is
Most Reasonably Construed as Not Conferring an Admission for
Adjustment of Status Purposes
While we are satisfied that plain language answers the question of
whether TPS is an admission for the purpose of section 245(a) of the Act,
there is merit to also addressing the alternative argument that section
244(f)(4) is subject to more than one plausible interpretation with respect to
whether it deems TPS recipients to be admitted for adjustment-of-status
purposes, and therefore is ambiguous. We acknowledge that the several
federal courts that have ruled on this issue have not deferred to the agency’s
long-held, reasonable construction, beginning with the General Counsel’s
rationale issued in legacy INS memoranda. See, e.g., Ramirez, 852 F.3d at
958-59 (“It bears noting, however, that even if we were to proceed to step
two because the statute is unclear on the ‘admitted’ issue, the government
has not identified any controlling agency interpretation to which we owe
deference.”). To the extent there might be any lingering ambiguities with
respect to section 244(f)(4), we seek to exercise our duty to resolve any
“ambiguities in [the] statute” and “fill any statutory gaps in reasonable
fashion.”25 Negusie v. Holder, 555 U.S. at 523 (citation omitted); see Matter
of Richmond, 26 I&N Dec. 779, 788 (BIA 2016) (clarifying statutory
ambiguities “where the specific question is not answered by the plain
language of the statute, either because the language is silent or is susceptible
to varying interpretations”).
Even assuming that the statutory text is ambiguous in this regard, we
would adopt the same long-held, reasonable construction that TPS does not
provide an admission for purposes of adjustment of status. In doing so, we
take into consideration the “interpretive clues” that Congress has provided.
See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 586 (2004). We
have recited at length such “interpretive clues” that support our
understanding. See supra, Section III.A.2. For example, where there is any
25 A federal court’s review of an agency’s interpretation of a statute follows the two-step
analysis described in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). See Hernandez v. Sessions, 884 F.3d 107, 110 (2d Cir. 2018). A
court would first “determine whether Congress has directly spoken to the precise question
at issue, and if it has, we give effect to Congress’s unambiguously expressed intent.”
Hernandez, 884 F.3d at 110 (quotation marks, alterations, and citation omitted). “If,
however, the statute is ambiguous,” the court would “proceed to a second step of analysis
to determine whether the agency’s interpretation is reasonable, and if it is, [the court] must
defer to it.” Id. at 110 (internal quotation marks, alterations, and citation omitted). The
agency’s “position prevails if it is a reasonable construction of the statute, whether or not
it is the only possible interpretation or even the one a court might think best.” Martinez
Gutierrez, 566 U.S. at 591.
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lingering ambiguity in the statutes, “[l]egislative history can be a legitimate
guide to a statutory purpose obscured by ambiguity[.]” Burlington N. R.R.
Co. v. Okla. Tax Comm’n, 481 U.S. 454, 461 (1984).
These clues support our interpretation of the statutory text, which is
“consonant with [our] view of the purposes and policies underlying” sections
244 and 245 of the Act. Scialabba v. Cuellar de Osorio, 573 U.S. 41, 75
(2014) (plurality op.). Specifically, our rationale is consistent with the
purpose of TPS, which is “designed to temporarily prevent removal of aliens
during extraordinary and temporary conditions that prevent safe return.” De
Leon Ochoa, 622 F.3d at 354; see also Donnee v. Holder, 750 F.3d 951 (1st
Cir. 2014) (citing with approval Matter of Sosa-Ventura, and concluding that
TPS merely prevents the execution of a removal order). Indeed, “Congress
clearly did not intend for TPS to create a permanent immigration status in the
United States.” Matter of Sosa-Ventura, 25 I&N Dec. at 39495; see section
244(f)(1) of the Act (providing that an alien granted TPS is not “considered
to be permanently residing in the United States under color of law”).
Consistent with the legislative history and purpose of TPS, Congress
intended to preserve the ability of aliens who are admitted in a valid status,
who are unable to timely depart owing to circumstances in their home
countries, and who are granted TPS, to maintain lawful status and, perhaps
later, to adjust their status to lawful permanent resident. See Section
244(a)(5) of the Act (“The granting of [TPS] shall not be considered to be
inconsistent with the granting of nonimmigrant status under this chapter.”);
section 245(c)(2) of the Act (generally precluding aliens who have failed to
continuously maintain lawful status from adjusting their status). Congress
noticeably did not extend that benefit to individuals who entered the United
States unlawfully as it has in other provisions of the immigration laws. See,
e.g., sections 209(b), 240A(b) of the Act.
Accordingly, even if the statute is ambiguous, the most reasonable
reading of section 244(f)(4) of the Act is that it does not render a beneficiary
“inspected and admitted or paroled” for purposes of adjusting to permanent
resident status. Cf., e.g., Matter of C-T-L-, 25 I&N Dec. 341, 348 (BIA 2010)
(“[E]ven if we were unable to discern a clear congressional intent . . . , we
would reach the same result. Our [interpretation] represents at a minimum a
‘reasonable choice within a gap left open by Congress.’ Thus, assuming that
the statutory language gap makes the statute ambiguous, we would adopt this
approach as a matter within our adjudicative authority and administrative
judgment.” (quoting Chevron, U.S.A., Inc., v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843-44 (1984))). This reading harmonizes section 244(f)(4)
of the Act with the overall statutory scheme, including section 101(a)(13)(A)
of the Act (defining admission).
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IV. CONCLUSION
Based on the plain language of the statute, we conclude that section
244(f)(4) of the Act does not confer a broad remedy for prior immigration
violations. Even if we were to conclude that the statute is ambiguous, we
must favor an interpretation that reads section 244(f)(4) of the Act in
harmony with section 245 of the Act and the purpose and legislative history
of the TPS provisions. Upon consideration of the plain language, its
construction, its operation in the larger statutory scheme, its legislative
history, and its application by the agency charged with its administration
since its inception, we would follow USCIS’s and the former INS’s long-
standing interpretation. Accordingly, under either a plan language or
ambiguity analysis, the end result is the same—TPS is not an admission for
purposes of section 245(a) of the Act.
Because we disagree with the Sixth and Ninth Circuit’s holdings that
section 244(f)(4) supplies the requisite inspection and admission or parole
for purposes of section 245(a)’s threshold requirements for adjustment of
status applications, we will follow those decisions only in those respective
jurisdictions. See generally Matter of Castillo-Angulo, 27 I&N Dec. 194
(BIA 2018) (following contrary decisions of the U.S. Courts of Appeals for
the Fifth and Ninth Circuits in their jurisdictions alone with respect to their
interpretation of certain statutory language). However, on the question of
whether a grant of TPS cures the bar at section 245(c)(2) of the Act for failure
to continuously maintain lawful status since entry, both the Ninth and Sixth
Circuits’ statements were dicta only, as that bar did not apply to the
individuals before them. Accordingly, DHS will apply the contrary holding
in this decision on this issue universally. See 8 C.F.R. § 103.3(c).
The Applicant has not been inspected and admitted or paroled into the
United States, as required by section 245(a) of the Act, and is accordingly
ineligible for adjustment of status. And he further is barred from adjustment
by section 245(c)(2) of the Act because he has not continuously maintained
a lawful immigration status since his unlawful entry. We affirm the
Director’s decision denying his application under section 245 of the Act.
ORDER: The adjustment application is denied.