Becoming a U.S. citizen is often thought of as an admirable act, something that our immigration and naturalization laws encourage qualified applicants to do.  According to the Board of Immigration Appeals (BIA), however, in at least one relatively common fact situation, our immigration laws actually discourage naturalization, by penalizing children of the naturalized parent.  The BIA held in Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011), that an applicant for adjustment of status was ineligible for that relief essentially because of his mother’s naturalization, which the BIA believed led to less favorable treatment of his case under the Child Status Protection Act (CSPA) than would have occurred if his mother had remained a Lawful Permanent Resident (LPR). In Rodriguez Tovar v. Sessions, however, the Court of Appeals for the Ninth Circuit recently rejected Matter of Zamora-Molina and held that an otherwise CSPA-protected child did not lose that protection due to his LPR parent’s naturalization.

This author and Cyrus D. Mehta have frequently blogged in the past about the CSPA (see also here, here, and the tagged lists here and here), and I will not seek to describe here the entire statute and all of the provisions that it introduced into the Immigration and Nationality Act (INA). However, some brief background regarding the portions of the CSPA involved in Zamora-Molina and Rodriguez Tovar is necessary in order to appreciate the Ninth Circuit’s decision.

Certain categories of visa petition apply to a “child” as defined in INA §101(b)(1), that is, “an unmarried person under twenty-one years of age” who meets one of several other criteria with respect to the petitioning parent. Under INA §203(h)(1) as added by the CSPA, the age of a beneficiary of a Family 2A preference petition filed for a child of an LPR under INA §203(a)(2)(A), or the age of the derivative beneficiary child under INA §203(d) of other types of petitions, is determined by taking the child’s age on the date when a visa number became available (as long as the child seeks to acquire LPR status within one year of that date), and subtracting the number of days during which the petition was pending with USCIS. Another way to look at it is that it is as though the child stops getting older when the petition is filed, and only starts again after the petition is approved, and then stops getting older once again when a visa number becomes available.  If this adjusted age is under 21, then the child, as long as he or she is unmarried, can continue to be processed in the Family 2A preference (or as a derivative beneficiary), because he or she is still a “child” under the definition at INA §101(b)(1). The waiting time for an available visa number under the Family 2A preference for under-21-year-old children of LPRs is generally shorter than the waiting time for an available visa number under the Family 2B preference for over-21-year-old sons and daughters of LPRs, as shown in the State Department’s Visa Bulletin, so there is a significant advantage in that context to remaining a “child”.

The question is what happens to such a beneficiary of a Family 2A preference petition when the sponsoring parent becomes naturalized as a U.S. citizen. According to INA §201(f)(1) of the INA, also added by the CSPA, the age of a child who is the beneficiary of a petition as the immediate relative of a U.S. citizen (a category for which there are an unlimited number of visas available and thus no Visa Bulletin waiting line) is generally determined on the date the petition is filed. However, the next paragraph of the statute provides that

In the case of a petition . . . initially filed for an alien child’s classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child’s parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative . . . the determination described in paragraph (1) shall be made using the age of the alien on the date of the parent’s naturalization.

INA §201(f)(2). That is, when an LPR parent who has filed a petition for their child later naturalizes, the child’s age is frozen as of the date of the parent’s naturalization.  But the question then arises, is the statute’s reference to “the age of the alien on the date of the parent’s naturalization” a reference to the child’s biological age, or to the child’s adjusted age under INA §203(h)(1)?

In Matter of Zamora-Molina, the BIA opted for the former answer, holding that the child’s biological age was the relevant age under INA §201(f)(2). Daniel Edgar Zamora-Molina had been biologically 22 when his mother naturalized, but it had previously taken more than two and a half years for the petition filed on his behalf to be approved.  Thus, his CSPA-adjusted age at the time of naturalization was less than 20, under INA §203(h)(1), but his biological age at that time was over 21. The BIA held that Mr. Zamora-Molina could not adjust status as an immediate relative of his mother, but would need to proceed under the Family 1st Preference category for sons and daughters, over age 21, of U.S. citizens.  The BIA also refused Mr. Zamora-Molina’s request to opt out of the conversion of his case to the Family 1st Preference under INA §204(k), which allows certain family preference beneficiaries to opt out of the effect of their parent’s naturalization, because the BIA held that §204(k) only allowed opting-out that resulted in becoming a beneficiary under the Family 2B category for sons and daughters over age 21 of LPRs. Since no visa numbers were available for Mr. Zamora-Molina’s priority date in either the Family 1st Preference category or the Family 2B preference category, given the length of the waiting lines under those categories, the BIA upheld the Immigration Judge’s decision that denied Mr. Zamora-Molina’s application for adjustment of status and instead granted him only permission to depart voluntarily rather than being removed.

