Velasquez v. Barr

Citation979 F.3d 572
Decision Date27 October 2020
Docket NumberNo. 19-1148, No. 19-2130,19-1148
Parties Leymis Carolina VELASQUEZ; Sandra Ortiz, Plaintiffs - Appellees v. William P. BARR, Attorney General of the United States; Chad F. Wolf, Acting Secretary, Department of Homeland Security; Robert M. Cowan, Director, National Benefits Center, U.S. Citizenship and Immigration Services; Leslie Tritten, Director, St. Paul Field Office, U.S. Citizenship and Immigration Services; U.S. Citizenship and Immigration Services; U.S. Department of Homeland Security; Lee Cissna, Director, U.S. Citizenship and Immigration Services; Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services, Defendants - Appellants American Immigration Council; American Immigration Lawyers Association; Northwest Immigrant Rights Project, Amici on Behalf of Appellee(s) Gilma Geanette Melgar; Aurelia Concepcion Martinez, Plaintiffs - Appellees v. William P. Barr, Attorney General of the United States; Chad F. Wolf, Acting Secretary, Department of Homeland Security; Lee Cissna, Director, U.S. Citizenship and Immigration Services; Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services; Robert M. Cowan, Director, National Benefits Center, U.S. Citizenship and Immigration Services; Leslie Tritten, Director, St. Paul Field Office, U.S. Citizenship and Immigration Services; U.S. Citizenship and Immigration Services; U.S. Department of Homeland Security, Defendants - Appellants American Immigration Lawyers Association; American Immigration Council; Northwest Immigrant Rights Project, Amici on Behalf of Appellee(s)
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Brittany Sue Bakken, Kelsey J. Friberg, David L. Wilson, Wilson Law Group, Minneapolis, MN, for Plaintiffs-Appellees.

Anna E. Juarez, Attorney, P. Angel Martinez, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Erin Secord, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, for Defendants-Appellants.

Mary A. Kenney, National Immigration Litigation Alliance, Kristin Macleod-Ball, American Immigration Council, Brookline, MA, for Amici on Behalf of Appellees.

Before LOKEN, BENTON, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

In these consolidated cases, Appellants (collectively, the government) appeal the district courts1 adverse grants of summary judgment. These cases present the same question of statutory interpretation: whether a noncitizen who entered this country without inspection or admission but later received Temporary Protected Status (TPS) may adjust her status to Lawful Permanent Resident (LPR), when an LPR application requires the noncitizen to have been "inspected and admitted" into the United States. See 8 U.S.C. § 1255(a). The district courts in both cases decided the answer is yes: a TPS recipient is deemed "inspected and admitted" and so may adjust her status. After considering the statutory scheme at issue, we affirm.

I. Background

These cases concern two provisions of the Immigration and Nationality Act (INA): the designation of TPS under 8 U.S.C. § 1254a, and the adjustment of status to LPR under 8 U.S.C. § 1255(a). The first provision, § 1254a, authorizes the Attorney General to grant TPS to noncitizens from countries experiencing armed conflict, natural disaster, or other extraordinary circumstances. 8 U.S.C. § 1254a(b)(1)(A)(B). Individuals with TPS receive temporary protection from removal and authorization to work. Id. § 1254a(a)(1)(2). TPS has other positive consequences. Relevant here, "for purposes of adjustment of status under section 1255," a TPS beneficiary "shall be considered as being in, and maintaining, lawful status as a nonimmigrant." Id. § 1254a(f)(4).

The second provision, § 1255, governs the adjustment of status to LPR. As a threshold matter, § 1255 requires an applicant to have been "inspected and admitted" into the United States before she can adjust her status. Id. § 1255(a). This provision also bars several classes of persons from adjustment, including certain noncitizens "in unlawful immigration status on the date of filing the application for adjustment of status" and those who have "failed ... to maintain continuously a lawful status since entry into the United States." Id. § 1255(c)(2).

The parties disagree as to whether a grant of TPS satisfies § 1255(a) ’s threshold "inspected-and-admitted" requirement. Appellees contend that the plain language of § 1254a(f)(4) means that TPS beneficiaries are considered "inspected and admitted" for purposes of § 1255(a). The government disagrees, asserting that because § 1254a(f)(4) does not specifically include § 1255(a) ’s "inspected-and-admitted" language, a TPS beneficiary must be separately inspected and admitted to adjust her status under § 1255.

