IMMIGRATION LAW - TEMPORARY PROTECTED STATUS: DETERMINING ELIGIBILITY TO APPLY FOR LAWFUL PERMANENT RESIDENT STATUS - VELASQUEZ V. BARR.

• Author: Paris, Molly

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The Immigration Act of 1990 (the Act) established a special status for immigrants seeking a safe haven in the United States (U.S.) known as temporary protected status (TPS). (1) TPS, how [*528] [*529] ever, is not an automatic pathway for lawful permanent residency nor does it confer an alternative immigration status. (2) In

[*530] Velasquez v. Barr, (3) the Eighth Circuit considered whether TPS beneficiaries (Appellees), who initially entered the U.S. without inspection, were considered "inspected and admitted" pursuant to 8 U.S.C. [section] 1255(a) for purposes of adjusting their status to a lawful permanent resident. (4) The Court held that despite entering

[*531] the United States without inspection, by virtue of possessing TPS, Appellees were considered "inspected and admitted," and thus, eligible to apply for adjustment of status to lawful permanent resident. (5)

[*532] Leymis V., Sandra O., Gilma Geanette Melgar of El Salvador, and Aurelia Conception Martinez of Honduras (collectively Appellees) each independently entered the United States unlawfully, without inspection. (6) After Appellees entered the United States, the Attorney General (AG) designated Appellees' home countries, El

Salvador and Honduras, with TPS on [*533] March 9, 2001, and January 5, 1999, respectively. (7) Appellees subsequently applied for and received TPS status. (8)

[*534] In 2016 and 2017, each of Appellees' immediate family members holding U.S. citizenship independently requested an immigrant visa for their respective family member with TPS status, Appellee. (9) Simultaneously,

Appellees sought to adjust their [*535] status to lawful permanent resident based on their immediate [*536] familial relationship with a U.S. citizen. (10) Although Appellees provided evidence that they were TPS beneficiaries, U.S. Citizenship and Immigration Services (USCIS) denied Appellees' adjustment of status request. (11) In response, Appellees, in two [*537] [*538] [*539] separate lawsuits, brought action requesting that the

District Court for the District of Minnesota (the district court) review USCIS's denial of their adjustment of status applications, pursuant to the Administrative Procedures Act (APA). (12) In both lawsuits [*540] the district court found that Appellees, as TPS beneficiaries under 8 U.S.C. [section] 1254a, were considered "inspected and admitted" within the meaning of 8 U.S.C. [section] 1255(a), making Appellees eligible for adjustment of status to lawful permanent resident. (13) Although the Government (Appellants) ap [*541] [*542] pealed the district court's denial of their motion to dismiss in each case, the Eighth Circuit Court of Appeals ultimately affirmed the district court's decision in each case, in favor of Appellees. (14)

[*543] Historically, U.S. immigration law focused on limiting the number of aliens entering the U.S. based on certain disfavored characteristics, race, or national origin. (15) In an effort to consolidate and codify existing immigration law, Congress passed the Immigration and Nationality Act of 1952 (INA). (16) In 1990,

[*544] Congress passed the Immigration Act (the Act), which amended the INA in part by allowing eligible immigrants to obtain TPS status. (17) Congress passed the Act in response to an increasing [*545] number of illegal immigrants entering the United States while also seeking to encourage skill-based, legal immigration. (18)

[*546] With the passage of the Homeland Security Act in 2002, most immigration functions enumerated in the INA transferred from the AG to the Department of Homeland Security (DHS). (19) [*547] USCIS, a component within DHS, currently oversees the administration of immigration benefits. (20) Although USCIS has discretion to approve or deny immigrant petitions for visas - as well as applications for adjustment of status to lawful permanent [*548] resident - USCIS's decisions are subject to judicial review. (21) [*549] When reviewing a decision rendered by USCIS, federal courts do not need to extend Chevron deference if USCIS's statutory

[*550] interpretation follows the statute's unambiguous plain meaning. (22)

[*551] TPS beneficiaries often seek to obtain immigrant visas (such as family-based visas) or applications for adjustment of status to lawful permanent resident because the benefits conferred by TPS are not permanent. (23) Although TPS beneficiaries [*552] [*553] [*554] are temporarily protected against deportation, DHS's ability to terminate a foreign country's TPS status at any time subjects individuals from those countries who hold TPS status, but illegally entered the U.S., to possible deportation. (24) 8 U.S.C. [section] 1254a(f) [*555] [*556] (4) provides that TPS beneficiaries hold "lawful status as a nonimmigrant" for purposes of adjusting their status, but 8

