Jesus Ramirez v. Linda Dougherty

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS RAMIREZ; BARBARA LOPEZ, No. 14-35633
Plaintiffs-Appellees,
D.C. No.
v. 2:13-cv-01236-
TSZ
MICAH BROWN, Acting Field Office
Director, USCIS Seattle Field Office;
LORI SCIALABBA, Acting Director, OPINION
USCIS; JOHN F. KELLY, DHS
Secretary; JEFFERSON B. SESSIONS
III, Attorney General, United States
Attorney General,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted December 6, 2016
Seattle, Washington
Filed March 31, 2017
Before: M. Margaret McKeown, Richard C. Tallman,
and Morgan Christen, Circuit Judges.
Opinion by Judge McKeown
2 RAMIREZ V. BROWN
SUMMARY *
Immigration
The panel affirmed the district court’s summary
judgment in favor of Jesus Ramirez in his action challenging
the United States Citizenship and Immigration Service’s
decision finding him ineligible to adjust to lawful permanent
resident status on the ground that because he entered the
United States without inspection he was not “inspected and
admitted or paroled” as required by 8 U.S.C. § 1255(a).
The panel held that under the Temporary Protected
Status statute, 8 U.S.C. § 1254a(f)(4), a TPS recipient is
deemed to be in lawful status and thereby has satisfied the
requirements to become a nonimmigrant, including
inspection and admission, for the purposes of adjustment of
status. The panel held that as a TPS beneficiary, Ramirez
was therefore eligible to obtain lawful permanent residence.
COUNSEL
Ashley Young Martin (argued), Trial Attorney; Jeffrey S.
Robins, Assistant Director; William C. Peachey, Director;
Benjamin C. Mizer, Acting Assistant Attorney General;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Defendants-Appellants.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RAMIREZ V. BROWN 3
Christopher Strawn (argued) and Matthew Adams,
Northwest Immigration Rights Project, Seattle, Washington,
for Plaintiffs-Appellees.
OPINION
McKEOWN, Circuit Judge:
This appeal presents a question of statutory
interpretation about the interplay between two subsections
of the immigration code—one involving designation of
Temporary Protected Status (“TPS”) and the other involving
adjustment of status. The Attorney General may grant TPS
to an alien who cannot safely return home to a war-torn or
disaster-ridden country. During the pendency of the TPS
designation, the U.S. government may not send the alien
back to the unsafe country.
Jesus Ramirez, who came to the United States from El
Salvador in 1999, was granted TPS in 2001 and has
remained in that status to the present day. In 2012, he
married Barbara Lopez, a U.S. citizen, and the couple sought
lawful permanent resident status for Ramirez. Although
they were unsuccessful before U.S. Citizenship and
Immigration Services (“USCIS”), they prevailed in a lawsuit
filed in district court.
The parties dispute whether being a TPS designee
provides a pathway for Ramirez to obtain lawful permanent
resident status under the adjustment statute. We hold that it
does: under 8 U.S.C. § 1254a(f)(4), an alien afforded TPS is
deemed to be in lawful status as a nonimmigrant—and has
thereby satisfied the requirements for becoming a
nonimmigrant, including inspection and admission—for
purposes of adjustment of status under § 1255.
4 RAMIREZ V. BROWN
Background
I. Statutory Regime
Two statutory provisions are at the heart of this appeal.
The first relates to TPS, a status that the Attorney General
may grant to aliens that prevents their removal from the
United States while dangerous conditions persist in their
home country. See 8 U.S.C. § 1254a(a)(1)(A), (b)(1). The
second provision governs an alien’s ability to adjust to
lawful permanent resident status. See id. § 1255(a). We
offer a general description of the mechanics of the TPS
statute and then address where the rubber meets the road in
this appeal—the intersection of the TPS and adjustment
statutes.
