American Immigration Council

Established in 1987, the American Immigration Council, a 501(c)(3) nonprofit, works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council’s legal department contributes to this mission through impact litigation to protect and defend the rights of immigrants, the filing of amicus briefs to educate the courts about immigration law and immigrants’ rights, and technical assistance provided to immigration attorneys.

THE CASE: Moreno v. Nielsen, No. 1:18-cv-01135 (E.D.N.Y.), challenges a U.S. Citizenship and Immigration Services’ (USCIS) policy that unlawfully blocks otherwise eligible noncitizens with Temporary Protected Status (TPS) from gaining lawful permanent (LPR) status. The case was filed on behalf of a class of TPS holders who, but for this policy, are eligible to become lawful permanent residents because of a close family relationship with a U.S. citizen or through their U.S. employer. TPS provides a temporary haven for noncitizens living in the United States when natural disasters or civil strife in their home countries render it unsafe for them to return. While holding TPS, a noncitizen is in a lawful, though non-permanent status; authorized to work; and protected from deportation. Most TPS holders have held this status for upwards of two decades and consequently have established deep roots in the United States. However, DHS is terminating TPS for six countries over the next 18 months and TPS holders from those countries will lose their protected status and eligibility to work and will become subject to deportation unless they can gain LPR status. Hundreds, if not thousands, of TPS holders are blocked from becoming LPRs solely due to USCIS’s unlawful policy. This policy states that TPS holders who entered the United States without inspection cannot demonstrate that they were “inspected and admitted or paroled” into the United States, a requirement to adjust to LPR status. However, as the Sixth and Ninth Circuits have both held, the plain language of the TPS statute itself deems a grant of TPS to be an inspection and admission for purposes of adjustment of status. The Eleventh Circuit has held the opposite. USCIS applies the Sixth and Ninth Circuit decisions to TPS holders living within those jurisdictions but refuses to do so for TPS holders living within the jurisdictions of the nine courts of appeals that have not ruled on the issue. As a result, whether these TPS holders will be able to remain with family and community depends on the arbitrariness of where they reside. The suit seeks to overturn the policy as applied in the jurisdiction of the nine courts of appeals that have not ruled on the issue.

Contact: Mary Kenney, Senior Attorney, 202-507-7512.