Flores et al v USCIS March 30, 2012 dist crt dismissed -TPS does not cure EWI for AOS purposes


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Flores et al v USCIS March 30, 2012 dist crt dismissed -TPS does not cure EWI for AOS purposes

  1. 1. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 1 of 16. PageID #: 175 An Appeal was filed in the Sixth Circuit Court of Appeals on May 10, 2012. You can follow the case to see what the final outcome is. Access may be limited as the case progresses. See: http://dockets.justia.com/docket/circuit-courts/ca6/12-3549/ UNITED STATES DISTRICT COURTTPS does not cure EWI NORTHERN DISTRICT OF OHIOand it does not make an EASTERN DIVISIONEWI eligible for adjustmentof status even as thespouse of a USC. FRANIKA FONSHEA FLORES, et al., ) Case No.: 1:11 CV 642 ) Plaintiffs ) ) v. ) JUDGE SOLOMON OLIVER, JR. ) U.S. CITIZENSHIP AND IMMIGRATION ) SERVICES, et al., ) ) Defendants ) ORDER Plaintiffs Franika Fonshea Flores, Victor Flores Alvarez, Stacey Leigh Suazo, and Saady Suazo Calix (collectively, “Plaintiffs”), bring the above-captioned case against U.S. Citizenship and Immigration Services (“USCIS”); Alejandro Mayorkas, Director, USCIS; Mark Hansen, District Director, USCIS; Janet Napolitano, Secretary of the U.S. Department of Homeland Security (“DHS”); Eric H. Holder, Jr., U.S. Attorney General; and Steven M. Dettelbach, U.S. Attorney (collectively, “Defendants” or “Government”). Currently pending before the court are Defendants’ Motions to Dismiss Plaintiffs Franika Fonshea Flores and Victor Flores Alvarez (ECF No. 13), and Plaintiffs Stacey Leigh Suazo and Saady Suazo Calix (ECF No. 14). For the reasons stated below, the court grants Defendants’ Motions to Dismiss. (ECF Nos. 13, 14.) I. BACKGROUND Plaintiff Franika Fonshea Flores is a United States citizen and resident of the City of University Heights, Ohio. (Compl., ECF. No. 1, at ¶ 3.) Her husband, Plaintiff Victor Flores Matter of SOSA, 25 I&N Dec. 391 (BIA 2010) held: (1) A grant of Temporary Protected Status (“TPS”) waives certain grounds of inadmissibility or deportability solely for the limited purpose of permitting an alien to remain and work temporarily in the United States for the period of time that TPS is effective. (2) It is not proper to terminate an alien’s removal proceedings based on a grant of TPS. See also: http://www.ca11.uscourts.gov/opinions/ops/201012990.pdf Serrano v. Atty Genl, DHS, USCIS, Mayorkas & Frazier (9/16/11) TPS does not independently allow for adjustment of status. See note at end of this document!
  2. 2. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 2 of 16. PageID #: 176Alvarez, a citizen of El Salvador, entered the United States without inspection near Agua Prieta,Arizona, on or about October 1, 1999. (Id. at ¶ 18.) However, since May 21, 2002, Mr. FloresAlvarez has been the recipient of a series of approved applications for Temporary Protected Status(“TPS”), (Id.), an immigration benefit that accords lawful status and is available to eligibleindividuals from TPS-designated countries. On January 31, 2010, Ms. Flores filed a Form I-130, Petition for Alien Relative on behalfof her husband, and the Form was subsequently approved. (Id. at ¶ 19.) On the same date, Mr.Flores Alvarez filed an accompanying I-485 Application for Adjustment of Status, which if granted,would adjust his status to that of a Lawful Permanent Resident of the United States. (Id.) On June10, 2010, Mr. Flores Alvarez’s I-485 Application for Adjustment of Status was denied. (Id. at ¶ 21.)The stated reason for the denial was that Mr. Flores Alvarez “entered the United States withoutinspection.” (Id. at ¶ 24.) The facts of Plaintiffs Saady Suazo and Stacey Leigh Suazo are similar to those of PlaintiffsMs. Alvarez and Mr. Flores Alvarez. Plaintiff Saady Suazo entered the United States withoutinspection near Harlingen, Texas, on or about March 15, 1998. (Id. at ¶ 27.) However, because Mr.Suazo is a citizen of Honduras, a designated country for TPS purposes, Mr. Suazo has been a TPSbeneficiary since September 3, 1999. (Id.) On September 10, 2010, Plaintiff Stacey Leigh Suazo filed a now approved ImmediateRelative I-130 Petition on behalf of her husband. (Id. at ¶ 28.) On the same date, Mr. Suazo filedan accompanying I-485 Application for Adjustment of Status to adjust his status to that of a LawfulPermanent Resident of the United States. (Id.) On December 21, 2010, Plaintiff Mr. Suazo’sApplication for Adjustment of Status was denied. (Id. at ¶ 30.) As in the case of Mr. Flores -2-
