CHANGE IN THE LAW: U.S. Supreme Court Case Changes the Law for TPS Beneficiaries Adjusting Status in the 6th and 9th Circuits.

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 how entry without inspection or parole did not prohibit temporary protected status (“TPS”) beneficiaries from adjusting status depending upon residence within the sixth or ninth circuits. This blog analyzed how Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), and Flores v. U.S. Citizenship and Immigration Services,718 F.3d 548 (6th Cir. 2013), authorized TPS beneficiaries, who entered without inspection or parole, to apply for permanent residency by adjusting status (I-485 Form).  The Supreme Court’s June 2021 Sanchez decision changes the law regarding a TPS beneficiary’s eligibility for adjustment when she or he entered without admission and inspection or parole. Specifically, the Supreme Court concluded that a TPS beneficiary may not become a permanent resident through adjustment if she or he did not enter the U.S. lawfully. Considering the Sanchez decision, the Ramirez and Flores cases no longer provide the governing law regarding a TPS beneficiary’s eligibility for adjustment when the Department of Homeland Security did not inspect and admit or parole the beneficiary before obtaining TPS status.

Temporary Protected Status & Adjustment of Status

Foreign nationals from certain nations may remain in the U.S. in temporary protected status pursuant to 8 U.S.C. § 1254a (INA § 244). As of May 2021, the United States designates nationals from the following countries as eligible for temporary protected status: Burma (Myanmar), El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Venezuela, and Yemen (https://www.uscis.gov/humanitarian/temporary-protected-status). Depending upon several factors, a TPS beneficiary may apply for permanent residency by adjusting status (I-485 Form).

To apply for permanent residency while physically present in the U.S., a foreign national must satisfy a few factors. A foreign national must demonstrate that she or he “was inspected and admitted or paroled into the United States,” eligibility for an immigrant visa, admissibility for permanent residency, and an immigrant visa’s immediate availability upon filing the I-485 Form. During “a period in which” USCIS grants temporary protected status,” the TPS beneficiary “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” See 8 U.S.C. § 1254a(f)(4). For a TPS beneficiary, who entered the U.S. without proper inspection by Customs and Border Protection (“CBP”), satisfying the inspected and admitted or paroled criteria presents a challenge after the Supreme Court’s recent Sanchez decision.

Matter of H-G-G Opinion

On 31 July 2019, USCIS designated Matter of H-G-G, an opinion rendered by the Administrative Appeals Office (“AAO”), as an adopted decision. See USCIS Policy Memorandum PM-602-0172. In the decision, the AAO considered that USCIS denied an adjustment application because the TPS beneficiary “had never been inspected and admitted or paroled” and did not continuously maintain lawful immigration status. Matter of H-G-G, Adopted Decision 2019-01 at 1 (AAO July 31, 2019). In H-G-G, the TPS beneficiary applied for permanent residence with an approved I-130 petition qualifying him as a derivative beneficiary of a U.S. citizen’s married son or daughter. Id. at 2.

The AAO compared TPS beneficiaries who entered the U.S. after proper inspection and admission with beneficiaries who did not undergo inspection. If CBP inspected and admitted a TPS beneficiary, section 1254a(f)(4) ensures that a TPS beneficiary who “maintained a lawful immigration status” before USCIS approved her or his TPS status will not suffer a penalty if the status expired during authorized TPS status. Id. at 10. However, for a TPS beneficiary who entered without inspection and admission, the AAO explained that “the nature of that person’s unlawful entry remains unchanged” even after USCIS grants TPS status. Id. at 18 (emphasis added).

Significant to applying for permanent residency, the AAO concluded that temporary protected status “is not an admission” for section 1255(a) adjustment of status purposes. Id. at 21. However, for TPS beneficiaries living in certain states before the Supreme Court’s recent Sanchez decision, H-G-G did not stop them from applying for permanent residency even when CBP did not inspect and admit or parole them before obtainingTPS status.

6th & 9th Circuit Law Before the U.S. Supreme Court’s Sanchez v. Mayorkas Decision

Before the Supreme Court’s June 2021 Sanchez decision, a foreign national granted temporary protected status was “deemed to be in lawful status as a nonimmigrant—and” had “thereby satisfied the requirements for becoming a nonimmigrant, including inspection and admission—for purposes of adjustment of status.” Ramirez v. Brown, 852 F.3d 954, 956 (9th Cir. 2017).

Sixth circuit law lead to similar adjustment eligibility for TPS beneficiaries before the Supreme Court’s recent Sanchez decision. Remanding to USCIS for review, the sixth circuit observed that 8 U.S.C. § 1182’s inadmissibility list “makes no mention of TPS beneficiaries being categorically barred from visa or admission eligibility.” Flores v. U.S. Citizenship and Immigration Services, 718 F.3d 548, 554 (6th Cir. 2013). Significant to TPS beneficiaries, who entered without inspection, the Flores and Ramirez cases both reviewed a TPS beneficiary’s adjustment where CBP did not initially inspect and admit the TPS beneficiaries. See Ramirez, 852 F.3d at 957; Flores, 718 F.3d at 550.

Ramirez provided the law for TPS beneficiaries residing in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington State. Similarly, Flores articulated the law for beneficiaries residing in Kentucky, Michigan, Ohio, and Tennessee. Significant to TPS beneficiaries living in states governed by the 6th and 9th Circuits before the Supreme Court’s Sanchez decision, the AAO agreed to follow 6th and 9th circuit law.

3rd and 11th Circuit Law Before the Supreme Court’s Sanchez Decision

For TPS beneficiaries, who initially entered without inspection and admission or parole, Matter of H-G-G and 3rd and 11th circuit opinions presented an obstacle if they lived in states governed by those circuit courts. Unfortunately for TPS beneficiaries living in Delaware, New Jersey, and Pennsylvania, the third circuit decided Sanchez v. Secretary U.S. Dept. of Homeland Security, Case No. 19-1311 (3rd Cir. July 22, 2020). In Sanchez, the third circuit found no congressional intent that receiving TPS would “serve as an admission for those who entered the United States illegally,” and that receiving temporary protected status did “not constitute an ‘admission’ into” the U.S. “under § 1255” (emphasis added).

For beneficiaries living in Alabama, Florida, and Georgia, 11th circuit precedent challenged their path to permanent residency. See Serrano v. U.S. Attorney General, 655 F.3d 1260, 1265 (11th Cir. 2011) (“That” a foreign national “with Temporary Protected Status has ‘lawful status as a nonimmigrant’ for purposes of adjusting his status does not change § 1255(a)’s threshold requirement that he is eligible for adjustment of status only if he was initially inspected and admitted or paroled”) (emphasis added).

Because the 3rd and 11th circuits disagreed with the 6th and 9th circuits, the divergent law directly impacted adjustment eligibility for TPS beneficiaries, who entered without inspection, based upon the states where they reside.

The U.S. Supreme Court’s June 2021 Sanchez Decision Resolved the Conflict

The Supreme Court’s June 2021 Sanchez opinion resolved the conflicting law. As of 24 June 2021, the Supreme Court’s docket does not indicate that a party requested that the Court rehear its decision. TPS beneficiaries, who entered the U.S. without inspection and admission or parole, should seek legal advice before filing an adjustment application (I-485 Form).