Tag Archive for: Removal Proceedings

Cyrus Mehta & Kaitlyn Box*

ICE Targets Noncitizens at Domestic Airports Even When They Are Authorized to Remain

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, reports have abounded of increased ICE arrests at domestic airports. Arrests occurred at airports in at least 15 different states, which some of the impacted noncitizens traveling only on domestic flights. Although airport ICE arrests are not a new phenomenon, particularly during the Trump administration, the categories of noncitizens being targeted has broadened dramatically. In the past individuals with a removal order or a criminal history might have been vulnerable to apprehension by ICE at airports, but individuals who were authorized to remain in the U.S., even if they did not have a valid nonimmigrant status, generally faced a low risk of enforcement during domestic travel. 

The new wave of arrests at airports, however, has primarily targeted noncitizens whose nonimmigrant status has expired. Many of the noncitizens who were arrested, however, had pending adjustment of status,  asylum applications or a request to extend or change nonimmigrant status, which allows them to remain lawfully in the United States. Some of the impacted noncitizens reportedly had no criminal history and were in possession of valid Employment Authorization Documents (EADs) and/or Advance Parole (AP) documents at the time of their detention. There does not appear to be any particular policy or rule change driving this pattern of increased apprehension at airports. 

A noncitizen who has a pending adjustment of status or asylum application and is, therefore, in a period of authorized stay is not necessarily exempt from arrest or detention. INA § 287(a)(2) provides ICE the authority to arrest “to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest…” INA § 236(a) provides that: “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Ordinarily, however, a noncitizen who is in a period of authorized stay is unlikely to be a priority for detention. Individuals who are eligible for a benefit like asylum or adjustment of status may not be removable. Detaining noncitizens cannot be removed only contributes to the already lengthen immigration court backload, and is an inefficient use of government resources. 

Likewise, DHS may initiate removal proceedings under INA § 237(a)(1)(B) against a noncitizen whose nonimmigrant status has expired, even if that individual  has a pending adjustment of status application. Sure enough, this individual may be able to ultimately rely on the pending adjustment of status application as a defense against removal proceedings before an Immigration Judge. But in the meantime, the noncitizen must endure the burden of  being placed into removal proceedings, including the risk of detention, disruption to employment and family life, and the expense and uncertainty of defending against removal despite having a pending application that may ultimately provide a path to lawful permanent residence.  

Given the increased risk of arrests in airports, noncitizens who have an expired I-94 are advised to avoid travel domestically, even if they are in a period of authorized stay. An individual who filed an employment-based adjustment of status application which is still pending because his priority date retrogressed might be a target for apprehension by ICE if he did not maintain his underlying H-1B status and his I-94 has now expired. Similarly, those who did not extend their nonimmigrant status, but have a pending marriage-based adjustment of status application or asylum application, may be vulnerable to detention at airports. A noncitizen who has an expired green card and has filed a pending I-751 petition may be unlikely to be targeted, however, if she has a valid I-551 stamp as proof of her conditional LPR status. 

Given this recent uptick in ICE arrests at airports, individuals who do not have valid nonimmigrant status but are in a period of authorized stay face a serious risk of apprehension when they travel, even domestically. Noncitizens traveling within the United States should carry proof of their status or authorization to remain, such as an unexpired Form I-94, green card, I-551 stamp, Employment Authorization Document, Advance Parole document, or receipt notice for a pending application, in the event of an encounter with ICE. But the burden should not fall on noncitizens who are following the rules to avoid routine travel out of fear that they may be detained. 

The chilling effect may extend even to U.S. citizens, who may fear being mistaken for noncitizens and questioned about their status. U.S. citizens traveling domestically are required only to present TSA-accepted identification, which can include a state-issued driver’s license or ID. They should not feel compelled to carry a U.S. passport or other proof of citizenship to protect themselves from immigration enforcement encounters.

Directing enforcement resources toward people who are authorized to remain in the United States imposes significant costs on employers, families, and the immigration system without any clear corresponding government benefit. More troublingly, it transforms ordinary spaces like airports into sites of immigration surveillance and intimidation, fostering fear and police state-like conditions for noncitizens whose only vulnerability may be an expired I-94 coupled with a pending application. Americans should not tolerate the Trump administration’s decision to wield immigration enforcement in this manner against people who have complied with the law and are awaiting adjudication of their applications. A system that detains individuals who are authorized to remain does not promote public safety or the rule of law; it undermines both by using fear as an instrument of governance.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

The Fascinating Confluence of Temporary Protected Status, Removal and Employment-Based Adjustment of Status

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Immigration Judge Ila C. Deiss’ summary order shows how one who is granted Temporary Protected Status can adjust to permanent resident status through an I-140 petition filed by an employer.