Mr. Zamora-Molina argued to the BIA that it was “fundamentally unfair” to apply this law to him, because he would have been eligible for adjustment of status under the Family 2A preference category if his mother had not naturalized. In effect, he was being penalized for his mother’s naturalization.  The BIA, however, interpreted this as a constitutional argument, which it held that it lacked authority to address.

In the case that came before the Ninth Circuit in Rodriguez Tovar v. Sessions, Margarito Rodriguez Tovar faced a similar fact pattern to Daniel Edgar Zamora-Molina. Mr. Rodriguez Tovar’s father had filed a petition for Margarito in April 2001 when Margarito was 17 or 18 years old, which was not approved until more than four years later in 2005, and had then naturalized in July 2006.  At the time his father naturalized, Mr. Rodriguez Tovar’s biological age was 23, but his adjusted age was under 21 for purposes of his Family 2A petition according to the CSPA-adjusted age calculated under INA §203(h)(1), since subtracting more than four years from a biological age of 23 left him with an adjusted age of only 19. Moreover, had his father not become a citizen, Mr. Rodriguez Tovar would have become eligible for a visa number in the Family 2A category less than a year later, in July 2007, when his CSPA-adjusted age was still only 20.

The BIA, however, held in reliance on Matter of Zamora-Molina that because Mr. Rodriguez Tovar was biologically over 21 when his father naturalized, and his father had indeed naturalized, he was only eligible for a visa number in the Family 1st preference or the Family 2B preference, neither of which were available. As the Ninth Circuit summarized the resulting conundrum:

Everyone agrees that if Rodriguez Tovar’s father had remained an LPR instead of becoming a citizen, Rodriguez Tovar would have been eligible for a visa in the F2A category on June 1, 2007, at which point his age under the statute would have been 20. Similarly, had he been afforded his statutory age when his father became a citizen, he would have been eligible for a visa immediately. However, the government’s position is that because his father decided to become a citizen when he did, Rodriguez Tovar was not eligible for either visa and may now be deported forthwith and must wait in the F1 line abroad.

Rodriguez Tovar, slip op. at 9.

The Ninth Circuit rejected the BIA’s interpretation of the statute which had led to this “irrational” result.  Rodriguez Tovar, slip op. at 12. Looking at the statute as a whole, the Ninth Circuit held that the reference to “the age of the alien on the date of the parent’s naturalization” in INA §201(f)(2) was unambiguously a reference to the age as calculated under INA §203(h)(1), that is, the CSPA-adjusted age. Although §203(h)(1) and §201(f)(2) do not explicitly cross-reference one another, the Ninth Circuit held, those two provisions are tied together by INA §203(a)(2)(A), which each of them does reference, and the three provisions together “form a cohesive whole.” Rodriguez Tovar, slip op. at 14-15. Moreover, the conversion provisions of the statute and regulations, and the absence of an opt-out under INA §204(k) for CSPA-protected F2A beneficiaries to remain in the F2A category, both make more sense if read with the background understanding that Congress expected CSPA-protected F2A petitions to convert to immediate relative cases upon the petitioner’s naturalization.

The Ninth Circuit also justified its interpretation of the interlocking CSPA provisions by reference to the canon of interpretation that statutes should be interpreted to avoid absurd results.  As it explained:

Our interpretation of 8 U.S.C. § 1151(f)(2) [INA §201(f)(2)] makes sense within the context of the whole CSPA. Anyone who is treated as a minor child of a lawful permanent resident for purposes of an F2A petition is treated as a minor child of a citizen when the parent naturalizes, and no one is penalized just because his parent became a citizen. The government’s interpretation leads to the absurd result that Rodriguez Tovar’s father’s naturalization causes the deportation of his son, who is then compelled to wait for decades in a foreign land before he can return—despite the fact that had his father simply remained an LPR, Rodriguez Tovar would have been eligible for a visa within a year. That can hardly have been Congress’s intent.

