PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1311
____________
JOSE SANTOS SANCHEZ; SONIA GONZALEZ
v.
SECRETARY UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; DIRECTOR UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES;
DIRECTOR UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES NEBRASKA SERVICE
CENTER; DISTRICT DIRECTOR UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES
NEWARK,
Appellants
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-16-cv-00651)
District Judge: Honorable Robert B. Kugler
____________
Argued January 15, 2020
Before: HARDIMAN, PORTER, and PHIPPS, Circuit
Judges.
(Filed: July 22, 2020)
Craig Carpenito, United States Attorney
Christopher Amore
Office of United States Attorney
970 Broad Street, Rm 700
Newark, NJ 07102
Matthew J. Glover [Argued]
Scott G. Stewart
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Attorneys for Appellants
Jaime W. Aparisi [Argued]
Aparisi Law
8630 Fenton Street, Suite 925
Silver Spring, MD 20910
Michael J. DeBenedictis
Debenedictis & Debenedictis
20 Brace Road, Suite 350
Cherry Hill, NJ 08034
Attorneys for Appellees
Mary A. Kenney [Argued]
National Immigration Litigation Alliance
10 Griggs Terrace
2
Brookline, MA 02446
Kristin A. Macleod-Ball
American Immigration Council
1318 Beacon St., Suite 18
Brookline, MA 02446
Attorneys for Amicus Appellee
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
This appeal presents a question of statutory
interpretation involving adjacent subsections of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et
seq.: Does the conferral of Temporary Protected Status (TPS)
under § 1254a constitute an “admission” into the United States
under § 1255? We hold it does not.
I
Jose Sanchez and Sonia Gonzalez (Plaintiffs or
Appellees) are husband and wife and citizens of El Salvador.
They entered the United States without inspection or admission
in 1997 and again in 1998. Following a series of earthquakes
in El Salvador in 2001, Plaintiffs applied for and received TPS.
Over the next several years, the Attorney General1 periodically
1
Although §§ 1254a and 1255 reference the Attorney
General’s authority and discretion in managing the TPS
3
extended TPS eligibility for El Salvadoran nationals, which
enabled Plaintiffs to remain in the United States.
In 2014, Plaintiffs applied to become lawful permanent
residents under § 1255. The United States Citizenship and
Immigration Services (USCIS) denied their applications,
explaining that Sanchez was “statutorily ineligible” for
adjustment of status because he had not been admitted into the
United States. And USCIS denied Gonzalez’s application
because it depended on the success of Sanchez’s application.
Plaintiffs challenged that decision in the United States
District Court for the District of New Jersey, arguing Sanchez
was “admitted” into the United States when he received TPS.
Sanchez v. Johnson, 2018 WL 6427894, at *4 (D.N.J. 2018).
The District Court granted Plaintiffs summary judgment,
holding a grant of TPS meets § 1255(a)’s requirement that an
alien must be “inspected and admitted or paroled” to be eligible
for adjustment of status. Id. at *5–6. The Court reasoned that
being considered in “lawful status” is “wholly consistent with
being considered as though Plaintiffs had been ‘inspected and
admitted’ under § 1255.” Id. at *4. The Government filed this
timely appeal.2
program, this authority now belongs to the Secretary of the
Department of Homeland Security. See Mejia Rodriguez v.
U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1140 n.3 (11th
Cir. 2009) (citing 8 U.S.C. § 1103(a) & 8 C.F.R. § 244.2).
2
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291. We
review the summary judgment de novo, applying the same
standard as the District Court. Fraternal Order of Police,
4
II
TPS shields foreign nationals present in the United
States from removal during armed conflict, environmental
disasters, or other extraordinary conditions in their homelands.
8 U.S.C. § 1254a(b)(1). Once TPS is granted, “the alien shall
be considered as being in, and maintaining, lawful status as a
nonimmigrant” for adjustment-of-status purposes under
§ 1255. 8 U.S.C. § 1254a(f)(4) (emphasis added).
