In re Rodriguez

28 I&N Dec. 164

Matter of Roberto Carlos PADILLA RODRIGUEZ, Respondent

Interim Decision #4001

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

November 23, 2020

(1) Where the temporary protected status ("TPS") of an alien who was previously present in the United States without being admitted or paroled is terminated, the alien remains inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), and removal proceedings should not be terminated.

(2) An alien whose TPS continues to be valid is considered to be "admitted" for purposes of establishing eligibility for adjustment of status only within the jurisdictions of the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits.

FOR RESPONDENT: Pro se

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kevin Primo Laroza, Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; HUNSUCKER, Appellate Immigration Judge; GEMOETS, Temporary Appellate Immigration Judge

HUNSUCKER, Appellate Immigration Judge:

In a decision dated March 8, 2018, an Immigration Judge determined that the respondent is not removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), as an alien present in the United States without being admitted or paroled, and she terminated the proceedings. The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained, the proceedings will be reinstated, and the record will be remanded.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of El Salvador who entered the United States in 1999 and was granted temporary protected status ("TPS") on November 25, 2003. The United States Citizenship and Immigration Services ("USCIS") terminated his TPS on November 5, 2012.

In proceedings before the Immigration Judge, the respondent admitted that he entered the United States without being admitted or paroled, and he conceded removability under section 212(a)(6)(A)(i) of the Act. The Immigration Judge determined that the respondent is not subject to removal on that charge. Relying on the decision of the United States Court of Appeals for the Ninth Circuit in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), she concluded that the USCIS's grant of TPS constituted an "admission," and she declined to sustain the charge of removability. On appeal, the DHS argues that the Immigration Judge erred in terminating the respondent's removal proceedings because TPS does not constitute an admission.

II. ANALYSIS

Under section 244(a)(1)(A) of the Act, 8 U.S.C. § 1254a(a)(1)(A) (2018), the Attorney General may grant an alien "temporary protected status in the United States and shall not remove the alien from the United States during the period in which such status is in effect." In Matter of Sosa Ventura, 25 I&N Dec. 391, 393 (BIA 2010), we concluded that an alien is "protected from execution of a removal order during the time [his or] her TPS" is valid but remains removable if determined to be inadmissible under section 212(a)(6)(A)(i) of the Act.

The respondent's time in TPS does not change his manner of entry or his status as an alien who is present in the United States without admission. As we emphasized in Matter of Sosa Ventura, "Congress stated that TPS 'does not create an admissions program. It is designed to protect individuals already in the United States and gives no alien any right to come te [sic] the United States.'" Id. at 394 (quoting H.R. Rep. No. 101-245, at 13 (1989)). We also clarified that "a grant of TPS does not affect an alien's admissibility or inadmissibility for purposes of the Immigration and Nationality Act generally." Id. at 392; see also Nolasco v. Crockett, 978 F.3d 955 (5th Cir. 2020) (stating that "TPS does not create a 'fictional legal entry'" (citation omitted)).

TPS only provides a limited waiver of inadmissibility, "the purpose of which is to permit certain aliens . . . to remain in the United States with work authorization, but only for the period of time that TPS is effective." Matter of Sosa Ventura, 25 I&N Dec. at 393. When the respondent's TPS was terminated, he was no longer protected from execution of a removal order based on his inadmissibility as an alien who was not admitted to the United States. See id. at 394-95 (holding that TPS only allows aliens "to remain in a lawful manner and not be forced to depart the United States during the period that TPS is effective. Congress clearly did not intend for TPS to create a permanent immigration status in the United States."); see also, e.g., Melendez v. McAleenan, 928 F.3d 425, 429 (5th Cir. 2019) (holding that the "finite period in which the benefits of TPS will operate makes unreasonableany argument that such status eliminates the effect of any prior disqualifying acts," such as being in unlawful status, because "TPS does not absolve an alien of all prior unlawful conduct"), cert. denied, 140 S. Ct. 561 (2019).

