TPS AND ADJUSTMENT OF STATUS
On March 31, 2017, a three-judge panel for the Ninth Circuit Court of Appeals in Ramirez v. Brown decided aliens granted TPS are eligible to adjust status incident to a grant of TPS status. The Ninth Circuit joins the 6th circuit in this finding. See Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013).) So what does this mean?
It means that those currently in TPS status who live under the 9th circuit’s jurisdiction presumably can apply to adjust their status based on the filing of an I-130 Alien Relative Petition or I-140 Employer Petition without leaving the U.S. However, in practice, this remains to be seen. The argument rests on whether someone granted TPS by US Immigration Service has been “inspected and admitted”. The 9th circuit concluded that those with TPS have been “inspected and admitted”. Interesting to note, however, section 244(f)(4) of the INA governing TPS does not state that an alien granted TPS “shall be considered as having been admitted, and maintaining, lawful status as an immigrant.” Rather, only that persons with TPS are “in and maintaining” such status – – a difference in the language and interpretation of section 245(a) of the INA. (Emphasis added. See also section 245(a) of the INA.) The circuits across the United States demonstrate this split on the issue. Such application of section 244(f)(4) of the INA to section 245(a) was expressly rejected by the Eleventh Circuit in Serrano, 655 F.3d at 1264. Rather, according to that circuit, TPS is not a status but only a temporary protection due to conditions rendering it dangerous for those from those countries to return there.
Undoubtedly, the 9th Circuit, holds sway over more aliens in TPS status than any other circuit with California having the lion’s share of TPS-ers from El Salvador and Honduras. Given the high number of individuals this decision impacts, it is very likely the conservatively-weighted Supreme Court (5-4) will decide the issue once and for all.
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