Removing Barriers to Family Unity for Holders of Temporary Protected Status: An Opportunity for Biden Administration

Currently before the Supreme Court is a little-noticed immigration case with profound significance. Sanchez v. Mayorkas offers the Biden administration an opportunity to make major progress, without waiting for legislative action, on one of its central humanitarian goals – providing durable status to long-resident noncitizens.

A straightforward change in the government’s policy and its litigation stance could help remove a barrier blocking critical relief to several tens of thousands of noncitizens who have resided in the United States with official government permission under Temporary Protected Status (TPS). Because of a longstanding but misguided agency reading of the Immigration and Nationality Act (INA), these noncitizens are stuck in limbo and practically unable to get the permanent resident status for which they are independently eligible based on family or employment relationships. Those most affected are TPS recipients married to U.S. citizens. The case turns on a highly technical question of statutory interpretation over which six courts of appeals have so far split evenly, but the human stakes are substantial, and a change of position by the administration would have significant impact.

The plaintiff TPS holders in Sanchez may well win the case based on the plain language of the relevant statutes, as ably argued in their brief and by supporting amici. But until now, the government has argued, to the contrary, that the language of the statute compels the agency’s current restrictive interpretation. This essay contends that the administration could provide crucial support for the TPS holders under a different legal framework that, for understandable reasons, neither side has given much emphasis.

The alternative approach is for the administration to acknowledge – in light of the statutory text, the deep and abiding circuit split, and a surprising November ruling by the Justice Department’s own Board of Immigration Appeals (BIA) – that the statutory language is ambiguous. On that foundation, the government has the discretion to adopt a new (and better) interpretation that would permit eligible TPS recipients to make use of adjustment of status to obtain a green card.

In 2019, the Trump administration entrenched the restrictive interpretation through an obscure process rather clearly invoked to complicate a later policy change. The Biden administration should nonetheless undertake immediate reconsideration of the government’s position and seek to defer the pending Supreme Court briefing schedule to allow that agency process to proceed. A more refined position by the new administration would promote family unity and avoid compelling spouses of U.S. citizens to return to the very country from which they have escaped in order to seek the immigrant visa for which they already qualify.

I. Background

Temporary Protected Status

Noncitizens are granted TPS protection (under INA § 244) as a result of discretionary executive decisions to designate specific countries based on conditions that make return dangerous – armed conflict, epidemics, or natural disasters. TPS is granted, usually in 18-month increments, to nationals of that state who were present in the United States as of a specific date and who apply for and are granted TPS status. Historically, a strong majority of recipients turn out to be persons who entered the country without inspection or overstayed a visa before receiving TPS. Nonetheless, after designation, TPS holders obtain a lawful status that protects them against removal and authorizes them to work, to choose where to live, to move freely, and to become part of their local communities.

The numbers give some sense of the potential stakes in Sanchez v. Mayorkas. Approximately 400,000 foreign nationals, from ten countries, live in the United States under TPS. Because of repeated renewals of the TPS designations, over half of this large populace have held TPS for 20 years, over four-fifths for more than 10 years, and all for at least four years. Many tens of thousands have married U.S. citizens, and many more are raising families that include U.S. citizen children.

Immigration priority for spouses of U.S. citizens

Historically, foreign nationals who marry a U.S. citizen are the most favored immigrant category and are able to obtain lawful permanent resident (LPR) status through the “immediate relative” category. That category, composed overwhelmingly of spouses of U.S. citizens (but also including parents of adult U.S. citizens), is uniquely exempt from annual numerical or country quotas. In addition, various grounds of inadmissibility that bar entry of other immigrants do not necessarily apply to such immediate relatives.

Adjustment of status

Adjustment of status (under INA § 245) is a procedure that allows noncitizens already in the United States who qualify for LPR status to get their green cards without traveling to a foreign country for visa processing at a U.S. consulate. Congress has imposed varying (and changing) restrictions and exceptions governing who is eligible for adjustment of status. In general, Congress has barred adjustment (1) to all otherwise-qualifying noncitizens if they have not been “inspected and admitted or paroled,” and (2) to some categories of applicants if they have worked without authorization or failed to maintain status (for example, by overstaying a temporary visa). Notably, the second restriction, based on status violations or unauthorized work, does not apply to the favored “immediate relative” category and is excusable for employment-based immigrant visas under certain circumstances (which apply to the Sanchez plaintiffs if they otherwise prevail in the Supreme Court).

Until 1996, failing to qualify for adjustment did not usually result in any major obstacle to obtaining a green card. This is because the specific bars to adjustment (categories (1) and (2) above) were just limits on using the adjustment procedure itself and would not interfere with obtaining an immigrant visa. The individual would have to go to a U.S. consulate outside the United States (usually in the country of nationality), incurring travel costs and delays, but could still expect success.

