Tag Archive for: TPS

Cyrus Mehta

While the Dogs and Cats of Springfield, OH Are Safe, the Haitian immigrants Are Not

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By Cyrus D. Mehta and Kaitlyn Box*

This past week, Trump and J.D. Vance have gone viral for some particularly bizarre rhetoric, alleging that Haitian immigrants in Springfield, Ohio were eating people’s pets. On September 9, 2024, J.D. Vance posted on X: “Months ago, I raised the issue of Haitian illegal immigrants draining social services and generally causing chaos all over Springfield, Ohio. Reports now show that people have had their pets abducted and eaten by people who shouldn’t be in this country. Where is our border czar?” Trump repeated these claims in his September 10, 2024 debate with Vice President Kamala Harris, stating “In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there.” These allegations were widely recognized as entirely baseless, including by Springfield, Ohio mayor Bob Rue, who in an interview called Trump and Vance’s statements “just untrue” and assured residents that their “pets are safe in Springfield, Ohio”. These anti-immigrant sentiments come after Laura Loomer, a far-right activist and internet personality, stated in a post on X “If @KamalaHarris wins, the White House will smell like curry & White House speeches will be facilitated via a call center and the American people will only be able to convey their feedback through a customer satisfaction survey at the end of the call that nobody will understand.”

Unfortunately, xenophobic statements like these can have real world negative consequences. In Springfield, Ohio, credible bomb threats related to Trump and Vance’s comments forced schools and offices to close. Haitian immigrants in the area, many of whom are Temporary Protected Status (TPS) recipients, report feeling unsafe and even being targeted for property damage as a result of this hostility. Notwithstanding the harm caused to communities in Ohio, the Trump campaign has doubled down on its anti-immigrant rhetoric, with J.D. Vance stating in a CNN interview, “I’m still going to keep on talking about what the migrants have done to Springfield, Ohio, and what Kamala Harris’ open border has done to Springfield, Ohio”. Vance also had the audacity to state that  “If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that’s what I’m going to do.”

Trump’s animus towards immigrants is hardly new. In 2018, he infamously referred to migrants from Haiti and elsewhere as “people from shithole countries” and has stated that Haitian migrants “all have AIDS”. Sentiments like these no doubt contributed to the Trump administrations efforts to terminate TPS designations for Haiti, Sudan, Nicaragua, and El Salvador, a decision that was challenged by TPS beneficiaries and their U.S. citizen children in federal court in Ramos v. Nielsen. The U.S. District Court for the Northern District of California found that Trump’s animus towards “non-white, non-European” immigrants had influenced the decision to end these TPS distinctions, cataloguing a series of anti-immigrant remarks he has made since 2015, including characterizing Mexican immigrants as criminals and rapists, and calling for “a total and complete shutdown of Muslims entering the United States.” The court ultimately struck down the Trump administration’s effort to rescind these TPS designations, holding that the decision was made “without any explanation or justification in violation of the Administrative Procedure Act”, and that that it may have been “influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution”. The court’s decision to issue a preliminary injunction was later overturned by the Ninth Circuit, which upheld the Trump administration’s TPS rescissions, and the designations were ultimately restored under the Biden administration.  Despite the Ninth Circuit’s decision to overturn the preliminary injunction and the Biden administration restoring TPS, the litigation is not entirely resolved. The en banc Ninth Circuit Court of Appeals granted Plaintiffs’ petition for rehearing and vacated the opinion of the three-judge panel. Plaintiffs filed an opening brief opposing the motion to dismiss.

Although the pets are safe, the rhetoric advanced by Trump and Vance proves that the immigrant community is decidedly not. Baseless anti-immigrant sentiments have the potential to sow discord and violence, as illustrated by recent events in Ohio communities. Moreover, Trump’s antipathy toward immigrants shaped policy decisions while he was president, including the rescission of TPS protections for vulnerable populations.

Indeed, Trump has promised to deport Haitian immigrants in Springfield, OH by again attempting to rescind their TPS status. Trump has repeatedly stated that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States. The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II,”Balko states.