  3. 3. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 3 of 16. PageID #: 177Alvarez, the stated reason for the denial was that Mr. Suazo had “entered the United States withoutinspection.” (Id. at ¶ 33.) On March 30, 2011, Plaintiffs Franika Fonshea Flores, Victor Flores Alvarez, Stacey LeighSuazo and Saady Suazo filed the within suit against the Defendants. (Compl., ECF No. 1.)Plaintiffs allege that Defendants improperly denied Plaintiff Victor Flores Alvarez’s and SaadySuazo’s Applications for Adjustment of Status to that of a Lawful Permanent Resident (“LPRApplication”). ( Id. at ¶ ¶ 25, 34.) Plaintiffs request that this court assume jurisdiction over theircase and adjudicate and approve Plaintiffs’ LPR Applications. (Id. at p. 18–19.) Plaintiffs arguethat Saady Suazo’s and Victor Flores Alvarez’s receipt of Temporary Protected Status under 8U.S.C. 1254a(b)(1) makes them eligible to adjust to LPR status, notwithstanding their initial entrieswithout inspection. (Id. at p. 14.) Plaintiffs seek relief pursuant to the Mandamus Act, 28 U.S.C.§ 1361, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702–706. (Id. at ¶ 1.) On June 17, 2011, Defendants moved to dismiss Plaintiffs Franika Fonshea Flores and VictorFlores Alvarez. (ECF No. 13.) They moved separately to dismiss Plaintiffs Stacey Leigh Suazo andSaady Suazo. (ECF No. 14.) Defendants’ Motions seek dismissal on the basis of the same legalpropositions. First, Defendants argue that the court should dismiss Plaintiffs’ claims for mandamusrelief for lack of subject matter jurisdiction because the APA provides Plaintiffs an adequate remedyat law. Second, Defendants argue that the court should dismiss Plaintiffs’ APA claims for failureto state a claim upon which relief can be granted. Defendants argue that a grant of TPS does notrelieve Plaintiffs of the requirement for adjustment of status found at 8 U.S.C. § 1255(a) that thealien have been “inspected and admitted or paroled into the United States.” For the followingreasons, the court grants Defendants’ Motions to Dismiss. -3-
  4. 4. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 4 of 16. PageID #: 178 II. MOTION TO DISMISS STANDARDS A. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of CivilProcedure 12(b)(1) may take the form of either a facial or a factual attack. United States v. Ritchie,15 F.3d 592, 598 (6th Cir. 1994). Facial attacks challenge the sufficiency of the pleadingsthemselves. Id. Factual attacks, on the other hand, challenge the factual existence of subject matterjurisdiction, regardless of what is or might be alleged in the pleadings. Id. When adjudicating a motion to dismiss based upon a facial attack, the Court must accept allmaterial allegations of the complaint as true and must construe the facts in favor of the non-movingparty. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235–37 (1974)); see alsoRobinson v. Gov’t of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) (holding that all reasonableinferences must be drawn in favor of the plaintiff when evaluating a facial attack on subject-matterjurisdiction). In contrast, a factual attack contests the validity of the facts alleged as support for subject-matter jurisdiction. Ritchie, 15 F.3d at 598. With a factual challenge, no presumption of truthfulnessarises for either party, and the court must weigh the evidence to determine its power to hear the case.Id. (citing Ohio Natl Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). The courtmay consider both the pleadings and evidence not contained in the pleadings. Makarova v. UnitedStates, 201 F.3d 110 (2d Cir. 2000). B. 12(b)(6) Motion to Dismiss for Failure to State a Claim The court examines the legal sufficiency of the plaintiff’s claim under Federal Rule of CivilProcedure 12(b)(6). See Mayer v. Mulod, 988 F.2d 635, 638 (6th Cir. 1993). The Supreme Court -4-
  5. 5. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 5 of 16. PageID #: 179in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and more recently in Ashcroft v. Iqbal, 129S.Ct. 1937, 1949–50 (2009) clarified the law regarding what the plaintiff must plead in order tosurvive a Rule 12(b)(6) motion. When determining whether the plaintiff has stated a claim uponwhich relief can be granted, the court must construe the complaint in the light most favorable to theplaintiff, accept all factual allegations as true, and determine whether the complaint contains“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Theplaintiff’s obligation to provide the grounds for relief “requires more than labels and conclusions,and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Even thougha complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be enoughto raise a right to relief above the speculative level on the assumption that all the allegations in theComplaint are true.” Id. A court is “not bound to accept as true a legal conclusion couched as afactual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The Court in Iqbal, 129 S.Ct. at 1949, further explains the “plausibility” requirement, statingthat “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the courtto draw the reasonable inference that the defendant is liable for the misconduct alleged.”Furthermore, “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks formore than a sheer possibility that a defendant acted unlawfully.” Id. This determination is a“context-specific task that requires the reviewing court to draw on its judicial experience andcommon sense.” Id. at 1950. The Sixth Circuit has held that a court may consider allegations contained in the complaint,as well as exhibits attached to or otherwise incorporated in the complaint, all without converting aMotion to Dismiss to a Motion for Summary Judgment. Fed. R. Civ. P. 10(c); Weiner v. Klais & -5-
  6. 6. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 6 of 16. PageID #: 180Co., 108 F.3d 86, 89 (6th Cir. 1997). III. STATUTORY AND REGULATORY FRAMEWORK A. Adjustment of Status under 8 U.S.C. § 1255 8 U.S.C. § 1255(a), provides, in pertinent part, 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 if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.8 U.S.C. § 1255(a) (emphasis added). Additionally, an alien other than an immediate relative (andcertain special immigrants) are barred from becoming lawful permanent residents if such an alien: [C]ontinues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or 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 . . . .8 U.S.C. § 1255(c)(2).1 B. Temporary Protected Status The Attorney General may designate nationals of certain foreign states eligible for TPS incases of ongoing armed conflict, environmental disaster, or other extraordinary and temporaryconditions that prevent safe return. 8 U.S.C. § 1254a(b)(1). The statutory scheme governing TPS 1 The bars at § 1255(c)(2) do not apply to Plaintiffs Alvarez and Suazo, who are the beneficiaries of immigrant visa petitions filed by an immediate relative. See 8 U.S.C. § 1255(c)(2). -6-
  7. 7. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 7 of 16. PageID #: 181includes a number of eligibility requirements. In addition to being a national from a designatedforeign state, the alien must be “admissible as an immigrant.” 8 U.S.C. § 1254a(c)(1)(A)(iii).Recognizing that aliens from designated countries may have entered the U.S. without inspection ata port of entry, Congress provided for a waiver for certain grounds of inadmissibility for TPSpurposes, see 8 U.S.C. § 1254a(c)(2), including a waiver of 8 U.S.C. 1182(a)(7)(A), which rendersaliens who failed to abide by documentation requirements at the time of entry into the U.S.inadmissible. Other grounds of inadmissibility, including grounds relating to criminal activity andnational security, may not be waived for TPS purposes. See 8 U.S.C. § 1254a(c)(2)(A)(iii)–(B). Further, a TPS grant provides a number of benefits. During the period in which TPS is ineffect, the Attorney General “shall not remove the alien from the United States.” 8 U.S.C. §1254a(a)(1)(A). TPS recipients are authorized to engage in employment in the United States andare provided documentation of such authorization. 8 U.S.C. § 1254a(a)(1)(B). They are alsorequired to remain in the United States during the life of the grant but “[p]ermission to travel maybe granted by the director pursuant to the Service’s advance parole provisions.” 8 C.F.R. § 244.15;8 U.S.C. § 1254a(f)(3). Moreover, and pertinent for the purposes of the instant action, while an alien has TPS, “forpurposes of adjustment of status under section 1255 of this title and change of status under section1258 of this title, the alien shall be considered as being in, and maintaining, lawful status as anonimmigrant.” 8 U.S.C. 1254a(f)(4) (emphasis added). IV. LAW AND ANALYSIS A. Plaintiffs’ Mandamus Claim Plaintiffs seek relief under the Mandamus Act, 28 U.S.C. § 1361, which vests the district -7-