TPS first requires a designation. When the Attorney
General determines that a foreign state (or any part of a
foreign state) faces an ongoing armed conflict,
environmental disaster, or other extraordinary and
temporary conditions that prevent aliens from returning
safely, the Attorney General may designate that state (or part
of the state) for TPS and grant TPS to an alien who is a
national of that state. Id. § 1254a(a)(1)(A), (b)(1). The
Attorney General sets the initial duration of the designation,
which may be extended following periodic review. See id.
§ 1254a(b)(2)–(3). An alien desiring TPS requests such
status by submitting an application—including detailed
information about identity, residence, and admissibility—to
USCIS, which considers the application. See 8 C.F.R.
§§ 244.2, 244.7, 244.10(b). To maintain TPS, aliens must
periodically re-register. See 8 U.S.C. § 1254a(c)(3)(C);
8 C.F.R. § 244.17(a).
An alien granted TPS receives two primary benefits
during the period in which TPS is in effect: he is not subject
RAMIREZ V. BROWN 5
to removal and he is authorized to work in the United States
(and supplied with the relevant accompanying
documentation). 8 U.S.C. § 1254a(a)(1)–(2). The grant of
TPS has other consequences. For example, the TPS
beneficiary is not “considered to be permanently residing in
the United States under color of law” and “may be deemed
ineligible for public assistance by a State . . . or any political
subdivision thereof which furnishes such assistance.” Id.
§ 1254a(f)(1)–(2). If the beneficiary wishes to travel abroad,
he must seek and obtain the prior consent of the Attorney
General. Id. § 1254a(f)(3). The consequence pertinent to
this appeal is that “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) (emphasis added).
The interpretive challenge is figuring out the extent to
which the just-quoted language affects a TPS beneficiary’s
ability to adjust to lawful permanent resident status. Section
1255(a)—the first subsection of the adjustment statute—
permits the Attorney General to adjust “[t]he status of an
alien who was inspected and admitted or paroled into the
United States.” Id. § 1255(a). In addition, some aliens are
statutorily ineligible to adjust their status. Section 1255(c)
lists multiple categories of aliens to whom “subsection (a)
shall not be applicable.” Id. § 1255(c). One such bar under
§ 1255(c)(2) applies to an alien, other than an immediate
relative or special immigrant defined under the statute, “who
is in unlawful immigration status on the date of filing the
application for adjustment of status or who has failed . . . to
maintain continuously a lawful status since entry into the
United States.” Id. § 1255(c)(2). Reading the TPS and
adjustment statutes together, the question we confront is
whether the grant of TPS allows an alien not only to avoid
6 RAMIREZ V. BROWN
the bar under § 1255(c)(2) but also to meet the “inspected
and admitted or paroled” requirement in § 1255(a). We
conclude that it does and affirm the district court.
II. Factual and Procedural History
The parties agree on the essential background facts.
Ramirez is a native and citizen of El Salvador who entered
the United States on May 30, 1999, without being inspected
and admitted or paroled by an immigration officer. In 2001,
the Attorney General designated El Salvador under the TPS
program after the country suffered a series of earthquakes.
See Designation of El Salvador Under Temporary Protected
Status Program, 66 Fed. Reg. 14,214-01 (Mar. 9, 2001).
With his home country designated, Ramirez applied for and
received TPS. Since then, the Attorney General has
continually redesignated El Salvador, see Extension of the
Designation of El Salvador for Temporary Protected Status,
81 Fed. Reg. 44,645-03 (July 8, 2016), and Ramirez has kept
his TPS registration up to date.
On July 21, 2012, Ramirez married Barbara Lopez, a
U.S. citizen. She filed a Form I-130 “Petition for Alien
Resident” on behalf of Ramirez, and Ramirez filed a Form
I-485 application to adjust his status to that of a lawful
permanent resident. USCIS approved Lopez’s petition on
April 16, 2013.
