In December 2019, the illegally appointed then-Acting Director of USCIS, Ken Cuccinelli, abruptly and inexplicably upended a long-standing practice that previously allowed Temporary Protected Status recipients a path to become a permanent resident. Now, under the unlawful change, many TPS beneficiaries can no longer satisfy eligibility requirements for adjustment of status and become effectively barred from even the opportunity to become a permanent resident.

Under prior, long-standing practice, USCIS allowed immigrants who had final deportation or removal orders, but were protected under the Temporary Protected Status (“TPS”) program, to secure a permanent immigration status in the United States. TPS provides protection to immigrants from countries afflicted by armed conflict, natural disaster, or an epidemic, allowing them to lawfully remain in the United States. Hundreds of thousands of TPS beneficiaries have taken that opportunity to establish families, businesses, and strong community ties in the United States.

USCIS also allowed a path for many TPS beneficiaries with outstanding deportation or removal orders — which were often several decades old — to obtain permanent U.S. residency. Under the prior practice, TPS beneficiaries were allowed to travel abroad, with permission from the government, and then re-enter under a grant of “advance parole.” Upon return their deportation or removal order was deemed “executed.”

A sudden, unwarranted “Policy Alert” issued by Ken Cuccinelli abruptly ended this established practice. USCIS offered no explanation for this change, and did not even acknowledge the serious disruption this change imposes on the lives of TPS beneficiaries and legal service providers who work on their behalf.

The administration’s inexplicable departure from its prior practice prevents many of the over 400,000 TPS beneficiaries living in the U.S. today from becoming permanent residents. Permanent resident status would allow beneficiaries, like the individual plaintiffs in this case, to permanently remain in the country in which they have established deep and meaningful ties over years. They now face an uncertain future, one in which their ability to remain connected to their U.S. citizen family members, communities, and livelihoods has been thrown into serious doubt.

This measure of security is especially important now, as the Trump administration has sought to end the TPS program altogether for many of the designated countries. Fortunately, court injunctions have stopped that plan for the time being, but those who are unable to become permanent residents are nevertheless left vulnerable to the threat of removal.

That’s why we took Ken Cuccinelli back to court, this time on behalf of seven individuals and the Central American Resource Center (CARECEN), for unlawfully impeding TPS beneficiaries’ pathway to permanent residency in the U.S. This disruptive change was issued by USCIS without any advance notice or opportunity for public input, without explanation, and in violation of the Immigration and Nationality Act and the Administrative Procedure Act.

Additionally, the rule is invalid because it was authorized by Cuccinelli, whose appointment as Acting Director of USCIS was ruled illegal by a federal court in March in response to our lawsuit L.M.-M. et al. v. Cuccinelli et al.

We filed suit on August 26, 2020 alongside the Catholic Legal Immigration Network (CLINIC), Montagut & Sobral PC, and Debevoise & Plimpton LLP.

Ben Seel

Counsel & Legal Analyst

Focusing on justice, national security, immigration, and health care issues.

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John Lewis

Senior Counsel

Litigating challenges to unlawful executive branch activity regarding immigration, civil rights, health care, education, veterans’ affairs, and more.

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