Section 1255(a) permits certain aliens present in the
United States (including some who received TPS) to adjust
their status. It provides:
The status of an alien who was inspected and
admitted or paroled into the United
States . . . may be adjusted by the Attorney
General, in his discretion and under such
regulations as he may prescribe, to that of an
alien lawfully admitted for permanent residence.
8 U.S.C. § 1255(a) (emphasis added). The INA defines
“admission” and “admitted” as “the lawful entry of the alien
Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016).
Summary judgment is appropriate only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is no
genuine dispute over any material fact, so we review only the
District Court’s legal interpretation of §§ 1254a and 1255.
5
into the United States after inspection and authorization by an
immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
As relevant here, an applicant is ineligible for
adjustment of status under § 1255 if he “has failed (other than
through no fault of his own or for technical reasons) to
maintain continuously a lawful status since entry into the
United States.” 8 U.S.C. § 1255(c)(2). An applicant may
nevertheless seek adjustment of status despite that bar if “the
alien, on the date of filing an application for adjustment of
status, is present in the United States pursuant to a lawful
admission.” 8 U.S.C. § 1255(k)(1) (emphasis added).
III
Appellees claim they are eligible for adjustment of
status because they were admitted when they received TPS. We
disagree because their interpretation of §§ 1254a and 1255 is
inconsistent with the text, context, structure, and purpose of
those sections.
A
The text of §§ 1254a and 1255 supports our
determination that a grant of TPS does not constitute an
admission.
The Government argues the District Court erred when it
held that “being in, and maintaining, lawful status as a
nonimmigrant” includes being “inspected and admitted or
paroled” as required by § 1255(a). According to the
Government, “lawful status” does not qualify as an
“admission” because the concepts are distinct. Appellees agree
that these terms have distinct meanings, so they do not argue
6
that “being in any lawful status is equivalent to an admission.”
Sanchez Br. 8. Instead, they insist “that the process of obtaining
TPS constitutes an admission, akin to an alien who is
considered admitted after an adjustment of status.” Id. (citing
In re Espinosa-Guillot, 25 I. & N. Dec. 653, 654 (BIA 2011)
(“An adjustment of status generally constitutes an
admission.”)). Appellees contend “[a]n individual’s original
entry is irrelevant because the subsequent grant of
TPS . . . provides the ‘lawful entry’ referred to in
§ 1101(a)(13).” Id. at 15. And they emphasize that obtaining
nonimmigrant status requires the admission of the alien, so the
government admits TPS recipients by treating them as being in
lawful nonimmigrant status under § 1254a(f)(4).
The Government’s position is more consistent with the
text of §§ 1254a and 1255. The INA defines “admission” and
“admitted” as “the lawful entry of the alien into the United
States after inspection and authorization by an immigration
officer.” 8 U.S.C. § 1101(a)(13)(A). We have interpreted
“admission” in § 1255(b) in accordance with that statutory
definition. Hanif v. Att’y Gen., 694 F.3d 479, 485 (3d Cir.
2012). And although “lawful status” is not defined in the INA,
we have drawn a clear line between “admission” and “status,”
saying “[t]he date of gaining a new status is not the same as the
date of the physical event of entering the country.” Id.; see also
Taveras v. Att’y Gen., 731 F.3d 281, 290 (3d Cir. 2013) (“The
words ‘entry’ and ‘into’ plainly indicate that ‘admission’
involves physical entrance into the country, which is inapposite
to adjustment of status in removal proceedings, a procedure
that is structured to take place entirely within the United
7
States.”). Nothing in §§ 1254a or 1255 suggests we should
interpret these terms differently now.3
Appellees principally argue that “[b]y the very nature of
obtaining lawful nonimmigrant status, the alien goes through
inspection and is deemed admitted.” Sanchez Br. 8 (quoting
Ramirez v. Brown, 852 F.3d 954, 960 (9th Cir. 2017) (internal
quotation marks omitted)). This assertion is unpersuasive for
at least three reasons.
