996 F.3d 840
8th Cir.2021Background
- Fredis Artola, a Salvadoran national, entered the U.S. without inspection in 1998, received TPS in 2003, and became a lawful permanent resident in 2008.
- In April 2012 he was arrested for cocaine possession; this event stopped his continuous-residence clock under 8 U.S.C. § 1229b(d)(1)(B).
- DHS discovered the conviction when Artola reentered the U.S. in 2018, deferred his inspection, and initiated removal proceedings.
- Artola applied for cancellation of removal under 8 U.S.C. § 1229b(a), which requires seven years of continuous residence "after having been admitted in any status."
- The IJ denied cancellation for failure to satisfy the seven-year residency requirement; the BIA affirmed. Artola appealed, arguing (1) TPS eliminates the admission prerequisite or (2) TPS itself constitutes an admission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1254a(e) (TPS statute) removes §1229b(a)’s admission prerequisite so TPS time can start the 7-year residency clock | Artola: §1254a(e) lets TPS time count toward the seven years without a prior admission if Attorney General finds extreme hardship | Government: §1229b(a) plainly requires an "admission"; §1254a(e) does not eliminate that prerequisite | Court: §1254a(e) does not excuse the admission requirement; TPS time may only be counted under the conditions stated but does not remove the statutory admission prerequisite |
| Whether a grant of TPS constitutes an "admission" for §1229b(a) purposes | Artola: TPS should be treated as (or deemed) an admission for cancellation-of-removal eligibility | Government: "Admission" is defined in §1101(a)(13)(A) as lawful entry after inspection; TPS does not satisfy that | Court: TPS is not an "admission" for cancellation-of-removal; Velasquez’s adjustment-of-status "considered" admission is a limited legal fiction and does not apply here |
Key Cases Cited
- Velasquez v. Barr, 979 F.3d 572 (8th Cir. 2020) (TPS may be "considered" admission for adjustment-of-status under §1255; created a statutory fiction limited to that context)
- Chavez v. Holder, [citation="587 F. App'x 43"] (4th Cir. 2014) (held §1254a(e) does not eliminate §1229b(a)’s admission requirement)
- I.N.S. v. Doherty, 502 U.S. 314 (1992) (interpreting "shall-not-unless" constructions as creating necessary but not sufficient conditions)
- Barton v. Barr, 140 S. Ct. 1442 (2020) (redundancy in statutory text does not justify rewriting plain meaning)
- Llapa-Sinchi v. Mukasey, 520 F.3d 897 (8th Cir. 2008) (standard: de novo review of agency legal determinations)
- I.N.S. v. Phinpathya, 464 U.S. 183 (1984) (statutory provisions applying to specific contexts should not be read broadly to apply elsewhere)