Solorzano v. Mayorkas

• Decision Date: 03 February 2021
• Docket Number: No. 19-50220,19-50220
• Citation: 987 F.3d 392
• Parties: Luis Orlando Rodriguez SOLORZANO, Plaintiff—Appellee, v. 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.
• Court: U.S. Court of Appeals — Fifth Circuit

987 F.3d 392

Luis Orlando Rodriguez SOLORZANO, Plaintiff—Appellee,

v.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.

No. 19-50220

United States Court of Appeals, Fifth Circuit.

FILED February 3, 2021

Jeanne M. Morales, Law Office of Jeanne Morales, Midland, TX, for Plaintiff-Appellee.

P. Angel Martinez, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation - District Court Section, Washington, DC, for Defendants-Appellants.

Mary A. Kenney, Kristin Macleod-Ball, National Immigration Litigation Alliance, Brookline, MA, for Amici Curiae.

Before Elrod, Southwick, and Haynes, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:^*

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 Security¹ 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 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.

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," 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, 65 S.Ct. 631, 89 L.Ed. 911 (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 Sanchez v. Sec'y U.S. Dep't of Homeland Sec. , 967 F.3d 242, 245 (3d Cir. 2020), cert. granted , No. 20-315, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 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).

Solorzano and Amici⁶ 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...