In re H-G-G, Interim Decision #3962
| Decision Date | 31 July 2019 |
| Docket Number | Interim Decision #3962 |
| Citation | 27 I&N Dec. 617 |
| Parties | Matter of H-G-G-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
For purposes of adjustment of status under section 245 of the Act, a recipient of Temporary Protected Status (TPS) is considered as being in and maintaining lawful status as a nonimmigrant only during the period that TPS is in effect; a grant of TPS does not constitute an admission, nor does it cure or otherwise impact any previous unlawful status.
ON BEHALF OF APPLICANT: Steven C. Thal, Esquire, Minnetonka, Minnesota
The Applicant, a native and citizen of El Salvador, has applied to adjust his status to that of a lawful permanent resident pursuant to section 245 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1255. The Director of the National Benefits Center, U.S. Citizenship and Immigration Services (USCIS), denied the application, finding that the Applicant had never been inspected and admitted or paroled into the United States and, further, that the Applicant had not continuously maintained lawful immigration status. Sections 245(a) and (c)(2) of the Act. The matter is now before us on certification from the Director. See 8 C.F.R. § 103.4(a)(1).
On certification, the Applicant submits a brief as well as one from amicus curiae.2 The Applicant asserts that his grant of TPS under section 244 of the Act, 8 U.S.C. § 1254a, cures the deficiencies in his application. Specifically, the Applicant claims that pursuant to specific TPS provisions, a grant of TPS satisfies the requirements of both "inspection and admission" as well as the continuous maintenance of lawful immigration status. As a result, he claims he is eligible to adjust his status.
Upon de novo review, we will affirm the decision of the Director and deny the adjustment application.
The facts regarding the Applicant's 28-year presence in the United States are undisputed. The Applicant entered the United States without inspection and admission or parole in August 1990, was granted TPS in 2003, and has maintained TPS ever since. USCIS approved a Form I-130, Petition for Alien Relative, which resulted in the Applicant's classification under section 203(a)(3) of the Act, 8
U.S.C. § 1153(a)(3), as the derivative beneficiary of a married son or daughter of a U.S. citizen.3 When a visa became available, he filed a Form I-485, Application to Register Permanent Residence or Adjust Status.
It is the Applicant's burden to establish his eligibility for adjustment of status as a derivative of his wife's family-based third preference visa classification. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). To do this, the Applicant must satisfy the complex scheme governing adjustment of status by establishing, among other requirements, that he was inspected and admitted or paroled, that none of the bars to adjustment of status applies, and that he merits a favorable exercise of the Secretary's discretion. Section 245 of the Act; 8 C.F.R. §§ 245.1, 245.2(a)(2).
The Director determined that the Applicant's unlawful entry made him ineligible for adjustment because the Applicant was not inspected and admitted or paroled, and therefore did not satisfy the threshold requirement stated in section 245(a) of the Act. In addition, the Director found the Applicant barred from adjustment under section 245(c)(2) of the Act, as the Applicant did not continuously maintain lawful immigration status since entry into the United States.4
On certification, the Applicant acknowledges that he was not inspected and admitted into the United States when he entered in 1990 and that he did not obtain any type of status until he received TPS in 2003. He asserts that he is nonetheless eligible to adjust status because section 244(f)(4) of the Act allows a TPS recipient to satisfy the requirement of inspection and admission and to avoid the bar at section 245(c)(2).
Thus, we must consider whether a grant of TPS: (1) constitutes an "admission" into the United States for purposes of adjustment of status undersection 245(a) of the Act, and (2) excuses any failure to continuously maintain a lawful status since entry into the United States for purposes of section 245(c)(2).
The Applicant asserts that the plain statutory language permits adjustment of status, and so we begin with that text. Specifically, section 245(a) of the Act states in relevant part:
The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the [Secretary of Homeland Security], in [her] discretion and under such regulations as [she] may prescribe, to that of an alien lawfully admitted for permanent residence . . . .