“[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). Accordingly, we conclude “that Congress had a clear intent on the question at issue,” The Wilderness Soc’y, 353 F.3d at 1059: children of LPRs may take advantage of the age calculation formula in 8 U.S.C. § 1153(h)(1) [INA §203(h)(1)] for purposes of converting to immediate relative status under § 1151(f)(2) [INA §201(f)(2)] when their parents naturalize.

Rodriguez Tovar, slip op. at 21.

Hopefully, the Ninth Circuit’s compelling arguments may convince other Courts of Appeals, and ultimately perhaps even the BIA or, if the issue is brought there, the Supreme Court.  In the meantime, only those who reside within the jurisdiction of the Ninth Circuit (that is, California, Nevada, Arizona, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands), and perhaps others whose cases are being processed there such as at the California Service Center, are likely to be able to take advantage of Rodriguez Tovar without going to federal court themselves, and even in those cases there will be some uncertainty regarding the precise conditions under which USCIS will be willing to apply Rodriguez Tovar until we see how they behave in practice.  In cases in which the Zamora-Molina / Rodriguez Tovar issue arises, however, applicants for adjustment of status and their attorneys should consider whether litigation in federal court is an appropriate option.  Other Article III judges, like the Ninth Circuit panel in Rodriguez Tovar, may be less willing than the BIA to read the CSPA to produce the absurd result of penalizing children for the naturalization of their LPR parents.

 

With the recent announcement that the Trump Administration will terminate Temporary Protected Status (TPS) for more than 200,000 citizens of El Salvador effective September 2019 after previously terminating TPS for Haiti, Nicaragua, and Sudan, it seems appropriate to examine alternate forms of immigration relief that may become available to those whose TPS is terminated. Of course, we may hope that Congress will provide some relief to TPS holders, but as things stand now, that appears to be an eventuality which should not be counted on at least in the short run.

One possibility for some TPS holders may be adjustment of status under INA §245.  As explained in a September 2017 practice advisory from the American Immigration Council, the Courts of Appeals for the Sixth and Ninth Circuits have held that TPS constitutes an admission for purposes of eligibility for adjustment under INA §245(a). TPS holders who are immediate relatives of U.S. citizens can take advantage of this holding most simply, if they reside within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (California, Arizona, Nevada, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands). Those who reside outside those two Circuits might still be able to pursue adjustment of status on the same theory if they are willing to litigate in federal court following any denials.  The situation with respect to applicants for adjustment based on other family relationships or employment is more complex, as explained in the linked American Immigration Council practice advisory, but that sort of adjustment of status will be potentially available to TPS recipients under at least some limited circumstances.

Another possibility for many TPS-holders, if they are placed in removal proceedings, might be seeking cancellation of removal for non-permanent residents under INA §240A(b). It has been reported that many TPS recipients from El Salvador have U.S. citizen children, for example: there are reported to be “nearly 200,000 US citizen children of Salvadoran parents with TPS.” Many TPS holders may be able to show that one or more of their U.S. citizen children (or Lawful Permanent Resident children or U.S. citizen or Lawful Permanent Resident spouses or parents) will suffer “exceptional and extremely unusual hardship” upon removal of the parent, although this is admittedly a very high bar.  If such TPS holders, with qualifying relatives who would suffer such hardship, have been continuously physically present in the United States for ten years before being placed in removal proceedings – which El Salvadoran TPS holders, for example, generally will have been, since TPS for El Salvador commenced in 2001 – then, if certain other criteria regarding good moral character and lack of disqualifying criminal convictions are met, they can seek cancellation of removal in Immigration Court under §240A(b), which would result in Lawful Permanent Resident status.

It is important to note, in this context, that time in TPS counts towards the ten-year minimum for cancellation under INA §240A(b). It is only in the distinct context of cancellation of removal for lawful permanent residents under INA §240A(a) that INA §244(e) excludes from continuous presence one’s time in TPS, and there only “unless the Attorney General determines that extreme hardship exists.” A footnote on the USCIS webpage reproduction of this INA section suggests that the restriction was actually meant to apply to §240A(b) cancellation, but besides being contrary to the text of the statute, this would have little practical impact even if it were true: any case in which “exceptional and extremely unusual hardship” exists for purposes of §240A(b) cancellation would presumably be a case in which extreme hardship exists for the purposes of the exception.

