On June 4, 2013, the United States Court of Appeals for the Sixth Circuit ruled that an undocumented immigrant who has been granted Temporary Protected Status was eligible for adjustment of status (green-card) based on his marriage to a United States citizen.  Although this decision does not give an automatic right to apply for lawful permanent resident (LPR) status to immigrants who have been granted Temporary Protected Status after entering the U.S. without inspection, it creates favorable precedent for similar cases.

The U.S. Court of Appeals for the Sixth Circuit sided with the plaintiffs, Mr. and Mrs. Suazo, and reversed an earlier district court decision, remanding Mr. Suazo’s case to USCIS for further review.  Court of Appeals criticized the government for history of “consistent and incorrect agency interpretations”.  The court opinion stated: “If the statutes are interpreted as the Government argues they should be, the result would be absurd. The Government is essentially telling [Mr. Suazo] that he is protected and can stay here, but that he will never be allowed to become an LPR, even for an independent basis. Under the Government’s interpretation, Mr. Suazo would have to leave the United States, be readmitted, and then go through the immigration process all over again. This is simply a waste of energy, time, government resources, and will have negative effects on his family—United States citizens. We are disturbed by the Government’s incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition.”

In this case, known as Flores et al. v. USCIS et al. (No. 12-3549), Mr. Suazo, a national of Honduras, came to the United States in March 1998 after crossing the border illegally.  In September of 1999, he was granted TPS based on his Honduran citizenship. Under the TPS statute, the Attorney General may grant temporary protected status to a national of a foreign state in designated cases of ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions that prevent safe return. Honduras is one of the eight countries currently designates for Temporary Protected Status.

Mr. Suazo’s TPS status has been continuously renewed since 1999 due to his continued good moral character.  In 2010, Mr. Suazo married a United States citizen, with whom they currently have a minor United States citizen child.  Later in 2010, Mr. Suazo’s wife filed an immigration petition for him.  Concurrently, Mr. Suazo filed a green-card application.  However, even though Mr. Suazo’s wife’s petition was approved, his green-card application was denied after USCIS determined that he was ineligible for adjustment of status because he entered the country without inspection and thus was not “admitted” into the United States.

Normally, immediate relatives (spouses, parents, and unmarried children under 21) of United States citizens can apply for adjustment of status (green-card) based on their relationship to the U.S. citizen.  This rule allows spouses of U.S. Citizens obtain green-cards even if they overstayed their visas, as long as their initial entry into the United States was legal.  However, immigrants who entered the United States illegally are usually ineligible to adjust their status in the United States.  Such people have to apply for immigrant visas abroad, although their departure from the United States may trigger the 3- or 10- year bar for returning, if they had accrued at least 180 or 360 days, respectively, of unlawful presence in the United States.

Mr. Suazo and his wife argued that the regulations allowed Mr. Suazo to adjust his status, because the grant of TPS to him constituted an “admission” for immigration purposes.  8 U.S.C. § 1255 states: “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”.  The TPS statute (§ 1254a(f)(4)) states: “During 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.”  The court of appeals ruled that the plaintiffs’ position is more consistent with the language of the regulations than the government’s position.

The U.S. Court of Appeals for the Sixth Circuit reviews appeals from the federal district courts in Kentucky, Michigan, Ohio and Tennessee, and from the U.S. Tax Court and certain federal administrative agencies where the non-governmental parties are from the states that make up the Sixth Circuit.

Attorneys at I.S. Law Firm have helped many immigrants to legalize or adjust their status in the United States, as well as obtain U.S. citizenship. Please contact us for a consultation today: +1-703-527-1779 or via e-mail: [email protected].