First, the text of § 1254a does not mention that a grant
of TPS is (or should be considered) an inspection and
admission. Second, a grant of TPS cannot be an “admission”
because § 1254a requires an alien to be present in the United
States to be eligible for TPS. Consistent with that fact, we have
3
The Fifth Circuit also has recognized the distinction
between admission and status:
Admission and status are fundamentally distinct
concepts. Admission is an occurrence, defined in
wholly factual and procedural terms: An
individual who presents himself at an
immigration checkpoint, undergoes a
procedurally regular inspection, and is given
permission to enter has been admitted, regardless
of whether he had any underlying legal right to
do so. Status, by contrast, usually describes the
type of permission to be present in the United
States that an individual has.
Gomez v. Lynch, 831 F.3d 652, 658 (5th Cir. 2016) (citations
omitted).
8
recognized that TPS is not “a program of entry for an alien.”
De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 353–54 (3d Cir.
2010). Third, although Appellees are correct that admission
often accompanies a grant of lawful status, it does not follow
that a grant of lawful status is an admission. For example, “a
grant of asylum places the individual in valid immigration
status but is not an ‘admission.’” In re H-G-G-, 27 I. & N. Dec.
617, 635 (AAO 2019) (citing In re V-X-, 26 I. & N. Dec. 147
(BIA 2013)). “And a grant of benefits under the Family Unity
Program confers a ‘status’ for immigration purposes, but does
not constitute an ‘admission.’” Id. (quoting In re Fajardo
Espinoza, 26 I. & N. Dec. 603, 605 (BIA 2015)).4
4
Although we owe no deference to the agency’s
interpretation of these statutes, the Immigration and
Naturalization Service (INS) General Counsel issued an
opinion just one year after Congress enacted the TPS statute
endorsing the Government’s view. Temporary Protected Status
and Eligibility for Adjustment of Status under Section [1255],
INS Gen. Counsel Op. No. 91-27, 1991 WL 1185138 (Mar. 4,
1991) (1991 Opinion), incorporated at 7 USCIS Policy
Manual B.2(A)(5), https://www.uscis.gov/policymanual
(advising that a grant of TPS should not be construed as an
admission into the United States). And when the INS
promulgated regulations later that year, it declined to adopt a
proposal that would have allowed TPS recipients to adjust their
status no matter how they entered the United States. See In re
H-G-G-, 27 I. & N. at 621. These agency actions suggest
§ 1254a(f)(4) was not understood to supersede § 1255(a)’s
admission requirement.
9
B
The statutory context and structure also support our
holding that a grant of TPS does not constitute an admission.
Congress created an exception to the admission
requirement for some aliens but did not do so for TPS
recipients. Instead, it said that an alien with TPS “shall be
considered as being in, and maintaining, lawful status as a
nonimmigrant.” 8 U.S.C. § 1254a(f)(4). It did not say the alien
would also be considered “inspected and admitted or paroled,”
which is the first requirement for adjustment of status under
§ 1255(a). But Congress did provide an exception to the
“inspected and admitted or paroled” requirement for “special
immigrants” described by § 1101(a)(27)(J) and aliens eligible
for a visa. See 8 U.S.C. § 1255(h), (i). Unlike special
immigrants and aliens eligible for a visa, TPS recipients were
not excepted from the admission requirement because “where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (internal citation
and quotation marks omitted).
The interpretation Appellees propose also risks
rendering part of § 1254a superfluous. Section 1254a(h)
enables Congress to pass special legislation adjusting the status
of aliens receiving TPS only by a supermajority of the Senate.
8 U.S.C. § 1254a(h)(2). Reading § 1254a(f)(4) to place aliens
effectively in lawful status and to satisfy § 1255’s threshold
requirement would pave a clear path to status adjustment for
TPS recipients in derogation of § 1254a(h)(2)’s supermajority
requirement. We doubt Congress intended that. See Hibbs v.
10
Winn, 542 U.S. 88, 101 (2004) (“A statute should be construed
so that effect is given to all its provisions, so that no part will
be inoperative or superfluous, void or insignificant.”) (internal
quotation marks and citation omitted).
