Landmark ruling for those with TPS status who seek to Adjust Status without leaving the US

On June 4, 2013, the Sixth Circuit Federal Court of Appeals issued a landmark ruling in Fonshea Flores v. USCIS (No. 12-3549). 

 

At issue in the case was a long-standing argument over whether a person with Temporary Protected Status (“TPS”) could start and finish a family based green card case in the US.   Many of these cases now have generated a “yes” answer, but only where the TPS beneficiary first travels outside the US on a travel permit known as “Advance Parole” and then returns to the US on that document.    Here the twist in the case was that the beneficiary had not traveled outside the US on advance parole, and simply filed for Adjustment of Status, based on an approved Immigrant Visa Petition filed by his US citizen wife.  

 

The government argued that the Court should dismiss the suit, based on a long line of USCIS interpretive memos.  As authority for its position, DHS cited  a case that gives the nod to the agency interpretation where the statute is vague or subject to differing readings.    The plaintiffs argued that the statute was not vague or subject to multiple readings, and that it clearly gave the Honduran applicant the right to adjust status, based on the plain  language of the statute that creates TPS status.  The Court rejected DHS’ argument that its interpretation should prevail.

 

The Court sided with plaintiffs, and held that, since the plain language of the statute gave the applicant proper status for purposes of seeking Adjustment of Status, there was no reason to give any deference to what was clearly a line of incorrect agency interpretations.  

 

If DHS appeals or asks for a rehearing by the Circuit Court of Appeals, the ruling can be stayed.  However, other courts outside the Sixth Circuit (such as the Fourth Circuit, which includes Virginia, West Virginia, North and South Carolina) can follow the decision, and arguably USCIS offices outside the Sixth Circuit can do so, too.  If this ruling ultimately stands, it will change the lives of literally thousands of people with TPS status who are married to US citizens and who otherwise are admissible to the US.  Many of them fear leaving the US, or cannot wait long enough to for USICS to process an Advance Parole application.  Under Fonshea Flores, they no longer will have to wait, and instead can file for adjustment of status once their US  citizen spouses are ready to sponsor them for the green card.

 

Regards,

 

Gerry Chapman