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The Board of Immigration Appeals (BIA) Appears to Have Opened a Door for TPS Adjustment in the 6th, 8th, and 9th Circuits

Posted by MICHAEL W. LIN | Nov 23, 2020

On November 23, 2020, the Board of Immigration Appeals issued a decision in Matter of Padilla Rodriguez, 28 I&N Dec. 164 (BIA 2020). For the first time, the BIA has acknowledged that a TPS continues to be valid is considered to be “admitted” for purposes of establishing eligibility for adjustment of status (only within the jurisdictions of the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits). Even though the BIA limits the applicability of this decision to only residents who reside in the states within the 6th, 8th and 9th circuits, this nonetheless represents a significant shift of the direction in the administration's continuous anti-immigration stance up until recently.  While this decision is binding only on those adjustment of status applications pending before the removal proceedings in those aforementioned circuits, this creates an interesting dilemma for the USCIS offices located in those jurisdictions.  Specifically, on July 31, 2019, the Administrative Appeals Office (AAO), the appellate body that reviews most USCIS decisions, ruled that the TPS is not an admission for the purpose of adjustment, except that if the applicant is seeking adjustment of status under family sponsorship and that the applicant resides in the 9th circuit. Matter of H-G-G- (BIA, July 31, 2019).  So if the USCIS denied an applicant's adjustment of status application because it is required to abide by the AAO decision, the applicant would be able to renew the adjustment of status application before the removal proceedings and then qualify for the adjustment of status now under the BIA decision in Matter of Padilla Rodriguez.  The only caveat is an applicant cannot place himself into the removal proceedings. Only the DHS could write the applicant up and send him to the removal proceedings. 

About the Author

MICHAEL W. LIN

PARTNER Mr. Lin has been working in the immigration field since 1992. Mr. Lin has worked on countless highly complex immigration matters ranging from corporate mergers, successor in interest, crimmigration, H-1B, E-2, and all aspects of immigration law. Mr. Lin served as a Special Assistant A...

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