CHANGE IN THE LAW: U.S. Supreme Court Case Changes the Law in the 8th Circuit
On 7 June 2021, the U.S. Supreme Court issued its decision in Sanchez v. Mayorkas, Case No. 20-315. This decision resolved conflicting case law among the federal appellate courts. Before the Supreme Court’s Sanchez decision, the blog section below discussed Velasquez v. Barr, Case No. 19-1148 & 19-2130 (8th Cir. 2020), an eighth circuit decision authorizing TPS beneficiaries, who entered the U.S. without inspection or parole, to apply for permanent residency by adjusting status. The Sanchez decision changed the law regarding adjustment for TPS beneficiaries, who entered without admission or parole. Considering the Sanchez decision, the Velasquez decision no longer controls a TPS beneficiary’s adjustment eligibility when the Department of Homeland Security did not admit or parole the beneficiary before obtaining TPS status. For additional information, see the updated blog.
8th Circuit Eases Adjustment for TPS Beneficiaries
On 27 October 2020, the eighth circuit issued a decision impacting foreign nationals granted temporary protected status (“TPS beneficiaries”). The eight circuit’s decision in Velasquez v. Barr, Case Nos. 19-1148 & 19-2130 (8th Cir. Oct. 27, 2020), positively changes a TPS beneficiary’s eligibility to pursue adjustment of status. This law’s change applies to TPS recipients living in states governed by the eighth circuit.
In Velasquez, the foreign nationals received temporary protected status and applied for adjustment of status as immediate relatives. USCIS denied the TPS beneficiaries’ adjustment applications upon reasoning that TPS did not qualify as an admission for adjustment under 8 U.S.C. § 1255(a). After USCIS denied the adjustment applications, the TPS beneficiaries filed federal lawsuits under the Administrative Procedure Act. The federal trial courts concluded that temporary protected status functioned as an inspection and admission for section 1255(a) adjustment purposes. See Velasquez, Case Nos. 19-1148 & 19-2130 at *4-5.
On appeal, the eight circuit considered whether TPS beneficiaries “who entered the” U.S. “without inspection are . . . deemed ‘inspected and admitted’ and thus eligible for adjustment.” Id. at *5. The eighth circuit considered that 8 U.S.C. § 1254a(f)(4) requires that “TPS beneficiaries ‘shall be considered as being in, and maintaining, lawful status as a nonimmigrant’” for adjustment purposes. Id. at *7 (emphasis removed). The court concluded that section 1254a(f)(4) requires that TPS beneficiaries “be considered ‘inspected and admitted’ for purposes of adjusting their status.” Id.
The Velasquez decision positively impacts TPS Beneficiaries living in Arkansas, Iowa, Missouri, Minnesota, Nebraska, North Dakota, and South Dakota. Thus, beneficiaries in these states may now pursue permanent residency. SeeVelasquez, Case Nos. 19-1148 & 19-2130 at *8 (“because TPS beneficiaries are ‘considered’ to have nonimmigrant status for purposes of § 1255, they must also be considered ‘inspected and admitted’ under § 1255(a)”). The eighth circuit’s Velasquez decision aligns with precedential decisions from the sixth and ninth circuits. See Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. U.S. Citizenship and Immigration Services, 718 F.3d 548 (6th Cir. 2013).