On June 13, 2013, the Roby Law Associates Immigration and Nationality Law News Bulletin featured a Post evaluating the legal ramifications of Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), a watershed judicial decision holding that Temporary Protected Status (“TPS”) grantees are eligible for adjustment of status notwithstanding an initial entry without inspection (“EWI”). In so holding, the Flores Court abrogated more than a decade’s worth of what it termed “incorrect agency interpretations”, id. at 553, and created a circuit split on the issue. 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, 718 F.3d 548 (holding that § 244(f)(4) does create an exception to § 245’s baseline “inspection and admission” requirements). That circuit split has continued to evolve, with important litigation taking place in the Federal District Courts, including notable decisions in Ramirez v. Dougherty, C13-1236Z (W.D. Wash. May 30, 2014) and Medina v. Beers, No. 14-1010 (E.D. Pa. November 5, 2014), as discussed in detail below.
In Medina v. Beers, District Judge Ronald L. Buckwalter adopted the “thorough analysis” articulated by the Sixth Circuit in Flores. The Medina decision includes lengthy analyses responding to a veritable multitude of arguments raised by the Department of Homeland Security (“DHS”) in defense of its longstanding, draconian policy proscribing adjustment of status for TPS grantees that entered without inspection. Interestingly, the decision illustrates the sheer vigor with which U.S. Citizenship and Immigration Services (“USCIS”) opposes a national application of the rule from Flores. Indeed, in Medina, USCIS appeared determined to thwart a broader application of the Flores ruling, lodging every conceivable argument opposing adjustment for TPS beneficiaries who entered without inspection. Yet, the actual policy reasons underlying USCIS’s fierce objection to such EWI/TPS adjustment cases are not entirely clear. Indeed, as the Medina Court adeptly noted, public policy considerations actually militate strongly against USCIS’s current ardent and litigious opposition to the Flores rule:
“To interpret the statutes in the manner suggested by Defendants, the Court would have to find that, despite allowing TPS beneficiaries to remain and work in this country in excess of fifteen years, Congress intended that such beneficiaries could never become lawful permanent residents without physically leaving this country, abandoning families that they have created during their extended stay, quitting their employment that they have been allowed to maintain, and returning to a country that the Attorney General has expressly deemed unsafe, simply in order to undergo the immigration process all over again. In addition, these individuals would have to surrender any entitlement to TPS because, by leaving the country, they would fail to maintain “continuous physical presence” as required by the TPS extension. This is particularly true in the case of Plaintiff, as he has been in this country for over twenty years, has a wife and three children who are all United States citizens, and has been lawfully and gainfully employed as a truck driver. To force him to return to a country that the United States Attorney General has deemed dangerous simply to have Plaintiff physically re-enter the United States is a result that appears to serve no practical purpose.” Medina, Slip Op. at 27-28 (internal citations omitted).
Beyond the numerous public policy and prudential considerations supporting a liberal, nationwide application of the Flores rule, USCIS’s staunch opposition in these cases is peculiar because it runs afoul of elementary principles of statutory construction. First and foremost, USCIS’s arguments are in tension with the plain language of Immigration and Nationality Act (“INA”) §§ 244 and 245. Of course, it is axiomatic that, when congressional intent is made manifest by the plain language of the statute at issue, the inquiry ends and contrary agency constructions must be rejected as ultra vires, without resorting to so-called “Chevron deference.” See Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (restricting judicial review where a federal agency, with expertise in the subject matter, advocates even a permissible interpretation of a vague statute).
Perhaps even more persuasively, the textual arguments advanced by DHS become increasingly tenuous when viewed in the context of the “canon against superfluity,” yet another conventional category of statutory interpretation. Indeed, it is a “cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted). In Medina, however, DHS urged the District Court to adopt a reading of § 244(f)(4) that would effectively render the subsection a legal nullity.
Specifically, DHS asserted that, in the case of an EWI alien, subsection (4)’s mandate that a TPS grantee be treated as having maintained “lawful status as a nonimmigrant” does not satisfy INA § 245’s threshold requirement that an adjustment applicant be “inspected and admitted or paroled into the United States.” Therefore, USCIS contented, subsection (4) does not enable an otherwise qualified EWI applicant with TPS to adjust status to lawful permanent resident. Of course, if DHS’s contention is accepted, it is difficult to conceive of any rational basis underlying the enactment of subsection (4) at all. The Medina Court recognized as much, concluding that DHS’s assertions would lead to absurd and arbitrary results, rendering subsection (4) largely insignificant, if not wholly superfluous: “In sum, pursuant to Defendants’ interpretation, § [244(f)(4)] would essentially be a meaningless provision, thereby violating a fundamental rule of statutory construction.” Medina, Slip Op. at 21 (citing In re Fesq, 153 F.3d 113, 115 (3d Cir. 1997) (“As a general rule of statutory construction we strive to avoid a result that would render statutory language superfluous, meaningless, or irrelevant”)).
Finally, USCIS’s opposition to the Flores ruling is also plainly incongruous with the Obama Administration’s current attitude toward immigration reform. Indeed, on November 20, the President and his cabinet-level officials announced a series of broad immigration reform measures emphasizing the fundamental importance of family unity. Curiously, however, as evidenced in Medina, these same notions of family unity have not served to ameliorate the government’s harsh posture in adjustment cases where the applicant is a TPS beneficiary who initially entered without inspection.