But after a highly restrictive – and perversely counterproductive – amendment to the immigration laws in 1996, access to adjustment became much more than an inconvenience for many applicants. Access now often means the difference between securing immigration status within a few months and suffering years of family separation. For most TPS recipients, if they travel outside the United States, they may be barred from returning for three or ten years. The 1996 amendment prescribes those lengthy punitive absences for persons who have had specified periods of unlawful presence in the United States. (A discretionary waiver is available but requires a showing of extreme hardship to a limited category of close relatives.)

But most critically – and for obscure reasons – the 1996 Congress applied these severe three- and ten-year bars only to people who “depart” from the country after accruing the unlawful presence. Those who have not departed are not subject to the bar. As a result, TPS recipients who potentially qualify for LPR status through employment or marriage can obtain green cards promptly if they are eligible for adjustment of status. But if they must depart to pursue consular processing, most will be barred for years.

II. Key Statutory Provision and Rulings by Agencies and Courts

The statutory language

This brings us to the current controversy in the Supreme Court. As noted earlier, the adjustment of status provision, INA § 245, requires that every applicant for adjustment have been “inspected and admitted” (or paroled). The Sanchez plaintiffs argue that the following provision of the TPS statute satisfies that requirement, by deeming noncitizens granted TPS as having been inspected and admitted, even if they originally entered without inspection. INA § 244(f)(4) provides (emphasis added):

During a period in which an alien is granted temporary protected status – … for purposes of adjustment of status under section 245 …. , the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.

How to interpret this provision has sharply divided the courts of appeals and led to inconsistent and confusing agency positions.

Early agency and judicial rulings

After TPS was enacted in 1990, a pair of terse legal opinions from the Immigration and Naturalization Service (INS) read this key provision narrowly. The INS general counsel flatly rejected any application to noncitizens who entered without inspection, and he concluded that adjustment would be available only to the small fraction of TPS recipients who were in valid nonimmigrant status when they first received TPS. This view was then incorporated into the relevant policy manuals used by INS examiners.

Several individual lawsuits challenged the agency’s position, but no case produced a published opinion from the courts of appeals until 2011. That year, a per curiam decision by the Eleventh Circuit upheld the agency position, finding that it was required by the plain language of the adjustment and TPS provisions. In 2013, the Sixth Circuit reached the opposite conclusion, emphatically holding that section 244(f)(4) “exactly as written” required that TPS holders be considered as having satisfied the “inspected and admitted” requirement for adjustment of status.

In 2017, the Ninth Circuit issued the most thorough judicial analysis. It ruled against the government position after a comprehensive and carefully reasoned review of the full significance of § 244(f)(4). The court cited numerous provisions of the INA to support its reading that “an alien who has obtained lawful status as a nonimmigrant has necessarily been ‘admitted.’” Therefore, when § 244(f)(4) provides that a TPS holder “shall be considered as being in, and maintaining, lawful status as a nonimmigrant,” this must include the additional characteristic of having been admitted for purposes of the § 245(a) adjustment requirement. The court also explained that all TPS applicants go through a rigorous screening process that includes an assessment of the applicant’s admissibility, a process akin to inspection.

The Ninth Circuit noted that “the government has not identified any controlling agency interpretation to which we owe deference.” The INS interpretations cited by the government were nonprecedential and showed “a pervasive lack of thorough and valid reasoning, as the decisions often state a conclusory answer without taking into account the various statutory and other considerations at play.” In subsequent years, several district courts in other circuits adopted the Ninth Circuit’s view.

Conflicting agency views: a critical assessment

In 2019, the Trump DHS arranged for the issuance of a precedent decision that was evidently meant to overcome the Ninth Circuit’s criticism, by certifying a TPS adjustment case to its Administrative Appeals Office (AAO).

Overview of DHS’s precedent decision. The AAO decision, Matter of H-G-G-, reaffirmed the agency’s narrow interpretation, but worked to buttress it with greater legal analysis. Specifically, it held that a grant of TPS does not confer a constructive admission, nor does it cure or otherwise override any failure, before the TPS grant, to maintain continuously a lawful status. The AAO indicated that § 244(f)(4) could result in a successful adjustment of status only in the case of a person who was inspected and admitted as a nonimmigrant and was maintaining a valid status at the time when he or she applied for TPS. Congress wanted to encourage such persons to apply for and accept TPS, the AAO stated, without worrying that they might thereby lose their ability to adjust status.

