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Ramirez v. Brown

United States Court of Appeals, Ninth Circuit

March 31, 2017

Jesus Ramirez; Barbara Lopez, Plaintiffs-Appellees,
Micah Brown, Acting Field Office Director, USCIS Seattle Field Office; Lori Scialabba, Acting Director, USCIS; John F. Kelly, DHS Secretary; Jefferson B. Sessions III, Attorney General, United States Attorney General, Defendants-Appellants.

          Argued and Submitted December 6, 2016 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

          Ashley Young Martin (argued), Trial Attorney; Jeffrey S. Robins, Assistant Director; William C. Peachey, Director; Benjamin C. Mizer, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

          Christopher Strawn (argued) and Matthew Adams, Northwest Immigration Rights Project, Seattle, Washington, for Plaintiffs-Appellees.

          Before: M. Margaret McKeown, Richard C. Tallman, and Morgan Christen, Circuit Judges.



         The panel affirmed the district court's summary judgment in favor of Jesus Ramirez in his action challenging the United States Citizenship and Immigration Service's decision finding him ineligible to adjust to lawful permanent resident status on the ground that because he entered the United States without inspection he was not "inspected and admitted or paroled" as required by 8 U.S.C. § 1255(a).

         The panel held that under the Temporary Protected Status statute, 8 U.S.C. § 1254a(f)(4), a TPS recipient is deemed to be in lawful status and thereby has satisfied the requirements to become a nonimmigrant, including inspection and admission, for the purposes of adjustment of status. The panel held that as a TPS beneficiary, Ramirez was therefore eligible to obtain lawful permanent residence.


          KEOWN, Circuit Judge:

         This appeal presents a question of statutory interpretation about the interplay between two subsections of the immigration code-one involving designation of Temporary Protected Status ("TPS") and the other involving adjustment of status. The Attorney General may grant TPS to an alien who cannot safely return home to a war-torn or disaster-ridden country. During the pendency of the TPS designation, the U.S. government may not send the alien back to the unsafe country.

         Jesus Ramirez, who came to the United States from El Salvador in 1999, was granted TPS in 2001 and has remained in that status to the present day. In 2012, he married Barbara Lopez, a U.S. citizen, and the couple sought lawful permanent resident status for Ramirez. Although they were unsuccessful before U.S. Citizenship and Immigration Services ("USCIS"), they prevailed in a lawsuit filed in district court.

         The parties dispute whether being a TPS designee provides a pathway for Ramirez to obtain lawful permanent resident status under the adjustment statute. We hold that it does: under 8 U.S.C. § 1254a(f)(4), an alien afforded TPS is deemed to be in lawful status as a nonimmigrant-and has thereby satisfied the requirements for becoming a nonimmigrant, including inspection and admission-for purposes of adjustment of status under § 1255.


         I. Statutory Regime

         Two statutory provisions are at the heart of this appeal. The first relates to TPS, a status that the Attorney General may grant to aliens that prevents their removal from the United States while dangerous conditions persist in their home country. See 8 U.S.C. § 1254a(a)(1)(A), (b)(1). The second provision governs an alien's ability to adjust to lawful permanent resident status. See id. § 1255(a). We offer a general description of the mechanics of the TPS statute and then address where the rubber meets the road in this appeal-the intersection of the TPS and adjustment statutes.

         TPS first requires a designation. When the Attorney General determines that a foreign state (or any part of a foreign state) faces an ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions that prevent aliens from returning safely, the Attorney General may designate that state (or part of the state) for TPS and grant TPS to an alien who is a national of that state. Id. § 1254a(a)(1)(A), (b)(1). The Attorney General sets the initial duration of the designation, which may be extended following periodic review. See id. § 1254a(b)(2)-(3). An alien desiring TPS requests such status by submitting an application-including detailed information about identity, residence, and admissibility-to USCIS, which considers the application. See 8 C.F.R. §§ 244.2, 244.7, 244.10(b). To maintain TPS, aliens must periodically re-register. See 8 U.S.C. § 1254a(c)(3)(C); 8 C.F.R. § 244.17(a).

         An alien granted TPS receives two primary benefits during the period in which TPS is in effect: he is not subject to removal and he is authorized to work in the United States (and supplied with the relevant accompanying documentation). 8 U.S.C. § 1254a(a)(1)-(2). The grant of TPS has other consequences. For example, the TPS beneficiary is not "considered to be permanently residing in the United States under color of law" and "may be deemed ineligible for public assistance by a State . . . or any political subdivision thereof which furnishes such assistance." Id. § 1254a(f)(1)-(2). If the beneficiary wishes to travel abroad, he must seek and obtain the prior consent of the Attorney General. Id. ยง 1254a(f)(3). The consequence pertinent to this appeal is that "for purposes of adjustment of status under section 1255 of this ...

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