Are Those with TPS Being Denied Lawful Status Adjustments?

On Thursday, the American Immigration Council, the Northwest Immigrant Rights Project, and a number of immigrants in America under Temporary Protected Status (TPS) took steps to try to halt the Trump Administration’s efforts to end those protections. They filed a class action lawsuit, Moreno v. Nielson, against U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS), contending that the departments have wrongfully prevented certain immigrants living in the U.S. under TPS from becoming lawful permanent residents by denying that they have been “inspected and admitted”—a requirement for status adjustment. 

At issue is whether Congress in effect inspected and admitted the immigrants when it granted them TPS status. USCIS contends that it didn’t, while the plaintiffs and two federal courts say that it did:

“Two federal courts—the Sixth and the Ninth Circuits—have ordered USCIS to correctly apply the law. TPS holders living within the dozen states under the jurisdiction of these two courts are able to gain permanent status. TPS holders living anywhere else in the country are victims of USCIS’s unlawful policy and suffer great hardships. It is especially egregious that Secretary Nielson has ordered the termination of TPS status for hundreds of thousands of longtime lawful residents, while at the same time refusing to follow the law in allowing them to apply for permanent residence,” said Matt Adams, legal director of NWIRP.

USCIS’ decision not to recognize the immigrants’ as inspected and admitted has real consequences since the Trump Administration has taken steps to end TPS status for immigrants from Haiti and El Salvador, and is expected to do the same for those from Honduras this year. Many who are eligible for status adjustments that would make it possible for them to legally remain in the U.S. face the threat of deportation under the current policy.

“Many individuals about to lose their TPS would be able to become lawful permanent residents in the United States were it not for DHS’s ongoing misinterpretation of the law. If this lawsuit is successful, it would provide a way for some of those individuals to continue their lives in the United States,” says Mary Kenney, senior staff attorney for the American Immigration Council. 

The Fifth Circuit has jurisdiction over those living Louisiana, Mississippi, and Texas, and it has not yet ruled on this issue but may later this year. The new case filed in New York seeks a decision that would include people residing in the Fifth Circuit. If that is not successful, the ruling from the Fifth Circuit may also address this issue. Ultimately, the Supreme Court may have to determine whether to review the conflicting decisions from Circuits before the matter can be put to rest, and that process takes time—more time than many with TPS have left.