Note that this conclusion does not require that noncitizens have, at the time of their individual TPS applications, a qualifying relationship that could actually be the basis for eventual adjustment to LPR status. Instead, the AAO’s view results in a small fraction of TPS holders who, from the beginning of their TPS grant, enjoy special access to adjustment until TPS terminates, while all other TPS holders obtain no benefit from § 244(f)(4) at all. For the favored few, a marriage to a U.S. citizen many years later could serve as the basis for adjustment, whereas a TPS holder who entered without inspection could never adjust status, even based on a marriage, solemnized six months after her TPS grant, to a U.S. citizen coworker she met on the job acquired through her TPS work authorization. Family unification has been historically the most favored feature of US immigration law. Why Congress would honor that tradition only within the peculiar circle drawn by the AAO’s boundary line goes unexplained.

Inconsistency with the plain language of the statute. The H-G-G- decision exposes a far more straightforward and profound legal flaw in the agency’s conclusion. If Congress meant to preserve adjustment only for people who apply for TPS while already in valid unexpired nonimmigrant status, the actual language is a remarkably poor fit. Section 244(f)(4) provides for “consider[ing]” TPS holders “as being in, and maintaining” nonimmigrant status. But none of the people benefited by the H-G-G- holding need a special deeming provision to count as “being in” nonimmigrant status. They indisputably already are in a valid nonimmigrant status. The deeming provision may help with constructively maintaining that status, but the AAO interpretation leaves “being in” as pure surplusage. This particular point was not addressed, pro or con, in Matter of H-G-G- or the reported appellate court decisions, but the Sanchez plaintiffs have made it a powerful centerpiece of their Supreme Court brief.

Misreading congressional intent. Matter of H-G-G- also relied heavily on its reading of Congress’s supposed dominant intent in enacting TPS. “The plain language of the statute,” the AAO wrote, “does not reflect any intent to confer advantages to those persons without lawful status beyond providing temporary protection from removal; instead, it is clear that Congress sought an orderly departure regime” (emphasis added). The opinion goes on: “In contrast with other humanitarian provisions, the legislative history evidences a concern only for facilitating TPS recipients’ orderly departure from the United States, not their ability to remain after their status terminates” (emphasis added). These assertions of a singular and exclusive congressional intent are belied by the very existence of the § 244(f)(4) adjustment provision, no matter how narrowly construed. No doubt, one of Congress’s intentions was for TPS recipients to return home when TPS terminates. But that was clearly not the only policy or purpose. The dominant motivation for adopting TPS was humanitarian, namely, to respond to home-country dangers by letting flesh-and-blood humans live, work, and form normal social relationships in the safety of this country.

H-G-G- granted full status as a DOJ precedent, but the BIA follows with a conflicting view. Despite H-G-G-’s flaws, it was approved for publication as a precedent decision in DOJ’s bound volumes known as “Administrative Decisions Under Immigration and Nationality Laws of the United States.” That is unusual for AAO decisions (only eight published since the creation of DHS in 2003). Such publication requires, by regulation (8 C.F.R. § 103.3(c)), “approval of the Attorney General as to the lawfulness” of the decision. Published decisions “serve as precedents in all proceedings involving the same issue,” binding all units of DHS and DOJ on a par with similarly published decisions of the BIA or the Attorney General (8 C.F.R. § 1003.1(g)(2)). But these precedent decisions are not locked in amber; they may be overruled or modified by later precedent decisions or by rulemaking (or of course by legislation).

Strikingly, on Nov. 23, 2020, the Board of Immigration Appeals issued a precedent decision of its own (published in the same bound collection) that clashes with the AAO’s reading of the statute. Matter of Padilla Rodriguez (a removal case that primarily addresses a ground of inadmissibility) stated firmly that “we do not agree that the language of section 244(f)(4) is plain and unambiguous” with regard to whether TPS recipients qualify as “admitted” under the adjustment statute. Rather, the BIA stated that reading “the statutory language to be ambiguous . . . provides the proper interpretation of section 244(f)” (emphasis added). The Justice Department’s highest ranking immigration tribunal thus rejected the primary conclusion of H-G-G-: that the plain language of the INA requires the agency’s restrictive construction. The BIA pronouncement was, to say the least, unexpected, because the regulations (quoted above) appear to transform published DHS decisions into precedents that are binding even on the BIA (as well as other executive branch agencies and officers). The BIA softened the conflict with its less authoritative sister agency somewhat, however, by ultimately endorsing the same bottom line – that is, refusing to find that the statute deems TPS holders to have been inspected and admitted. But the BIA ruled that such a result could be properly reached only on the basis of holding “the statutory language to be ambiguous.” At a bare minimum, DOJ and DHS do not agree on what the plain text of the statute means.