Here are the facts based upon which IJ Deiss issued the order:

The Respondent is a native and citizen of Nepal who arrived in the United States in 2006 in F-1 student status. In 2007 he stopped going to school and began working without authorization. He affirmatively filed for asylum in 2008, but his asylum claim was not granted and he was placed in removal proceedings in the same year. An Immigration Judge denied his asylum claim in 2010 and he was granted voluntary departure. Respondent appealed to the Board of Immigration Appeals, which dismissed his appeal in 2011. Respondent then filed a Petition for Review in the 9th Circuit Court of Appeals, which was denied in 2014. His case was then remanded to the Immigration Judge and was subsequently Administratively Closed based on a grant of Temporary Protected Status. In 2015, as a result of a massive earth quake, the Attorney General designated Nepal for Temporary Protected Status. Respondent, as a citizen of Nepal, applied for and was granted TPS in the same year and continued to be a recipient of TPS registration at the time of the decision.

Respondent’s employer filed an I-140 petition to the USCIS on his behalf in 2019, and in the same year, Respondent concurrently filed an I-485 adjustment of status application with the court.  The legal question before IJ Deiss was whether the Respondent was eligible for adjustment of status.

Earlier, in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), the Ninth Circuit held that TPS constitutes an admission for purpose of establishing eligibility for adjustment of status under INA 245(a). A foreign national who enters the United States without inspection, which was the case in Ramirez v. Brown, does not qualify for adjustment of status even if married to a US citizen since s/he does not meet the key requirement of INA § 245(a), which is to “have been inspected and admitted or paroled into the United States.” However, both Ramirez, and another case in the 6th Circuit with the same facts,   Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), held that as a matter of statutory interpretation, Congress intended TPS recipients to be considered “admitted” for purposes of INA 245(a). Thus, even if the foreign national entered without inspection, the grant of TPS constituted an admission thus rendering the TPS recipient eligible for adjustment of status. Of course, the other conditions of INA 245(a) must also be met, which is not be inadmissible as well as have a visa that is immediately available. The disqualifications to adjustment of status in INA 245(c)(2) such as working without authorization, being in unlawful status or failing to maintain lawful status since entry are not applicable to immediate relatives of US citizens, who are spouses, minor children and parents.

The courts in Ramirez and Flores relied on INA § 244 (f)(4), which provides:

(f) Benefits and Status During Period of Protected Status – 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 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant

Both courts read the above phrase, especially “for purposes of adjustment of status under section 245 and change of status under section 248” to be in harmony with being “admitted” for purposes of adjustment of status. As § 244(f)(4) bestows nonimmigrant status on a TPS recipient, an alien who has obtained nonimmigrant status is deemed to be “admitted.” Thus, at least in places that fall under the jurisdiction of the Sixth and Ninth Circuits, TPS recipients who have been granted nonimmigrant status under INA 244(f)(4) could potentially adjust status to permanent residence as immediate relatives of US citizens. Those who have entered without inspection in these two circuits need not travel outside the US under advance parole in order to become eligible to adjust status under § 245(a). On the other hand, those not in the jurisdiction of the Sixth and Ninth Circuit who were not previously admitted will need to travel under advance parole to become eligible for adjustment of status as immediate relatives by availing of Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Under this decision, a departure under advance parole does not trigger the 3 and 10-year unlawful presence bars pursuant to INA 212(a)(9)(B).

In a prior blog titled Potential Adjustment of Status Options After the Termination of TPS, I raised the question whether the holdings in Ramirez and Flores could apply to TPS recipients who are beneficiaries of an approved I-140 petition under the employment-based first, second, third and fourth preferences. I postulated that the “answer arguably is ‘yes” under § 245(k) provided they fall under the jurisdiction of the Sixth and Ninth Circuits.

IJ Deiss’ order in the San Francisco Immigration Court, which falls under the Ninth Circuit’s jurisdiction, now confirms that §245(k) can rescue such persons even if they are in removal proceedings. § 245(k) exempts applicants for adjustment of status who are otherwise subject to the § 245(c)(2) bar based on unauthorized employment or for not maintaining lawful status provided they are present in the United States pursuant to a lawful admission and subsequent to such admission have not failed to maintain lawful status or engaged in unauthorized unemployment for more than 180 days. § 245(k) also waives the bars under §§ 245(c)(7) and (c)(8) that otherwise apply to employment-based adjustment applicants.  Thus, even if the TPS recipient may have not been in lawful status prior to the grant of TPS, the grant of TPS resulted in the individual being admitted into the US. If this person files within the TPS validity period, 245(k) should allow this person to adjust to permanent residence, as IJ Deiss also held.

