Flores v. USCIS, No. 12-3549 (6th Cir. June 4, 2013): CA6 Creates Circuit Split RE TPS Grantees’ Eligibility for Adjustment of Status Under INA § 245.
In a watershed decision concerning the interplay between INA §§ 244 and 245, 8 U.S.C. §§ 1254a and 1255, the Sixth Circuit abrogated – at least in the States of Michigan, Ohio, Kentucky, and Tennessee – over a decade of what it referred to as “incorrect agency interpretations,” holding that a grantee of Temporary Protected Status (“TPS”) who entered the United States without inspection is not ipso facto ineligible to adjust status to that of a person lawfully admitted for permanent residence. Flores v. USCIS, No. 12-3549, slip op. at 7 (6th Cir. June 4, 2013). In so holding, the Flores court created a de facto circuit split on the issue, despite its best efforts to distinguish conflicting authority. Compare Serrano v. U.S. Attorney Gen., 655 F.3d 1260 (11th Cir. 2011) (holding that § 244(f)(4) does not create an exception to § 245’s baseline “inspection and admission” requirements) with Flores, No. 12-3549, slip op. at 10 (holding that § 244(f)(4) does create an exception to § 245’s baseline “inspection and admission” requirements). The Flores decision represents a refreshing departure from what may be fairly characterized as the federal judiciary’s ordinary deferential and pro-agency immigration and nationality jurisprudence.
INA § 245 authorizes the Attorney General to adjust the
status of an alien who was inspected and admitted or paroled into the United States . . . if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. § 245(a) (emphasis supplied).
INA § 244, on the other hand, states in pertinent part that, “[d]uring a period in which an alien is granted temporary protected status[,] . . . for purposes of adjustment of status under section  . . . , the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” § 244(b)(4).
In this context, the Flores court held that the plain language of § 244(b)(4) creates an exception to the generally applicable § 245 criteria – viz., inspection, admission, and clear admissibility – and accords EWI TPS beneficiaries status as a lawful nonimmigrants eligible to pursue AOS in the United States. The plain language holding is significant under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), in that the court was not bound to accord deference to the longstanding agency interpretations offered by the Appellees. The court further concluded that its plain language analysis was bolstered by the INA’s broader statutory scheme, as well as the manifest intent of Congress. Flores, No. 12-3549, slip op. at 8-9.
Interestingly, the decision is consistent with modern notions of immigration reform and fundamental decency, with the court declaring early on that the case illustrated “the archaic and convoluted state of our current immigration system.” Flores, No. 12-3549, slip op. at 2. Further, the court expressed its recognition that the use of the term “alien” to refer to human beings is “offensive and demeaning[,]” urging Congress to eliminate it from the United States Code altogether. Id. at 5 n.1. Perhaps most extraordinary, however, is the court’s sharp rebuke of what it characterized as a “general policy of opposition for the sake of opposition” on the part of the government:
Under the Government’s interpretation, Mr. Suazo would have to leave the United States, be readmitted, and then go through the immigration process all over again. This is simply a waste of energy, time, government resources, and will have negative effects on his family – United States citizens. We are disturbed by the Government’s incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition. Id. at 11.
It is not yet known whether the government will seek en banc reconsideration of the decision, or otherwise appeal the case to the United States Supreme Court.