The election results brought good news for immigrants and immigration advocates, but this news was preceded by good news on the legislative front as well: On October 27th, the 8th Circuit federal appellate court ruled in favor of Temporary Protected Status (TPS) applicants deeming them eligible for citizenship even if they did not enter the U.S. legally.

TPS Immigration

TPS is granted to immigrants from countries in which living a normal life is difficult or unsafe. Countries are considered eligible for TPS if there is an armed conflict or environmental disaster or if there is another temporary or extraordinary issue. (American Immigration Council).

The over 320,000 TPS holders come from several countries, including El Salvador, Haiti, Honduras, Syria, Yemen, South Sudan, etc., and on average, TPS recipients from El Salvador, Haiti, and Honduras have been living in the U.S. for 21 years, 22 years and 13 years respectively. (American Progress).

Consequences of the Decision

The 8th Circuit decision is a victory for TPS holders facing measures to terminate their status and remove them from the country. It provides them an opportunity to change their status to a lawful permanent resident (green card holder). The case started after the US Citizenship and Immigration Services USCIS denied four TPS holders permanent residency.

The reason given by USCIS was that the applicants did not go through an inspection when entering the country; therefore, they did not meet the condition of “inspected and admitted” required for green card applications.

According to the ruling, the two cases: Leymis Carolina Velasquez; Sandra Ortiz v. the government and Gilma Geanette Melgar; Aurelia Concepcion Martinez v. the government concerned the same issue, and in both cases “a TPS recipient is deemed ‘inspected and admitted’ and so may adjust her status.”

To explain that noncitizens with nonimmigrant status are necessarily inspected and admitted, the panel mentions several sections of the Immigration and Nationality Act, including, § 1225(a)(3), § 1184(b), etc. “TPS beneficiaries are ‘considered’ nonimmigrants for Section 1255 purposes;” therefore, “they are considered ‘inspected and admitted’ under Section 1255(a), regardless of how they entered the country,” they added.

6th and 9th Circuit Decisions

The 8th Circuit court’s decision is not the first of its kind. In fact, it is part of a series of decisions: In 2013, the 6th Court in Flores v. USCIS, 718 F.3d 548, and in 2017, the 9th Court in Ramirez v. Brown, 852 F.3d 954 came to the same conclusion.

According to the 9th Circuit, the granting of TPS means “an ‘admission’ for purposes of adjustment of status under section 245(a) of the Immigration and Nationality Act (INA).” (American Immigration Council)

It is noteworthy that those submitting the TPS application must be living in a state that comes under the jurisdiction of the Circuit court. Each court has appellate jurisdiction over civil and criminal cases brought forward in one of its subsidiary districts. (Appellate jurisdiction is the jurisdiction of a higher court to hear appeals from a lower court).

Jurisdiction of the 8th, 6th, and 9th Circuit Courts

The 8th Circuit has jurisdiction over the following federal judicial districts: Eastern District of Arkansas, Western District of Arkansas, Northern District of Iowa, Southern District of Iowa, District of Minnesota, Eastern District of Missouri, Western District of Missouri, District of Nebraska, District of North Dakota, and District of South Dakota. (Ballotpedia)

The 6th Circuit court has appellate jurisdiction over the following districts: Eastern District of Kentucky, Western District of Kentucky, Eastern District of Michigan, Western District of Michigan, Northern District of Ohio, Southern District of Ohio, Eastern District of Tennessee, Middle District of Tennessee, and Western District of Tennessee. (Ballotpedia)

The 9th Circuit court has jurisdiction over the following district courts: District of Alaska, District of Arizona, Central District of California, Eastern District of California, Northern District of California, Southern District of California, District of Hawaii, District of Idaho, District of Montana, District of Nevada, District of Oregon, Eastern District of Washington, and Western District of Washington.

The Ninth Circuit also has appellate jurisdiction over two territorial courts: the United States District Court for the District of Guam and the United States District Court for the Northern Mariana Islands. (Ballotpedia)

The jurisdiction-based application of TPS regulations is good news for applicants living in the districts mentioned above. At the same time, it presents a challenge for those that are not living there.

As a result, TPS applicants from other parts of the country have to contemplate moving to a new area so their case is handled differently. With the change of regime at the highest level, it is expected that TPS holders will not have to make this life-changing decision.

Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration.

He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and Information Week.

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