The Attack on TPS

By David Wilson and Kelsey Friberg

Wilson Law Group

David Wilson, ’97, is the Managing Attorney of Wilson Law Group.  David litigates immigration law issues before the Executive Office for Immigration Review, Federal District Courts, and Federal Circuit Courts. David also was a member of the Wm. Mitchell L. Rev. as an Executive Editor.

Kelsey Friberg is an Immigration Attorney with Wilson Law Group.  Kelsey litigates immigration law issues before US Citizenship & Immigration Services, the Executive Office for Immigration Review, and has appeared in multiple federal court cases.

I.  Introduction

  Over 400,000 people live in the United States under Temporary Protected Status (“TPS”). El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen are currently designated for TPS. While the United States has provided protection for TPS beneficiaries from these countries for decades, hundreds of thousands now worry they are suddenly on borrowed time. The Department of Homeland Security (“DHS”) has sought fervently to end designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. Some courts have intervened, but many of these designations remain in legal limbo.

  The Departments’ termination attempts have led to a greater sense of urgency for these families and for the practitioners that serve them. Many individuals on TPS have lived in the United States for fifteen to twenty years. They desperately seek to maintain the life they have grown to know. They are trying to do so within the law, but this administration is pushing back, and it is pushing back with a vengeance. While advocates across the country are stepping to the plate to thwart these efforts, tensions are high.

  Meanwhile, the government has attacked the TPS statute itself, 8 U.S.C. § 1254a, in an apparent attempt to minimize its impact on the lives of those who benefit from the law. The plain language is unambiguous: “[f]or the purpose of adjustment of status under section 1255,” a TPS recipient “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” Still, the government strains to insert limitations into the statute that simply do not exist. In doing so, the government argues against itself. In one venue, it argues that a TPS grant is not an “admission” pursuant to 8 U.S.C. § 1255(a) and a TPS beneficiary who entered without inspection cannot satisfy the “maintain lawful status” requirement of 8 U.S.C. § 1255(c)(2). Under this theory, to satisfy the admission requirement, the TPS beneficiary should, per the government, simply travel abroad via parole and re-enter. However, in another venue, the government urges that even TPS parole will not satisfy § 1225(a). It seems the government will stop at nothing to strip the TPS statute down to nothing. Immigration attorneys are stepping in and fighting back, but these times are truly unprecedented.

II.  The Threat of Termination

  Temporary Protected Status is a humanitarian immigration benefit that allows individuals from designated countries to lawfully live and work in the United States when they cannot safely return to their country due to armed conflict, natural disaster, or other exceptional circumstances. It provides eligible foreign nationals with employment authorization and a stay of deportation. To be eligible, the foreign national must: (i) be a national of a TPS-designated country; (ii) have been present in the United States on the date of the initial designation or re-designation and extension; (iii) be otherwise admissible; and (iv) register within a specific timeframe.

  The Department of Homeland Security decides whether to designate, extend, or terminate TPS for a specific country. When DHS first designates a country for TPS, the initial period lasts 6 to 18 months. The Acting DHS Secretary then undertakes a periodic review to determine whether to re-designate, extend, or terminate TPS for the country. The Secretary is to consult the appropriate federal agencies when conducting the required periodic review. The Secretary must make this determination at least 60 days before the end of the initial period designation. The Secretary must then timely publish the decision to extend or terminate TPS, including the basis for the termination in the Federal Register.

  TPS extension decisions have changed significantly in recent years. Under every prior administration, when deciding whether to terminate or extend a country’s TPS designation, DHS considered all of the conditions in that country, including the natural disasters and social or economic crises that occurred after the country’s original TPS designation. With this administration, however, DHS has departed from past practice and adopted a new interpretation of the TPS statute that eschews consideration of intervening country conditions. DHS has “made a deliberate choice to base the TPS designation solely on whether the originating conditions or conditions directly related thereto persisted, regardless of other current conditions no matter how bad . . . a clear departure from prior administration practice.”1 In short, DHS justified its decision to terminate TPS for several countries by looking exclusively to the lingering effects of the originating events that led to the initial TPS grant, not to the present state of crises in the countries. In so doing, DHS adopted a new standard that departed from long-standing practice without any reasoned explanation. As advocates are now arguing across the country, this departure violates the Administrative Procedure Act.

