Third Federal Court Rejects Government Interpretation of ‘Admission’ into U.S.

6980211433_9a58c64bbb_kThis week, the federal district court for the Eastern District of Pennsylvania ruled that when U.S. Citizenship and Immigration Services (USCIS) granted Melvin Medina—a Honduran citizen who entered the United States without inspection on October 9, 1992—Temporary Protected Status (TPS), it “inspected and admitted” him for purposes of adjustment of status. This is now the third federal court to have rejected the government’s 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 and who are married to U.S. citizens to finally become legal permanent residents (LPR).

What does this ruling mean and why is it important? Attorney Patrick Taurel explains:

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.

Mr. Medina challenged this denial in the federal district court for the Eastern District of Pennsylvania. He argued that when USCIS granted him TPS status it “inspected and admitted” him for purposes of adjustment of status. For support, he relied on language from the TPS statute which states that, “for purposes of adjustment of status,” the TPS recipient “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” He argued that a person could not “be in” nonimmigrant status unless they had been inspected and admitted by an immigration officer at a port of entry. Consequently, Congress intended TPS recipients “to be considered” to have been inspected and admitted for adjustment of status when it included this language in the TPS statute.

The district court agreed with this argument and ruled in favor of Mr. Medina. The court carefully analyzed the language of both the adjustment of status and the TPS statutes and determined that no other interpretation was reasonable. In doing so, it rejected various counter-arguments raised by the government.

This decision follows similar decisions issued last year by the Sixth Circuit Court of Appeals and a district court in Seattle, Washington. The issue is currently pending before the Ninth Circuit Court of Appeals.

As courts continue to recognize that being granted TPS counts as an “admission” into the United States, immigration officials must revisit their narrow interpretation of the law.

Photo by Janelle.

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  • Friendly Anonymous

    All the more reason to secure borders to control U.S. entries/ admissions.

    Obama/ Napolitano are *wrong, wrong, wrong* on immigration EOs. Any immigration reform should go through Congress first to build some national consensus. Otherwise, any EO will be rightfully subject to ongoing constitutional challenge and litigation without building national consensus.

    BTW, Obama – keep deporting away. Do not slow down. Here’s the rest of the correct agenda aimed at innovation/ economic growth and national security.

    The U.S. should pursue U.S. interests in its foreign policy as much as in its immigration policy. This requires making a clear distinction between legal immigration – which we want and should encourage generously! – and the illegal/ undocumented type – which we should depress to the point of elimination.

    – Aspiring economic migrants are not “immigrants” under U.S. law. By
    legal definition under 8 U.S. Code § 1101(a)(16), “immigrants” have
    permission to enter the U.S. lawfully. As well, the unaccompanied alien
    children at the southern border do not technically meet definitions under law
    for asylum or refugee status; they are *not* immigrants under law. Here’s an
    interesting article that also discusses Special Immigrant Juveniles Status
    (SIJS):http://www.csmonitor.com/USA/D….

    – As an act of sovereignty, the U.S. should build a robust fence/ barrier along the southern border to support the admission of U.S. citizens, lawful permanent residents, and others authorized to enter the U.S. (e.g., visa holders, approved asylees, approved refugees), and to summarily exclude those who are undocumented/ illegal. It’s more humane to keep-out the undocumented/ illegals out than to let them in and then deport/ remove them. And BTW – yes, fences/ barriers work! E.g., after Israel built its fence/ barrier along the 1949 Armistice Line (“Green Line”) to protect its civilians from suicide bombing
    attacks, such attacks dropped from 64 to 12! (http://en.wikipedia.org/wiki/I….

    Oh, BTW – now that Canada has suffered its 9-11, our neighbor is correctly beefing-up its southern border security. http://www.publicsafety.gc.ca/http://www.tradecommissioner.g…. Canada is also being serious about managing Ebola and its visa-granting consulates and its borders: http://www.balglobal.com/News/

    – Outside the U.S. set-up processing centers (such as in Ciudad Juarez, MX) to accept and process applications for standard refugee/ asylee status. Only those granted lawful asylee/ refugee status may enter the U.S.

    – If a person is missing a passport (e.g., passport destroyed to prevent deportation/ removal from U.S. or other country), that person should not be eligible to apply for *any* U.S. immigration benefit.

    – After a meaningful fence/ barrier is built, and after it shows a meaningful reduction in unlawful U.S. entries (e.g., 80%, which is clearly achievable given the Israel example that I cited above): the best solution for those who are already in the U.S. as undocumented/ illegals is to permit a *temporary* visa program to authorize low-skill jobs. The next-best solution is to permit lawful permanent U.S. residence (a/k/a Green Card) *without* any form of citizenship eligibility…ever. The benefit of no-citizenship-eligibility includes the ability to deport/ remove an individual for criminal infractions. There should be **no** – zero! – citizenship eligibility. Also, no DACA, no Dreamers. These undocumented/ illegals are law-breakers; that should not be rewarded.

    – Vigorously support innovation and the inflow of the high achieving, the talented, the investors, STEM graduates of U.S. colleges/ universities, STEM professionals…the sort of qualified, English-speaking, law abiding people who contribute to the U.S. economy and support U.S. innovation in science, technology, and industry. These are the people who are in the U.S. lawfully, who have followed the meat-grinder process to correctly gain U.S. immigration benefits. We should make it easier on this population, and eliminate Green Card backlogs for them.

    – Grant H-1B and L-1 work visas liberally; the market *really* does adjust and regulate the streams. (http://www.brookings.edu/~/med….
    These visa workers comprise a small proportion of the U.S. labor force, which
    is estimated to be approx. 155.4 million workers.http://en.wikipedia.org/wiki/L….
    For example, the the no. of H-1B visa holders is estimated to be between
    650K-800K(http://cis.org/estimating-h1b-….
    **This means that H-1B workers comprise a *minuscule* portion, only between
    0.32% and 0.51% of the U.S. labor market.**

    – As an aside, the visa lottery program of the U.S. Department of State should be closed. As should the unskilled worker Green Card (EB-4) program; we get enough unskilled workers from family-based immigration and the undocumented/ illegals. Enough already.

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