However, eight days later, on April 24, 2013, USCIS
denied Ramirez’s separate application. The agency
explained that Ramirez was “ineligible as a matter of law to
adjust status in the United States” because he had not shown
that he was inspected and admitted or paroled at the time of
his May 1999 entry into the United States nor that he was
exempt from that requirement. Although USCIS recognized
that, by virtue of the grant of TPS, Ramirez is “considered
RAMIREZ V. BROWN 7
as if [he] was in a lawful non-immigrant status,” it concluded
that that treatment does not override the adjustment statute’s
general requirement to be inspected and admitted or paroled.
Ramirez and Lopez then filed suit in the Western District
of Washington, bringing an action under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The district
court determined that USCIS’s interpretation is incorrect as
a matter of law because the TPS statute clearly provides that
recipients count as being “inspected and admitted” for
purposes of adjusting their status.
The court also noted that, though it need not defer to the
agency’s interpretation where the statute unambiguously
answers the question at issue, the agency’s non-precedential
decisions do not deserve deference because they reach the
wrong conclusion and do not thoroughly examine the
question at issue. Finally, the court closed with the policy
consideration that Ramirez has established a life in the
United States and should not have to leave the country to
seek admission. For these reasons, the district court ruled
that Ramirez is entitled to summary judgment because he
meets the requirements of § 1255(a) to adjust his status. We
review this judgment de novo, Protect Our Cmtys. Found. v.
Jewell, 825 F.3d 571, 578 (9th Cir. 2016), through the lens
of the APA’s “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law” standard, 5 U.S.C.
§ 706(2)(A).
Analysis
Ramirez desires to adjust his status to that of a lawful
permanent resident, a process governed by 8 U.S.C. § 1255.
All parties agree that Ramirez must comply with the
requirements of the first subsection, which provides that
8 RAMIREZ V. BROWN
[t]he 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.
Id. § 1255(a). Ramirez easily satisfies subsections (a)(1) and
(a)(3) because he made an application for adjustment of
status and an immigrant visa is immediately available
through his American citizen wife. The prefatory language
and subsection (a)(2) remain.
The prefatory language asks whether Ramirez “was
inspected and admitted or paroled into the United States,”
but for our case the question can be slightly narrowed from
there. No party contends that Ramirez was “paroled into the
United States.” The government also downplays or fails to
make separate arguments about inspection, and Ramirez
soundly argues that he has been “inspected” because TPS
applicants undergo a rigorous inspection process by an
immigration officer. Therefore, the action in this appeal
centers on whether Ramirez has been “admitted” as that term
is used in § 1255(a). Although the government separately
contends that Ramirez flunks subsection (a)(2) because his
May 1999 illegal entry renders him inadmissible, see id.
§ 1182(a)(6)(A)(i), the question whether Ramirez is
RAMIREZ V. BROWN 9
“admissible” is bound up with whether the grant of TPS to
Ramirez means that he has been “admitted.”
This takes us to the TPS statute. The operative provision,
§ 1254a(f)(4), states that TPS recipients “shall be considered
as being in, and maintaining, lawful status as a
nonimmigrant” for purposes of adjustment of status. Under
the familiar two-step framework for evaluating an agency’s
statutory interpretation, we first consider whether the statute
is unambiguous. See Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984).
Employing the traditional canons of statutory
construction at step one, we conclude that § 1254a(f)(4)
unambiguously treats aliens with TPS as being “admitted”
for purposes of adjusting status. Because the statutory
language is clear, that ends the inquiry: the agency has no
interpretive role to play but must instead follow the
congressional mandate. Chevron, 467 U.S. at 842–43 & n.9;
see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987).