  With this reasoning, DHS announced that it was ending the TPS designations of six countries over the course of 2017 and 2018: El Salvador, Honduras, Haiti, Nepal, Nicaragua, and Sudan. Several lawsuits followed.[enf_note]Centro Presente v. Trump (D. Mass. 1:18-cv-10340-JDC) (El Salvador, Haiti, Honduras); Ramos v. Nielson, Case No. 18-cv-01554-EMC (N.D. Cal. 2018) (El Salvador, Nicaragua, Sudan, Haiti); Saget v. Trump (E.D.N.Y., 18-cv-1599-WFK) (Haiti); Casa De Maryland v. Trump (D. Md. 8:18-cv-00845-GJH) (El Salvador);National Association of Colored People v. DHS (D. Md. 18-0239) (Haiti); Bhattari v. Nielson (N.D. Cal. 19-cv-00731) (Honduras, Nepal).[/efn_note] In each, Plaintiffs sought injunctions on DHS’ terminations.2

Most notably, in Ramos, on October 3, 2018, a District Court Judge issued a preliminary injunction preventing DHS from implementing terminations for El Salvador, Haiti, Nicaragua, and Sudan.3 The government appealed that injunction, and on September 14, 2020, the Ninth Circuit issued a decision lifting the injunction.4 Attorneys in Ramos are seeking en banc review at the Ninth. If that fails, they intend to file a petition for certiorari with the United States Supreme Court.5

  While the panel at the Ninth Circuit vacated the Ramos injunction, the appellate court has not yet issued its directive to the district court to make that ruling effective. Therefore, the injunction remains in place. United States Citizenship and Immigration Services has recognized this truth in the December 9, 2020 Federal Register Notice.6 In the prior notice, issued November 4, 2019, the expiration date for TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal was January 4, 2021.7 Now, the expiration date is October 4, 2021.8 This means that beneficiaries from these six countries will maintain TPS status and work authorization at least until that date. Some weeks before that date, DHS will make an announcement. If TPS does end for a certain country, DHS will provide a “wind down” period of twelve months for Salvadorans and four months for citizens of other countries.9

Time will tell how the administration change will affect TPS extensions and terminations. During his presidential campaign, President Elect Joe Biden stated that he planned to “order an immediate review of TPS.”10 He openly criticized the Trump Administration’s decisions to rescind TPS and promised that as president, he would “protect TPS and Deferred Enforced Departure (DED) holders from being returned to countries that are unsafe.”11 The President Elect further indicated that TPS/DED holders “who have been in the country for an extended period of time and built lives in the U.S. will also be offered a path to citizenship through legislative immigration reform.”12 Again, time will tell which of these campaign platforms are prioritized by the new administration. For now, though, TPS beneficiaries across the country are taking a collective breath of relief.

III.  TPS as an Admission

Meanwhile, in the background of these termination cases, the government has fervently tried to limit TPS beneficiaries’ pathway to becoming lawful permanent residents.

a.  TPS and Removability

The Attorney General may grant “temporary protected status in the United States and shall not remove the alien from the United States during the period in which such status is in effect.” INA § 244(a)(1)(A), 8 USC § 1254a(a)(1)(A). In Matter of Sosa Ventura,13 the Board of Immigration Appeals (“Board”) concluded that a noncitizen is protected from execution of a removal order during the time his or her TPS is valid, but he or she remains removable if determined to be inadmissible under INA § 212(a)(6)(A)(i). Recently, on November 23, 2020, the Board issued a follow-up decision on the issue of TPS and removability: Matter of Roberto Carlos Padilla Rodriguez.14 Padilla addressed the capacity to remove someone once TPS ends. The Board concluded that a person reverts to their prior status and is removable accordingly. In other words, when someone entered without inspection, received TPS, but lost TPS, he or she remains inadmissible under INA § 212(a)(6)(A)(i), and removal proceedings should not be terminated.15

b.  Immediate Relative Adjustments

Under the TPS statute, 8 USC § 1254a(f)(4), “for the purposes of adjustment of status under section 1255,” a TPS beneficiary “shall be considered as being in, and maintaining, lawful status as a non-immigrant.” Under the adjustment of status statute, 8 U.S.C. § 1255(a), an adjustment applicant must show that he or she “was inspected and admitted or paroled into the United States.”