  8. 8. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 8 of 16. PageID #: 182court with “original jurisdiction of any action in the nature of mandamus to compel an officer oremployee of the United States or any agency thereof to perform a duty owed to the plaintiff.”Mandamus is an extraordinary remedy, and the petitioner seeking the writ carries the burden ofshowing his “right to the issuance of the writ is ‘clear and indisputable.’” In re Am. Med. Sys., Inc.,75 F.3d 1069, 1078 (6th Cir. 1996) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384(1953)). Mandamus relief is appropriate only when: (1) the petitioner establishes the right to reliefsought; (2) the defendant has a clear duty to honor that right; and (3) no other adequate remedyexists. Carson v. United States Office of Special Counsel, 633 F.3d 487, 491 (6th Cir. 2011)(citations omitted). In this case, relief under the Mandamus Act is not available to Plaintiffs because Plaintiffshave an adequate remedy under the APA – which they are also pursuing in the instant action. TheAPA, which provides for judicial review of agency actions, states in pertinent part that “thereviewing court shall decide all relevant questions of law, interpret constitutional and statutoryprovisions, and . . . hold unlawful and set aside agency action, findings, and conclusions found tobe arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.§ 706(2)(A). Because Plaintiffs have an adequate remedy under the APA, the court dismissesPlaintiffs’ claim under the Mandamus Act for lack of subject matter jurisdiction. See,e.g., Serranov. United States Att’y Gen., 655 F.3d 1260, 1263–64 (11th Cir. 2011) (upholding dismissal ofmandamus claim because plaintiff had adequate remedy under APA); Sharkey v. Quarantillo, 541F.3d 75, 93 (2d Cir. 2008) (same). -8-
  9. 9. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 9 of 16. PageID #: 183 B. Plaintiffs’ APA Claim 1. Standard of Review As noted above, under the APA, this court may review a final agency action to determinewhether the action is arbitrary, capricious, an abuse of discretion, unconstitutional, in excess ofstatutory authority, without observance of procedure as required by law, or unsupported bysubstantial evidence. 5 U.S.C. § 706(2). The court reviews an agency’s interpretation of a statuteunder the two-step analysis set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467U.S. 837, 842–43 (1984), and clarified in United States v. Mead Corp., 533 U.S. 218 (2001). Seealso Nat’l Cotton Council of Am. v. United States Envtl. Prot. Agency, 553 F.3d 927, 933 (6th Cir.2009). First, the court must ask whether Congressional intent is clear. If so, “that is the end ofthe matter; for the court, as well as the agency, must give effect to the unambiguously expressedintent of Congress.” Id. (quoting Chevron, 467 U.S. at 842–43). The court examines Congressionalintent by looking to the plain ordinary meaning of the statute, realizing that such an examinationincludes “the language itself, the specific context in which that language is used, and the broadercontext of the statute as a whole.” Id. at 935 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341(1997)). Next, if the statute is found to be silent or ambiguous, and there is an agency interpretationthat does not constitute the exercise of the agency’s formal rule-making authority, courts maynevertheless accord deference to the agency’s actions based on the factors set forth in Skidmore v.Swift & Co., 323 U.S. 134, 139–40 (1994). These factors include: “the thoroughness evident in [theagency’s] consideration, the validity of its reasoning, its consistency with earlier and later -9-
  10. 10. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 10 of 16. PageID #: 184pronouncements, and all those factors which give it power to persuade, if lacking power to control.”Id. at 140; see also, Lockhart v. Napolitano, 573 F.3d 251, 262 (6th Cir. 2009). 2. Plaintiffs are not exempted from 8 U.S.C. § 1255(a)’s threshold requirement As noted above, the status of “an alien who was inspected and admitted or paroled into theUnited States” may be adjusted to that of an alien lawfully admitted for permanent residenceprovided the remaining requirements are met. 8 U.S.C. § 1255(a). The dispositive question beforethe court is whether a grant of TPS exempts a TPS beneficiary from that threshold requirement.8 U.S.C. § 1254a(f)(4), which applies to TPS beneficiaries, provides: “for purposes of adjustmentof status under section 1255 of this title and change of status under section 1258 of this title, thealien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” (Emphasisadded). Defendants argue that 8 U.S.C. § 1254a(f)(4) is structured to apply only to the bars foradjustment of status found at § 1255(c)(2), and not to the eligibility requirements found at §1255(a). (Defs.’ Mot. to Dismiss, Mem. in Supp., ECF No. 13 & 14, p. 9.) Section 1255(c)(2) barsadjustment of status, in part to: aliens “in unlawful immigration status on the date of filing theapplication . . .,” and aliens who have “failed (other than through no fault of his own or for technicalreasons) to maintain continuously a lawful status since entry into the United States.” 8 U.S.C. §1255(c)(2) (emphasis added). Put simply, it is a bar for certain aliens who have fallen out of lawfulstatus or are presently in unlawful status at the time they apply for adjustment. Defendants arguethat by its plain language, § 1254a(f)(4) only confirms that TPS beneficiaries are presently in lawfulnonimmigrant status for the purposes of adjustment of status, but it does not provide a pathway toadjustment for aliens who were not initially “inspected and admitted or paroled.” - 10 -
  11. 11. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 11 of 16. PageID #: 185 Plaintiffs argue that § 1254a(f)(4) applies to the adjustment statute as a whole, and not to asubsection of the statute. (Pls.’ Br. in Opp’n to Mot. to Dismiss, ECF. No. 17, p. 4.) They arguethat the meaning of “shall be considered as being in, and maintaining, lawful status as anonimmigrant” is that TPS beneficiaries are to be considered as having satisfied the requirementunder § 1255(a) that they have been “inspected and admitted or paroled.” (Id. at p. 4–5.) Plaintiffsargue that this interpretation is consistent with the statutory and regulatory scheme governing TPS,which requires that an applicant for TPS be “admissible as an immigrant,” § 1254a(c)(1)(A)(iii),or otherwise eligible for a waiver of inadmissibility pursuant to § 1254a(c)(2). (Id. at 5.) Further,Plaintiffs argue that the process of applying and registering for TPS is itself a form of “inspection”and “admission.” Applicants must pay a fee, provide identification photographs, be fingerprinted,and provide other documentation. 8 C.F.R. § 244.6. An applicant may be “required to appear inperson before an immigration officer” to present documentary evidence and to establish eligibility.8 C.F.R. § 244.8. Applicants must submit an array of documents, including but not limited to,evidence of their identity and nationality and proof of continuous residence in the United Statesduring the requisite eligibility period. 8 C.F.R. § 244.9. Once granted, TPS recipients receive an“alien registration document,” 8 C.F.R. § 244.10(f), and they must register annually withimmigration authorities. 8 C.F.R. § 244.17. Although the parties’ briefs focus on the meaning of § 1254a(f)(4), individual provisions ofa statute must be read in the context of the statute as a whole. See King v. St. Vincent’s Hosp., 502U.S. 215, 221 (1991) (“[A] statute is to be read as a whole, since the meaning of statutory language,plain or not, depends on context.”) (citations omitted). Upon review of the applicable statutoryprovisions and case law, the court finds that 8 U.S.C. § 1254a(f)(4) does not, as Plaintiffs argue, - 11 -
  12. 12. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 12 of 16. PageID #: 186relieve them from the threshold requirement for adjustment of status found at § 1255(a). First, although an applicant for TPS must be “admissible as an immigrant” in order toreceive TPS, see § 1254a(c)(1)(A)(iii), the waivers of inadmissibility available pursuant to §1254a(c)(2)(A) are for TPS purposes only. See also 8 C.F.R. § 244.3 (applicability ofinadmissibility grounds for TPS purposes). Specifically, § 1254a(c)(2)(A), which sets forth thegrounds of inadmissibility that the Attorney General may or may not waive for TPS applicants,makes clear that such waivers relate to the “determination of an alien’s admissibility for purposesof subparagraph (A)(iii) of paragraph (1).” Subparagraph (A)(iii) of paragraph (1) refers to theeligibility requirement that the TPS applicant be “admissible as an immigrant.” 