It bears noting, however, that even if we were to proceed
to step two because the statute is unclear on the “admitted”
issue, the government has not identified any controlling
agency interpretation to which we owe deference. See
Chevron, 467 U.S. at 843–44. The cited published decisions
do not address the statutory interpretation question at issue
here. See In re Alyazji, 25 I. & N. Dec. 397 (B.I.A. 2011);
In re Sosa Ventura, 25 I. & N. Dec. 391 (B.I.A. 2010). The
remaining decisions—variously issued by the Immigration
and Naturalization Service General Counsel, Board of
Immigration Appeals (“BIA”), and USCIS—are non-
precedential, see 8 C.F.R. § 1003.1(d)(1), (g), so the
deference owed depends on their persuasive value, see
Garcia v. Holder, 659 F.3d 1261, 1266–67 (9th Cir. 2011).
While the decisions stretch back to 1991, that consistency is
10 RAMIREZ V. BROWN
strongly outweighed by a pervasive lack of thorough and
valid reasoning, as the decisions often state a conclusory
answer without taking into account the various statutory and
other considerations at play. See Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944). Because the agency’s
interpretation does not warrant deference, we must decide
the proper construction based on the text, structure, and
purpose of the relevant provisions.
I. The Plain Statutory Language
The language of the TPS statute itself strongly points to
the conclusion that Ramirez qualifies as “admitted” for
adjusting his status. See POM Wonderful LLC v. Coca-Cola
Co., 134 S. Ct. 2228, 2236 (2014) (noting the primacy of the
text in statutory interpretation). In particular, § 1254a(f)(4)
broadly states that “[d]uring a period in which an alien is
granted temporary protected status under this section[,] for
purposes of adjustment of status under section 1255 of this
title . . . , the alien shall be considered as being in, and
maintaining, lawful status as a nonimmigrant.” (Emphasis
added.) The language explicitly refers to the adjustment
statute, § 1255, and confers the status of lawful
nonimmigrant on TPS recipients when looking at adjusting
their status.
The Sixth Circuit, squarely addressing the same
interpretive issue, concluded that that text is clear. Flores v.
U.S. Citizenship & Immigration Servs., 718 F.3d 548, 551–
53 (6th Cir. 2013). The court explained that “exactly what
§ 1254a(f)(4) provides [is that a TPS recipient] is considered
[as] being in lawful nonimmigrant status and thus meets the
[‘admitted’] requirement[] in § 1255.” Id. at 554. Like the
Sixth Circuit, “[w]e interpret the statute exactly as written—
as allowing [a TPS recipient] to be considered as being in
RAMIREZ V. BROWN 11
lawful status as a nonimmigrant for purposes of adjustment
of status under § 1255.” Id. at 553.
The Eleventh Circuit has taken a contrary position,
holding that the statutes unambiguously point the other way:
“[t]he plain language of § 1255(a) limits eligibility for status
adjustment to an alien who has been inspected and admitted
or paroled” and “[t]hat an alien with Temporary Protected
Status has ‘lawful status as a nonimmigrant’ for purposes of
adjusting his status does not change § 1255(a)’s threshold
[eligibility] requirement.” Serrano v. U.S. Attorney Gen.,
655 F.3d 1260, 1265 (11th Cir. 2011) (per curiam). While
the Sixth Circuit in Flores and the district court here attempt
to distinguish Serrano on the ground that the petitioner there
did not disclose his illegal entry into the country in his TPS
application, see Serrano, 655 F.3d at 1265 n.4, that factual
difference has no bearing on the Eleventh Circuit’s
conclusion that § 1254a(f)(4) does not override § 1255(a)’s
threshold “inspected and admitted” requirement.
Nevertheless, for the reasons discussed below, we disagree
with the Eleventh Circuit and decline to follow Serrano. 1
Under the immigration laws, an alien who has obtained
lawful status as a nonimmigrant has necessarily been
1 Significantly, the division in opinion between the Sixth and
Eleventh Circuits on the plain meaning of the statutes does not establish
ambiguity. On multiple occasions, the Supreme Court has held that a
provision is unambiguous even when the circuits are split on the
interpretive issue. See, e.g., Mohamad v. Palestinian Auth., 132 S. Ct.
