A Truly Unnecessary (but Plainly Needed) Precedent Decision on TPS

Three consecutive questions that must be answered — but weren't

By Andrew R. Arthur on December 3, 2020

The Board of Immigration Appeals (BIA) issued a precedential decision last week in Matter of Padilla Rodriguez, a case involving temporary protected status (TPS). I would say that it was unnecessary to publish this decision, but it was plainly needed — at least by one immigration judge (IJ), and possibly others — to clarify confusion sown by (admittedly distinguishable) circuit court decisions.

The respondent is a native and citizen of El Salvador, who entered the United States without being admitted or paroled. I would normally have stated that he is removable from the United States under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) as an alien present in the United States without being admitted or paroled (which he is), except for the fact that his removability was the crux of the case.

He entered the United States in 1999, and subsequently was granted TPS in November 2003.

By way of background, section 244 of the INA allows the secretary of DHS to designate a foreign country for TPS due to conditions in the country that temporarily prevent that country's nationals from returning safely, or in specific situations, where the country cannot adequately handle the return of its nationals. As USCIS has explained, it "may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States."

El Salvador was designated for TPS on March 9, 2001, and although the Trump administration attempted to terminate that status in January 2018 (effective September 9, 2019), that termination has been enjoined since October 2018.

TPS is temporary (or at least is supposed to be, but often isn't, as the foregoing shows and as I explained in an October 2017 post), and even where a country remains designated for TPS, pursuant to section 244(c)(3) of the INA and its implementing regulations, DHS can withdraw TPS granted to an alien.

For reasons that are not stated in the BIA's decision, the respondent's TPS was "terminated" by USCIS on November 5, 2012. In the subsequent removal proceedings, he admitted that he was present in the United States without admission or parole, and conceded that he was removable under section 212(a)(6)(A)(i) of the INA.

At that point, his case got strange, because rather than sustaining the ground of removability (based on the respondent's admissions and concession), the IJ declined to do so, in alleged reliance on the Ninth Circuit's decision in Ramirez v. Brown.

In Ramirez, the circuit court held that an alien who had entered illegally, and thereafter was granted (and remained in) TPS, could adjust status to that of a lawful permanent resident (LPR) under section 245 of the INA.

That decision itself was a bit of an anomaly, because pursuant to section 245(a) of the INA, in order to be granted adjustment of status, an alien has to have been "inspected and admitted or paroled into the United States", which Ramirez — having entered illegally — seemingly had not been.

The Ninth Circuit nonetheless focused on the TPS provision, and in particular section 244(f)(4) of the INA, to conclude that Ramirez could adjust status under section 245 of the INA.

Section 244(f)(4) of the INA states: "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 of the INA] ... the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant." Despite the fact that this provision never mentions the words "admission" or "admitted", the circuit court held that it "unambiguously treats aliens with TPS as being 'admitted' for purposes of adjusting status."

As I noted in an April 2017 post analyzing Ramirez, the Sixth Circuit had previously also determined that aliens who had been granted TPS after entering illegally could adjust status under section 245 of the INA (under the same logic), while the Eleventh Circuit had held that they could not.

Since then the battle lines have been drawn, with the Third Circuit joining (more or less) the Eleventh Circuit in finding that aliens who entered illegally and were granted TPS could not adjust to LPR status, while two judges on a three-judge panel in the Eighth Circuit (one dissented) have recently aligned with their colleagues in the Sixth and Ninth Circuits on the question.

The Fifth Circuit has gone one step further than the Third and the Eleventh Circuits. It concluded that an alien who entered as a nonimmigrant and overstayed his one-month visitor visa — after which he was granted TPS — was ineligible for adjustment of status based on an approved I-130 Petition for Alien Relative filed by his U.S. citizen brother, under section 245(c)(2) of the INA.

That provision bars an alien (other than an immediate relative) from adjustment if the alien "has failed ... to maintain continuously a lawful status since entry into the United States", a bar that applied to the appellant there — notwithstanding section 244(f)(4) of the INA — according to the Fifth Circuit.