In light of the second assassination attempt on Trump at the time of going to press, his supporters accuse critics of allegedly creating  a climate that encourages people to perpetrate such acts of violence. Although there is no place for political violence in America, and all political differences, however heated, must be settled through ballots and not bullets, Trump should also realize that his baseless claims against Haitians immigrants result in violence towards them too, even if they may whip up votes in his favor. There is no excuse for politicians like Trump, and Vance, who is also the sitting Senator from Ohio, to instigate violence against people here in the US whom they have a solemn duty to protect. Notwithstanding any sympathy that Trump may be generating after the assassination attempts, his dangerous rhetoric towards Haitians who are legally in the US has crossed an unacceptable line and he fully deserves to be completely and frontally defeated in this election.

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

 

Cyrus Mehta

Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected

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By Cyrus D. Mehta

If Trump gets reelected, he has hinted that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States.

“The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II, ” Balko states.

According to New York Times’s columnist Jamelle Bouie in  Trump’s Taste for Tyranny Finds a Target immigrants would be the most easy target for Trump to play out his autocratic fantasies. Trump has already said that undocumented immigrants are “poisoning the blood of this country.” The Supreme Court in Trump v. Hawaii allowed Trump to enforce his Muslim ban.

Stephen Miller, the architect of Trump’s anti-immigrant policies,  has stated on Charlie Kirk’s show how this deportation force would fulfill Trump’s fantasy. The  deportation force would comprise agents from Immigration and Customs Enforcement, the Drug Enforcement Administration, the Border Patrol and other federal agencies, as well as the National Guard and local law enforcement officials. They would look all over the  country for unauthorized and undocumented immigrants moving from state to state, city to city, neighborhood to neighborhood and, finally, house to house. These are people who in the view of Trump and Miller do not belong, not that because are not authorized but because they are also nonwhite and who are from what Trump once called “shithole” countries. By raiding workplaces and staging public roundups, this deportation force would create a climate of fear and intimidation.

Mistakes are bound to happen as legal immigrants and even US citizens may get caught up in the roundups. There could not be any notion of selective enforcement in these roundups, and those caught up in them would be because they appeared to be immigrants. There would be mass racial and ethnic profiling. And by the time this gets sorted out it may be too late if the person already got deported.

Moreover, one thinks of an undocumented immigrants as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year. All these noncitizens would be lumped together as undocumented immigrants that would be red meat for Trump’s deportation force.

Since it would be beyond the capacity to quickly deport the people caught up in these roundups, especially since countries may not even be willing to accept them easily, there would be holding facilities that would serve as staging centers on land near the Texas border. This would not be too dissimilar from internment camps, which were set up in the United States to detain Japanese Americans after the attack by the Japanese military on Pearl Harbor in 1941.

In addition to the round ups, the second Trump administration would sign an executive order to withhold passports, social security numbers and other government benefits from  children born of undocumented immigrants in the United States never mind that the Fourteenth Amendment says the exact opposite. Under Trump’s deportation plan, there would be no distinction between undocumented immigrants and children born to an undocumented immigrant in the United States. If there are going to be protests and resistance from people against agents storming homes, schools and religious places, Trump will invoke the Insurrection Act to mobilize the miliary and crush the resisters as well as his political opponents.

According to Bouie, “what we are seeing here from Trump isn’t simply a distaste for liberal values; it is a taste for genuine tyranny and bona fide despotism, one that complements his endless praise for dictators and strongmen.” Trump has already likened immigrants to invaders, and he can invoke an emergency, and thus a constitutional crisis,  to go ahead with deportations without waiting for the courts to rule, and  when they do rule, Trump’s hope is that the courts will rule in his favor, especially the Supreme Court, which have historically given deference to the executive branch on matters involving national security. This has happened time and time again with respect to court challenges to the internment of Japanese Americans, against the unlawful detention and abuses of noncitizens after the September 11 attacks and most recently in allowing Trump’s travel ban to pass, which was a major part of his election campaign in 2016 to ban Muslims from coming to the US, and in this reelection campaign for 2024, Trump promises to create a tyrannical force to deport millions of immigrants.