1702, 1706 & n.2, 1709–11 (2012) (holding that the term “individual” as
used in the Torture Victim Protection Act unambiguously encompasses
only natural persons notwithstanding disagreement among several
circuits); Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 99 & n.4, 113 &
n.12 (2012) (holding that § 906(c) of the Longshore and Harbor
Workers’ Compensation Act is unambiguous despite disagreement
between the Fifth, Ninth, and Eleventh Circuits about its meaning).
12 RAMIREZ V. BROWN
“admitted.” The statutory provisions refer to “[t]he
admission to the United States of any alien as a
nonimmigrant,” though the duration and purpose of the
alien’s stay may be tightly circumscribed. 8 U.S.C.
§ 1184(a)(1) (emphases added); see id. §§ 1182(d)(1)
(“alien’s admission as a nonimmigrant”), 1184(g)(4) (“the
period of authorized admission as such a nonimmigrant”),
1187(a)(7) (“the conditions of any previous admission as
such a nonimmigrant”). Indeed, every alien “shall be
presumed to be an immigrant until he establishes to the
satisfaction of the consular officer, at the time of application
for a visa, and the immigration officers, at the time of
application for admission, that he is entitled to a
nonimmigrant status.” Id. § 1184(b). In other words, by the
very nature of obtaining lawful nonimmigrant status, the
alien goes through inspection and is deemed “admitted.” See
also id. § 1184(k)(3) (“the admission, and continued stay in
lawful status, of such a nonimmigrant”).
As the governing statutes and implementing regulations
demonstrate, in practice, too, the application and approval
process for securing TPS shares many of the main attributes
of the usual “admission” process for nonimmigrants. Like
an alien seeking nonimmigrant status, see id. § 1184(b);
8 C.F.R. §§ 212.1, 235.1(f)(1), an alien seeking TPS must
establish that he meets the identity and citizenship
requirements for that status, usually by submitting
supporting documentation like a passport, see 8 U.S.C.
§ 1254a(a)(1), (c)(1)(A); 8 C.F.R. § 244.9(a). Similarly, an
alien on either track must adequately demonstrate that he is
eligible to be admitted to the United States, with the
possibility that some grounds of inadmissibility may be
waived in individual cases at the Attorney General’s
discretion. Compare 8 U.S.C. § 1182(a), (d)(11)–(12), (g)–
(i); 8 C.F.R. §§ 212.7, 214.1(a)(3)(i), with 8 U.S.C.
RAMIREZ V. BROWN 13
§ 1254a(c)(1)(A)(iii), (c)(2)(A); 8 C.F.R. §§ 244.2(d),
244.3.
Once the request for nonimmigrant status or TPS has
been submitted, the application is scrutinized for
compliance—sometimes supplemented with an interview of
the applicant—then approved or denied by USCIS.
Compare 8 U.S.C. § 1184(a)(1), (b); 8 C.F.R.
§ 214.11(d)(6), with 8 U.S.C. § 1254a(a)(3)(A); 8 C.F.R.
§§ 244.8, 244.10(b). That the TPS application is subject to
a rigorous process comparable to any other admission
process further confirms that an alien approved for TPS has
been “admitted.” 2
The government pushes back, urging that the statutory
definition of “admitted” at 8 U.S.C. § 1101(a)(13)(A)—
which requires something akin to passage into the United
States at a designated port of entry—controls, but the
awkwardness of the fit is telling and makes that definition
inapplicable. The government itself concedes that the port-
of-entry definition is not always appropriate by
acknowledging and accepting the BIA’s decisions which
hold that aliens can be “admitted” even if they do not meet
the definition in § 1101(a)(13)(A). See, e.g., In re Alyazji,
25 I. & N. Dec. at 399 (holding that aliens who entered the
United States without permission but who later adjusted to
lawful permanent residents qualify as “admitted”).
