TPS holders Can Adjust in the 9th Circuit (Alaska, California, Arizona, Hawaii)

TPS holders Can Adjust in the 9^th Circuit (Alaska, California, Arizona, Hawaii)

Author: Immigration lawyer Alena Shautsova

TPS or temporary protected status is a form of deferred action. One can receive it, if otherwise is qualified, even if he/she entered the country illegally. There is a long lasting dispute whether those who receive TPS are “inspected and admitted” and can adjust their status to permanent residency.

Now, in Ramirez, et al. v. Brown, et al., 3/31/17, the 9^th Circuit court holds that TPS is an admission. In 2013, the 6^th Circuit court reached the same conclusion in  Flores v. USCIS.

In analyzing the language of the statute regarding TPS, the court held:

“Employing the traditional canons of statutory construction at step one, we conclude that § 1254a(f)(4) unambiguously treats aliens with TPS as being “admitted” for purposes of adjusting status. Because the statutory language is clear, that ends the inquiry: the agency has no interpretive role to play but must instead follow the congressional mandate. Chevron, 467 U.S. at 842–43 & n.9; see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987).”

In its decision, the court also mentioned the decision from the 11^th Circuit, where the court reached an opposite conclusion (that a TPS recipient cannot adjust). The court stresses, however, that a mere existence of a different opinion does not invalidate their analysis.

It seems that now, it would be up to the Supreme Court to decide the issue of the TPS holders, and resolve the split between the courts. Until then, applicants in the 6ht and 9^th circuits should be able to receive positive decisions on their I 485 if they are beneficiaries of TPS.

The United States Court of Appeals for the Ninth Circuit has jurisdiction over the district courts in the following districts

• District of Alaska.
• District of Arizona.
• Central District of California.
• Eastern District of California.
• Northern District of California.
• Southern District of California.
• District of Hawaii

The United States Court of Appeals for the Sixth Circuit has jurisdiction over the district courts in the following districts:

• Eastern District of Kentucky
• Western District of Kentucky
• Eastern District of Michigan
• Western District of Michigan
• Northern District of Ohio
• Southern District of Ohio
• Eastern District of Tennessee
• Middle District of Tennessee
• Western District of Tennessee