On this Memorial Day, as we reflect upon the sacrifices our military personnel have made to free America and the world from fascism and tyranny, think about how Trump can so easily unravel all of this through a deportation force that rips families apart, tears lives and fractures America.

 

Cyrus Mehta & Kaitlyn Box

Emerging Immigration Issues Arising from Violence in the Middle East

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The violence and loss of life in the Middle East this week are unspeakably tragic, and it is innocent Israeli and Palestinian citizens who stand to suffer the most in the escalating conflict. Hamas’ condemnable attack of Israeli civilians, as well as Israel’s subsequent preparations to invade Gaza to destroy Hamas, are likely to result in many Israeli and Palestinian civilians becoming displaced. Noncitizens from affected areas who are currently in the United States may be unable or unwilling to return as the violence intensifies and the region becomes increasingly unsafe. The conflict poses a number of immigration challenges for those impacted by the conflict. The Biden administration can take measures to ensure that noncitizens from the region who are already in the United States are not obliged to return to unsafe areas, and to facilitate the process for those who are applying for an immigration benefit to come to the United States.

As recommended by the American Immigration Lawyers Association in a statement titled “AILA Calls on Biden Administration to Help Those Displaced By Recent Violence in Middle East”, the Biden administration can extend deferred action, humanitarian parole, or Temporary Protected Status (TPS) to individuals from regions impacted by the conflict who are in the United States to ensure that they may remain safely in the country. Further, the administration can suspend removals to areas impacted by violence to ensure that Israeli and Palestinian nationals in the United States will not be returned to unsafe locations. Additionally, deadlines and other requirements can be relaxed for individuals from the region who are currently applying for an immigrant benefit before the Department of Homeland Security, Justice Department, or Department of State to ensure that their cases will not be impacted by delays or difficulties resulting from the conflict. See AILA Doc. No. 23101002 (Oct. 10, 2023).

The conflict may could also result in immigration-related consequences for those would support the actions of Hamas. Senator Marco Rubio has called on the Biden administration to “cancel and rescind visas for foreign nationals who endorse or espouse terrorist activity, including those who defend or support Hamas”. Senator Rubio went on to state that the administration “has the authority and an obligation under existing law to immediately identify, cancel the visas of, and remove foreign nationals already here in America who have demonstrated support terrorist groups”, and expressed an intention to introduce legislation to force the Biden administration to take action accordingly.

A coalition of student organizations at Harvard University published a letter stating that they “hold the Israeli regime entirely responsible for all unfolding violence”, and swiftly faced backlash from Harvard faculty and alumni, as well as the public at large. A Columbia Law School student similarly had their job offer from a prominent firm rescinded after emailing a letter to students which stated in part “Israel bears full responsibility for this tremendous loss of life”. These incidents raise the question of whether student leaders who are in the United States on an F-1 visa could be found inadmissible under INA § 212(a)(3)(B)(i)(IV)(bb) as representatives of “a political, social, or other group that endorses or espouses terrorist activity”. INA 212(a)(3)(B)(v) defines “representative” as “an officer, official, or spokesman of an organization, and any person who directs, counsels, or induces an organization or its members to engage in terrorist activity”. Although it may be unlikely that the provision would be enforced against a university student, there is a potential for troubling consequences for a noncitizen leader of a student organization who speaks out about the conflict in a way that seems to endorse terrorist activity. INA 237(a)(4)(B) also renders a noncitizen who is described in INA 212(a)(3)(B) and INA 212(a)(3)(D) removable. Similarly, INA § 212(a)(3)(B)(i)(I) renders inadmissible noncitizens who “have engaged in terrorist activity”, which can include commission of “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” to a terrorist organization. INA § 212(a)(3)(B)(iv)(VI). The First Amendment of the US Constitution ought to preclude the assumption that exercise of the right to peacefully express an opinion or assemble is likely to involve the violation of immigration law. However, in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Supreme Court held that First Amendment protections do not apply to “political speech or expressive conduct that materially supports foreign terrorist organizations”. The Supreme Court’s holding in this case seems to apply only to those who have had contact with a terrorist organization, not individuals who speak independently, so a student who writes a letter or protests on campus would likely be able to avail of the protections of the First Amendment, and should not face repercussions for providing material support to a terrorist organization.