U.S.C. [section] 1255(a) requires that a nonimmigrant is "inspected and admitted" in order to adjust their status, a requirement not explicitly mentioned in 8 U.S.C. [section] 1254a(f)(4). (25) Currently, federal courts and USCIS disagree on whether TPS beneficiaries, who initially entered the U.S. unlawfully, are considered "inspected and admitted," and thus eligible for adjustment of status to lawful permanent resident, pursuant to 8 U.S.C. [section] 1255. (26) The

Sixth and [*557] Ninth Circuits have taken the position that TPS beneficiaries are eligible to apply for adjustment of status, regardless of how they initially entered the United States. (27) The Third and Eleventh [*558]

[*559] [*560] Circuits, however, in addition to USCIS in Matter of H-H-G, have held that only TPS beneficiaries who legally enter the United States are eligible to apply for adjustment of status. (28)

[*561] [*562] In Velasquez v. Barr, the Eighth Circuit Court of Appeals affirmed the district court's finding that, by virtue of holding lawful nonimmigrant status, TPS beneficiaries are "inspected and admitted" for purposes of adjustment of status to lawful permanent resident under 8 U.S.C. [section] 1255(a), regardless of how they entered the

United States. (29) The Court began by discussing [*563] the applicable standard of review of the district court's grant of summary judgment, awarded to the TPS beneficiaries. (30) As a matter of first impression in the

Eighth Circuit, the Court relied on reasoning from the Ninth and Sixth Circuits, as both addressed the same issue before the Court. (31) In reviewing US [*564] [*565] [*566] CIS's statutory interpretation, the Court agreed with the district court's reasoning that based on 8 U.S.C. [section] 1254a(f)(4)'s unambiguous language, TPS beneficiaries satisfy the "inspection and admission" requirement for adjustment of status to lawful permanent resident. (32) Ultimately, by affirming the district court's [*567] judgment, the Court was unwilling to extend deference to

USCIS's statutory interpretation. (33)

[*568] In contrast, the dissent asserted that the majority misapplied Chevron because it failed to defer to USCIS's reasonable statutory interpretation. (34) Unlike the majority, the dissent would have likely followed

USCIS's decision in Matter of H-H-G. (35) Moreover, the dissent reasoned that affording Chevron deference to the agency's interpretation is even more important in the context of the INA. (36)

[*569] The Eighth Circuit's decision in Velasquez v. Barr deepened the existing circuit split on the issue of whether a TPS beneficiary who illegally entered the U.S. is eligible to apply for adjustment of status to lawful permanent resident. (37) The Court correctly held that TPS recipients satisfy 8 U.S.C. [section] 1255(a)'s "inspected and admitted" requirement for adjustment of status to lawful permanent resident, regardless of how they initially entered [*570] the U.S. (38) By following the Sixth and Ninth Circuit's reasoning, the Court established Eighth

Circuit precedent that will likely allow a greater number of TPS recipients to be eligible for adjustment of status to lawful permanent resident. (39) This will be [*571] beneficial not only for TPS recipients, by protecting family unity, but for the U.S. as a whole, given that TPS recipients significantly contribute to the U.S. economy. (40)

The Court appropriately applied Chevron when reviewing USCIS's statutory interpretation of 8 U.S.C. [section] 1254a(f)(4) and 8 [*572] U.S.C. [section] 1255(a). (41) Given that USCIS's statutory interpretation was unreasonable, the Court was justified in its decision to not extend Chevron deference to USCIS's interpretation. (42) Similarly,

[*573] as an issue of first impression, the Court was not bound by the holding in Matter of H-H-G, a decision issued by USCIS's Administrative Appeals Office, which originated out of the Eighth Circuit's jurisdiction. (43)

[*574] In reaching its decision, the Court established a link amongst the statutory terms "lawful status as a nonimmigrant," admitted, and inspected. (44) By looking at the plain language of the statute, as well as the context of the INA, the Court logically concluded that because nonimmigrants are admitted, admission into the U.S. follows inspection, and a grant of TPS confers nonimmigrant [*575] status, TPS recipients are "inspected and admitted." (45) Therefore, because TPS recipients who illegally enter the United States are not expressly barred from applying for adjustment of status to lawful permanent resident, the Court's statutory construction was reasonable. (46)

[*576] In Velasquez v. Barr, the Eighth Circuit correctly decided that Appellees, as TPS recipients, were eligible to apply for adjustment of status to lawful permanent resident, even though they initially entered the United States illegally. Given that the Court evaluated USCIS's decision to deny Appellees' adjustment of status applications on de novo review, the Court's broad statutory interpretation of 8 U.S.C. [section] 1254a(f)(4) and 8 U.S.C. [section] 1255(a) within the context of the INA was reasonable. Had...