Other subsections in § 1255 refer to admission and
lawful status as distinct concepts, further highlighting the
independent significance of both. For example, § 1255(k) says
an alien is eligible for adjustment of status if “subsequent to
such lawful admission [the alien] has not . . . failed to
maintain, continuously, a lawful status.” 8 U.S.C.
§ 1255(k)(2)(A) (emphasis added). And § 1255(m)(1)
provides: “The Secretary of Homeland Security may adjust the
status of an alien admitted into the United States (or otherwise
provided nonimmigrant status).” 8 U.S.C. § 1255(m)(1)
(emphasis added).
Beyond the textual differences between the sections, the
structure of § 1255 also supports our opinion that
§§ 1254a(f)(4) and 1255(a) refer to different requirements. If
being considered in lawful nonimmigrant status was the same
as being inspected and admitted or paroled, there would be no
need for § 1255 to list inspection and admission or parole as a
threshold requirement in § 1255(a) and failure to maintain
lawful status as a bar to eligibility for adjustment of status in
§ 1255(c)(2). Under Appellees’ theory, anyone who is
considered in lawful status would be able to satisfy § 1255(a)’s
admission requirement, thus rendering the two provisions
superfluous.
C
Finally, Appellees’ interpretation would undermine the
purpose of the TPS statute. As we have held, “[b]y the terms of
11
the statute, the TPS program was designed to shield aliens
already in the country from removal when a natural disaster or
similar occurrence has rendered removal unsafe.” De Leon-
Ochoa, 622 F.3d at 353. As its name suggests, this protection
is meant to be temporary. Treating a grant of TPS as an
admission would open the door to more permanent status
adjustments that Congress did not intend.
IV
The District Court did not read the INA in the manner
we just described. Instead, it cited Flores v. USCIS, 718 F.3d
548 (6th Cir. 2013), and Ramirez v. Brown, 852 F.3d 954 (9th
Cir. 2017), to support its conclusion that a grant of TPS
constitutes an admission. We respectfully disagree with those
opinions.
A
The petitioner in Flores, Saady Suazo, entered the
United States without inspection or admission in 1998. 718
F.3d at 550. The Attorney General granted Suazo TPS in 1999
and he remained in the United States for the next fifteen years.
Id. at 549–50. After marrying an American citizen, Suazo
sought adjustment of status through an “Immediate Relative
Petition.” Id. at 550. The USCIS denied his petition because he
entered the United States without inspection. Id. Suazo was
also unsuccessful in the district court, which held the plain
language of § 1255 “precludes a TPS beneficiary who was not
initially ‘inspected and admitted or paroled’ into the United
States . . . from adjusting his status.” Id. at 550–51.
On appeal, Suazo argued the plain language of § 1255
“shows that Congress’s clear intent was that a TPS beneficiary
12
is afforded with a pathway to [Lawful Permanent Resident]
status.” Id. at 552. Although he conceded that an alien must be
“admitted” to be eligible for adjustment of status, Suazo argued
“TPS beneficiaries are afforded with an exception under the
TPS statute which operates as an inadmissibility waiver.” Id.
The Sixth Circuit agreed, holding the text of §§ 1254a and
1255 suggests TPS functions as an inspection and admission
for aliens who entered the country illegally. Id. at 551–54.
In so holding, the Sixth Circuit purported to follow the
plain language of §§ 1254a and 1255. Id. at 553. It reasoned
that to have lawful status as a nonimmigrant under § 1255, an
alien must also be considered admitted. Id. It took
§ 1254a(f)(4)’s statement about status and applied it to all of
§ 1255, including the admission requirement. Id. The court
also considered “the statutory scheme as a whole.” Id. It noted
that although the Attorney General has discretion to waive
certain grounds of inadmissibility for groups of aliens, § 1254a
also explicitly limits the Attorney General’s discretion as to
particular groups. Id. TPS recipients are not included in the
groups of aliens prohibited from discretionary relief, so the
court reasoned that “Congress did not intend to strip the
Attorney General of discretion to waive admissibility
requirements for all TPS beneficiaries.” Id. at 554. Moreover,
the court took TPS recipients’ absence from a list of “[c]lasses
of aliens ineligible for visas or admission” as further proof that
they are eligible for adjustment of status, regardless of whether
they were admitted when they entered the United States. Id.