In the wake of the 9/11 terrorist attacks, noncitizens from predominantly Muslim countries were covertly detained and removed from the United States due to purported ties to terrorism, as detailed in our prior blog. This week, a Chicago landlord shockingly and senselessly attacked his tenant and murdered her six-year-old son because they were Muslim. A well-known Palestinian restaurant in Brooklyn has been inundated by fictitious negative reviews, though it has persevered in serving Palestinian and Israeli customers in the community alike. These incidents indicate that the type of xenophobic backlash that arose after September 11, 2001 may be materializing again.

Although the conflict in the Middle East poses a number of immigration-related challenges, the Biden administration is uniquely positioned to assist both Israeli and Palestinian civilians impacted by the violence. The administration should adopt protections that allow noncitizens from impacted regions who are currently in the United States to remain here until the conflict abates, and institute flexibilities for those currently navigating an immigration process. The Biden administration should also make every effort to tamp down xenophobic backlash here in the US, and should never impose a travel ban against regions or countries like the way Trump did.

Historically, when people immigrate from countries or regions that have been enemies seem to get along in the United States. They bury their historic differences and find commonalities in their cultures in the new country. A case in point are people who have immigrated to the US from India and Pakistan that the authors have anecdotal experience. In the US they seem to co-exist peacefully and even patronize each other’s businesses and share culture. The communities have a tendency to come together in the new country to provide a unified front to oppose racial hostility, stereotyping and xenophobia. It is hoped that the displaced people from the Middle East who come to the US or remain will co-exist in harmony upon the Biden administration providing benefits such as TPS, deferred action and humanitarian parole.

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

Cyrus Mehta

Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence

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By Cyrus Mehta and Kaitlyn Box*

In light of the recent crises in Afghanistan and Ukraine, Temporary Protected Status (TPS) has been at the forefront of discussions around how the United States can assist individuals who are fleeing these two countries. On March 3, 2022, Ukraine was designated for TPS for an 18 month period. On March 16, 2022, the Department of Homeland Security also announced the designation of Afghanistan for TPS for a period of 18 months.

Generally, TPS provides a temporary immigration status to nationals of countries fraught with armed conflict or other disasters. In order to be eligible for TPS, an individual must be a national of a country designated for TPS, have been continuously present in the U.S. since the date of the designation, have continuously resided in the U.S. since a date specified by the Secretary of Homeland Security, and not be inadmissible to the United States. In the case of Ukraine, the requirement that applicants must have continuously resided in the United States since April 11, 2022 will render many  Ukrainian nationals ineligible for TPS, as many individuals fleeing the war would not have arrived in the United States by that date. Individuals who are granted TPS receive a stay of deportation and temporary authorization to work in the United States.

The Uniting for Ukraine program that would allow Ukrainians to enter the US under humanitarian parole was announced on April 21, 2022. Thus, those who will get paroled into the US under Uniting for Ukraine will not be eligible for TPS.  However, several thousand Ukrainians who came to Mexico  after the Russian invasion in February 20, 2022 and got paroled into the US from the Southern border prior to April 11, 2022 will be eligible for TPS.

On the other hand, Afghans have been applying for  humanitarian parole prior to and  after the US withdrew from Afghanistan on August 30, 2021. A recent New York Times report states that of the 43,000 humanitarian parole applications received by USCIS since July 2021, the agency has processed less than 2,000. Of those processed applications, 1,500 were denied and 170 were approved as of February 11, 2022. While the humanitarian parole program for Afghans has been a disappointment, those who have been paroled into the US already prior to March 16, 2022 can apply for TPS.

Though it provides an important temporary form of relief for some nationals of countries experiencing a crisis, TPS is, by its very nature, temporary and does not provide foreign nationals with a pathway to permanent residence or citizenship in the United States. Thus, one must look for other alternatives for individuals who wish to seek permanent residence in the United States. Foreign nationals who have a U.S. citizen or lawful permanent resident relative may be able to file a family-based adjustment of status application, but some family preference categories are extremely backlogged. Skilled TPS recipients who can find a U.S. employer to sponsor them may instead be eligible to file an employment-based adjustment of status application. There are no backlogs for most TPS-designated countries, and spouses and minor children of the primary applicant may also file adjustment of status applications. In addition, foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa, which does not require employer sponsorship or a Labor Certification.

