Case: 19-50220 Document: 00515732032 Page: 1 Date Filed: 02/03/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 3, 2021
No. 19-50220 Lyle W. Cayce
Clerk
Luis Orlando Rodriguez Solorzano,
Plaintiff—Appellee,
versus
Alejandro Mayorkas, Secretary, U.S. Department of Homeland
Security, In His Official Capacity as Secretary of Homeland Security of The
United States; Kenneth T. Cuccinelli, Acting Director of U.S.
Citizenship and Immigration Services; Robert Cowan, In His Official
Capacity as Director of the National Benefits Center; David Roark, In His
Official Capacity as Director of the Texas Service Center; Margaret A.
Hartnett, In Her Official Capacity as Director of the El Paso Field Office;
United States of America,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:17-CV-249
Before Elrod, Southwick, and Haynes, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:*
*
Judge Haynes concurs in the judgment only.
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Luis Rodriguez Solorzano, a native of Honduras, challenged the
United States Citizenship and Immigration Service’s denial of his application
to obtain lawful-permanent-resident status in district court. The government
moved to dismiss Solorzano’s lawsuit, but the district court denied the
motion and remanded the case to the agency. The government now appeals
the denial of its motion. Because the district court incorrectly interpreted
and applied the relevant immigration statutes, we now REVERSE its
decision and REMAND to the district court.
I.
Congress created Temporary Protected Status in 1990 as a form of
humanitarian relief. See Immigration Act of 1990 § 302, 8 U.S.C. § 1254a.
Under this statute, the Secretary of the Department of Homeland Security 1
may designate countries suffering from humanitarian crisis, such as an armed
conflict or a natural disaster. 8 U.S.C. § 1254a(b). The Secretary may then
grant TPS to aliens who are nationals of those designated countries and meet
certain residential and registration requirements. See id. § 1254a(a)(1), (c).
TPS recipients cannot be subjected to removal proceedings, and they are
authorized to legally work in the United States while their TPS continues.
See id. § 1254a(a)(1).
Temporary Protected Status was designed by Congress to be just that:
a temporary protection for aliens whose own countries would be dangerous to
return to. Initial designations can last from six to eighteen months, though
the Secretary may extend a designation if conditions in the country continue
to meet certain requirements. See id. § 1254a(b)(3). Approximately 411,000
1
Although the statute references the Attorney General, authority to direct the TPS
program has been transferred 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); 6 U.S.C. § 271; and 8 C.F.R. § 244.2)).
2
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foreign nationals from ten countries currently have TPS. 2 Some individuals,
like the plaintiff in this case, have maintained that status for more than twenty
years.
TPS provides another other important benefit relevant to these
proceedings: “For purposes of adjustment of status under section 1255 of this
title” an alien with TPS “shall be considered as being in, and maintaining,
lawful status as a nonimmigrant.” Id. § 1254a(f)(4). Under 8 U.S.C. § 1255,
an alien present in the United States may apply to have their immigration
status adjusted to that of lawful permanent resident. To successfully have
his status adjusted, an alien must have been “inspected and admitted or
paroled into the United States.” 8 U.S.C. § 1255(a).
II.
Luis Rodriguez Solorzano initially entered the United States without
inspection and without admission or parole in 1997. In 1999, the Attorney
General designated Honduras for TPS purposes following Hurricane Mitch.
Designation of Honduras Under Temporary Protected Status, 64 Fed. Reg.
524–26 (Jan. 5, 1999). 3 Solorzano then applied for and received TPS, which
allowed him to remain and work in the United States legally.
2
Jill H. Wilson, Cong. Rsch. Serv., RS20844, Temporary Protected Status: Overview
and Current Issues 5 (2020).
3
In May of 2018, the DHS Secretary announced that the TPS designation for
Honduras would end on January 5, 2020. However, after federal district courts in
California and New York temporarily enjoined DHS from terminating several related TPS
designations while litigation was ongoing, DHS has extended the termination date several
times. Most recently, it set the termination date to October 4, 2021. See Continuation of
Documentation for Beneficiaries of Temporary Protected Status Designations for El
Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal, 85 Fed. Reg. 79,208 (Dec. 9,
2020).
3
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In 2014, Solorzano’s wife, a U.S. citizen, filed a visa petition on his
behalf. He concurrently applied to adjust his immigration status to lawful
permanent resident based on that visa petition. The U.S. Citizenship and
Immigration Service (USCIS) asked Solorzano to provide evidence of his
lawful admission or parole. Solorzano submitted a brief arguing that, because
he had TPS, he could adjust his status without that evidence. USCIS denied
his petition because he had not been inspected and admitted or paroled into
the United States at his initial entry.