Admittedly, some TPS holders will presumably be unable to establish a sufficiently high level of hardship to their children—although given the atrocious violence and other country conditions in El Salvador, where the State Department has notably advised U.S. citizens not to travel, it is not clear what proportion of U.S. citizen children could relocate there without suffering exceptional and extremely unusual hardship. Even so, however, one wonders how the Trump Administration thinks the already-overburdened immigration court system is going to deal with determining which of the nearly-200,000 U.S. citizen children involved will suffer such exceptional and extremely unusual hardship.  Perhaps the answer is that they do not intend to place former TPS beneficiaries into removal proceedings.  But that could give rise to the peculiar spectacle of a large population seeking to be placed into removal proceedings, where they can have the hardship to their children taken into account under the statutes enacted by Congress, while the Administration insists that the members of that population should leave, but refuses to commence the proceedings that under INA §240(a)(3) are the “sole and exclusive procedure” for compelling them to do so.

Some TPS holders may also be eligible for asylum under INA §208. Asylum is typically thought of as a form of relief available to those who fear persecution on a protected ground in their home countries, and some citizens of El Salvador and the other countries whose TPS is being terminated may indeed meet that description.  However, while a fear of future persecution is the archetypical case for asylum, it is not the only one, under the governing regulations.  As the BIA explained in Matter of L-S-, 25 I&N Dec. 705 (BIA 2012), pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(B), asylum can be granted to one who has suffered persecution in the past and “has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”

While “other serious harm” must equal the severity of persecution, it may be wholly unrelated to the past harm. Moreover, pursuant to the regulation, the asylum applicant need only establish a “reasonable possibility” of such “other serious harm”; a showing of “compelling reasons” is not required under this provision. We also emphasize that no nexus between the “other serious harm” and an asylum ground protected under the Act need be shown.

Matter of L-S-, 25 I&N Dec. at 714. The BIA further explained that “adjudicators considering “other serious harm” should be cognizant of conditions in the applicant’s country of return and should pay particular attention to major problems that large segments of the population face or conditions that might not significantly harm others but that could severely affect the applicant.” Id. This may be particularly relevant to TPS recipients from countries like El Salvador which do, as discussed above, have major problems faced by large segments of the population, such as widespread violence.

It is important to note that this other-serious-harm asylum requires that an applicant have previously suffered qualifying past persecution on a protected ground.  The full definition of such past persecution is beyond the scope of this blog, but it is a difficult threshold to meet. The Second Circuit has explained in Baba v. Holder that to constitute persecution “conduct must rise above mere harassment” and that persecution includes “threats to life or freedom” and also extends to “non-life-threatening violence and physical abuse.” The Second Circuit has also, as explained in Baba with a quotation of Guan Shan Liao v. U.S. Dept. of Justice, “found that persecution may also take the form of non-physical harm, such as ‘the deliberate imposition of a substantial economic disadvantage.’” As for the protected grounds, there are many subtleties, but the basic statutory requirement under INA 208(b)(1)(B)(i) (largely restating INA §101(a)(42)(A) with some added stringency per the REAL ID Act of 2005) is that “the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”

However, such qualifying past persecution could have taken place many years ago, under very different political conditions than are now present. Moreover, the Court of Appeals for the Second Circuit has recognized that under some circumstances, children may suffer qualifying past persecution from actions primarily directed at other family or community members.  In Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006), the Second Circuit explained that massacres in a child’s persecuted ethnic Mayan community could constitute persecution of the child even if not directed at the child specifically:

Jorge-Tzoc was a child at the time of the massacres and thus necessarily dependent on both his family and his community.   He also offered substantial evidence of a pervasive campaign carried out by the army against Mayans in the area in which he lived.   The CEH documented two 1982 army killings of persons named Tzoc in Jorge-Tzoc’s village.   Further, while the family remained in their village, Jorge-Tzoc’s mother was afraid to go out of their home to obtain needed groceries, and Jorge-Tzoc viewed the bullet-ridden body of his cousin lying on the ground.   The army’s campaign, according to Jorge-Tzoc’s testimony, resulted in his relocation, along with many family members to one room in Quiche where they struggled to survive.   In addition, Jorge-Tzoc’s father lost his land and his animals as a result of the move.   This combination of circumstances could well constitute persecution to a small child totally dependent on his family and community.