However, complications arise when a TPS recipient who entered the U.S. without inspection wishes to apply for permanent residence. Pursuant to INA § 245(a), an individual must have been inspected and admitted  or paroled into the United States in order to be eligible to apply for adjustment of status. A foreign national who was inspected and paroled into the United States would be eligible for adjustment of status, but an individual who entered without inspection would not. In a previous blog, we analyzed the Supreme Court’s decision in Sanchez v. Mayorkas, which holds that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. However, the decision seems to leave open whether a grant of TPS could “cure” a short lapse in the status of an individual who was inspected and admitted to the U.S., but later fell out of status. In her opinion, Justice Kagan gives the example of an individual who was out of status for a few months before receiving TPS, potentially implying that receiving TPS ends an individual’s time out of status, if this duration would otherwise have exceeded 180 days and rendered the individual unable to adjust under INA § 245(k). Additionally, the decision could imply that a grant of TPS could qualify as a “lawful nonimmigrant status”, which could assist individuals who would otherwise have been ineligible to file and adjustment of status application under INA § 245(c)(7).

While TPS is no doubt an important tool for aiding individuals who have fled Ukraine or Afghanistan, not all nationals of these countries will be eligible and a grant of TPS does not provide a path to permanent residence in the U.S. Thus, some TPS recipients, or individuals from TPS-designated countries who are ineligible, may be able to utilize employment-based immigrant visa petitions as a path to permanent residence.  Thus, one who was initially paroled into the US and then was granted TPS would be able to apply for adjustment of status if he or she became the beneficiary of an employment based I-140 petition after an employer obtained labor certification. The parole would fulfill the requirement  under INA 245(a) that the applicant have been inspected and admitted or paroled into the US. The subsequent grant of TPS would then confer “lawful nonimmigrant status” to that applicant and thus render him or her eligible for adjustment of status under INA §245(c)(7).  However, TPS recipients who entered without inspection will be ineligible to apply for adjustment of status. For individuals who were inspected and admitted to the U.S., though, but later had a lapse in status, a grant of TPS could render them again eligible for permanent residence.

There will be large numbers who will enter the US on humanitarian parole under Uniting for Ukraine but will not be eligible to receive TPS as they would have entered the US well after the cut off date of April 11, 2022. If a parolee is sponsored by an employer through labor certification, he or she will not be eligible for adjustment of status as parole is not considered a lawful nonimmigrant status under INA  § 245(c)(7).  This person will have to process at a US Consulate overseas after the I-140 petition is approved. Fortunately, Ukrainian nationals can have their cases processed at the US Consulate in Frankfurt rather than in Kiev. On the other hand, a parolee would still be able to adjust status under 245(a) as an immediate relative. Similarly, a parolee who becomes the beneficiary of an I-130 petition under a family preference category will also be able to adjust status as the requirement to be in “lawful nonimmigrant status” under 245(c)(7) only applies to beneficiaries of employment-based petitions and not family-based petitions. Indeed, one in parole status would be considered  to be in a lawful status under 8 CFR 245.1 (d)(1)(v) for purposes of adjusting status under a family-based petition but not an employment-based petition.

There are pathways for people who have been paroled to become permanent residents, and even more  pathways for those who have subsequently received TPS. Given the low unemployment rate and shortage of workers in the US, employers should look to not just be hiring Ukrainians and Afghans as parolees or in TPS status, but must also endeavor to sponsor people with parole and TPS for permanent residence through a labor certification, an I-140 petition and the filing of an I-485 adjustment of status application. Those who may not be eligible for adjustment of status because they are parolees can still proceed to a US Consulate for an immigrant visa following the approval of the I-140 petition.