Solorzano filed this lawsuit in the Western District of Texas seeking
declaratory and injunctive relief. 4 He argued that the denial of his application
was based on an erroneous interpretation of 8 U.S.C. §§ 1254a and 1255(a)
and that his grant of TPS provided the admission required under § 1255(a).
The government moved to have Solorzano’s case dismissed. The district
court denied the motion and remanded the matter to USCIS. The district
court concluded that § 1254a(f)(4) “cure[s] the bars to adjustment of status
under [§] 1255, including the requirement that a person be ‘inspected and
admitted or paroled.’” The government now appeals the denial of its motion
to dismiss.
III.
We have jurisdiction to hear this appeal under 28 U.S.C. § 1291.
“Generally, the denial of a motion to dismiss is not a final decision under
section 1291.” Newball v. Offshore Logistics Int’l, 803 F.2d 821, 824 (5th Cir.
1986). However, the district court’s order “end[ed] the litigation on the
merits and [left] nothing for the court to do but execute the judgment,”
4
The district court had original jurisdiction under 28 U.S.C. §§ 1331, 1346.
4
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rendering its order a final decision on the merits and providing the basis for
our jurisdiction. Catlin v. United States, 324 U.S. 229, 233 (1945).
We review “[d]eterminations of law, such as the district court’s
proper interpretation of a statute . . . de novo.” BP Expl. Libya Ltd. v.
ExxonMobil Libya Ltd., 689 F.3d 481, 490 (5th Cir. 2012).
IV.
The sole issue in this case is whether an alien who entered the United
States without being “inspected and admitted or paroled” may still have his
status adjusted to lawful permanent resident by virtue of obtaining TPS.
Solorzano contends that he can because § 1254a(f)(4) says that, for purposes
of status adjustment under § 1255, those with TPS are “considered as being
in, and maintaining, lawful status as a nonimmigrant.” 8 U.S.C.
§ 1254a(f)(4). According to him, this cures the bar to his status adjustment
because it effectively places him in the same position that he would have been
in had he entered with the required inspection and admission or parole. The
government urges us to conclude that § 1254a(f)(4) does not cure the bar to
Solorzano’s status adjustment because it says nothing about the requirement
that the individual be “inspected and admitted or paroled” upon entry.
Instead, § 1254a(f)(4) “aims to bridge the gap created when an alien, who
was admitted at a port of entry as a nonimmigrant, later applies for and
accepts TPS, but then falls out of the status provided by such nonimmigrant
admission.”
Federal courts of appeal have split on this issue. The Sixth, Eighth
and Ninth Circuits have held that § 1254a(f)(4) alleviates the requirement of
inspection and admission for those with TPS. See Flores v. U.S. Citizenship
and Immigr. Servs., 718 F.3d 548, 552–53 (6th Cir. 2013); Velasquez v. Barr,
979 F.3d 572, 581 (8th Cir. 2020); Ramirez v. Brown, 852 F.3d 954, 958 (9th
Cir. 2017). The Third and Eleventh Circuits have held that it does not. See
5
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Sanchez v. Sec’y U.S. Dep’t of Homeland Sec., 967 F.3d 242, 245 (3d Cir.
2020), cert. granted, No. 20-315, 2021 WL 77237 (U.S. Jan. 8, 2021); Serrano
v. U.S. Att’y Gen., 655 F.3d 1260, 1265 (11th Cir. 2011). We recently agreed
with the Third and Eleventh Circuits that “[t]hose with TPS who first
entered the United States unlawfully are foreclosed from applying for
adjustment of status as a matter of law.” Nolasco v. Crockett, 978 F.3d 955,
959 (5th Cir. 2020). The Supreme Court will soon grapple with these issues
in its review of the Third Circuit’s decision in Sanchez. In the meantime, we
offer our analysis of the issue in this case.
The text of the relevant statutory provisions confirms that TPS does
not cure the bar to status adjustment in § 1255. 5 Section 1255(a) states that
“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). Section 1254a(f)(4)
states that, “[d]uring a period in which an alien is granted temporary
protected status . . . for purposes of adjustment of status under section 1255
of this title and change of status under section 1258 of this title, the alien shall
be considered as being in, and maintaining, lawful status as a nonimmigrant.”
Id. § 1254a(f)(4).
5
After this appeal was filed, but before we decided Nolasco, USCIS issued a
published decision in Matter of H-G-G-, 27 I. & N. Dec. 617, 641 (AAO 2019) holding that
TPS does not constitute an inspection, admission, or parole of an alien. The government
notes that, were we to find the relevant statute ambiguous, we should defer to the agency’s
interpretation under the familiar Chevron framework. See Chevron, U.SA., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 843–45 (1984). We agree that if the statute were
ambiguous, we would be required to do just that. See Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145, 157–58 (2013). However, because we find that the text unambiguously does
not equate TPS with an admission under § 1255, we need not reach that step of the Chevron
analysis. See Chevron, 467 U.S. at 843.
