Matter of Z-R-Z-C Holds that TPS Recipients Returning from Authorized Travel Abroad Are Not “Inspected and Admitted or Paroled” for Purposes of Section 245(a) of INA1
On August 20, 2020, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum designating the Administrative Appeals Office (AAO) decision in Matter of Z-R-Z- C as an Adopted Decision2. This Policy Memorandum was announced to the public on August 31, 2020.3 The decision holds that Temporary Protected Status (TPS) recipients who are granted authorization to travel abroad pursuant to section 244(f)(3) of the Immigration and Nationality Act (INA) and who subsequently reenter pursuant to that authorization are returning in “the same status the [foreign national] had at the time of departure” and do not satisfy the “inspected and admitted or paroled” requirement of section 245(a) of the INA.4 As an Adopted Decision, USCIS personnel are instructed to follow the reasoning of Matter of Z-R-Z-C in similar cases.
Recognizing that Matter of Z-R-Z-C is a significant departure from long-established agency policy, and that the applicant had reasonably relied upon that policy, the AAO determined that the holding would not be applied to the applicant in that case. In the subsequently issued Policy Memorandum, the USCIS clarified that the decision will only apply prospectively to TPS applicants who departed and returned to the U.S. pursuant to INA section 244(f)(3) after August 20, 2020.
Summary of Case
The applicant in Matter of Z-R-Z-C entered the U.S. without inspection in November 1995 and was granted TPS status in 2002. In April 2011, the applicant was issued an advance parole travel document (Form I-512). She subsequently departed and upon re-entry, received a parole stamp on her Form I-512. After marrying a U.S. citizen, the applicant applied for permanent residence as an immediate relative. While the Director of the USCIS Mount Laurel, New Jersey Field Office approved the I-130 petition filed on the applicant’s behalf, the Director denied her Form I-485 on
1 Special thanks to AILA members Michael Turansick, Nicole Simon and Mary Beth Kaufman for their contributions to this practice alert.
2 Matter of Z-R-Z-C, Adopted Decision 2020-02 (AAO Aug. 20, 2020).
3 See USCIS Adopts AAO Decision on TPS and Authorized Travel, U.S. CITIZENSHIP & IMMIGRATION SERV. (Aug. 31, 2020), https://www.uscis.gov/news/news-releases/uscis-adopts-aao-decision-on-tps-and-authorized-travel.
the ground that she had not been inspected and admitted or paroled as required by INA section 245(a). The Director certified the matter for review by the AAO.
AILA Analysis of the AAO Decision
The AAO’s decision erroneously distinguishes the statutory authorization of TPS applicants to travel abroad temporarily pursuant to section 244(f)(3) from the broader concept of Advance Parole contained in INA section 212(d)(5)(A). The AAO’s legal analysis relied heavily on the language of section 304(c) of the Miscellaneous and Technical Immigration and Nationality Act Amendments of 1991 (MTINA), which states,
In the case of a [foreign national] … whom the [Secretary of Homeland Security] authorizes to travel abroad temporarily and who returns … in accordance with such authorization --- (A) the [foreign national] shall be inspected and admitted in the same immigration status the [foreign national] had at the time of departure … (emphasis added).6
The AAO interpreted this language as creating a “unique form of travel authorization and operates as a fiction that restores the [foreign national] to the status quo ante as if the [foreign national] never left the United States.”7 Because the Applicant in Matter of Z-R-Z-C entered the U.S. without inspection prior to receiving TPS, the AAO determined that her departure and return pursuant to section 304(c) of MTINA did not satisfy the inspected and admitted or paroled language of INA section 245(a). The AAO reached this conclusion despite the fact that the applicant was issued a Form I-512, her arrival document specifically refers to her parole status, and that the MTINA provision dictates that a TPS holder is “inspected and admitted” upon return from authorized travel abroad. The grant of parole by USCIS and the issuance of a parole stamp by U.S. Customs and Border Protection was dismissed by the AAO as “simply a mechanism used
. . . to effectuate a physical return into the United States . . . . In other words . . . it is as if the TPS recipient’s immigration status never changed at all.”8
Recognizing that the decision in Matter of Z-R-Z-C was a deviation from “erroneous past practice”9 and that the applicant had reasonably relied upon prior policy, the AAO declined to apply this new policy to her application and approved her application for adjustment of status.
Presumably in reliance upon Matter of H-G-G,10which held that a grant of TPS does not constitute an admission to the U.S., the decision did not address section 244(f)(4) which states that, “[d]uring a period in which an alien is granted temporary protected status under this section … for purposes of adjustment of status under section 1255 of this title . . . , the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” As the applicant was maintaining TPS at
5 For a more extensive analysis predating the AAO Adopted Decision, including analysis for TPS registrants in removal proceedings, see Practice Advisory: Adjustment Eligibility of TPS Holders After Return With Advance Parole, Even With Initial Entry Without Inspection, AMERICAN IMMIGRATION COUNCIL & THE AMERICAN IMMIGRATION LAWYERS ASS’N (Dec. 13, 2019), AILA Doc. No. 19121301.
6 MTINA §304(c), Pub. L. No. 102-232, 105 Stat. at 1749.
7 Matter of Z-R-Z-C, supra note 2 at page 6.
8 Matter of Z-R-Z-C, supra note 2 at page 7.
9 Matter of Z-R-Z-C, supra note 2 at page 9.
10 27 I&N Dec 617 (AAO 2019).
the time of her departure, the plain language of the statute would indicate that the status quo ante to which she returned was more appropriately that of lawful nonimmigrant, which is accomplished under the INA by inspection and admission.11
Impact of Matter of Z-R-Z-C
Matter of Z-R-Z-C will prevent TPS registrants residing outside of the Sixth or Ninth Circuit Court jurisdiction, who were not inspected and admitted or paroled at entry, and who were subsequently issued travel authorization pursuant to section 244(f)(3), from being eligible to apply for adjustment of status upon their return. The decision will only apply prospectively to TPS registrants who traveled abroad and returned to the U.S. with a valid Advance Parole Travel Document after August 20, 2020.
TPS registrants who already traveled and were paroled into the U.S. pursuant to a valid Advance Parole Travel Document on or before August 20, 2020 should remain eligible to adjust status as an immediate relative under INA section 245(a).
AILA Practice Tips in Light of Matter of Z-R-Z-C
If an applicant’s previously filed adjustment of status application was denied solely on the MTINA provisions and the applicant had returned to the U.S. with a valid Advance Parole Travel Document on or before August 20, 2020, the applicant may (1) submit a Motion to Reconsider (Form I-290B), if filed within 33 days of the decision, or (2) re-apply for adjustment of status, citing Matter of Z- R-Z-C- as binding authority.
Unfortunately, TPS registrants who already departed the U.S. pursuant to an issued Advance Parole Travel Document but did not return until after August 20, 2020 would not be eligible for adjustment of status.
Finally, as noted above, the decision should have little, if any, practical impact for TPS registrants in the jurisdictions of the Sixth and Ninth U.S. Circuit Courts of Appeals, both of which have found that TPS constitutes an inspection and admission for purposes of INA section 245(a).12
11 See Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017); Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013) (deeming the grant of TPS itself to constitute an inspection and admission for purposes of INA§245(a)).