The sponsoring of  workers based on their true worth skills would allow them to pursue better jobs and careers. Presently, people on TPS or parole may have employment authorization, but many are in jobs that may not match their skills. How many times has one been driven by a taxi driver who was a doctor or engineer in their own country or received groceries from a delivery person who may have previously been an accountant?   An employer who commits to hiring and then sponsoring a foreign national worker on parole or TPS based on their real skills creates a win-win situation for both.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

Sanchez v. Mayorkas: Although TPS Is Not An Admission, Justice Kagan’s Opinion Leaves Open Avenues for TPS Recipients to Adjust Status as Nonimmigrants

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By Cyrus D. Mehta and Kaitlyn Box*

On June 7, 2021, the Supreme Court decided Sanchez v. Mayorkas, holding that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. Though overall a disappointing decision, the Court’s opinion may nonetheless leave open some options for some TPS recipients who want to obtain their green cards.

Sanchez v. Mayorkas involved the plight of Jose Santos Sanchez, an El Salvadoran national who entered the United States without inspection in 1997 and was subsequently granted TPS based on a series of earthquakes in his home country. In 2014, Sanchez, together with his wife, Sonia Gonzalez, sought to adjust status after more than 20 years of residence in the United States, but the USCIS denied his application on the grounds that “[a] grant of TPS does not cure a foreign national’s entry without inspection or constitute an inspection and admission of the foreign national”.

Sanchez challenged the denial, and the District Court ruled in his favor, holding that an LPR “’shall be considered as’ having ‘lawful status as a nonimmigrant’ for purposes of applying to become an LPR”. See Santos Sanchez v. Johnson, 2018 WL 6427894, *4 (D NJ, Dec. 7, 2018). The District Court further held that INA §244(f)(4) requires TPS holders to be treated “as though [they] had been ‘inspected and admitted.’” The Third Circuit, though, reversed, holding that “a grant of TPS does not constitute an ‘admission’ into the United States.” Sanchez v. Secretary U. S. Dept. of Homeland Security, 967 F. 3d 242, 252 (2020).

The Supreme Court, in an opinion authored by Justice Kagan, held that an individual who entered the United States without inspection is not eligible to adjust status under INA §245 by virtue of being a TPS recipient. The Court drew a distinction between the concept of “admission” and one’s immigration status, noting that there are several categories of individuals who have nonimmigrant status without having been admitted to the United States (alien crewmen, crime  victims in U visa status, etc.).

Though unfortunate that the Court did not consider a grant to TPS to be an admission under INA § 245(a), Justice Kagan’s opinion includes some interesting language that may leave open some avenues for TPS recipients to adjust status. On pages 8-9 of the opinion, the Court held that TPS recipients will be considered to have nonimmigrant status, which is needed to adjust status under §245. Thus, an individual who was admitted to the United States in lawful B-2 status for example, but fell out of status before being granted TPS might be able to adjust status, having satisfied both the “admission” and “nonimmigrant status” requirements.

Thus, it is unclear whether a grant of TPS “wipes out” a lapse in one’s nonimmigrant status, no matter the duration. Justice Kagan gives the more narrow example of an individual who was out of status for a few months before receiving TPS, potentially implying that TPS ends an individual’s time out of status who otherwise would have exceeded 180 days and been unable to adjust under INA § 245(k). However, a noncitizen relying on §245(k) to adjust status would not need to have received TPS, or any other nonimmigrant status, to file an employment based I-485 within 180 days of admission.  On the other hand, INA §245(k) could still potentially come to the rescue if the individual is granted TPS status within 180 days of the admission but then seeks to file for adjustment of status 180 days after the admission. The grant of TPS would have put the person back in nonimmigrant status within the 180 days from the admission, even if they file an adjustment application after 180 days.