  At issue for the immediate relative cases, therefore, is whether a TPS grant under 8 U.S.C. § 1254a constitutes an “inspection and admission” pursuant to § 1255(a). More specifically—whether a noncitizen who entered the United States without inspection or admission but later received TPS may adjust her status to Lawful Permanent Resident (LPR), when the LPR application requires the noncitizen to have been “inspected and admitted” into the United States.

  In these cases, advocates contend that the plain language of the TPS statute clearly means that TPS beneficiaries are considered “inspected and admitted” for purposes of adjustment. Because a TPS recipient must be treated as a nonimmigrant for adjustment purposes, as explicitly stated in the statute, she is deemed to have met all requirements for non-immigrant status, including inspection and admission. The government disagrees, asserting that because § 1254a(f)(4) does not specifically include § 1255(a)’s “inspected and admitted” language, a TPS beneficiary must be separately inspected and admitted to adjust her status under § 1255.

  There is a circuit split on this issue. On one side is the Eighth, Sixth, and Ninth Circuits, where a TPS recipient is “inspected and admitted” and so may adjust her status. On the other is the Eleventh and Third, where the opposite is true.16

  All District of Minnesota cases have held that the plain language of the TPS statute is unambiguous, and TPS constitutes an admission for adjustment purposes.17 The Eighth Circuit recently affirmed in Velasquez v. Barr.19

.

  Referencing several provisions of the Immigration and Nationality Act, the Court concluded that the Act “consistently treats inspection as a prerequisite to admission.”20 The provisions are “clear that a noncitizen who has been granted nonimmigrant status has necessarily been inspected and admitted. And because TPS beneficiaries are considered to have nonimmigrant status for the purposes of § 1255, they must also be considered ‘inspected and admitted’ under § 1255(a).”21

  Judge Loken dissented.[enf_note]Velasquez, 979 F.3d at 581–86.[/efn_note] The dissenting opinion urged that the Court misapplied Chevron and should have followed the Administrative Appeals Office’s opinion in Matter of H-G-G-.22 There, the AAO concluded that 1254a(f)(4) did not satisfy 1255a(a) admission requirement. The AAO disavowed the decisions of the Sixth and Ninth Circuits and wrote that 1254a(f)(4) does not provide for inspection, admission, or parole, “as the terms are entirely absent.”23 “[U]se of the phrase ‘considered as being in and maintaining’ lawful status serves as an implicit recognition that the individual is not in fact in such status.”24 The AAO addressed the notion that lawful status as a nonimmigrant necessarily means he or she was admitted, and disagreed.25 The AAO concluded that Congress did not intend to “waive the requirements of lawful admission and maintenance of lawful status for those who did not meet them in the first instance.”26 Dissenting in Velasquez, Judge Loken urged that H-G-G- was worthy of substantial deference under Chevron.27

  This issue may soon be before the United States Supreme Court.28 There is currently a petition for a writ of certiorari pending in the Supreme Court for the Third Circuit’s decision in Santos Sanchez.29 An acquiescence to certification by the Solicitor General like this will almost certainly mean that the Court grants review. There is a January 8, 2021 conference which will likely be the Supreme Court’s last chance to grant cases in time to be argued during the last OT20 sitting in April. It is likely that the Supreme Court will hear Sanchez. However, there is a chance it may not. Velasquez is waiting in the wings. Velasquez criticized Santos Sanchez for overlooking many words in the statute, addressed the published agency position in H-G-G-, addresses the fight over Skidmore deference, and included a lengthy dissent. For now, though, the government is pushing Sanchez Sosa as a viable vehicle case. It seems Velasquez is the government’s “Plan B.” Time will tell if, or when, the issue of TPS and adjustment for immediate relatives will be before the Supreme Court.