The attorney for the respondent, Emily Wilson,  in arguing for 245(k) eligibility relied on a USCIS memo by Acting Associate Director, Donald Neufeld, titled Applicability of Section 245(k) to Certain Employment Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act. This memo correctly interprets 245(k) by stating that “adjudicators must only examine the 180 day period from the date of the alien’s last lawful admission to the United States and must not count violations that occurred before the alien’s last lawful admission.” In the instant case, the Respondent’s last lawful admission to the United States was his grant of TPS in 2015. Ms. Wilson went on to argue, “Under a plain reading of the regulation and USCIS’ guidance on the applicability of 245(k) it is clear that only violations of 245(c)(2), (c)(7), and (c)(6) that occurred after the TPS grant are relevant in this case. Since the Respondent has no violations of 245(c)(2), (c)(7), and (c)(8) since his TPS grant on [redacted] 2015 he is eligible to adjust status to lawful permanent resident under §§ 245(a) and 245(k) of the INA.”

Another interesting aspect of this case is that the grant of TPS constituted another admission, thus resenting the clock, although the Respondent was previously admitted in F-1 status. In Ramirez and Flores, the adjustment applicants had entered without inspection, and conceptually, it is easier to admit someone who was previously not admitted. However, there is nothing in the reading of  §244(f)(4) that should preclude someone from being admitted again, as in the instant case,  even if previously admitted in a nonimmigrant status prior to the TPS grant.

There are other interesting things to ponder about. Although the Trump administration has sought to terminated TPS for Nepal, under the court ordered stipulation in Bhattarai v. Neilsen the TPS designation for Nepal remains in effect. I would argue that even assuming TPS for Nepal was terminated at the time IJ Deiss rendered her decision, 245(k) ought to allow a respondent in removal proceedings to adjust status. Although INA 244(f)(4) bestows lawful nonimmigrant status to a current TPS recipient, that grant of nonimmigrant status also previously admitted the TPS recipient into the United States. The fact that she was once admitted through the TPS grant cannot vanish just because she is no longer a TPS recipient, and she ought to be eligible to adjust status under 245(k) so long as she has not stayed in the US greater than 180 days from the termination of TPS designation. Once a person has been admitted, the person is still considered to have been admitted for 245(a) purposes even if the period of stay under TPS expires. I would further argue that this should apply to a § 244(f)(4) implied admission as much as it does to any other kind of admission. If you are necessarily admitted because you have gone from having entered without inspection to being in nonimmigrant status, that does not cease to have been the case because your nonimmigrant status later goes away. Finally, Ms. Wilson correctly pointed out in footnote 1 in her decision that a derivative may also benefit under § 245(k), according to the USCIS 245(k) memo, and so the Respondent’s spouse who presumably is also a TPS recipient along with her spouse is also eligible to apply for adjustment of status.

Note that § 245(k) is only applicable to I-485 applications filed under the employment-based first, second, third and fourth preferences. With respect to family-based preference petitions, USCIS has taken the position that anyone who has ever failed to maintain continuously a lawful status will not be eligible for adjustment of status (although there is one outlier federal district court decision, See Figueroa v. Rodriguez, No. CV-16-8218 -PA, 2017 U.S. Dist. LEXIS 128120 (C.D. Cal. Aug. 10, 2017)). Hence, the beneficiary of an I-130 filed by a permanent resident on behalf of his spouse will likely not be able to adjust status if he was not in status prior to the grant of TPS. Also, one who needs to travel outside the United States in order to become eligible for adjustment of status under § 245(a) as an immediate relative, especially those outside the jurisdiction of the Sixth and Ninth Circuits, will not be able to avail of § 245(k) to adjust pursuant to an employment-based I-140 petition as § 245(k) only applies to one who has been admitted rather than paroled into the United States..

Unfortunately, the beneficial impact of a TPS grant for employment-based adjustment applicants is only applicable to those within the jurisdiction of the Sixth and Ninth Circuit. It is also important to note that the Eleventh Circuit in Serrano v. Unites States Attorney General, 655 F.3d 1260 (11th Cir. 2011) held that TPS was not an admission for purposes of adjustment under INA 245(a). A class action, filed by the American Immigration Council, is designed to replicate the Ramirez and Flores decisions in all Circuits that have not yet ruled and has been awaiting a decision from the district court judge for over a year in the Eastern District of New York. In the interim, the issue is now pending in the Third, Fifth, and Eight Circuits and the AIC has filed amicus briefs in all of them. There is a strong statutory argument that the grant of TPS constitutes an admission under § 244(f)(4), and thus allows one to adjust status both as an immediate relative and also through an employment-based I-140 petition under § 245(k). This logical and unambiguous interpretation should ultimately be adhered to by all courts.

(Hats off to Emily Wilson who was the Respondent’s attorney!)