8 U.S.C. § 1255(a) (emphasis added). In line with this statutory requirement, the predecessor Immigration and Naturalization Service (INS) amended the regulations at 8 C.F.R. § 245.1(b)(3) to provide that "[a]ny alien who was not admitted or paroled following inspection by an immigration officer" is ineligible to apply for adjustment of status. Aliens and Nationality; Immigration and Nationality Act Amendments of 1981, 47 Fed. Reg. 44,233 (Oct. 7, 1982).
Section 245(c)(2) of the Act generally bars adjustment by an alien who failed to continuously maintain a lawful status. In pertinent part, the statute provides:
[S]ubsection (a) shall not be applicable to . . . an alien (other than an immediate relative as defined in section 201(b) . . . ) . . . who 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 . . . .
In the Immigration Act of 1990 (IMMACT90), Congress established the TPS regime in what is now section 244 of the Act. See Pub. L. No. 101-649, § 302, 104 Stat. 4978 (1990). Section 244 allows the Attorney General (now the Secretary of Homeland Security) to designate for TPS countries that are experiencing natural disasters, armed conflict, or other extraordinary and temporary conditions and allow nationals of such countries to remain lawfully in the United States temporarily with work authorization.
In establishing the TPS regime, Congress provided for extraordinary benefits and protections for covered individuals. For example, during the period in which an individual is in valid temporary protected status, DHSmay not remove such individual and must grant employment authorization. Section 244(a)(1)(A)-(B) of the Act, 8 U.S.C. § 1254a(a)(1)(A)-(B). An alien may be granted TPS even if he or she entered without inspection or lacks lawful immigration status at the time of application. See section 244(c)(1)-(2) of the Act, 8 U.S.C. § 1254a(c)(1)-(2) (describing eligibility criteria); Matter of Sosa Ventura, 25 I&N Dec. 391, 392 (BIA 2010). Further, an alien granted TPS while in valid nonimmigrant status may continue to maintain that nonimmigrant status while in TPS. Section 244(a)(5) of the Act, 8 U.S.C. § 1254a(a)(5).5
For TPS recipients, section 244(f) of the Act deems TPS—solely during the period in which the individual holds TPS—to constitute lawful nonimmigrant status for purposes of the "maintenance of status" requirements for adjustment and change or status:
Thus, during the period in which an individual has TPS, the individual is deemed to be in and maintaining nonimmigrant status for purposes of adjustment and change of status eligibility.6 By contrast, the provision does not specifically address the entirely separate requirement for adjustment of status under section 245(a) of having been admitted or paroled into the United States. Cf., e.g., section 245(h) of the Act (deeming a grant of special immigrant juvenile status to constitute parole into the United States for purposes of section 245(a)).
The INS General Counsel issued an opinion in March 1991, shortly after enactment of IMMACT90, advising that while section 244(f)(4) permits a TPS beneficiary to maintain adjustment eligibility based on a previous admission in nonimmigrant status, the section should not be construed as meaning that a grant of TPS itself constitutes an admission to the United States. Memorandum from Paul W. Virtue, Acting General Counsel, INS to Jim Puleo, Assoc. Comm'r, Examinations, INS, Temporary Protected Status and Eligibility for Adjustment of Status under Section 245, 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.
The Opinion recognized that under section 244(f)(4) of the Act, a TPS recipient would not be barred by section 245(c)(2) of the Act for failure to continuously maintain lawful status during the period of TPS. The Opinion further explained that section 244(f)(4) does not make lawful the TPS recipient's "unlawful presence in the United States prior to the granting of TPS." The Opinion affirmed that an individual who entered without inspection is barred from adjustment of status by section 245(a) of the Act, "[s]ince an alien who entered without inspection, by definition, cannot satisfy this requirement."7 INS Gen. Counsel Op. 91-27 at 2. The Opinion does not articulate the reasons for this statement, but its phrasing suggests they are self-evident. While the Opinion implied that section 244(f)(4) did not supply the necessary admission to the United States, it did not squarely examine the text of that unique, sui generis provision.
Subsequently, in 1991, the INS published the regulations that govern TPS. See generally 8 C.F.R. pt....
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