Sanchez v. Sec'y U.S. Dep't of Homeland Sec.

967 F.3d 242

Jose Santos SANCHEZ; Sonia Gonzalez

v.SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Director United States Citizenship and Immigration Services; Director United States Citizenship and Immigration Services Nebraska Service Center; District Director United States Citizenship and Immigration Services Newark, Appellants

No. 19-1311

United States Court of Appeals, Third Circuit.

Argued January 15, 2020

Filed: July 22, 2020

Craig Carpenito, United States Attorney, Christopher Amore, Office of United States Attorney, 970 Broad Street, Rm 700, Newark, NJ 07102, Matthew J. Glover [Argued], Scott G. Stewart, United States Department of Justice, Civil Division, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Attorneys for Appellants

Jaime W. Aparisi [Argued], Aparisi Law, 8630 Fenton Street, Suite 925, Silver Spring, MD 20910, Michael J. DeBenedictis, DeBenedictis & DeBenedictis, 20 Brace Road, Suite 350, Cherry Hill, NJ 08034, Attorneys for Appellees

Mary A. Kenney [Argued], National Immigration Litigation Alliance, 10 Griggs Terrace, Brookline, MA 02446, Kristin A. Macleod-Ball, American Immigration Council, 1318 Beacon St., Suite 18, Brookline, MA 02446, Attorneys for Amicus Appellee

Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal presents a question of statutory interpretation involving adjacent subsections of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq . : Does the conferral of Temporary Protected Status (TPS) under § 1254a constitute an "admission" into the United States under § 1255? We hold it does not.

I

Jose Sanchez and Sonia Gonzalez (Plaintiffs or Appellees) are husband and wife and citizens of El Salvador. They entered the United States without inspection or admission in 1997 and again in 1998. Following a series of earthquakes in El Salvador in 2001, Plaintiffs applied for and received TPS. Over the next several years, the Attorney General¹ periodically extended TPS eligibility for El Salvadoran nationals, which enabled Plaintiffs to remain in the United States.

In 2014, Plaintiffs applied to become lawful permanent residents under § 1255. The United States Citizenship and Immigration Services (USCIS) denied their applications, explaining that Sanchez was "statutorily ineligible" for adjustment of status because he had not been admitted into the United States. And USCIS denied Gonzalez's application because it depended on the success of Sanchez's application.

Plaintiffs challenged that decision in the United States District Court for the District of New Jersey, arguing Sanchez was "admitted" into the United States when he received TPS. Sanchez v. Johnson , 2018 WL 6427894, at *4 (D.N.J. 2018). The District Court granted Plaintiffs summary judgment, holding a grant of TPS meets § 1255(a)’s requirement that an alien must be "inspected and admitted or paroled" to be eligible for adjustment of status. Id. at *5–6. The Court reasoned that being considered in "lawful status" is "wholly consistent with being considered as though Plaintiffs had been ‘inspected and admitted’ under § 1255." Id. at *4. The Government filed this timely appeal.²

II

TPS shields foreign nationals present in the United States from removal during armed conflict, environmental disasters, or other extraordinary conditions in their homelands. 8 U.S.C. § 1254a(b)(1). Once TPS is granted, "the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant " for adjustment-of-status purposes under § 1255. 8 U.S.C. § 1254a(f)(4) (emphasis added).

Section 1255(a) permits certain aliens present in the United States (including some who received TPS) to adjust their status. It provides:

The status of an alien who was inspected and admitted or paroled into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence.

8 U.S.C. § 1255(a) (emphasis added). The INA defines "admission" and "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A).

As relevant here, an applicant is ineligible for adjustment of status under § 1255 if he "has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States." 8 U.S.C. § 1255(c)(2). An applicant may nevertheless seek adjustment of status despite that bar if "the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission ." 8 U.S.C. § 1255(k)(1) (emphasis added).

III

Appellees claim they are eligible for adjustment of status because they were admitted when they received TPS. We disagree because their interpretation of §§ 1254a and 1255 is inconsistent with the text, context, structure, and purpose of those sections.

A

The text of §§ 1254a and 1255 supports our determination that a grant of TPS does not constitute an admission.

