PADILLA RODRIGUEZ

Cite as 28 I&N Dec. 164 (BIA 2020) Interim Decision #4001

Matter of Roberto Carlos PADILLA RODRIGUEZ, Respondent

Decided November 23, 2020

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Where the temporary protected status (“TPS”) of an alien who was previously present

in the United States without being admitted or paroled is terminated, the alien remains

inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act,

8 U.S.C. § 1182(a)(6)(A)(i) (2018), and removal proceedings should not be terminated.

(2) An alien whose TPS continues to be valid is considered to be “admitted” for purposes

of establishing eligibility for adjustment of status only within the jurisdictions of the

United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits.

FOR RESPONDENT: Pro se

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kevin Primo Laroza,

Assistant Chief Counsel

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;

HUNSUCKER, Appellate Immigration Judge; GEMOETS, Temporary Appellate

Immigration Judge

HUNSUCKER, Appellate Immigration Judge:

In a decision dated March 8, 2018, an Immigration Judge determined

that the respondent is not removable under section 212(a)(6)(A)(i) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), as

an alien present in the United States without being admitted or paroled,

and she terminated the proceedings. The Department of Homeland Security

(“DHS”) has appealed from that decision. The appeal will be sustained, the

proceedings will be reinstated, and the record will be remanded.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of El Salvador who entered the

United States in 1999 and was granted temporary protected status (“TPS”)

on November 25, 2003. The United States Citizenship and Immigration

Services (“USCIS”) terminated his TPS on November 5, 2012.

In proceedings before the Immigration Judge, the respondent admitted

that he entered the United States without being admitted or paroled, and

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he conceded removability under section 212(a)(6)(A)(i) of the Act. The

Immigration Judge determined that the respondent is not subject to removal

on that charge. Relying on the decision of the United States Court of Appeals

for the Ninth Circuit in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017),

she concluded that the USCIS’s grant of TPS constituted an “admission,”

and she declined to sustain the charge of removability. On appeal, the DHS

argues that the Immigration Judge erred in terminating the respondent’s

removal proceedings because TPS does not constitute an admission.

II. ANALYSIS

Under section 244(a)(1)(A) of the Act, 8 U.S.C. § 1254a(a)(1)(A) (2018),

the Attorney General may grant an alien “temporary protected status in the

United States and shall not remove the alien from the United States during

the period in which such status is in effect.” In Matter of Sosa Ventura,

25 I&N Dec. 391, 393 (BIA 2010), we concluded that an alien is “protected

from execution of a removal order during the time [his or] her TPS” is valid

but remains removable if determined to be inadmissible under section

212(a)(6)(A)(i) of the Act.

The respondent’s time in TPS does not change his manner of entry or his

status as an alien who is present in the United States without admission. As

we emphasized in Matter of Sosa Ventura, “Congress stated that TPS ‘does

not create an admissions program. It is designed to protect individuals

already in the United States and gives no alien any right to come te [sic] the

United States.’” Id. at 394 (quoting H.R. Rep. No. 101-245, at 13 (1989)).

We also clarified that “a grant of TPS does not affect an alien’s admissibility

or inadmissibility for purposes of the Immigration and Nationality Act

generally.” Id. at 392; see also Nolasco v. Crockett, 978 F.3d 955 (5th Cir.

2020) (stating that “TPS does not create a ‘fictional legal entry’” (citation

omitted)).

TPS only provides a limited waiver of inadmissibility, “the purpose of

which is to permit certain aliens . . . to remain in the United States with work

authorization, but only for the period of time that TPS is effective.” Matter

of Sosa Ventura, 25 I&N Dec. at 393. When the respondent’s TPS was

terminated, he was no longer protected from execution of a removal order

based on his inadmissibility as an alien who was not admitted to the United

States. See id. at 394–95 (holding that TPS only allows aliens “to remain in

a lawful manner and not be forced to depart the United States during the

period that TPS is effective. Congress clearly did not intend for TPS to create

a permanent immigration status in the United States.”); see also, e.g.,

Melendez v. McAleenan, 928 F.3d 425, 429 (5th Cir. 2019) (holding that the

“finite period in which the benefits of TPS will operate makes unreasonable

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any argument that such status eliminates the effect of any prior disqualifying

acts,” such as being in unlawful status, because “TPS does not absolve an

alien of all prior unlawful conduct”), cert. denied, 140 S. Ct. 561 (2019).