  The Board of Immigration Appeals doubled down on its position in Padilla Rodriguez.30 The Board ruled that “an alien whose TPS continues to be valid is considered to be ‘admitted’ for purposes of establishing eligibility for adjustment of status within the jurisdictions of the Sixth, Eighth, and Ninth Circuits.” The circuit split has the nation torn in half. The Supreme Court is almost certain to step in.31

c.  Preference Petition Adjustments

For family-based preference petitions, although case law at the national level is mixed, a recent District of Minnesota case ruled in favor of TPS beneficiaries’ ability to adjust by these means. For these cases, in addition to showing admission or parole to satisfy 8 U.S.C. § 1255(a), an adjustment applicant with a family preference petition must also satisfy 8 U.S.C. § 1255(c)(2) by showing that he or she “maintained continuous lawful status.” The Eleventh and Fifth Circuits have both held that a TPS recipient who enters without inspection cannot satisfy 1255(c)(2).32 Those circuits concluded that the lawful status described by the TPS statute is limited to the period of time the recipient has TPS, and any earlier unlawful status still constitutes a failure to “maintain continuously a lawful status since entry” under 8 U.S.C. § 1255(c)(2).

  This was also the position of the Administrative Appeals Office.33 However, after reviewing the AAO’s decision in H-H-G-, the District of Minnesota recently declared that a TPS approval grants lawful status as nonimmigrants for all purposes of a status adjustment under section 1255—including both §§ 1255(a) and 1255(c)(2).34 The District Court wrote that the plain language of the TPS statute makes clear that (1) a grant of TPS qualifies as an “admission” and (2) such an admission qualifies as a new lawful entry.35 Regarding the (c)(2) issue, the court explicitly rejected Melendez and Duron. The plain language of the TPS statute unequivocally states that “for purposes of adjustment of status under section 1255” a TPS recipient “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”36 If Congress intended TPS recipients who initially entered without inspection to be unable to alter their status under § 1255, it would not have made the TPS statute operate as an “admission” and would not have made it applicable to the entirety of 1255. The court wrote that the government was “essentially telling [TPS holders] that [they are] protected and can stay here, but that [they] will never be allowed to become [Legal Permanent Residents], even for an independent basis.”37 The government’s position contradicted the plain language of the statute and Congressional intent. The government has indicated that it intends to appeal.

d.  Parole

The government has also recently adjusted its position on TPS and parole. From 1991 until now, the government’s position was that a TPS beneficiary could travel abroad on parole and adjust. The B.I.A. has a long history of finding that TPS recipients’ travel on advance parole meets the “admitted and inspected or paroled” requirement under § 245(a). For example, in Ramirez-Cruz,38 the Board held:

The record established that the respondent originally entered the United States without being inspected and admitted. The respondent later acquired Temporary Protected Status (TPS). After acquiring TPS, the respondent left the United States under a grant of advance parole and returned to the country after inspection and admission. The respondent thus satisfies the “admitted or paroled” requirement for adjustment of status.”

  Similarly, as recently as this year in H-H-G-, the AAO favorably cited a March 1991 INS General Counsel opinion.39 At oral argument at the District Court, government counsel “argued during the hearing that the proper way for Plaintiffs to alter their status was by leaving the country and then applying for a status change.”40 On appeal, the District Court correctly deemed the government’s position “disingenuous,” writing: “The Court has no doubt that despite Defendants’ present overtures implying the contrary, if Plaintiffs were to do as Defendants say, Defendants would argue that Plaintiffs’ prior entry without inspection bars such a change.”41

  Sure enough, the government relies on policy memos in one breath then rebukes them in the next. Z-R-Z-C- directly contracts H-H-G-. In footnote 6, Z-R-Z-C- states, “We recognize that in March and June 1991, INS General Counsel issued opinions relating to TPS recipients and the effects of traveling abroad. However, these opinions do not speak to the matter at hand because they were issued prior to the enactment of MTINA.” Z-R-Z-C- apparently states that USCIS has misinterpreted and misapplied the law for nearly 30 years and, henceforth, a TPS recipient who travels abroad on advance parole permission to travel will no longer be “paroled” or “inspected and admitted” for purposes of 8 U.S.C. § 1255(a). The government has suggested on multiple occasions that travel with parole is a convenient solution for TPS beneficiaries’ “admission” problem. This apparently is not true. Clearly, TPS beneficiaries simply cannot win.

