District Court Decides Some TPS Beneficiaries May Finally Become Lawful Permanent Residents

Written by on June 13, 2014 in Courts with 3 Comments

117048243_7cc6bb0b87_bWhen a massive earthquake leveled much of Haiti, and when civil war broke out in Syria, the U.S. government did not blindly send Haitians and Syrians home to near-certain death. Instead, the government did the humane thing and offered safe haven to nationals of those countries who were here when disaster struck. Though rare, this safe haven designation—called Temporary Protected Status, or TPS—is not unprecedented. Both Republican and Democrat administrations alike have exercised their authority to offer protection to the nationals of certain countries rendered dangerous by civil unrest, violence, or natural disasters.

The Congressional Research Service estimates that there are over 300,000 noncitizens residing in the United States with TPS. Once granted, immigrants can renew a TPS designation periodically for so long as the United States determines that conditions in the person’s home country remain unstable. Consequently, a person may be granted TPS for a decade or longer. Many TPS beneficiaries, particularly those who have been here for many years, have gone on to marry U.S. citizens, have children here, pay taxes, purchase homes, make friends, work, and so on. But at the same time TPS beneficiaries are building lives in the U.S., many are left in a holding pattern because of their temporary immigration status. A recent decision may change this and finally afford TPS beneficiaries with deep ties to this country an opportunity to become lawful permanent residents (LPRs).

Two weeks ago, the United States District Court for the Western District of Washington ruled that a noncitizen’s grant of Temporary Protected Status (TPS) qualifies as “inspection and admission” into the United States. Here’s why that matters: The general rule is that only individuals who were “inspected and admitted or paroled” into the United States by an immigration officer may apply for LPR status from inside the United States. Many of those who were not “inspected and admitted or paroled” into the United States (i.e. those who crossed the border without passing through an official checkpoint) must leave the country to have their paperwork processed by the U.S. consulate in the immigrant’s last place of residence abroad to obtain LPR status. This departure, though, can trigger harsh penalties that can strand immigrants abroad for months, years, decades, and sometimes forever. That left many TPS recipients, including those with U.S. citizen spouses, essentially fenced into the United States because departing to obtain LPR status meant running a risk of triggering the aforementioned penalties or of encountering the dangerous conditions that merited the TPS designation. Due to an unfortunate interpretation of the law by immigration officials that says that the acquisition of TPS does not constitute an “inspection and admission,” those who entered unlawfully were also unable to get LPR status from inside the United States. For the second time in as many years, federal courts have now rejected that interpretation as inconsistent with the Immigration and Nationality Act, paving the way for TPS beneficiaries who fall within the geographic boundaries covered by these courts to finally become LPRs.

The plaintiff in the Washington case, Jesus Ramirez, was granted TPS in 2001 following the devastating earthquake in El Salvador, his home country, and has renewed this status ever since. Along the way, he married a U.S. citizen, who then filed a visa petition for him that was approved by U.S. Citizenship and Immigration Services (USCIS). But a petition by a U.S. citizen spouse is only the first step in the process of obtaining LPR status. When Ramirez took the next step and filed his application for permanent residence, USCIS denied it, explaining that he was not eligible because he entered the United States without inspection, and thus was not “inspected and admitted,” even though he had TPS status. At the urging of the American Immigration Council and the Northwest Immigrant Rights Project, the court rejected USCIS’s interpretation and sent Ramirez’s case back to the agency based on the plain language of the TPS statute.

Importantly, the court also recognized the policy reasons supporting its interpretation, stressing that Ramirez had been in the United States for approximately 15 years, had established roots here, and “has waited his turn for an independent, legal, and legitimate pathway to citizenship,” through the visa petition filed by his wife. Relying on a decision from the Court of Appeals for the Sixth Circuit, the court found that the government’s solution—which would require Ramirez to leave the country, be readmitted, and then go through the immigration process all over again—was a “waste of energy, time, government resources, and will have negative effects on his family.”

As courts continue to recognize that being granted TPS counts as an “admission” into the United States, immigration officials may revisit their unduly narrow interpretation of the law, paving the way for more individuals with longstanding ties to this country to finally gain permanent protection.

Photo by Joe Gratz.

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  • miiron

    how about the Philippines request for TPS? most undocumented Filipinos whose family was greatly affected by the Super Typhoon Haiyan are expecting the granting of TPS or at least the USCIS will inform us about the status o thef request. :(

  • ImmgLaw

    TPS is purely political. They are not quick to offer the Phil TPS because of the millions of filipinos here. They never offer TPS to populations that are too large to pass political scrutiny. That is why Mexican Nationals will never get TPS. Mexico is in a civil war with far more deaths and war like conditions that Syria but there are very few Syrians here and it is a politics gesture of good will. There are far too may Mexican nationals so there will not be asylum or tps. Immigration law is more racist than political. Some immigrants are not considered desirable by conservative forces. Unless the Phil shows a lot more political clout (campaign $$$) there will be no TPS.

  • Tps

    Some TPS BENEFICIARIES? This mean not all tps holders can apply for LPR?

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