Upon our de novo review, we conclude that the respondent remains

inadmissible under section 212(a)(6)(A)(i) of the Act, despite his prior grant

of TPS. See United States v. Orellana, 405 F.3d 360, 365 (5th Cir. 2005)

(stating that an alien registered for TPS “maintains any pre-existing

immigration status he previously obtained,” but when that status is

withdrawn, he “reverts to any immigration status that he maintained or was

granted while registered for TPS”); Termination of the Designation of

El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654, 2655 (Jan.

18, 2018) (Supplementary Information) (explaining that when a country’s

TPS designation is terminated, “beneficiaries return to . . . [t]he same

immigration status or category that they maintained before TPS”); see also

8 C.F.R. § 1003.1(d)(3)(ii) (2020). We therefore hold that the Immigration

Judge erred in terminating the respondent’s removal proceedings.

The Immigration Judge relied on Ramirez in finding that the respondent’s

previous grant of TPS constituted an “admission” and that he is therefore not

inadmissible. That reliance was misplaced. Ramirez decided that an alien

who entered the United States without inspection and later received TPS

was “inspected and admitted” within the meaning of section 245(a) of the

Act, 8 U.S.C. § 1255(a) (2012), for purposes of establishing eligibility for

adjustment of status. Ramirez, 852 F.3d at 964. However, the Ninth Circuit

did not reject our decision in Matter of Sosa Ventura, noting that we did not

“address the statutory interpretation question at issue” in Ramirez. Id. at 959.

The Ramirez court relied heavily on its reading of the plain language of

section 244(f)(4) of the Act. 1 Concluding that “the statutory language is

clear,” the Ninth Circuit found that the statute “unambiguously treats aliens

with TPS as being ‘admitted’ for purposes of adjusting status.” 2 Id. at 958

1

Section 244(f) of the Act provides, in relevant part:

During a period in which an alien is granted temporary protected status under this

section—

...

(4) for purposes of adjustment of status under section 245 and change of status

under section 248, the alien shall be considered as being in, and maintaining,

lawful status as a nonimmigrant.

2

In Ramirez, the Ninth Circuit recognized that its interpretation “does not align with

the statutory definition of ‘admitted’” under section 101(a)(13)(A) of the Act, 8 U.S.C.

§ 1101(a)(13)(A) (2018), but it applied “an alternative construction of the term” based on

its interpretation of section 244(f)(4) of the Act, and it identified an exception for the

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(emphasis added); see also Flores v. USCIS, 718 F.3d 548, 553–54 (6th Cir.

2013). We do not agree that the language of section 244(f)(4) is plain and

unambiguous with regard to the particular issue in dispute here.

In our view, the alternative analysis of the Administrative Appeals Office

(“AAO”) of the USCIS in Matter of H-G-G-, 27 I&N Dec. 617, 627–28

(AAO 2019), where it assumed the statutory language to be ambiguous,

provides the proper interpretation of section 244(f) of the Act. Considering

the legislative history of the provision and its meaning within the broader

context of section 244 and the Act as a whole, the AAO explained that the

best reading of the statute is that Congress intended to protect aliens who

maintained a lawful immigration status prior to acquiring TPS from

becoming ineligible for adjustment of status if their lawful status expired

while they remained in the United States in TPS. See Robinson v. Shell Oil

Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of statutory

language is determined by reference to the language itself, the specific

context in which that language is used, and the broader context of the statute

as a whole.”); hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 1000 (9th Cir.

2019) (stating that legislative history may be considered if a statute is

ambiguous). Consequently, the AAO disagreed with Ramirez and held that

a grant of TPS does not constitute an admission, and it does not cure, or

otherwise impact, an alien’s prior unlawful status. 3 Matter of H-G-G-,

27 I&N Dec. at 634 (stating that “it does not follow that having a lawful

status results in one’s inspection and admission”).