III. The Path Forward

Statutory ambiguity: opening an opportunity for reform

The BIA’s recent discordant conclusion, along with the persistent circuit split, provides a solid foundation for DHS and DOJ to move toward adopting a different interpretation. All these factors point toward finding that the key language in section 244(f)(4) does not command the restrictive interpretation; it is, at most, ambiguous. The crucial ambiguity lies in the phrase “shall be considered.” Does this language imply a deeming only of the bare status of nonimmigrant, or does it necessarily bring with it other characteristics that invariably pertain to all persons “being in” lawful nonimmigrant status – such as having been inspected and admitted or paroled? Statutory ambiguity gives the agency freedom to choose among reasonable interpretations of the law.

DHS should use that freedom to adopt a different policy – and better reading of the statute – that would be broadly receptive to adjustment of status by otherwise eligible TPS beneficiaries. TPS holders would be deemed to satisfy the “inspected and admitted” prerequisite for adjustment. Tens of thousands of them can then be expected to qualify for adjustment and a green card, based on relationships that developed organically during a lawful multi-year stay in this country. Such an outcome better harmonizes with the broad humanitarian and pragmatic purposes of the TPS statute. And there can be no doubt that it is more in keeping with the values, especially family unity, that President Biden wants to strengthen within our immigration system.

Paths toward policy change – and the timing squeeze

Normally a new administration has a wide range of paths toward considering and revising policies (within the band of discretion permitted by statute) – including rulemaking, authoritative rulings in agency adjudication, or new guidance. In this case, the immediacy of the pending Supreme Court case presents a timing challenge. The government’s merits brief is currently due on March 24 – the first opportunity for the Biden administration to express its views on this case. Until now, the Supreme Court filings have been under the authority of the Trump administration, and those filings fully defended the Third Circuit’s narrow interpretation. The imminent briefing deadline obviously leaves insufficient time for formal rulemaking or new agency adjudication as a way of exploring and adopting a different policy. The status of H-G-G- as a published precedent approved by the Attorney General and the conflicting BIA decision suggest that some further as-yet-uncharted steps by both DHS and DOJ will be needed to free up full consideration of a policy change.

Plainly, more time is necessary for the agencies to reassess and resolve their divergent views, and for the administration to determine its options and policies. The administration would be best served by seeking a delay in the Sanchez briefing and argument to allow for a thorough assessment of a highly controversial, contested, and complex immigration policy with sweeping consequences for thousands of TPS recipients.

DHS might also strengthen the delay request – and demonstrate its firm commitment to an expedited reconsideration process – by publishing an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register. This type of preliminary notice can be brief and does not need to be accompanied by proposed regulatory text or economic analysis. It could simply indicate that the Department is undertaking a close review of the interpretation and administration of the TPS adjustment provision, and it therefore seeks public comment on a range of legal and policy questions.

IV. Conclusion

If the Supreme Court agrees to delay the case, DHS and DOJ can work out the intricacies for adopting a new executive branch interpretation (with well-reasoned explanation) of INA §244(f)(4) to present to the Court. If the case proceeds rapidly, however, the Justice Department should follow the path of the BIA and rely only on statutory ambiguity – a stance that allows, over time, for different reasonable interpretations. Of course, the Court may well still rule for the plaintiffs based on their strongly presented argument that the plain language of the TPS statute requires the more expansive interpretation.

TPS is a unique form of humanitarian relief that provides protection to individuals based on conditions in their home countries. It confers a lawful status. Relationships established during that lawful stay – if they otherwise satisfy independent legal criteria for a green card – deserve to be respected. Adjustment of status ought to be a means of demonstrating that respect. The statutory text, the humanitarian purpose, and the values of family unity all support making adjustment broadly available to TPS recipients. The new administration has the opportunity to advance that goal.

Photo: WASHINGTON, DC – FEBRUARY 23: Activists and citizens with temporary protected status (TPS) march along 16th Street toward the White House in a call for Congress and the Biden administration to pass immigration reform legislation on February 23, 2021 in Washington, DC. Last week, Democrats in Congress unveiled a wide-ranging immigration reform bill, including an expedited path to citizenship for undocumented young people who arrived in the U.S. as children with temporary protected status under DACA. (Photo by Drew Angerer/Getty Images)

 

About the Author(s)

David A. Martin

David A. Martin is Warner-Booker Distinguished Professor Emeritus at the University of Virginia. He served as Principal Deputy General Counsel of the Department of Homeland Security from January 2009 to December 2010, and at the Department of State and the Department of Justice (including as General Counsel to the Immigration and Naturalization Service, 1995-98). He was named to the Obama transition team in 2008-09, and to the Biden transition team in 2020-21.