Upon our de novo review, we conclude that the respondent remains inadmissible under section 212(a)(6)(A)(i) of the Act, despite his prior grant of TPS. See United States v. Orellana, 405 F.3d 360, 365 (5th Cir. 2005) (stating that an alien registered for TPS "maintains any pre-existing immigration status he previously obtained," but when that status is withdrawn, he "reverts to any immigration status that he maintained or was granted while registered for TPS"); Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654, 2655 (Jan. 18, 2018) (Supplementary Information) (explaining that when a country's TPS designation is terminated, "beneficiaries return to . . . [t]he same immigration status or category that they maintained before TPS"); see also 8 C.F.R. § 1003.1(d)(3)(ii) (2020). We therefore hold that the Immigration Judge erred in terminating the respondent's removal proceedings.

The Immigration Judge relied on Ramirez in finding that the respondent's previous grant of TPS constituted an "admission" and that he is therefore not inadmissible. That reliance was misplaced. Ramirez decided that an alien who entered the United States without inspection and later received TPS was "inspected and admitted" within the meaning of section 245(a) of the Act, 8 U.S.C. § 1255(a) (2012), for purposes of establishing eligibility for adjustment of status. Ramirez, 852 F.3d at 964. However, the Ninth Circuit did not reject our decision in Matter of Sosa Ventura, noting that we did not "address the statutory interpretation question at issue" in Ramirez. Id. at 959.

The Ramirez court relied heavily on its reading of the plain language of section 244(f)(4) of the Act.¹ Concluding that "the statutory language is clear," the Ninth Circuit found that the statute "unambiguously treats aliens with TPS as being 'admitted' for purposes of adjusting status."² Id. at 958(emphasis added); see also Flores v. USCIS, 718 F.3d 548, 553-54 (6th Cir. 2013). We do not agree that the language of section 244(f)(4) is plain and unambiguous with regard to the particular issue in dispute here.

In our view, the alternative analysis of the Administrative Appeals Office ("AAO") of the USCIS in Matter of H-G-G-, 27 I&N Dec. 617, 627-28 (AAO 2019), where it assumed the statutory language to be ambiguous, provides the proper interpretation of section 244(f) of the Act. Considering the legislative history of the provision and its meaning within the broader context of section 244 and the Act as a whole, the AAO explained that the best reading of the statute is that Congress intended to protect aliens who maintained a lawful immigration status prior to acquiring TPS from becoming ineligible for adjustment of status if their lawful status expired while they remained in the United States in TPS. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) ("The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."); hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 1000 (9th Cir. 2019) (stating that legislative history may be considered if a statute is ambiguous). Consequently, the AAO disagreed with Ramirez and held that a grant of TPS does not constitute an admission, and it does not cure, or otherwise impact, an alien's prior unlawful status.³ Matter of H-G-G-, 27 I&N Dec. at 634 (stating that "it does not follow that having a lawful status results in one's inspection and admission").

Several circuit courts have also disagreed with the Ninth Circuit's interpretation of the term "admission." Thus, the circuits are split on whethera grant of TPS constitutes an admission for purposes of adjustment of status. Compare Velasquez v. Barr, Nos. 19-1148, 19-2130, 2020 WL 6290677, at *3 (8th Cir. Oct. 27, 2020), Ramirez, 852 F.3d at 964, and Flores, 718 F.3d at 551-53, with Sanchez v. Sec'y U.S. Dep't of Homeland Sec., 967 F.3d 242, 252 (3d Cir. 2020), Melendez, 928 F.3d at 427-29, and Serrano v. U.S. Att'y Gen., 655 F.3d 1260, 1265 (11th Cir. 2011) (per curiam).

The holdings in Flores and Velasquez, like the Ninth Circuit's holding in Ramirez, rely on section 244(f)(4) of the Act to determine that the aliens in those cases were eligible for adjustment of status. These courts clearly held that their interpretations were based on the plain language of the statute, so their decisions remain binding precedent in their respective jurisdictions. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (explaining that if the meaning of a statute is plain, both the agency and the courts must give effect to that clear expression of congressional intent). Accordingly, an alien whose TPS continues to be valid is considered to be "admitted" for purposes of establishing eligibility for...