6
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Solorzano and Amici 6 contend that because a TPS recipients is
considered as “being in, and maintaining, lawful status as a nonimmigrant,”
§ 1255(a)’s requirement that an alien be inspected and admitted is satisfied.
Id. According to this argument, TPS requires that an alien be “admissible as
an immigrant.” Id. § 1254a(c)(1)(A)(iii). To determine whether an alien is
“admissible,” § 1254a uses the same statutory requirements that are used to
determine general admissibility. See id. § 1254a(c)(2)(A). Moreover, as
Amici explain in their brief, § 1254a(f)(4) says that TPS recipients are
considered “as being in” a lawful non-immigrant status. Inspection and
admission are required for someone to be in non-immigrant status. See 8
C.F.R. § 245.1(d)(1)(ii). Because TPS recipients necessarily meet the
admissions requirements and must go through a process similar to admission
in order to receive TPS, they are functionally admitted upon receipt of TPS.
This line of reasoning fails for several reasons. First, granting TPS
does not constitute an admission under § 1255(a). It simply bestows a
temporary status upon the recipient. We have previously explained that
“[a]dmission and status are fundamentally distinct concepts. Admission is
an occurrence, defined in wholly factual and procedural terms. . . . 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). That distinction is critical. As the Third Circuit recently stated,
“[a]lthough appellants are correct that admission often accompanies a grant
of lawful status, it does not follow that a grant of lawful status is an
admission.” Sanchez, 967 F.3d at 246. Possessing a status does not have the
same legal effect as going through the process of admission. Receiving TPS
does not equate to “a new entry.” Melendez v. McAleenan, 928 F.3d 425, 429
6
The American Immigration Council, Northwest Immigration Rights Project, and
American Immigration Lawyers Association have filed a brief as amici curiae in this case.
7
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(5th Cir. 2019). Nor does it retroactively cure the deficits in an alien’s initial
entry. See id. (stating that TPS “does not absolve” an alien from the effect
of any prior disqualifying acts). It does not function as an admission under
the statutory definition.
Second, granting TPS does not constitute a waiver of the admission
requirement in § 1255. By its plain terms, § 1254a grants a status. Had
Congress intended to use that status to waive the admissibility requirement
for TPS recipients, it could have done so expressly. However, the text of
§ 1254a does not mention the admissibility requirement of § 1255. Instead,
it references § 1255 generally. In contrast, § 1255 specifies that certain
classes of immigrants are “deemed, for purposes of subsection (a), to have
been paroled into the United States. 8 U.S.C. § 1255(h); see also id. § 1255(g).
Rather than using similar language to describe TPS recipients, Congress
declared that they “shall be considered as being in, and maintaining, lawful
status as a nonimmigrant.” Id. § 1254a(f)(4). The difference in legal
description must have some legal effect. See Immigr. and Naturalization Serv.
v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (“[W]here 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.” (quoting Russello v. United
States, 464 U.S. 16, 23 (1983))). While the one expressly waives or satisfies
a requirement of admission respecting certain classes of aliens, the other does
not.
Third, being “admissible” under § 1254a does not create an
alternative method for satisfying the requirement that one be admitted under
§ 1255. One can be admissible without ever being admitted. And, as
Solorzano recognizes, § 1254a does not require a TPS recipient to undergo
the full admissions process. Instead, it waives certain grounds of
inadmissibility on its face and permits the Secretary to “waive any other
8
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provision of section 1182(a) . . . in the case of individual aliens for
humanitarian purposes, to assure family unity, or when it is otherwise in the
public interest.” Id. § 1254a(c)(2)(A). The process for receiving TPS is less
exacting than the admissions process, and the Secretary has the power to
make the TPS recipient’s requirements even lower than those of an admitted
individual. Despite their similarities, receiving TPS is not an equal
alternative to admission.
Instead, as the government points out, TPS fixes a separate problem
not already addressed by § 1255. Some aliens are inspected and admitted
when they first enter the United States, are later granted TPS, and then fall
out of the lawful status provided to them at entry. Without § 1254a(f)(4),
those individuals would need to leave the country and re-enter before they
could apply for an adjustment of status. Because of 1254a(f)(4), however,
aliens whose lawful status would normally lapse while they have TPS can still
take full advantage of § 1255(a) because they are considered as “being in, and
maintaining” a lawful non-immigrant status. 8 U.S.C. § 1254a(f)(4). That
is the situation § 1254a(f)(4) was designed to address. Thus, our reading of
the statute does not render § 1254a(f)(4) superfluous in the context of § 1255.