Justice Kagan’s opinion can be interpreted even more broadly to support the idea that a grant of TPS “wipes out” a lapse in the nonimmigrant status and thus overrides INA §§§ 245(c)(2), (7) and (8), when the lack of a lawful status impedes an individual’s ability to adjust status. Under INA §245(c)(2) an applicant for adjustment of status even if admitted (other than an immediate relative) is precluded from applying for adjustment of status if they are in unlawful status at the date of filing the application or who have failed to maintain continuously a lawful status since entry into the US. INA § 245(k) allows one who was admitted to apply for adjustment of status under the first three employment-based preferences and the employment-based fourth preference as a religious worker if they have failed to maintain lawful status for not more than 180 days. But INA § 245(k) is inapplicable to one who is applying for adjustment of status under a family-based preference.  A grant of TPS at any point in time, if Justice Kagan’s opinion is interpreted broadly, should once again render an applicant eligible for adjustment of status whether they are filing an adjustment application under a family based preference or  an employment-based preference even 180 days beyond the admission and the grant of TPS.

INA § 245(c)(7) similarly precludes adjustment of status to that of an immigrant under INA § 203(b) (the five employment-based preferences) for one who is not in a lawful nonimmigrant status. A grant of TPS ought to wipe out this impediment. INA § 245(c)(8) disqualifies one from adjusting status who accepted employment while unauthorized. Under the broader interpretation of Justice Kagan’s opinion, the grant of TPS ought to also remove this impediment under INA § 245(c)(8) too.

While the Supreme Court nixed the ability of TPS applicants to adjust status if they were not admitted, there are still some bright spots if one carefully parses through Justice Kagan’s opinion. Under the broadest interpretation of Justice Kagan’s opinion, TPS applicants, if they were initially admitted, should continue to claim that they are eligible to adjust status under both the family and employment preferences by virtue of receiving nonimmigrant status.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk 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!)

Cyrus Mehta

Potential Adjustment of Status Options After the Termination of TPS

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As President Trump restricts immigration, it is incumbent upon immigration lawyers to assist their clients with creative solutions available under law. The most recent example of Trump’s attack on immigration is the cancellation of Temporary Protected Status for more than 200,000 Salvadorans. David Isaacson’s What Comes Next: Potential Relief Options After the Termination of TPS comprehensively provides tips on how to represent TPS recipients whose authorization will soon expire with respect to asylum, cancellation or removal and adjustment of status.

I focus specifically on how TPS recipients can potentially adjust their status within the United States through either a family-based I-130 petition or an I-140 employment-based petition for permanent residency. A September 2017 practice advisory from the American Immigration Council points to two decisions from the Ninth and Sixth Circuit, Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) and Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), holding that TPS constitutes an admission for purpose of establishing eligibility for adjustment of status under INA 245(a).

In both these cases, the plaintiffs previously entered the United States without inspection, and then became recipients of TPS grants and subsequently married US citizens. At issue in both those cases was whether they were eligible for adjustment of status under INA 245(a) as beneficiaries of immediate relative I-130 petitions filed by their US citizen spouses. Both the decisions answered this question in the affirmative.

A foreign national who enters the United States without inspection 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 Flores 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 to be eligible to receive a visa and 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 INA 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.

The next question is whether a TPS recipient can also adjust status to permanent residence if s/he is the beneficiary of an approved I-140 petition under the employment-based first, second, third and fourth preferences. The answer arguably is “yes” provided the applicant resides in a place that falls under the jurisdiction of the Sixth and Ninth Circuits. INA 245(k) will come to their rescue, which applies to the employment-based first to fourth preferences.

A TPS recipient from El Salvador who is concerned that her TPS designation will terminate on September 9, 2019 may wish to request her employ to file a labor certification on her behalf. If the labor certification is approved, after an unsuccessful test of the US labor market for her experience and skills, the employer may file an I-140 petition and potentially a concurrent I-485 adjustment of status application. The EB-2 and EB-3 priority dates for a person born in El Salvador are current in the February 2018 visa bulletin, and likely to remain current over the foreseeable future.

INA 245(k) exempts applicants for adjustment who are otherwise subject to the INA 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. 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.

I would posit that this person would be eligible under 245(k) to apply for adjustment of status within 180 days from the expiration of the TPS status. This may well be the case if there is a delay in the processing of the labor certification or if there is a retrogression in the priority date.  Although INA 244(f)(4) bestows lawful nonimmigrant status to a current TPS recipient, that grant of nonimmigrant status also previously admitted her 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 argue that this should apply to a INA 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.