Although we have said that § 1101(a)(13)(A) provides the
“primary, controlling definition” of “admitted,” we similarly
have “embrace[d] an alternative construction of the term”
2 Even USCIS referred to Ramirez as being “admitted.” Ironically,
in its letter denying Ramirez’s application to adjust his status, the agency
remarked that Ramirez must keep his TPS current by “comply[ing] with
all the conditions that apply to [his] nonimmigrant admission.”
14 RAMIREZ V. BROWN
when the statutory context so dictates. Negrete-Ramirez v.
Holder, 741 F.3d 1047, 1052 (9th Cir. 2014) (citation
omitted) (surveying situations where our court has held that
the definition of “admitted” in § 1101(a)(13)(A) is
inapplicable); see also Roberts v. Holder, 745 F.3d 928, 932
(8th Cir. 2014) (per curiam) (“The immigration statutes use
the words ‘admitted’ and ‘admission’ inconsistently.”).
Turning again to the plain language, the adjustment
statute uses “admission” in a way that is inconsistent with
the port-of-entry definition when it states that “the Attorney
General shall record the alien’s lawful admission for
permanent residence” on the date the adjustment application
is approved. See 8 U.S.C. § 1255(b). In the current context,
the port-of-entry definition yields, and an alien granted TPS
is considered “admitted.”
II. Structure of the Statutory Regime
Other familiar interpretive guides reinforce the plain
meaning understanding that TPS recipients are considered
“admitted” under § 1255. Section 1255 is titled “Adjustment
of status of nonimmigrant to that of person admitted for
permanent residence.” The heading is not without
significance, as it uses language that directly links the
adjustment statute to the TPS statute and § 1254a(f)(4)’s
phrasing of “lawful status as a nonimmigrant.” This
language and structure signal that Congress contemplated
that TPS recipients, via their treatment as lawful
nonimmigrants, would be able to make use of § 1255. See
Almendarez-Torres v. United States, 523 U.S. 224, 234
(1998) (explaining that “the title of a statute and the heading
of a section are tools available for the resolution of a doubt
about the meaning of a statute” (internal quotation marks and
citation omitted)).
RAMIREZ V. BROWN 15
A related provision also links § 1254a(f)(4)’s use of
“lawful status as a nonimmigrant” to the concept of being
“admitted.” Section 1254a(f)(4)’s mandate that TPS
recipients “shall be considered as being in, and maintaining,
lawful status as a nonimmigrant” expressly applies “for
purposes of . . . change of status under section 1258 of this
title.” Section 1258(a) in turn provides that, subject to a
number of exceptions, “[t]he Secretary of Homeland
Security may . . . authorize a change from any nonimmigrant
classification to any other nonimmigrant classification in the
case of any alien lawfully admitted to the United States as a
nonimmigrant who is continuing to maintain that status” and
is not inadmissible. Tracking the language in the two
provisions, § 1254a(f)(4) equates “being in . . . lawful status
as a nonimmigrant” with § 1258(a)’s “lawfully admitted . . .
as a nonimmigrant.” This statutory mirroring is significant
because § 1258 uses the word “admitted,” thus supporting
the interpretation that “being in . . . lawful status as a
nonimmigrant” qualifies Ramirez as being “admitted” for
purposes of both statutory provisions—§§ 1255 and 1258—
cited in § 1254a(f)(4).
The government would limit § 1254a(f)(4)’s effect to
one subsection in § 1255—specifically, § 1255(c)(2)—
because those two provisions both refer to being in “lawful
status” rather than being “admitted.” But we see multiple
problems with the government’s interpretation. For one,
§ 1254a(f)(4) does not point to one particular subsection of
§ 1255 but instead says that it applies “for purposes of
adjustment of status under section 1255.” We acknowledge
that this statement of broad application does not answer all
questions: it does not tell us which subsections § 1254a(f)(4)
applies to, and § 1254a(f)(4)’s language clearly has no effect
in some of § 1255’s subsections. But the general reference
to § 1255 cuts against the government’s effort to confine the
16 RAMIREZ V. BROWN
effect of § 1254a(f)(4) to one specific subsection in § 1255.