(quoting 8 U.S.C. § 1182) (alteration in original).
The Flores court also relied on “Congress’s apparent
intent” to conclude that, because “a TPS beneficiary is a
member of a class of people that Congress chose to protect,”
courts should read § 1254a(f)(4) as satisfying § 1255’s
13
admission requirement. Id. And finally, the court considered
policy considerations, saying “[the petitioner] seems to be the
exact type of person that Congress would have in mind to allow
adjustment of status,” id. at 555, and it was “disturbed by the
Government’s incessant and injudicious opposition in cases
like this,” id. at 556.
We disagree with the Sixth Circuit’s interpretation for
three reasons.
First, the court concluded § 1254a(f)(4) should be read
as satisfying all of § 1255’s requirements. Id. at 553. But that
conflates “lawful status” with “admission.” Even if § 1254a
applies to all of § 1255, it does not follow that considering an
alien to be in lawful status means he or she was admitted into
the United States. As we explained already, status and
admission are distinct—an alien can possess lawful status
without ever having been admitted.
Second, we find the court’s analysis of the “statutory
scheme as a whole” and Congressional intent unpersuasive.
TPS recipients’ exclusion from a list of aliens ineligible for
discretionary relief has no bearing on whether they are excused
from § 1255’s admission requirement. Moreover, the very
nature of TPS—a program of temporary protection—
undermines the Sixth Circuit’s conclusion that Congress
intended to waive § 1255’s admissibility requirement so TPS
recipients could readily become permanent residents.
Third, although the court claimed to be guided by the
text of §§ 1254a and 1255, it betrayed its policy-driven
approach at the outset of its opinion, stating:
14
This case illustrates the archaic and convoluted
state of our current immigration system. While
many suggest that immigrants should simply
“get in line” and pursue a legal pathway to
citizenship, for Saady Suazo and other similarly
situated Temporary Protected Status
beneficiaries, the Government proposes that
there is simply no line available for them to join.
Id. at 549.
We express no opinion about the merits of this
broadside against how the other branches of the federal
government have handled immigration policy. If it’s true that
our nation’s immigration system is “archaic” or “convoluted,”
such criticism is no substitute for a careful evaluation of the
statute’s text, context, and history. The court ended its opinion
by saying it was “disturbed” by the Government’s position in
the case and it considered Suazo—whom the court called a
“contributing member of society”—“the exact type of person”
that Congress would have wanted to be eligible for adjustment
of status. Id. at 555–56. But a petitioner’s personal
characteristics, however commendable they may be, are
irrelevant to whether he or she has satisfied § 1255’s
requirements. See 28 U.S.C. § 453 (requiring federal judges to
“administer justice without respect to persons”).
B
The Ninth Circuit’s decision in Ramirez is similarly
unpersuasive. As in Flores, the Ramirez court considered
whether a TPS recipient who entered the United States without
inspection or admission was eligible for adjustment of status
by virtue of marrying an American citizen. 852 F.3d at 957.
15
The Ninth Circuit agreed with the Sixth Circuit that an alien
who is considered in lawful status under § 1254a(f)(4) should
also be considered to have been admitted under § 1255(a). Id.
at 959. To support this conclusion, the court cited several
sections of the immigration code in which Congress discussed
“admission” and “nonimmigrant” status together and held that
“by the very nature of obtaining lawful nonimmigrant status,
the alien goes through inspection and is deemed ‘admitted.’”
Id. at 960.