e.  Cancellation of Removal

As the government fights TPS and adjustment eligibility, it is fighting TPS and cancellation of removal eligibility with similar fervor. Practitioners urge that time acquired through 8 U.S.C. § 1254a(e) unconditionally contributes to fulfilling the seven-year requirement for the removal defense of Cancellation of Removal for Certain Lawful Permanent Residents, 8 U.S.C. § 1229b(a) when the requisite hardship is proven. There is no statutory condition precedent of admission in a nonimmigrant status before receiving TPS for the time to count for cancellation. The government, however, has contrived a requirement that contradicts the plain language of 1254a(e). The language is explicit: when the requisite extreme hardship exists, the TPS period “shall be counted as a period of physical presence in the United States for purposes of 8 U.S.C. § 1229b(a),” and “such period shall not cause a break in the continuity of residence.” The government urges that admission is a requirement for cancellation for removal, and TPS does not constitute an admission.

  Currently pending before the Eighth Circuit is Artola v. Barr, Case No. 19-1286. The case addresses § 1254a(e) and uses this section to highlight the absurdity of some of the government’s 1254a arguments. Artola squarely attacks Chavez.42 In Chavez, the Fourth Circuit ignored the primary issue and failed to acknowledge that the government’s interpretation would render 1254a(e) completely meaningless. Chavez fails to explain why Congress passed 1254a(e) if admission is pre-requisite, when remaining silent would have been more effective. The Chavez decision failed to explain its perverse outcome that two people, both admitted, are treated differently under the law if one receives TPS.43 The analysis completely overlooked that a person who was admitted in nonimmigrant status does not need 1254a(e) to fulfill 1229b(a), the cancellation of removal statute. Chavez did not consider the plain language of 1254a(e) independent of 1229b. It focused only on admission, despite admission not being an element of 1254a(e). The Fourth Circuit in Chavez also did not address 1254a(a)(5), which explicitly bars the Agency from requiring that a person prove admission in a lawful status when considering an application for TPS. In Artola, the petitioner is urging the Eighth Circuit to adopt a common sense, complete reading of 1254a. Oral arguments are scheduled for later this month.

IV.  Conclusion

It seems the government has adopted a “general policy of opposition for the sake of opposition.”44 The District Court’s recent sentiments to this point validated the feeling of many immigration practitioners. It seems the government will stop at nothing in its mission to limit the benefits of TPS. Despite countless slap backs by courts, the government continues its efforts to carve arbitrary exceptions into 8 U.S.C. § 1254a(f) that simply do not exist. This reality, combined with fears of TPS terminations for El Salvador, Honduras, Nepal, Nicaragua, and Sudan has many practitioners shaking their heads and many TPS beneficiaries shaking with fear. While the Eighth Circuit’s decision in Velasquez and the District Court’s decision in Hernandez de Gutierriez have offered some recent hope, the fight is still in full swing.