The Government argues the District Court erred when it held that "being in, and maintaining, lawful status as a nonimmigrant" includes being "inspected and admitted or paroled" as required by § 1255(a). According to the Government, "lawful status" does not qualify as an "admission" because the concepts are distinct. Appellees agree that these terms have distinct meanings, so they do not argue that "being in any lawful status is equivalent to an admission." Sanchez Br. 8. Instead, they insist "that the process of obtaining TPS constitutes an admission, akin to an alien who is considered admitted after an adjustment of status." Id. (citing In re Espinosa Guillot , 25 I. & N. Dec. 653, 654 (BIA 2011) ("An adjustment of status generally constitutes an admission.")). Appellees contend "[a]n individual's original entry is irrelevant because the subsequent grant of TPS ... provides the ‘lawful entry’ referred to in § 1101(a)(13)." Id. at 15. And they emphasize that obtaining nonimmigrant status requires the admission of the alien, so the government admits TPS recipients by treating them as being in lawful nonimmigrant status under § 1254a(f)(4).

The Government's position is more consistent with the text of §§ 1254a and 1255. The INA defines "admission" and "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A). We have interpreted "admission" in § 1255(b) in accordance with that statutory definition.

Hanif v. Att'y Gen. , 694 F.3d 479, 485 (3d Cir. 2012). And although "lawful status" is not defined in the INA, we have drawn a clear line between "admission" and "status," saying "[t]he date of gaining a new status is not the same as the date of the physical event of entering the country." Id. ; See also Taveras v. Att'y Gen. , 731 F.3d 281, 290 (3d Cir. 2013) ("The words ‘entry’ and ‘into’ plainly indicate that ‘admission’ involves physical entrance into the country, which is inapposite to adjustment of status in removal proceedings, a procedure that is structured to take place entirely within the United States."). Nothing in §§ 1254a or 1255 suggests we should interpret these terms differently now.³

Appellees principally argue that "[b]y the very nature of obtaining lawful nonimmigrant status, the alien goes through inspection and is deemed admitted." Sanchez Br. 8 (quoting Ramirez v. Brown , 852 F.3d 954, 960 (9th Cir. 2017) (internal quotation marks omitted)). This assertion is unpersuasive for at least three reasons.

First, the text of § 1254a does not mention that a grant of TPS is (or should be considered) an inspection and admission. Second, a grant of TPS cannot be an "admission" because § 1254a requires an alien to be present in the United States to be eligible for TPS. Consistent with that fact, we have recognized that TPS is not "a program of entry for an alien." De Leon-Ochoa v. Att'y Gen. , 622 F.3d 341, 353–54 (3d Cir. 2010). Third, although Appellees are correct that admission often accompanies a grant of lawful status, it does not follow that a grant of lawful status is an admission. For example, "a grant of asylum places the individual in valid immigration status but is not an ‘admission.’ " In re H-G-G- , 27 I. & N. Dec. 617, 635 (AAO 2019) (citing In re V-X- , 26 I. & N. Dec. 147 (BIA 2013) ). "And a grant of benefits under the Family Unity Program confers a ‘status’ for immigration purposes, but does not constitute an ‘admission.’ " Id. (quoting In re Fajardo Espinoza , 26 I. & N. Dec. 603, 605 (BIA 2015) ).⁴

B

The statutory context and structure also support our holding that a grant of TPS does not constitute an admission.

Congress created an exception to the admission requirement for some aliens but did not do so for TPS recipients. Instead, it said that an alien with TPS "shall be considered as being in, and maintaining, lawful status as a nonimmigrant." 8 U.S.C. § 1254a(f)(4). It did not say the alien would also be considered "inspected and admitted or paroled," which is the first requirement for adjustment of status under § 1255(a). But Congress did provide an exception to the "inspected and admitted or paroled" requirement for "special immigrants" described by § 1101(a)(27)(J) and aliens eligible for a visa. See 8 U.S.C. § 1255(h), (i). Unlike special immigrants and aliens eligible for a visa, TPS recipients were not excepted from the admission requirement because "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." I.N.S. v. Cardoza-Fonseca , 480 U.S. 421, 432, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (internal citation and quotation marks omitted).

The interpretation Appellees propose also...