27 I. & N. Dec. 617
BIA2019Background
- Applicant: Salvadoran who entered U.S. without inspection in 1990, granted TPS in 2003, later filed I-485 as derivative of wife's third-preference family petition.
- USCIS Director denied adjustment, concluding Applicant was never inspected and admitted or paroled (section 245(a)) and did not continuously maintain lawful status (section 245(c)(2)).
- Applicant argued section 244(f)(4) (TPS) deems him to be in lawful nonimmigrant status for purposes of adjustment, and thus satisfies inspection/admission and the continuous-status requirement.
- AAO reviewed statutory text, legislative history, agency interpretations, and circuit court decisions addressing whether TPS constitutes an ‘‘admission’’ for adjustment purposes.
- AAO concluded TPS only deems a recipient to be in and maintaining lawful nonimmigrant status during the TPS period; it does not constitute inspection, admission, or parole and does not cure prior unlawful entry or prior failures to maintain lawful status.
- Result: AAO affirmed denial of adjustment under section 245: Applicant ineligible because never inspected and admitted or paroled and barred by 245(c)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a grant of TPS constitutes "inspection and admission or parole" under §245(a) | TPS grant should be treated as conferring nonimmigrant status and thus counts as admission for adjustment | TPS only ‘‘deems’’ lawful status during TPS period; it does not effect inspection/admission or cure prior unlawful entry | Held: TPS is not an admission/parole for §245(a); Applicant ineligible because he never was inspected and admitted or paroled |
| Whether §244(f)(4) eliminates the §245(c)(2) bar for failure to continuously maintain lawful status since entry | §244(f)(4) cures continuous-status defects and thus removes the §245(c)(2) bar for TPS recipients | §244(f)(4) only preserves lawful status during TPS for those who already had lawful status; it does not retroactively cure pre-TPS unlawful status | Held: §244(f)(4) relieves only status lapses that occur while TPS is in effect; it does not erase unlawful status accrued before TPS, so §245(c)(2) still bars Applicant |
| Proper statutory interpretation method when text ambiguous | TPS statutory language can be read to allow adjustment; circuit courts have so interpreted it | Agency’s long-standing contemporaneous interpretation plus text, context, and history support a narrow reading; if ambiguous, agency’s reasonable construction applies | Held: Text is unambiguous that TPS is not an admission; even if ambiguous, the agency’s narrow, long-held interpretation is the most reasonable and adopted |
| Whether legislative history or policy objectives of TPS compel a broader reading | Humanitarian purpose of TPS implies Congress intended adjustment in-country without return | Legislative history emphasizes TPS’s temporary nature and orderly return; Congress expressly used different language when it meant to waive admission requirements elsewhere | Held: Legislative history supports limited, temporary scope of TPS and does not indicate Congress intended to confer admission or permanent status |
Key Cases Cited
- Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) (held TPS constitutes admission for §245(a) in Ninth Circuit)
- Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013) (held TPS permits in‑country adjustment in Sixth Circuit)
- Serrano v. U.S. Att’y Gen., 655 F.3d 1260 (11th Cir. 2011) (held TPS does not satisfy §245(a)’s inspected and admitted requirement)
- K Mart Corp. v. Cartier, 486 U.S. 281 (1988) (statutory provisions must be read to give effect to each part)
- Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (start with plain statutory meaning in interpretation)