  1. Ramos v. Nielson, Case No. 18-cv-01554-EMC (N.D. Cal. 2018).
  2. Id.
  3. Ramos v. Nielson, Case No. 18-cv-01554-EMC (N.D. Cal. 2018).
  4. Ramos v. Nielson, ___ F.3d ___, Case No. 18-16981 (9th Cir. Sept. 14, 2020).
  5. Outside of Ramos, other cases may protect TPS holders. For example, unlike the parties in Bhattari, the parties in Saget did not agree to stay proceedings pending Ramos. The Saget court enjoined the termination of TPS for Haiti in a decision separate from Ramos. Saget therefore currently provides separate protection for Haitains. The Trump administration appealed that decision, but the appellate court has not yet decided. Further, Centro Presente v. United States Dep’t of Homeland Sec., 332 F. Supp. 3d 393 (D. Mass. 2018) could provide separate protection for Haitains, Hondurans, and Salvadorans. The case remains pending.
  6. Continuation of Documentation for Beneficiaries of Temporary Protected Status Designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal—A notice by the United States Citizenship and Immigration Services on 12/09/2020, available at https://www.federalregister.gov/documents/2020/12/09/2020-27154/continuation-of-documentation-for-beneficiaries-of-temporary-protected-status-designations-for-el
  7. Continuation of Documentation for Beneficiaries of Temporary Protected Status Designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, A Notice by the U.S. Citizenship and Immigration Services on 11/04/2019, available at https://www.federalregister.gov/documents/2019/11/04/2019-24047/continuation-of-documentation-for-beneficiaries-of-temporary-protected-status-designations-for-el?ct=t(AgencyUpdate_110419)&ct=t(AgencyUpdate_090320_COPY_01).
  8. Supra note 7.
  9. Id.
  10. The Biden Plan for Securing our Values as a Nation of Immigrants, available at https://joebiden.com/immigration/.
  11. Id.
  12. Id.
  13. Matter of Sosa Ventura, 25 I. & N. Dec. 391, 393 (B.I.A. 2010).
  14. Matter of Roberto Carlos Padilla Rodriguez, 28 I. & N. Dec. 164 (B.I.A. 2020).
  15. Id. at 164.
  16. Cf. Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011); Santos Sanchez v. Sec’y U.S. Dep’t of Homeland Sec., 967 F.3d 242 (3d Cir. 2020), petition for cert. filed, No. 20-315 (U.S. Sept. 10, 2020); Velasquez v. Barr, 979 F.3d 572 (8th Cir. 2020); Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013); Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017).
  17. See Bonilla v. Johnson, 149 F.Supp.3d 1135 (Minn. Dist. Ct. 2016); Leymis V. v. Whitaker, 355 F. Supp. 3d 779 (Minn. Dist. Ct. 2018); Melgar v. Barr, 379 F. Supp. 3d 783 (Minn. Dist. Ct. 2019). Other district court cases on this issue include Medina v. Beers, 65 F. Supp. 3d 419 (E.D. Pa. 2014); Bonilla v. Johnson, 149 F. Supp.3d 1135 (Minn. Dist. Ct. 2016); Leymis V. v. Whitaker,355 F. Supp. 3d 779 (Minn. Dist. Ct. 2018), Melgar v. Barr, 379 F. Supp. 3d 783 (Minn. Dist. Ct. 2019), aff’d sub nom. Velasquez v. Barr, 979 F.3d 572 (8th Cir. 2020); Rodriguez Solorzano v. Nielson,No. MO-17-CV-00249-DC (W.D. Tex. Jan. 15, 2019) (unpublished), appeal docketed 19-50220 (5th Cir., Mar. 14, 2019); Figueroa v. Rodriguez, No. CV 16-8218 PA (JCX), 2017 WL 3575284 (C.D. Cal. Aug. 10, 2017). All of these cases held that admission “can occur in a manner other than by physical entry and inspection.” Medina, 65 F. Supp. 3d at 430.
  19. 979 F.3d 572 (8th Cir. 2020).{/efn_note] Writing for the majority, Judge Kelly concluded that a noncitizen who entered without inspection but later received TPS may adjust. The decision stated:

    Employing the traditional tools of statutory construction at Chevron step one, we conclude that § 1254a(f)(4) unambiguously requires that TPS recipients be considered ‘inspected and admitted’ for purposes of adjusting their status under § 1255. Section 1254a(f)(4) mandates that TPS beneficiaries ‘shall be considered as being in, and maintaining, lawful status as a nonimmigrant’ for purposes of § 1255. And an individual cannot gain nonimmigrant status without being considered inspected and admitted. That is, by the express provisions of the INA, (1) every person with lawful status as a nonimmigrant has been ‘admitted’ into the United states, and (2) all nonimmigrants are ‘inspected’ before admission.18Velasquez, 979 F.3d at 577 (emphasis in original) (internal citations omitted).