The court also emphasized similarities in the rigor of the
admission and TPS application processes and concluded that
an alien who receives TPS has also been admitted. Id. And
although the court acknowledged its interpretation of §§ 1254a
and 1255 does not align with the statutory definition of
“admitted,” it cited Ninth Circuit caselaw allowing it to
“‘embrace[] an alternative construction of the term’ when the
statutory context so dictates.” Id. at 961 (quoting Negrete-
Ramirez v. Holder, 741 F.3d 1047, 1052 (9th Cir. 2014)).
The Ramirez court then turned to the structure of the
statutory scheme to support its interpretation. First, it
concluded that the title of § 1255—“Adjustment of status of
nonimmigrant to that of person admitted for permanent
residence”—shows that Congress intended TPS recipients to
be able to “make use of § 1255.” Id. It then discussed
§ 1254a(f)(4)’s applicability to § 1258(a), which provides that
“[t]he Secretary of Homeland Security may . . . authorize a
change from any nonimmigrant classification to any other
nonimmigrant classification in the case of any alien lawfully
admitted to the United States as a nonimmigrant who is
continuing to maintain that status.” Id. (alterations in original).
The court concluded that § 1254a(f)(4) satisfies § 1255’s
admission requirement because it “equates ‘being in . . . lawful
16
status as a nonimmigrant’ with § 1258(a)’s ‘lawfully
admitted . . . as a nonimmigrant.’” Id. at 961–62 (alterations in
original). It also opined that an alternative interpretation would
limit § 1254a(f)(4)’s applicability to § 1255(c)(2) and “yield an
anomalous result” by not benefitting immediate relatives of
American citizens. Id. at 962.
Finally, the Ninth Circuit held its interpretation of
§§ 1254a and 1255 is consistent with the purpose of TPS. Id.
at 963. It explained: “Because TPS confers an actual status on
and provides a slew of benefits to an alien who satisfies
rigorous eligibility requirements, it is different than other
forms of temporary reprieve we ordinarily would not consider
sufficient for ‘admission.’” Id. And it reasoned that forcing
TPS recipients to leave the United States, return to their
homelands, then reenter with inspection and admission or
parole, would undermine TPS’s purpose of protecting aliens
from unsafe conditions in those countries. Id. at 964.
We disagree with the Ninth Circuit’s decision in
Ramirez largely for the reasons we disagree with the Sixth
Circuit’s decision in Flores.
First, the court failed to acknowledge the meaningful
differences between “status” and “admission” that we
previously explained. And § 1254a(f)(4) is clear—aliens with
TPS are granted only lawful status, they are not “admitted.”
Moreover, the court overlooked distinctions between a
conferral of TPS and an admission. For example, an alien at a
port of entry may be subject to a full range of inadmissibility
grounds that an applicant for TPS is not. Compare 8 U.S.C.
§ 1182(a) with 8 U.S.C. § 1254a(c)(2).
17
Second, the Ninth Circuit brushed off the statutory
definition of “admission” because its own caselaw allowed it
to “embrace[] an alternative construction of the term when the
statutory context so dictates.” Ramirez, 852 F.3d at 961
(internal citation and quotation marks omitted). Our caselaw
does not permit such a move. See Hanif, 694 F.3d at 485.
Instead, we are bound to follow Congress’s definition in
§ 1101(a)(13)(A), which defines admission as the physical
event of entering the country. Taveras, 731 F.3d at 290.
Third, the Ninth Circuit’s discussion of the structure of
the immigration code is unpersuasive. The court said the title
of § 1255 suggests Congress intended TPS recipients to be able
to “make use” of its process for adjusting status. Ramirez, 852
F.3d at 961. Fair enough. But § 1255 also establishes that
adjustment of status is available only for TPS recipients
lawfully admitted into the United States. The Ninth Circuit also
reasoned that limiting § 1255 eligibility to TPS recipients
lawfully admitted when they entered the United States would
“yield an anomalous result” by not benefitting relatives of
American citizens. Id. at 962. This rationale ignores the fact
that TPS recipients who marry American citizens will be
eligible for adjustment of status so long as they were inspected
and admitted or paroled when they entered the United States.
