Temporary Protected Status Adjustment: How Much Should Courts Trust Immigration Agencies?
When resolving ambiguities in federal immigration law, courts should treat DHS and USCIS interpretations with skepticism.
BY: Jonas Hallstein, Staff member
This past July, in Sanchez v. Secretary United States Department of Homeland Security, the Third Circuit held that Salvadoran immigrants who hold Temporary Protected Status (TPS) are statutorily ineligible to convert that status to Lawful Permanent Residency (LPR). Temporary Protected Status grants immigrants from specific countries permission to remain in the United States so long as circumstances in their countries of origin — such as civil war or natural disaster — make it impracticable for them to return. Lawful Permanent Residents, commonly known as green-card holders, are non-citizens permanently authorized to reside in the United States. While many TPS holders meet most of the requirements to convert their status to LPR, 8 U.S.C. § 1255(m)(1) presents a potential obstacle. The statute states that “[t]he Secretary of Homeland Security may adjust the status of an alien admitted into the United States.” Because TPS holders are often in the United States unlawfully when they petition for TPS status, they were arguably never “admitted” within the meaning of the statute.
The Sixth and Ninth Circuits held in Flores v. USCIS and Ramirez v. Brown, respectively, that TPS holders meet the statutory admission requirement for adjustment to Lawful Permanent Residency. By contrast, the Third Circuit in Sanchez held that such status conversion is categorically impermissible.
The courts’ reasoning in the three cases differs in two important respects: statutory construction and possible deference to administrative agencies. In Ramirez, the Ninth Circuit concluded that there was no controlling agency determination on the matter and that the immigrants before the court met the statutory requirement for “admission.” In Flores, the Sixth Circuit instead posited that 8 U.S.C. § 1254a(c)(2)(A)(ii) affords the Attorney General the discretion to waive inadmissibility under the TPS statute. Both courts found that TPS holders are eligible for conversion under certain circumstances.
By contrast, the Third Circuit in Sanchez held that the statute does not permit conversion of TPS status to LPR. The court focused on the LPR statute’s lack of an admission exception for TPS holders, reasoning that the explicit exceptions for other specific categories of immigrants acts to categorically exclude TPS holders.
These vastly different interpretations of the statute suggest that the statute is, in fact, ambiguous as to this issue. And when a statute is ambiguous, courts generally defer to the reasonable statutory interpretation of the agency that administers the statute. The degree of deference afforded to the agency depends on the circumstances of the case. For example, if Congress intended for the agency’s decisions to carry the force of law, the agency’s interpretation will receive a high level of deference under Chevron. If not, the agency may receive a lower form of deference, such as Skidmore deference, where the court considers the agency’s interpretation merely as a factor in its analysis.
Since the statute is ambiguous, courts must determine what level of deference should be afforded to the interpretation of the administering federal agency — here, the U.S. Citizenship and Immigration Services (USCIS). Policy and legal considerations should inform the answer to this question.
Courts should avoid granting broad deference to USCIS here, as the agency cannot presently be trusted to act in good faith. The Trump Administration recently moved to end TPS status for hundreds of thousands of immigrants. Since taking office, the administration has outright ended TPS designations for six countries. Presently, over 300,000 immigrants risk losing TPS designation because of the administration’s rollbacks, comprising an extraordinarily high percentage of TPS holders currently in the United States (just over 400,000).
Many of these revocations came during a global pandemic, exacerbating global humanitarian crises and amplifying many of the very problems that justified TPS grants in the first place. Many of the countries from which TPS holders hail already struggle with other geopolitical and environmental effects. The COVID-19 pandemic only compounds those problems, dramatically worsening conditions in the countries whose residents generally benefit from TPS.
TPS is meant as a tool to protect vulnerable immigrants in times of crises. By rolling back TPS during a pandemic, USCIS is doing little to further the Congressional scheme that purports, in part, to help vulnerable immigrants. The Executive Branch possesses significant power in the area of immigration, but its restrictive interpretation of the statute is the latest of many efforts to undermine the very immigration system it is charged to administer. Its recent record also includes mass family separation at the border and forced mass hysterectomies performed on detained migrants.
Accordingly, current USCIS conduct counsels against granting a higher level of deference to the agency. Because the TPS statute already has an admissibility waiver for means of TPS status, the question becomes whether that waiver is permissible for means of LPR conversion. Ideally, the agency could show, on a case-by-case basis, why an immigrant qualifies for waiver under the TPS statute but fails to do so under the LPR statute. This would allow the agency to differentiate between the requirements and point to the information that it has about the specific immigrant. In doing so, courts and agencies could differentiate between TPS holders who substantively fail to meet some other admission requirement and those who can otherwise convert their status.
The Trump Administration is using USCIS and the Department of Homeland Security (DHS) as tools to restrict immigration while participating in conduct that actively harms migrants. Based on this conduct, courts should treat these agencies with skepticism and require that USCIS make conversion determinations on a case-by-case basis. Such determinations should receive Skidmore deference at most. Consequently, immigrants who otherwise qualify for status conversion will have a pathway to LPR status, while immigration agencies will retain the discretion to deny conversion based on other criteria.
Jonas Hallstein is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Michigan State University in 2019.