Appellees are TPS beneficiaries whose LPR applications were denied by U.S. Citizenship and Immigration Services (USCIS). Aurelia Concepcion Martinez is a citizen of Honduras who entered the United States without inspection in 1996. After the Attorney General designated Honduras as a TPS country in 1999, she applied for and received TPS. Gilma Geanette Melgar, Sandra Ortiz, and Leymis Carolina Velasquez are citizens of El Salvador who entered the United States without inspection in 1992, 1993, and 2000, respectively. After the Attorney General designated El Salvador as a TPS country in 2001, they applied for and received TPS.

After becoming TPS beneficiaries, Appellees applied to adjust their status to LPR based on having immediate relatives who are United States citizens. USCIS requested evidence of lawful admission pursuant to 8 U.S.C. § 1255(a). Appellees provided proof of their TPS and a copy of Bonilla v. Johnson, 149 F. Supp. 3d 1135 (D. Minn. 2016), where the district court decided a grant of TPS satisfies § 1255(a) ’s "inspected-and-admitted" requirement. Id. at 1142. USCIS nevertheless denied Appellees adjustment applications, asserting that TPS is not an "admission" for purposes of § 1255(a). USCIS told Appellees there was no administrative appeal, so they brought two separate lawsuits under the Administrative Procedure Act (APA) in the United States District Court for the District of Minnesota. See 5 U.S.C. § 706(2)(A).

The district courts in both cases decided that, based on the INA's unambiguous language, a grant of TPS satisfies § 1255(a) ’s "inspected-and-admitted" requirement. This is because TPS recipients are considered inspected and admitted for purposes of § 1255. See 8 U.S.C. § 1254a(f)(4). The district courts found USCIS's contrary interpretation unlawful, reversed its denial of the LPR applications, and granted summary judgment to Appellees. The government timely appealed.

II. Discussion

This court has not yet decided whether TPS recipients who entered the United States without inspection are nevertheless deemed "inspected and admitted" and thus eligible for adjustment of status under 8 U.S.C. § 1255(a). There is a split of authority on the issue. Compare Sanchez v. Sec'y U.S. Dep't of Homeland Sec., 967 F.3d 242, 251–52 (3d Cir. 2020) (holding that a noncitizen who receives TPS is not deemed "inspected and admitted"), petition for cert. filed, No. 20-315 (U.S. Sept. 10, 2020), and Serrano v. U.S. Att'y Gen., 655 F.3d 1260, 1265 (11th Cir. 2011) (per curiam) (same), with Ramirez v. Brown, 852 F.3d 954, 959 (9th Cir. 2017) (holding that, because a TPS recipient must be treated as a nonimmigrant for adjustment purposes, she is deemed to have met all requirements for nonimmigrant status, including inspection and admission), and Flores v. USCIS, 718 F.3d 548, 552–53 (6th Cir. 2013) (same).

A.

We review de novo the grant of summary judgment, including questions of statutory interpretation. Rajasekaran v. Hazuda, 815 F.3d 1095, 1098 (8th Cir. 2016). Under the APA, courts must set aside an agency decision that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In reviewing an agency decision, we apply the two-step analysis from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Ortega-Marroquin v. Holder, 640 F.3d 814, 818 (8th Cir. 2011). First, we determine "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. At this step, we consider "the language [of the statute] itself, the specific context in which that language is used, and the broader context of the statute as a whole." Lovilia Coal Co. v. Harvey, 109 F. 3d 445, 449 (8th Cir. 1997) (cleaned up). If the statute's meaning is clear, then both the courts and agencies "must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778. If, however, we determine that the statute is ambiguous, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. Courts may defer to an agency interpretation even when the agency does not exercise its formal rule-making authority.

Skidmore v. Swift & Co., 323 U.S. 134, 139–40, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ; see United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (explaining that Skidmore deference requires courts to consider agency consistency, along with other factors that have the power to persuade, including the validity of the agency's reasoning).

B.

To adjust their status to LPR under 8 U.S.C. § 1255, App ellees must have been "inspected and admitted" into the United States. See 8 U.S.C. § 1255(a). The INA elsewhere defines "admitted" to mean "the lawful entry ... into the United States after inspection and authorization by an immigration officer." Id. § 1101(a)(13)(A). The parties disagree on whether TPS satisfies § 1255(a) ’s "inspected-a...

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