In a decision Tuesday issued by the 6th Circuit, the Court determined that illegal immigrants with Temporary Permanent Status (TPS) can apply for permanent resident status under federal law.
The Flores, et al. v. USCIS, et al. decision takes a defiant stab at the “archaic and convoluted state of our current immigration system” by offering a plain reading of federal immigration statutes that seems perfectly reasonable despite USCIS policy.
What is Temporary Protected Status (TPS)?
"Office Space" devotees may associate this with the dreaded TPS reports, but the term refers to a special status allowing non-resident aliens to reside temporarily in the U.S. that can be granted at the discretion of the Attorney General under 8 USC 1254a(b)(1).
In general the Attorney General of the United States has authority to grant protected status to nationals from countries where there are:
- Natural disasters. Earthquakes, floods, epidemics, etc.
- Ongoing armed conflicts. Any situation that would put returning nationals at risk of harm.
- Extraordinary conditions. The Attorney General has discretion to decide that conditions in a nation are not hospitable to allow nationals to return.
This authority has its limits (no granting status to felons or former Nazis), but it was successfully granted to Saady Suazo, a Honduran immigrant who was granted TPS in 1999 after immigrating illegally in 1998.
Suazo Denied Permanent Residence
Suazo continued enjoying TPS designation (countries like Honduras and Nicaragua have been granted TPS designations since 1999), and after marrying his American citizen wife in 2010, he applied for a change in his immigration status under 8 USC 1255.
The United States Citizenship and Immigration Services (USCIS) denied his application stating that Section 1255 cannot allow an illegal alien who was not "inspected and admitted" into the country to change to permanent resident status.
Suazo sued in federal district court over the interpretation of Sections 1254 and 1255 under the Administrative Procedures Act, and the court granted a 12b6 dismissal to the USCIS, which was then appealed to the 6th Circuit.
The Flores court stated the 6th Circuit is entitled to interpret the immigration statute from its plain meaning when the intent of Congress is clear, despite what the USCIS might think.
Section 1254a(f)(4) states with respect to TPS holders that "for purposes of adjustment of status under section 1255 ... the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant."
The Court stated that this provision can be understood by its plain language as an exception to the bar to illegal immigrants obtaining permanent resident status under Section 1255.
Thus, it appears under the Flores ruling that current legal TPS holders may apply for legal residence even if they entered illegally.
- AG Has Discretion in Green Card Marriage Joint Petition Waivers (FindLaw's U.S. Sixth Circuit Blog)
- US Grants Temporary Protected Status to Illegal Haitians (FindLaw's Law and Daily Life)
- Homeland Security Designates Syria for Temporary Protected Status (FindLaw Knowledge Base)
- TPS Eligibility Requirements (United States Citizenship and Immigration Services)