The Court of Appeals for the First and Ninth Circuits have similarly concluded that persecution of a child’s family can constitute persecution of that child, in Ordonez-Quino v. Holder and Hernandez-Ortiz v. Gonzales. The Second Circuit narrowed Jorge-Tzoc somewhat in Jiang v. Gonzales, requiring that the persecuted child “share – or [be] imputed to share – the characteristic that motivated the persecution.” (There is also additional discussion in Jiang, arguably nonbinding dicta, regarding how such persecution would “presumably” require that the child, as in Jorge-Tzoc, “was also within the zone of risk when the family member was harmed, and suffered some continuing hardship after the incident.”) Nonetheless, there may be TPS recipients who would have a reasonable past-persecution claim based on events that occurred many years ago when they were children, which could then ground an application for asylum based on the reasonable possibility of other serious harm due to current country conditions.

Another issue in regard to a possible asylum application by a TPS recipient would be the one-year filing deadline of INA §208(a)(2)(B). Ordinarily, one who wishes to apply for asylum must do so within a year of their last arrival in the United States.  However, INA §208(a)(2)(D) exempts from the one-year deadline cases in which an applicant can establish “extraordinary circumstances relating to the delay in filing the application within the period”, and the regulations at 8 C.F.R. §208.4(a)(5)(iv) clarify that such extraordinary circumstances may include maintenance of TPS or other lawful status “until a reasonable period before the filing of the asylum application”. As a recent AILA practice pointer has noted, this may not solve the one-year problem for those who were present in the United States for more than a year between the time the one-year deadline was created in 1997 and the onset of their TPS. However, the TPS exception it does mean that some TPS beneficiaries will not have a problem with the one-year deadline even if the events giving rise to an asylum claim occurred long ago.

Moreover, changed circumstances “materially affecting the applicant’s eligibility for asylum” can also excuse late filing under INA §208(a)(2)(D) and 8 C.F.R. §208.4(a)(4)(i) as long as the applicant files within a reasonable time given those changed circumstances. Where a claim is based on a combination of past persecution and a reasonable possibility of other serious harm in the future, there would be a strong argument that a change in circumstances materially affecting the other-serious-harm prong of eligibility would qualify under this exception even if the past persecution remained constant.  Thus, some TPS recipients who had suffered past persecution might be able to excuse an otherwise untimely asylum claim based on changed circumstances relating to the other serious harm they would suffer if returned to their home country.

In cases where a reasonable asylum claim could be made under one of these various theories, it could also have the incidental effect of solving the problem discussed above of TPS recipients being left in limbo by a refusal to place them in removal proceedings. By regulation, pursuant to 8 C.F.R. §208.14(c)(1), where an affirmatively-filed asylum application is not granted and the applicant is considered to be inadmissible or deportable, the application will generally be referred into removal proceedings, where the applicant can renew the asylum application and also apply for other available relief (such as, if applicable, cancellation of removal for non-permanent residents). Such placement in removal proceedings is of course a dangerous outcome, but for some people it may be preferred to indefinite limbo.

Another defense against removal that might be available to TPS beneficiaries placed in removal proceedings would be to challenge, in federal court, the de-designation of their countries for TPS.  This is difficult outside the context of removal proceedings, because INA §244(b)(5)(A) states that “There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” There may be some argument that this jurisdictional bar should be interpreted to exclude bona fide constitutional claims as discussed in Calcano-Martinez v. INS, 533 U.S. 348 (2001) in the context of a different jurisdictional bar, although this is not completely clear. Once TPS becomes at issue in a removal order, however, the scope for federal court review would be broader, because a petition for judicial review of that order would fall under the protection of INA §242(a)(2)(D), which states that

Nothing in . . . any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

INA §242(a)(2)(D), 8 U.S.C. §1252(a)(2)(D) (referring to “this chapter” rather than “this Act”). Under this provision, a former TPS holder who was ordered removed ought to be able to challenge the de-designation of their country of nationality as legally inappropriate—perhaps, for example, on the basis that the de-designation, albeit nominally accomplished by DHS, had been inappropriately influenced by the views of the Chief Executive regarding people from “shithole countries.”

All of these potential courses of action are complex and fraught with risk, and TPS holders would be well advised to consult a qualified immigration attorney before proceeding with any of them.  It is important to know, however, that the termination of TPS may not equate to the termination of all ability to remain lawfully in the United States.