Ninth Circuit Significantly Extends TPS Eligibility for Adjustment of Status

A three-judge panel of the Court of Appeals for the Ninth Circuit on March 31, 2017, in a little-noted decision in Ramirez v. Brown, __F. 3d ___ (9th Cir. 2017), vastly expanded the potential number of aliens who may be eligible for adjustment of status under section 245 of the Immigration and Nationality Act (INA).

Adjustment of status is a process through which an alien may acquire a green card while in the United States, without having to depart this country and obtain an immigrant visa through consular processing. (See section 245 of the Immigration and Nationality Act (INA).) It is generally unavailable, however, to aliens who entered the United States illegally. (See section 245(a) of the INA.)

Jesus Ramirez and Barbara Lopez, the plaintiffs in that case, are, respectively, an El Salvadoran national with Temporary Protected Status (TPS) and his United States citizen wife. Ramirez entered the United States illegally in 1999 and was subsequently granted TPS. The couple married in 2012, and Lopez filed a Petition for Alien Relative (Form I-130) on Ramirez's behalf, which was approved by U.S. Citizenship and Immigration Services (USCIS) on April 16, 2013. On April 24, 2013, however, USCIS denied the application for adjustment of status filed by Ramirez, finding that he was ineligible for adjustment, in part because he had not been "inspected and admitted or paroled" when he entered the United States.

A federal district court judge disagreed, determining that USCIS's interpretation of section 245(a) was incorrect as a matter of law because, it found: "the TPS statute clearly provides that recipients count as being 'inspected and admitted' for purposes of adjusting their status." The Ninth Circuit affirmed that decision.

TPS is a status that can be granted to nationals of a country designated by the secretary of Homeland Security "due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately."

El Salvador was designated for TPS by the attorney general on March 9, 2001, as a result of earthquakes in that country. TPS for El Salvador has been continually redesignated for the last 16 years, most recently on July 8, 2016 (through March 9, 2018). Ramirez has maintained his status over that period.

According to the Congressional Research Service, as of January 2017, the United States provided TPS to over 325,000 aliens from 13 countries. Of that number, almost 60 percent, or 195,000, were Salvadorans, like Ramirez.

The number of Salvadorans who entered illegally and were granted TPS is unclear, as is the number of those Salvadorans who (like Ramirez) married U.S. citizens and are the beneficiaries of immediate relative visa petitions. Given the fact that TPS is sought only by individuals without permanent status in the United States (i.e., illegal entrants, nonimmigrants, and nonimmigrant overstays), and that to be eligible for TPS a Salvadoran had to have entered the United States more than 16 years ago, however, those numbers are likely quite large.

The Ninth Circuit is not the first federal appeals court to find that aliens with TPS who entered illegally are eligible for adjustment of status, but it is the first in a circuit with a large population of aliens who entered illegally. With this decision, the Ninth Circuit joins its colleagues on the Sixth Circuit in finding that aliens with TPS who entered illegally are eligible for adjustment. (See Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013).)

The Sixth Circuit covers federal appeals arising from the states of Kentucky, Michigan, Ohio, and Tennessee. None of those states were in the top 10 states of residence of the unauthorized immigrant population in January 2000, which would logically include most of the Salvadorans covered by TPS.

The Ninth Circuit, on the other hand, covers California, Arizona, Nevada, Idaho, Montana, Washington, Oregon, Alaska, and Hawaii, as well as the Northern Marianas Islands and Guam. California, Arizona, and Nevada were each on the list of the top 10 states of residence of the unauthorized immigrant population in January 2000; California was at the top of that list with 2,510,000 aliens. Those three states were home to more than 35 percent of the total illegal alien population in January 2000. Finally, the Migration Policy Institute found that "California had the largest number of foreign-born residents from El Salvador (399,204, or 36.5 percent of the total Salvadoran-born population) in 2008."

Unlike the Ninth Circuit, however, the Eleventh Circuit has held that aliens who entered illegally and subsequently acquired TPS status are not eligible for adjustment of status under section 245(a) of the INA. (See Serrano v. U.S. Att'y Gen., 655 F.3d 1260, 1265 (11th Cir. 2011) (per curiam).) Given this circuit split, the Justice Department could seek Supreme Court review of the Ninth Circuit's decision. In the alternative, it could seek a rehearing en banc in the Ninth Circuit, or allow Ramirez to stand.

There appear to be grounds for appeal. Section 245(a) of the INA provides:

(a) The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. (Emphasis added).

As noted, USCIS found that Ramirez was ineligible for adjustment of status, in part, under the prefatory language of section 245(a) because "he had not shown that he was inspected and admitted or paroled at the time of his May 1999 entry into the United States nor that he was exempt from that requirement." The Ninth Circuit's decision largely rests on its conclusion that the section of the INA governing TPS itself "unambiguously treats aliens with TPS as being 'admitted' for purposes of adjusting status."

The term "admitted" is defined in section 101(a)(13)(A) of the INA, which states: "(a) As used in this Act- (13) (A) The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." There is no suggestion that Ramirez was "admitted" under the terms of this definition, which the circuit court admits "provides the 'primary, controlling definition' of 'admitted.'" The Ninth Circuit, however, explicitly rejects application of this definition, which it calls the "port-of-entry definition", to Ramirez's case.

Rather, the circuit court relies on section 244(f)(4) of the INA, which states:

Benefits and Status During Period of Temporary Protected 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.

Significantly, however, section 244(f)(4) of the INA does not state that an alien granted TPS "shall be considered as having been admitted, and maintaining, lawful status as an immigrant," only as "being in and maintaining" such status, and therefore it does not track the language in section 245(a). (Emphasis added. See also section 245(a) of the INA.) Further, such application of section 244(f)(4) of the INA to section 245(a) was expressly rejected by the Eleventh Circuit in Serrano, 655 F.3d at 1264:

Serrano argues that [section 244(f)(4) of the INA] alters the 'inspected and admitted or paroled' limitation on eligibility for adjustment of status under [section 245(a)]. We disagree. The plain language of [section 245(a)] limits eligibility for status adjustment to an alien who has been inspected and admitted or paroled. [Section 245(a) of the INA]. That an alien with Temporary Protected Status 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.