TPS applicants who are applying for adjustment of status with outstanding removal orders should be aware that the New Jersey District Office has reversed its policy with respect to these cases. Of course, every case is fact and circumstance specific, but in general, it now appears that individuals who initially entered without inspection, have been ordered removed, subsequently left and re-entered the US with advance parole are being deemed ineligible to adjust status before USCIS. The issue hinges on whether USCIS or the Immigration Court has jurisdiction to adjudicate an adjustment of status application filed by someone who has already been ordered removed. In most cases, the removal order is considered executed once a person under that order leaves the United States. Once an individual has a removal order, he/she is generally barred from the US for ten years unless an I-212 is filed and approved. In some cases, individuals who have returned with advance parole have filed I-212s in conjunction with their adjustment of status applications before USCIS. Now, the government's posture is that USCIS does not have jurisdiction over such cases because the individual has not actually departed (in a legal sense) to trigger execution of the removal order. Moreover, if a person with TPS has left the US with advance parole, he/she technically returns to the US in the same immigration status he/she had prior to the departure. So, in other words, if an applicant had initially entered without inspection and left with advance parole, he/she shall be inspected and admitted "in the same immigration status the alien had at the time of departure"-namely, as an individual who has entered without inspection. And unfortunately, in general, unless the individual is eligible under section 245i, applicants who enter without inspection do not qualify to adjust status here in the US.
On July 31, 2019, USCIS issued an important policy memorandum adopting a case decided by the Administrative Appeals Office. The case is Matter of H-G-G, decided by the AAO on July 31, 2019. This case is particularly relevant to individuals who hold Temporary Protected Status (TPS). The gist of the case is essentially that while TPS provides a form of insulation from removal, a grant does not confer admission or cure a previous failure to lawfully maintain status. This is especially significant in the context of adjustment of status because an applicant must demonstrate lawful inspection and/or parole under section 245a; moreover, an individual who has failed to continuously maintain lawful status will generally be ineligible for adjustment under section 245c. In some jurisdictions, particularly the Sixth and Ninth circuits, applicants have successfully argued that TPS is a form of admission for purposes of adjustment of status-in effect, allowing them to adjust status although they may have initially entered without inspection. H-G-G strongly contravenes this interpretation, holding that TPS is a humanitarian measure intended to facilitate a grantee's eventual departure from the US, not a legal panacea that creates a path to residence or situates someone better than what they were before. As the AAO notes: "We find nothing in the statutory scheme or the legislative history to suggest that Congress intended to also confer new eligibilities on those who did not have them in the first place."
A District Court out of Minnesota recently issued a significant decision regarding the eligibility of those who hold Temporary Protected Status ("TPS") to adjust status in the US notwithstanding a prior lack of entry. This case, Bonilla vs. Johnson, et. al, follows the logic of a similar Circuit case (Flores v. USCIS) that holds that the plain language of 8 USC 1254a(f)(4) clearly allows an individual who is granted TPS to satisfy the inspection and entry requirement for adjustment of status. The section says, in part: "for purposes of adjustment of status under section 1255 of this title and change of status under section 1258 of this title, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant." The government argued, unsuccessfully, that a grant of TPS did not constitute inspection and entry for purposes of adjustment. The Court held otherwise, noting that the statute was clear and unambiguous.