  20. Id. at 577–78. “[Section] 1184(a)(1) provides that “[t]he admission to the United States of any [noncitizen] as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe . . . .” 8 U.S.C. § 1184(a)(1); see also id. § 1182(d)(1) (“Nothing in this section shall be regarded as prohibiting the [government] from instituting removal proceedings against [a noncitizen] admitted as a nonimmigrant . . . for conduct or a condition … not disclosed to the Attorney General prior to the [noncitizen]’s admission as a nonimmigrant . . . .”). Accordingly, a nonimmigrant is by definition “admitted” to the United States. In turn, the “admission” of a nonimmigrant necessarily means that they were also “inspected.” This is because the INA defines “admission” and “admitted” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(A). Indeed, the INA consistently treats inspection as a prerequisite to admission. See id. § 1225(a)(1) (an “alien present in the United States . . . shall be deemed . . . an applicant for admission”); id. § 1225(a)(3) (all “applicants for admission . . . shall be inspected by immigration officers”); § 1184(b) (every noncitizen “shall be presumed to be an immigrant until he establishes to the satisfaction of . . . the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status”). See also 8 C.F.R. § 214.1(a)(3)(i) (a “nonimmigrant[’s] admission to the United States is conditioned on compliance with any inspection requirement”).
  21. Id. at 578.
  22. Matter of H-G-G-, 27 I. & N. Dec. 617, 641 (AAO 2019).
  23. Id. at 626.
  24. Id.
  25. “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 . . . For example, a grant of asylum places the individual in valid immigration status but is not an ‘admission.’ ” Id. at 634–35.
  26. Id. at 636–37.
  27. Supra note 23.
  28. “There is already a conflict in the circuits on this question . . . This makes eventual review by the Supreme Court quite likely.” See Velasquez, 979 F.3d at 581.
  29. Docket No. 20-215.
  30. Matter of Roberto Carlos Padilla Rodriguez, 28 I. & N. Dec. 164 (B.I.A. 2020).
  31. The Solicitor General, in responding to the petition for a writ of certiorari in Sanchez-Santos, acquiesced to the Supreme Court hearing the issue. The matter is due for conference review on January 8, 2021.
  32. Melendez v. McAleenan, 928 F.3d 425 (5th Cir. 2019), cert denied, ___ U.S. ___, 140 S. Ct. 561 (2019). Duron v. Stul, 724 F. App’x 791 (11th Cir. 2018).
  33. See Matter of H-G-G-, 27 I. & N. Dec. 617 (2019) (Policy Memorandum 602-0172).
  34. Hernandez de Gutierrez et. al v. Barr et. al., ___ F.3d ___ (Minn. Dist. Ct. Sept. 28, 2020).
  35. Id.
  36. 8 USC 1254a(f)(4).
  37. Id. at n. 5(citing Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548, 555 (6th Cir. 2013).
  38. In Re: Margarita Raul Ramirez-Cruz, No. : AXXX-XX6-475-KAN, 2019 WL 7168776, at *1 (DCBABR Oct. 23, 2019).
  39. “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 at section 245(c)(2) of the Act” (citing INS Gen. Counsel Op. No. 91-27, Temporary protected status and eligibility for adjustment of status under Section 245, 1991 WL 1185138, at *2). See Matter of H-G-G-, 27 I. & N. Dec. at n. 7.
  40. Hernandez de Gutierrez, ___ F.3d at ___, n. 4.
  41. Id.
  42. Chavez v. Holder, 587 F. App’x 43 (4th Cir. 2014).
  43. When defending the F-1 student who needs TPS to satisfy section 1229b(a)(2) hypothetical to support the argument that the analysis in Chavez is complete, the government asserts that 8 § U.S.C. 1229b(a)(2)’s requirement that an alien “resided in the United States continuously for seven years after having been admitted in any status” requires continuity or maintenance of status during those seven years.   According to Chavez and the government, without TPS an individual could not maintain or establish continuity of residence to satisfy the seven years.  This assumes, of course, an individual who is not a permanent resident for sufficient time to address the shortage of time.   The argument in Chavez is that it is the initial admission predicated on the timely TPS intervention that permits the F-1/TPS individual to later recapture time in TPS if compelled to seek cancellation of removal as a permanent resident.  More importantly, an F-1 admittee whose status lapsed and did not have the benefit of TPS could not accumulate the seven years of residence.  TPS preserves time for such an admitted person. This conflicts with In re Blancas-Lara, 23 I. & N. Dec. 485 (BIA 2002) and a more recent validation of it, Matter of Castillo Angulo.  The Board in Blancas-Lara, on its own accord, determined that the sole requirement is an admission into any status.  There is no requirement of maintenance of status to satisfy the definition of residence in 8 U.S.C. § 1101(a)(33).
  44. Hernandez de Gutierrez, ___ F.3d at ___, n. 5.