Immigration Law

Class Action Filed Against Feds Over Adjustment of Status Via TPS - Moreno v. Nielson

AIC, Feb. 22, 2018 - "Today, the American Immigration Council, the Northwest Immigrant Rights Project, and several Temporary Protected Status holders filed a class action lawsuit against officials at the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Homeland Security (DHS) in a federal district court in New York, challenging the government’s unlawful practice of depriving certain Temporary Protected Status (TPS) holders with close family relationships or employment in the United States from becoming lawful permanent residents. In particular, USCIS is denying the adjustment applications of TPS holders who, in accord with the Immigration and Nationality Act, have been “inspected and admitted” for purposes of adjustment of status because, prior to their receipt of TPS, they entered the United States without inspection. 

The lawsuit alleges that Defendants’ policy:

  • Violates the Immigration and Nationality Act (INA) and Administrative Procedure Act (APA) because it refuses to recognize that TPS holders have been “inspected and admitted” for the purposes of adjudicating adjustment of status applications; and
  • Causes Defendants to fail to perform a non-discretionary duty (finding that TPS holders have been inspected and admitted when adjudicating adjustment of status applications).

This lawsuit also asks the court to:

  • Declare Defendants’ policy (and any adjustment of status decisions based on the policy) unlawful and order them to stop applying the policy;
  • Find that class members have been “inspected and admitted” for the purposes of their adjustment applications; and
  • Order Defendants to reopen class members’ adjustment applications that were denied based on the old policy and allow those class members the opportunity to have their applications reconsidered with the law properly applied.

USCIS’s interpretation of the TPS and adjustment of status statutes is a longstanding problem. Currently, USCIS applies its unlawful policy to TPS holders living everywhere in the country except for within the jurisdictions of the U.S. Courts of Appeals which have ruled on the issue, the Sixth, Ninth and Eleventh Circuits. Thus, the proposed class would include individuals living within the jurisdictions of the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and Tenth Circuits.

The case has been filed in the U.S. District Court for the Eastern District of New York. A motion for class certification and supporting exhibits were filed with the complaint."