So our interpretation does not bar eligibility for TPS recipients
who entered the country legally.5
5
Nonimmigrants inspected and admitted or paroled
when they entered the United States are eligible for TPS. See,
e.g., Saliba v. Att’y Gen., 828 F.3d 182, 186 (3d Cir. 2016)
(nonimmigrant who lawfully entered the United States on a
student visa applied for, and received, TPS); Mejia Rodriguez,
562 F.3d at 1140 (same for nonimmigrant with B-2 visa).
18
Fourth, the court compared § 1254a to other sections of
the immigration code and concluded that § 1254a(f)(4)
“equates ‘being in . . . lawful status as a nonimmigrant’ with
§ 1258(a)’s ‘lawfully admitted . . . as a nonimmigrant.’” Id. at
961–62 (alterations in original). But that analysis again failed
to recognize the difference between “status” and “admission.”
Section 1258(a) applies to “any alien lawfully admitted to the
United States as a nonimmigrant who is continuing to maintain
that status.” (emphasis added). Nothing in § 1258(a) suggests
that we should collapse the admission and status elements into
a single requirement. Instead, § 1254a(f)(4) applies to
§ 1258(a) (just like § 1255) to excuse only a lapse in lawful
status following a lawful admission.
Finally, the Ninth Circuit’s discussion of the purpose of
TPS is contradictory. The court correctly noted that TPS
“provides a limited, temporary form of relief.” Id. at 963
(emphasis added). But then it interpreted § 1254a(f)(4) broadly
to satisfy § 1255’s admission requirement. Id. Absent a clear
statutory directive, a program that provides “limited,
temporary” relief should not be read to facilitate permanent
residence for aliens who entered the country illegally.
The court reasoned further that forcing TPS recipients
who entered illegally to leave the country and reenter lawfully
before seeking adjustment of status would undermine the
purpose of TPS. Id. at 964. According to the Ninth Circuit, this
process would be particularly troubling for TPS recipients
because their home countries are unsafe. Id. But that ignores
the fact that TPS recipients may remain in the United States—
without seeking adjustment of status—as long as the Secretary
of Homeland Security extends TPS for their homelands.
Although they may be unable to adjust their status during that
19
time (if they entered the country illegally), they are free to
remain in the United States with lawful nonimmigrant status.
For these reasons, we respectfully disagree with the
Sixth and Ninth Circuits’ interpretations of the statute. We hold
that Congress did not intend a grant of TPS to serve as an
admission for those who entered the United States illegally.6
V7
We cannot square the District Court’s opinion with the
text, context, structure, and purpose of §§ 1254a and 1255. For
6
Our interpretation of §§ 1254a and 1255 is closely
aligned with the Eleventh Circuit’s opinion in Serrano v. Att’y
Gen., 655 F.3d 1260 (11th Cir. 2011) (per curiam). There, the
petitioner argued he was exempt from § 1255(a)’s admission
requirement because he had been granted TPS. 655 F.3d at
1265. Although that argument is slightly different than the
argument raised in this appeal (and in Flores and Ramirez), the
court said: “That an alien with Temporary Protected Status has
‘lawful status as a nonimmigrant’ for purposes of adjusting his
status does not change § 1255(a)’s threshold requirement that
he is eligible for adjustment of status only if he was initially
inspected and admitted or paroled.” Id. That holding, like ours
today, respects the distinction between status and admission
and is faithful to the text of §§ 1254a and 1255.
7
Sanchez and Gonzalez also argue they are eligible for
adjustment of status under § 1255(k). That section provides an
exception for aliens seeking to adjust status for employment
purposes if, inter alia, the alien “on the date of filing an
application for adjustment of status, is present in the United
States pursuant to a lawful admission.” Because Sanchez and
20
the foregoing reasons, we hold that a grant of TPS does not
constitute an “admission” into the United States under § 1255.
We will reverse.
Gonzalez were never admitted, they are ineligible for
adjustment under § 1255(k).
21