BIA Holds That Where One Who Was Previously Present In The U.S. Without Being Admitted Or Parole Has His Or Her Temporary Protected Status (TPS) Terminated, He Or She Remains Inadmissible Under INA §212 (a)(6)(A)(i) And Removal Proceedings Should Not Be Terminated. An Applicant Whose TPS Continues To Be Valid Is Considered To Be “Admitted” For Purposes Of Establishing Establishing Eligibility For Adjustment Of Status Only Within The Jurisdiction Of The Sixth, Eighth, And Ninth Circut Courts Of Appeals.
On November 23, 2020, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an Immigration Judge (IJ) decision finding Respondent not removable under INA § 212(a)(b)(A)(i) for being present in the U.S. without admission or parole and terminating proceedings; the BIA reinstated removal proceedings and remanded the record for further proceedings consistent with its opinion and for entry of a new decision.
Respondent, a native and citizen of El Salvador, had entered the U.S. in 1999 and been granted TPS in 2003. USCIS terminated his TPS in 2012. Before the IJ, Respondent conceded removability under § 212(a)(6)(A)(i), admitting he entered without inspection. The IJ, however, found Respondent was not subject to removal on that charge. Relying on a Ninth Circuit case, Ramirez v. Brown, 852 F. 3d 954 (9th) Cir. 2017, she held that USCIS’s grant of TPS was an “admission” and declined to sustain the charge of removability. On appeal, DHS contended the IJ’s termination of proceedings was an error because TPS does not constitute an admission.
The Board began its analysis explaining that its 2010 precedent decision, Matter of Sosa Ventura, had found that a TPS grantee is protected from the execution of a removal order during the time his TPS status is valid but remains removable if determined to be inadmissible under § 212(a)(6)(A)(i). The decision also stated that Sosa Ventura holds that TPS only provides a limited waiver of inadmissibility so as to allow beneficiaries to remain in the U.S. with work authorization, “but only for the period of the time that TPS is effective.” Thus, when Respondent’s TPS was terminated, “he was no longer protected from the execution of a removal order based on his inadmissibility” for having entered without inspection. Further, upon de novo review, the BIA determined that Respondent remains inadmissible per §212(a)(6)(A)(i) despite his prior TPS grant.
In turn, stated the opinion, the 9th Circuit in Ramirez has relied on its reading of the plain language of the TPS statute (INA §244) as clearly and unambiguously treating TPS grantees as having been “admitted” for purposes of adjustment of status but the Board itself did not agree that the language at §244(f)(4) “is plain and unambiguous with regard to the particular issue in dispute here.” In fact, the opinion agreed with the “alternative analysis” of the Administrative Appeals Office (AAO), which found the statutory language to be ambiguous, a conclusion the BIA considered to be “the proper interpretation” of §244(f); the AAO maintained in a 2019 decision, Matter of H-G-G-, that the best reading of the statute is that Congress intended to protect those who maintained a lawful immigration status prior to acquiring TPS from becoming ineligible for adjustment if their lawful status expired while they remained in the U.S. in TPS. As a result, explained the Board, the AAO disagreed with Ramirez, holding that a grant of TPS is not an admission and does not cure, or otherwise impact, one’s prior unlawful status.
Lastly, the BIA noted that the Circuit Courts of Appeal are split on whether a TPS grant constitutes an admission for adjustment purposes. As such, held the decision, one whose TPS continues to be valid is considered to be “admitted” for purpose of adjustment eligibility within the 6th, 8th, and 9th Circuits, but the Board sided with those Circuits holding to the contrary, claiming that “their reasoning should be applied in any circuit that had not addressed that issue.” Additionally, because eligibility for discretionary relief is clearly separate and distinct from the issue of removability, even under the 9th Circuit’s approach, one is admitted and eligible to adjust “only if his or her TPS is valid at the time of adjustment.” As Respondent is in proceedings, no longer has TPS status, and is not applying for adjustment, the “limited holding of Ramirez is inapplicable here” and the Board declined to extend it to this case. Matter of Padilla Rodriguez 28 I&N Dec. 164 (BIA 2020).