Such an interpretation appears particularly crabbed when
Congress easily could have written the statute to refer solely
to subsection (c)(2) but chose not to do so.
The government’s interpretation would also yield an
anomalous result because § 1254a(f)(4) would not benefit
immediate relatives of U.S. citizens seeking adjustment—
like Ramirez—for no discernible reason. By its terms,
§ 1255(c)(2) does not apply to a U.S. citizen’s immediate
relatives—i.e., children, spouses, and parents, 8 U.S.C.
§ 1151(b)(2)(A)(i). 3 Thus, if § 1254a(f)(4) were interpreted
to apply only to § 1255(c)(2), as the government says,
§ 1254a(f)(4) would be meaningless for adjustment seekers
who are immediate relatives of U.S. citizens. Such an
interpretation would rob the statute of much force: in the
government’s brief, the only groups that it pinpoints that
would benefit from § 1254a(f)(4)’s elimination of the (c)(2)
bar are applicants seeking adjustment based on employment-
based visas and applicants seeking adjustment based on
relatives other than spouses, children, and parents. 4
3 Not only does § 1255(c)(2) exclude immediate relatives from its
coverage, but it also does not apply to certain special immigrants defined
in § 1101(a)(27)(H), (I), (J), (K), or to various aliens classified as priority
workers, advanced-degree professionals, or skilled workers under
§ 1151(b) if they meet the conditions specified in § 1255(k)(1)–(2).
While we think the exclusion of immediate relatives is most striking, the
fact that other large swaths of potential beneficiaries already fall outside
the (c)(2) bar further bolsters our conclusion that the government does
not leave § 1254a(f)(4) to do much work.
4 At oral argument, the parties also acknowledged that aliens present
on a tourist or student visa could qualify. See Oral Argument at 33:30–
34:20, Ramirez v. Dougherty, No. 14-35633 (9th Cir. Dec. 6, 2016),
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=00000106
63.
RAMIREZ V. BROWN 17
Restricting § 1254a(f)(4) in this way seems especially
peculiar in the face of § 1254a(f)(4)’s indication that it
benefits all TPS grantees and the government’s failure to
offer any explanation or clear language indicating that
Congress meant for such a limited operation. These textual
and practical incongruities suffice to reject the government’s
construction, particularly because the language in
§§ 1254a(f)(4) and 1255(c)(2) does not line up exactly.
Nor are we persuaded by the government’s identification
of other provisions that it says provide more precise
exceptions for particular groups of aliens to § 1255(a)’s
“admitted” requirement. For example, § 1255(a) itself
removes the “inspected and admitted or paroled”
requirement for applicants covered by the Violence Against
Women Act (“VAWA”), stating that “the status of any other
alien having an approved petition for classification as a
VAWA self-petitioner may be adjusted by the Attorney
General.” Similarly, § 1255(g) explains that “[i]n applying
this section to a special immigrant described in section
1101(a)(27)(K) of this title, such an immigrant shall be
deemed, for purposes of subsection (a), to have been paroled
into the United States.” But these exceptions do not bear on
the remaining language in § 1255 or the TPS statute, and,
regardless, they were added to the code after the enactment
of § 1255(a)’s “admitted” requirement and the TPS statute.
See Violence Against Women and Department of Justice
Reauthorization Act—Technical Corrections, Pub. L. No.
109-271, 120 Stat. 750 (2006) (adding VAWA exception
language); Armed Forces Immigration Adjustment Act of
1991, Pub. L. No. 102-110, 105 Stat. 555 (adding
§ 1255(g)); Immigration Act of 1990, Pub. L. No. 101-649,
104 Stat. 4978 (enacting TPS statute). Even if those
exceptions are formulated more precisely, there is no
requirement that Congress draft an elegant statute. We can
18 RAMIREZ V. BROWN
certainly identify good reasons why Congress may have
written the statute the way it did; in addition to pure
administrative ease, Congress may have wanted to vary the
scope of the exceptions for different groups.