This interpretation actually avoids rendering two other provisions of
the INA superfluous, as the Third Circuit recently explained. Under
§ 1254a(h), Congress may pass special legislation that adjusts the status of
aliens with TPS only by a supermajority of the Senate. “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.”
Sanchez, 967 F.3d at 247.
Moreover, “[i]f being considered in lawful nonimmigrant status was
the same as being inspected and admitted or paroled, there would be no need
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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).” Id. By adopting the
government’s interpretation of § 1254a, we avoid rendering these sections of
the statute mere surplusage.
The government’s interpretation does not produce any other absurd
results, either. Amici complain that the government’s interpretation
requires TPS recipients like Solorzano to leave the country and re-enter in
order to become eligible for status adjustment. This would place such
individuals in harm’s way when they return to their own country, contravene
Congressional intent to provide a safe haven for those individuals within the
United States, and waste governmental resources.
This result is not absurd. Congress can choose its own policies. If
Congress chose to extend benefits to individuals who enter the country
lawfully while simultaneously denying those same benefits to individuals who
entered unlawfully, it was within its right to do so. We do not review the
soundness of the policy.
Moreover, Congress intended to provide only temporary relief to TPS
recipients, not permanent protection. The purpose of the TPS program was
not to facilitate fast passes to permanent residence in the United States. As
the Ninth Circuit in Ramirez properly recognized, “[t]he TPS regime
provides a limited, temporary form of relief for the period that conditions
render an alien’s return unsafe by creating a safe harbor and authorizing
recipients to work in the United States to support themselves for the duration
of their stay.” Ramirez, 852 F.3d at 963. Congress created this form of
limited, temporary relief to help protect individuals who would be unsafe
returning to their own countries. It did not intend to provide permanent
protection for such individuals. Initial designations last a maximum of
10
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eighteen months and can be extended only if unfavorable conditions persist
in the relevant country. See 8 U.S.C. § 1254a(b). Adopting the interpretation
that Amici and Solorzano urge would erase the impermanent nature of the
program by transforming it into a bridge to permanent residence rather than
a temporary humanitarian aid program.
This argument appears to rest on the assumption that individuals will
necessarily return to the very countries TPS is supposed to be protecting
them from. 7 That simply is not true. TPS recipients have authorization to
travel to any country and, with advanced notice to DHS and a proper
application, they can obtain “advance parole.” 8 C.F.R. § 244.15(a); see also
8 U.S.C. § 1254a(f)(3). Advance parole permits TPS recipients to leave the
country and, upon their return, to satisfy the requirement that they be
“inspected and . . . paroled” into the United States. 8 U.S.C. § 1255(a).
Those individuals can travel abroad for any reason and go to any other
country. They need not visit their own country at all.
Congress placed special importance on the act of being admitted or
paroled into the United States. Requiring TPS recipients whose initial entry
was deficient to try again is not absurd. Compliance with procedural
requirements is required in many other aspects of our legal system.
V.
TPS does not excuse Solorzano from the requirement of being
inspected and admitted into the United States. Because he was never
lawfully admitted, he cannot now seek to adjust his status under § 1255(a).
7
However, Amici know this is not true because they also argue that the availability
of advanced parole makes the government’s interpretation absurd.
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We REVERSE the judgment of the district court and REMAND
the case. On remand, the district court is instructed to dismiss Solorzano’s
amended complaint and grant judgment to the government.
12
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Haynes, Circuit Judge, concurring in the judgment only:
I concur in the judgment only. We are bound by our court’s precedent
in Nolasco v. Crockett, 978 F.3d 955, 958 (5th Cir. 2020) regardless of whether
we agree with it. That, to me, is the beginning and end of the discussion. 1
1
In any event, the Supreme Court has granted certiorari on this very issue, so
there is no need for us to expand on it at this point. See Sanchez v. Wolf, No. 20-315, 2021
WL 77237 (Jan. 8, 2021) (mem.). The question presented in Sanchez is: “Whether, under
8 U.S.C. § 1254a(f)(4), a grant of Temporary Protected Status authorizes eligible
noncitizens to obtain lawful-permanent-resident status under 8 U.S.C. § 1255.” Cert. Pet.,
Sanchez v. Wolf, No. 20-315 (U.S. Sept. 8, 2020), 2020 WL 5501217, at *1. Thus, this issue
will soon be resolved, and we will be bound by that decision.
13
Rodriguez Solorzano v. Pekoske
Combined Opinion