A person who was previously admitted in a nonimmigrant status, but who then fell out of status prior to the grant of TPS, may also arguably be considered admitted once again under 245(k) upon receiving a grant of TPS. One could argue that the TPS is the last admission for 245(k).  However, the argument is probably stronger for one who entered without inspection, since traditionally only the granting of status to someone previously not admitted is a new “admission”—going out of status and back in doesn’t have the same tradition of being characterized that way.

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. Hence, the beneficiary of an I-130 filed by a permanent resident on behalf of his spouse will not be able to adjust status if he was not in status prior to the grant of TPS. The AIC practice advisory cites Figueroa v. Rodriguez, No. CV-16-8218 -PA, 2017 U.S. Dist. LEXIS 128120 (C.D. Cal. Aug. 10, 2017), which held to the contrary that TPS cures the prior lack of status for a family preference beneficiary, but since this is a decision from a district court it has no precedential value and should not be relied upon.  Of course, if his spouse becomes a US citizen, then he qualifies as an immediate relative and also eligible to adjust status if admissible despite having not maintained status prior to the TPS grant, or even if the TPS terminates, as immediate relatives are exempt from the 245(c)(2) bar.

Those who do not reside in the Sixth and Ninth Circuit can also adjust 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). Thus, a TPS recipient may apply for advance parole, leave the United States and be paroled back into the United States (although beware that under the Trump administration, CBP could deny entry to one with advance parole). The departure would not trigger the unlawful presence bars and the parole would be recognized for purposes of adjusting under INA 245(a) as having been “inspected and admitted or paroled.” Note, though, that the entry into the United States under parole would only render one eligible for adjustment of status as an immediate relative, and not under an approved I-140 preference petition since INA 245(k) only applies to one who has been admitted rather than paroled into the United States. The parole entry would also not help a preference beneficiary under an approved I-130. Although parole could be considered a lawful status (as the INA 245(c)(7) bar only applies to employment-based I-140s that are not subject to the 245(k) exception) for purposes of adjustment of status based on a family preference I-130, the applicant must demonstrate that s/he never previously violated lawful status. Proceeding overseas for consular processing, where filing an adjustment of status application may not be possible, may trigger the 3 and 10-year bars if the TPS recipient previously accrued unlawful presence prior to the grant of TPS. Even if the TPS recipient departs the United States pursuant to a grant of advance parole, it is not clear whether the US Consulate will recognize Matter of Arrabelly and Yerrabelly in situations where the person departs under advance parole but intends to return on an immigrant visa. Thus, those who plan to proceed for consular processing who have accrued the requisite unlawful presence to trigger the 3 and 10-year bars should only proceed if they can obtain a provisional waiver of the bars based on extreme hardship to a qualifying relative.

What is quite certain presently is the ability to adjust status as an immediate relative if the TPS recipient resides 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). 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).  As David pointed out in his blog, those who reside outside those two Circuits, except in the Eleventh Circuit,  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. An applicant can litigate by bringing an action under the Administrative Procedure Act, 5 U.S.C.  701 in federal district court. Alternatively, if the applicant is placed in removal proceedings, s/he can argue these theories before an Immigration Judge, and if unsuccessful to the Board of Immigration Appeals and subsequently in a Court of Appeals. Further details on various litigation strategies may be provided in a subsequent blog.  Even if a TPS recipient resides within the jurisdiction of the Sixth or Ninth Circuit, it is not clear whether the USCIS will accept an argument for adjustment of status through an I-140 employment-based petition under INA 245(k). This uncertainty gets exacerbated where the TPS grant has already expired and the I-485 is being filed within 180 days of its final expiration date.  Hence, the TPS recipient planning to deploy an adjustment of status strategy under 245(k) must also be prepared to litigate even if residing within the jurisdiction of the Sixth or Ninth Circuit. Under the Trump administration, when immigration benefits have suddenly been curtailed for long time TPS recipients, it may be worth adopting creating adjustment of status strategies, and if USCIS does not accept them, to consider litigating until there is success as was the case in the Ramirez and Flores decisions.

(This blog is for informational purposes only and should not be considered as a substitute for independent legal advice supplied by a lawyer familiar with a client’s case.)