In general, the TPS statute places great—though not
unfettered—discretion into the hands of the Attorney
General to make specific determinations about an individual
alien’s fitness to enter the country. Indeed, while the
requirements related to certain criminals and former Nazis
may not be waived, see 8 U.S.C. § 1254a(c)(2)(A)(iii), the
Attorney General may waive other grounds of
inadmissibility “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)(ii).
The statute thus contemplates and confers the power to vet
each applicant thoroughly and make delicate judgments on a
particularized basis about whether the alien should be
“admitted” into the United States.
III. Allowing Adjustment of Status Is Consistent
with the Purpose of the TPS Statute
Finally, we note that interpreting § 1254a(f)(4) to confer
a limited “admission” on TPS recipients is consistent with
the purpose of TPS. See Kokoszka v. Belford, 417 U.S. 642,
650 (1974) (stating that statutory interpretation involves
looking at a provision in the context of the entire scheme,
including the “objects and policy of the law”). The 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. See, e.g., 8 U.S.C. § 1254a(b), (e), (f)(1), (h)(1).
Allowing TPS recipients to adjust their status comfortably
fits within that purpose.
RAMIREZ V. BROWN 19
Because TPS confers an actual status on and provides a
slew of benefits to an alien who satisfies rigorous eligibility
requirements, it is different than other forms of temporary
reprieve we ordinarily would not consider sufficient for
“admission.” This designation puts an alien granted TPS in
a different position than an alien granted employment
authorization or approval of a visa petition, forms of relief
that our court has ruled do not, by themselves, constitute an
“admission.” See Guevara v. Holder, 649 F.3d 1086, 1093–
94 (9th Cir. 2011); Vasquez de Alcantar v. Holder, 645 F.3d
1097, 1105–06 (9th Cir. 2011).
And the government’s interpretation is inconsistent with
the TPS statute’s purpose because its interpretation
completely ignores that TPS recipients are allowed to stay in
the United States pursuant to that status and instead subjects
them to a Rube Goldberg-like procedure under a different
statute in order to become “admitted.” According to the
government, an alien in Ramirez’s position who wishes to
adjust his status would first need to apply for and obtain a
waiver of his unlawful presence, which he could pursue from
within the United States. See Provisional Unlawful Presence
Waivers of Inadmissibility for Certain Immediate Relatives,
78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Assuming that
Ramirez demonstrates “extreme hardship” to his U.S. citizen
wife and the waiver is granted, see 8 U.S.C.
§ 1182(a)(9)(B)(v), he would then need to exit the United
States to seek an immigrant visa through processing at a U.S.
embassy or consulate in another country. Such processing
usually takes place in the alien’s home country—in this case,
the country that the Attorney General has deemed unsafe—
though it can occur in another country with approval from
the Department of State and the third country. See 22 C.F.R.
§ 42.61(a). If he obtains the visa, Ramirez could then return
to the United States to request admission as a lawful
20 RAMIREZ V. BROWN
permanent resident. To be sure, other nonimmigrants must
leave the country to adjust their status, see 8 U.S.C.
§ 1255(i), but the invocation of these procedures in other
circumstances does not undercut the clear language of the
TPS statute on the “admitted” issue, and the convoluted
nature of the government’s proposal underscores its
unnatural fit with the overall statutory structure.
In short, § 1254a(f)(4) provides that a TPS recipient is
considered “inspected and admitted” under § 1255(a).
Accordingly, under §§ 1254a(f)(4) and 1255, Ramirez, who
has been granted TPS, is eligible for adjustment of status
because he also meets the other requirements set forth in
§ 1255(a). USCIS’s decision to deny Ramirez’s application
on the ground that he was not “admitted” was legally flawed,
and the district court properly granted summary judgment to
Ramirez and remanded the case to USCIS for further
proceedings.
AFFIRMED.