8 U.S.C. §1254a(c)(1)(A)(iii). Thus, this limited waiver, which is expressly confined to the determination ofan alien’s eligibility for TPS, does not provide TPS beneficiaries a general waiver of admissibilityapplicable to other provisions of the INA. See Matter of Sosa Ventura, 25 I. & N. Dec. 391, 392(B.I.A. 2010) (“[A] grant of TPS does not affect an alien’s admissibility or inadmissibility forpurposes of the Immigration and Nationality Act generally.”) Second, a grant of TPS does not, in and of itself, constitute an “admission” that satisfies §1255(a)’s threshold requirement. Plaintiffs’ argument clearly implicates the definition of“admission” under the INA, a term that has engendered much litigation since the enactment of theIllegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996. See, e.g., HingSum v. Holder, 602 F.3d 1092, 1099– 1101 (9th Cir. 2010) (defining term “admitted” as used in 8U.S.C. § 1182(h) and discussing history of term “admitted”); Zhang v. Mukasey, 509 F.3d 313, 314(6th Cir. 2007) (holding adjustment of status not an “admission” for purposes of 8 U.S.C. §1227(a)(2)(A)(I) where alien has a prior lawful entry as a nonimmigrant). The meaning of the terms - 12 -
  13. 13. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 13 of 16. PageID #: 187“admission” and “admitted” depend on how they are defined in the Immigration and Nationality Act(“INA”) and the context in which those terms are used. The INA defines “admission” and “admitted” as “the lawful entry of the alien into theUnited States after inspection and authorization by an immigration officer.” 8 U.S.C. §1101(a)(13)(A). Significantly, § 1101(a)(13)(A) does not include in its definition a grant of TPSor other forms of lawful nonimmigrant status. See Meese v. Keene, 481 U.S. 465, 484 (1987) (“Itis axiomatic that the statutory definition of the term excludes unstated meanings of that term.”)Courts have held that this provision is unambiguous, and moreover, defines “admitted” and“admission” in procedural, not substantive, terms—lawful entry after inspection and authorizationby an immigration officer. See, e.g., Hing Sum, 602 F.3d at 1099–101 (holding definition isunambiguous and that “Congress’ definition of admission as a ‘lawful entry’ also confirms its intentto define admission in procedural terms”). 8 U.S.C. § 1255(a), through its requirement that anapplicant for adjustment have been “inspected and admitted or paroled into the United States”incorporates this procedural definition. See Matter of Quilantan, 25 I. & N. Dec. 285, 290 (B.I.A.2010) (“the terms ‘admitted’ and ‘admission’ as defined in section 101(a)(13)(A) of the Act . . .denote procedural regularity for purposes of [§ 1255(a)], rather than compliance with substantivelegal requirements”). The court agrees that the definition of “admission” and “admitted” set forthin § 1101(a)(13)(A) is unambiguous, and does not expressly (or implicitly) include a grant of lawfulnonimmigrant status as a form of “admission.” Rather, the plain language of § 1101(a)(13)(A)refers to the manner of entry into the United States, i.e. lawful entry after inspection andauthorization. The fact that TPS beneficiaries are to be considered as being in lawful nonimmigrantstatus during the duration of the grant does not mean that such an entry was effectuated prior to the - 13 -
  14. 14. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 14 of 16. PageID #: 188attainment of that temporary status.2 In Qi-Zhuo v. Meissner, 70 F.3d 136 (D.C. Cir. 1995), the Court of Appeals for the D.C.Circuit faced an issue similar to the one in the instant case. That case involved the relationshipbetween the Chinese Student Protection Act (“CSPA”), 8 U.S.C. § 1255 note (1994), and theadjustment eligibility requirements found at § 1255(a). The CSPA contained an “explicit exemptionfrom § 245(c) of the INA,” which the appellant argued contained an “implicit exemption forcovered aliens from the threshold inspection requirement of § 245(a).” Id. at 139 (emphasis in theoriginal). The court declined the appellant’s “invitation to read into the CSPA an exemption thatCongress failed to include.” Id. at 139. Similarly here, the court declines to read into § 1254a(f)(4)an implicit exemption from the threshold requirement of § 1255(a), an exemption Congress couldhave included. Recently, the Eleventh Circuit became the first Court of Appeals to rule on the question ofwhether TPS beneficiaries may adjust notwithstanding prior entries without inspection. See Serranov. United States Att’y Gen., 655 F.3d 1260 (11th Cir. 2011).3 The court held that the fact that “analien with Temporary Protected Status has ‘lawful status as a nonimmigrant’ for purposes of 2 The Government does not dispute that Plaintiffs may satisfy § 1255(a) upon returning to the United States from a brief trip abroad pursuant to a grant of advanced parole, which they are eligible for by virtue of their TPS status. See 8 C.F.R. § 244.15; 8 U.S.C. § 1254a(f)(3). That question is not before the court so it need not decide it at this juncture. Plaintiffs argue that this, in effect, constitutes a “loophole” that renders the Government’s reading of the statute absurd, but the plain terms of § 1255(a) refer to procedural regularity in the alien’s manner of entry into the United States. 3 Because Serrano was decided after Defendants filed their Motions to Dismiss, they subsequently filed Motions to Supplement addressing the Eleventh Circuit’s decision. (ECF Nos. 21, 22.) The court grants these Motions, and addresses the supplemental authority herein. - 14 -