Several circuit courts have also disagreed with the Ninth Circuit’s

interpretation of the term “admission.” Thus, the circuits are split on whether

exclusive purpose of allowing a class of individuals who maintain valid TPS to establish

eligibility for adjustment of status. Sanchez v. Sec’y U.S. Dep’t of Homeland Sec., 967

F.3d 242, 249–50 (3d Cir. 2020) (citation omitted) (disagreeing with the Ninth Circuit’s

approach in Ramirez).

The Ninth Circuit has declined to apply its definition of the term “admission” in Ramirez

outside the TPS context, explaining that this definition was based on “the distinct issue of

the relationship” between adjustment of status in section 245 of the Act and the TPS statute

at section 244(f). Enriquez v. Barr, 969 F.3d 1057, 1061 (9th Cir. 2020) (per curiam). The

court also noted that it “‘embrace[d] an alternative construction of the term’ when the

statutory context so dictate[d].” Id. at 1059 (first alteration in original) (citations omitted).

3

We note that, subsequent to the Immigration Judge’s decision in this case, the AAO

issued Matter of H-G-G-, which was appealed to the United States District Court for the

District of Minnesota. Hernandez de Gutierrez v. Barr, CV 19-2495 (JRT-KMM), 2020

WL 5764281, at *4 (D. Minn. Sept. 28, 2020). Disagreeing with Matter of H-G-G-, the

court relied on the Ninth Circuit’s reasoning in Ramirez. District court decisions are

generally not binding on the Board. See Matter of K-S-, 20 I&N Dec. 715, 718 (BIA 1993);

see also Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (noting that the decisions of a

district court judge are not binding precedent). In any case, we find the AAO’s analysis in

Matter of H-G-G- to be more persuasive than that of the district court.

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a grant of TPS constitutes an admission for purposes of adjustment of status.

Compare Velasquez v. Barr, Nos. 19-1148, 19-2130, 2020 WL 6290677, at

*3 (8th Cir. Oct. 27, 2020), Ramirez, 852 F.3d at 964, and Flores, 718 F.3d

at 551–53, with Sanchez v. Sec’y U.S. Dep’t of Homeland Sec., 967 F.3d 242,

252 (3d Cir. 2020), Melendez, 928 F.3d at 427–29, and Serrano v. U.S. Att’y

Gen., 655 F.3d 1260, 1265 (11th Cir. 2011) (per curiam).

The holdings in Flores and Velasquez, like the Ninth Circuit’s holding in

Ramirez, rely on section 244(f)(4) of the Act to determine that the aliens in

those cases were eligible for adjustment of status. These courts clearly held

that their interpretations were based on the plain language of the statute, so

their decisions remain binding precedent in their respective jurisdictions. See

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44

(1984) (explaining that if the meaning of a statute is plain, both the agency

and the courts must give effect to that clear expression of congressional

intent). Accordingly, an alien whose TPS continues to be valid is considered

to be “admitted” for purposes of establishing eligibility for adjustment of

status within the jurisdictions of the Sixth, Eighth, and Ninth Circuits.

However, we agree with the circuits holding that a grant of TPS is not an

admission, and we conclude that their reasoning should be applied in any

circuit that has not addressed that issue.

Eligibility for discretionary relief is clearly separate and distinct from the

issue of removability. Moreover, the aliens involved in Ramirez and the

cases that follow its rationale had maintained valid TPS. Section 244(f) of

the Act expressly provides that it only applies “[d]uring a period in which an

alien is granted temporary protected status.” Thus, even under the Ninth

Circuit’s approach, an alien is admitted and eligible to adjust status only if

his or her TPS is valid at the time of adjustment.

Unlike the alien in Ramirez, the respondent is in removal proceedings and

no longer has TPS. Furthermore, he is not applying for adjustment of status.

Therefore, we conclude that the limited holding of Ramirez is inapplicable

here, and we decline to extend it in this case. Accordingly, we will sustain

the DHS’s appeal, vacate the Immigration Judge’s decision, and reinstate

the respondent’s removal proceedings. The record will be remanded to the

Immigration Judge for further proceedings. We express no opinion regarding

the ultimate outcome of these proceedings.

ORDER: The appeal of the Department of Homeland Security is

sustained, the decision of the Immigration Judge is vacated, and the removal

proceedings are reinstated.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

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