For its part, the BIA in Matter of Padilla Rodriguez concluded that a 2019 decision of the Administrative Appeals Office (AAO) at USCIS in Matter of H-G-G- provides the proper interpretation of section 244(f) of the INA. The AAO held that for adjustment purposes under section 245 of the INA, an alien with TPS "is considered as being in and maintaining lawful status as a nonimmigrant only during the period that TPS is in effect", and that "a grant of TPS does not constitute an admission, nor does it cure or otherwise impact any previous unlawful status."

For that reason, the BIA in Matter of Padilla Rodriguez limited the application of the contrary holdings of the Sixth, Eighth, and Ninth Circuits — construing TPS grants to aliens who had entered illegally as "admissions" for adjustment purposes — solely to cases arising in those circuits.

Returning to Padilla Rodriguez's case itself, however, the IJ concluded that, under Ramirez, the grant of TPS was an "admission", and the respondent therefore was not removable as an alien present without being admitted or paroled under section 212(a)(6)(A)(i) of the INA. Note that Padilla Rodriguez did not apply for adjustment of status under section 245 of the INA.

By contrast, there was no question in the Sixth, Eighth, and (in particular) Ninth Circuit cases that the aliens were removable — only whether they were eligible for relief from removal (specifically adjustment).

The BIA concluded that this case was controlled by its 2010 decision in Matter of Sosa Ventura, which involved a Salvadoran national who had entered illegally and was subsequently granted TPS while he was in proceedings. In lieu of administrative closure — which had initially been requested by the parties after the TPS grant — the IJ terminated the proceedings with prejudice, meaning DHS could not refile the removal charges when and if TPS was withdrawn.

The BIA in Matter of Sosa Ventura reversed the IJ's decision. It held, based on the language and legislative history of section 244 of the INA, that the respondent there was "protected from execution of a removal order during the time her TPS status is valid", but was still removable as charged by DHS.

After surveying the history of TPS and its predecessor procedure ("Extended Voluntary Departure"), the BIA concluded (linguistically logically) that: "Congress clearly did not intend for TPS to create a permanent immigration status in the United States."

Keep in mind, TPS had been around for about 20 years at the time that the BIA restated these fundamental points, so how did the IJ reach this (obviously erroneous) conclusion? As in Matter of Padilla Rodriguez, the IJ in Matter of Sosa Ventura was led astray by a circuit court decision, in that case by the Fifth Circuit's decision in United States v. Orellana.

Orellana was a criminal case, in which the defendant was a Salvadoran national who had entered the United States illegally and was subsequently granted TPS. He then got a job with a private security company, and his boss took him to a pawn shop and bought the defendant a hand gun.

Orellana used a fake Social Security number (SSN) to obtain a Texas Commissioned Security Officer Card, but failed to change the number kept on file by the Texas Commission on Private Security when he was issued his own SSN. During a 2003 investigation of illegal aliens working as security guards, Orellana was encountered by state and federal agents while working at a Houston nightclub, in possession of the gun.

He was indicted under 18 U.S.C. § 922(g)(5), as an alien "illegally or unlawfully in the United States" in possession of a firearm, and convicted. The Fifth Circuit reversed, holding that Orellana "was in a form of lawful status throughout the time his TPS registration was effective", and therefore — after analysis of the criminal statute — not "unambiguously" criminally liable thereunder.

All of that said, the IJ's decision in Matter of Padilla Rodriguez is confusing from a legal standpoint. In removal proceedings, there are three consecutive questions that the court must answer: (1) Is the respondent an alien? If so, (2) is the respondent removable as charged? If so, (3) is the alien eligible for some relief from removal that would convey a status allowing the alien to remain in the United States?

In Matter of Sosa Ventura, at least the IJ thought that the alien had some sort of legal status that justified termination (erroneously so, and certainly not with prejudice). What status did the IJ believe Padilla Rodriguez had? If he had been "admitted", in what status was he admitted? He no longer had TPS.

In any event, that decision gave the BIA the opportunity to clarify its earlier decision (not that much clarification was seemingly necessary), adopt the AAO's decision in Matter of H-G-G-, and limit the applicability of the decisions of the Sixth, Eighth, and Ninth Circuits as they relate to the ability of aliens who have entered illegally and been granted TPS to adjust status and obtain green cards.

So, as precedent, it was likely unnecessary, but plainly nonetheless needed.