  15. 15. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 15 of 16. PageID #: 189adjusting his status does not change § 1255(a)’s threshold requirement that he is eligible foradjustment of status only if he was initially inspected and admitted or paroled.” Id. ThoughSerrano is not binding on this court, the court is persuaded by the reasoning of the Eleventh Circuitand concludes that by its terms, § 1254a(f)(4) describes TPS beneficiaries’ present status foradjustment purposes, but does not provide an exemption from the threshold requirement found at§ 1255(a) that an applicant for adjustment must have been “inspected and admitted or paroled.”4Consequently, the court grants Defendants’ Motions to Dismiss. Because the court finds that the statutory provisions at issue are unambiguous, it need notaddress the Government’s arguments that its interpretation of the INA would nevertheless beentitled to deference under Skidmore. However, the court notes that the Government’sinterpretation is consistent with prior agency interpretations of the relevant statutory provisions, andthus would be entitled to some deference under Skidmore. See Genco Op. No. 91-27, 1991 WL1185138 (INS Mar. 4, 1991) (concluding that “[b]ecause of Section [1254a(f)(4)] . . . Section[1255(c)(2)] will not apply . . . for the period during which the alien is in TPS” but that TPS 4 The Government advances an additional statutory argument that the court finds less convincing, and therefore excludes from its holding. Defendants argue that Plaintiffs’ interpretation of the statutory provisions at issue would render 8 U.S.C. § 1254a(h) a nullity. (Defs.’ Mem. in Supp. p. 10.) Section 1254a(h) requires a three-fifths super-majority before the Senate may consider any bill, resolution, or amendment providing for adjustment of status to lawful temporary or permanent residency for TPS beneficiaries. But special adjustment legislation of the type referenced by Defendants is generally much more expansive and generous than ordinary adjustment under 8 U.S.C. § 1255. The Nicaraguan Adjustment and Central American Relief Act (“NACARA”), for example, provides blanket eligibility for adjustment of status for many Cubans and Nicaraguans notwithstanding certain requirements found in 8 U.S.C. § 1255. PL 105–100, 1997 HR 2607, § 202(a)–(b). Clearly, the fact that Congress included § 1254a(f)(4) in the TPS statute shows that Congress understood that certain TPS beneficiaries might be eligible, and would apply for, adjustment of status. - 15 -
  16. 16. Case: 1:11-cv-00642-SO Doc #: 23 Filed: 03/31/12 16 of 16. PageID #: 190 beneficiary who entered without inspection would still be ineligible for adjustment). See also Serrano, 655 F.3d at 1260 (holding, in the alternative, that the Government’s interpretations “enjoy deference” under Skidmore). Plaintiffs do not direct the court to contrary or inconsistent Government interpretations. IV. CONCLUSION For the foregoing reasons, the court grants Defendants’ Motions to Dismiss. (ECF Nos. 13, 14). Under 8 U.S.C. § 1255(a), Plaintiffs Flores Alvarez and Suazo must have been “inspected and admitted or paroled” into the United States in order to adjust their status to that of Lawful Permanent Residents, and 8 U.S.C. § 1254a(f)(4) does not exempt them from that threshold requirement. IT IS SO ORDERED. /s/ SOLOMON OLIVER, JR. CHIEF JUDGE UNITED STATES DISTRICT COURT March 30, 2012In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigrationruled that an individual who came into the US illegally but who is now on active TemporaryProtected Status (TPS), who obtains a travel documents (advance parole) through USCISand then leaves the US and reenters on that Advance parole, is eligible to adjust status INthe US (with an available immigrant visa), and is NOT subject to the 10 year bar waivertypically associated with his departure after having been illegally in the US for longer than 1year.SEE:http://musingsonimmigration.blogspot.com/2012/04/new-tps-adjustment-option-are-you.html - 16 -