Noncitizens Who Attain Temporary Protected Status Are Legally Admitted, Eighth Circuit Says

By Laura Temme, Esq. on October 28, 2020

Foreign nationals who arrive in the United States illegally but later attain temporary protected status are considered legally admitted for the purposes of getting a green card, according to the Eighth Circuit Court of Appeals.

The decision handed down this week could be good news for TPS beneficiaries who feared deportation when President Donald Trump announced he planned to remove certain countries from the program.

Two Words: "Inspected" and "Admitted"

The case concerned two portions of the Immigration and Nationality Act (INA). One outlined the requirements for Temporary Protected Status (TPS), and the other covered the adjustment of status to Lawful Permanent Resident (LPR).

TPS is provided to foreign nationals from specific countries experiencing problems that make it unsafe for them to return, usually environmental disasters or ongoing armed conflict. As the name implies, it temporarily protects these individuals from removal and authorizes them to work in the United States. The list currently includes El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. Over the last few years, President Trump sought to end protections for individuals from Sudan, Nicaragua, and Haiti. Various lawsuits stalled those efforts, but recent decisions have reignited uncertainty.

Lawful permanent residents are noncitizens granted a permanent residency card - often called a "green card." LPRs can live and work in the U.S. permanently. The statute requires LPR applicants to be "inspected and admitted" into the U.S. before adjusting their status. It also bars individuals "in unlawful immigration status" and those who fail to continuously maintain lawful status since their entry to the United States from applying for lawful permanent residency.

Panel Finds Immigration Statute "Unambiguous"

Trump officials argued that because the INA's provision about temporary protected status does not include the same "inspected and admitted" language, TPS individuals must be separately inspected and admitted to adjust their status.

The Eighth Circuit disagreed, pointing out language in the INA that plainly states "for the purposes of adjustment of status," TPS beneficiaries are considered as "being in, and maintaining, lawful status as a nonimmigrant." An individual cannot gain nonimmigrant status, the panel concluded, without first being inspected and admitted. Therefore, every person with lawful nonimmigrant status is "admitted" into the U.S., and all nonimmigrants are "inspected" before admission.

Other courts are split on the issue. The Third and Eleventh Circuits have held that a noncitizen who receives temporary protected status is not deemed "inspected and admitted." But the Sixth and Ninth Circuits came to the same conclusion the court did here. At least one similar case has been submitted to the Supreme Court on a petition for cert.

Related Resources:

Beyond the Headlines of the Supreme Court's DACA Decision (FindLaw's Supreme Court)

Who May Obtain a Green Card? (FindLaw's Learn About the Law)

Immigration Resources (FindLaw's Learn About the Law)

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