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Some immigrants in danger of losing TPS should be able to seek green cards, federal lawsuit says

Frank Corbishley of Coral Gables, Fla., marches last month in Miami in support of the Deferred Action for Childhood Arrivals and temporary protected status programs. (Lynne Sladky/AP)

A class-action lawsuit filed Thursday seeks to shield thousands of U.S. immigrants from being deported after President Trump cancels their temporary protected status .

Since the Trump administration announced the end of TPS over the next 20 months for longtime immigrants from El Salvador, Nicaragua, Haiti and Sudan, many who have no other legal status in the country have tried without success to obtain green cards or work visas.

The lawsuit, filed in U.S. District Court in New York, seeks to force federal immigration officials to adopt a more lenient policy toward such cases and to address conflicting legal opinions that have allowed TPS holders in some parts of the country to qualify for green cards or work visas, while others, who live elsewhere, cannot.

“We’ve advocated for years for a more uniform policy without any result,” said Mary A. Kenney, a senior attorney at the American Immigration Council in Washington, which filed the lawsuit. “The solution is for there to be a uniform interpretation of the law.”

Federal immigration officials say TPS holders who entered the country illegally are not eligible for green cards or work visas because they were never formally admitted into the United States.

A 2011 ruling by a federal appeals court in Atlanta upheld that position.

But two more recent decisions by appeals courts in Cincinnati and San Francisco found that anyone granted TPS is considered to be “in lawful status as a nonimmigrant” and, therefore, should be treated as if they were formally admitted and allowed to remain in the legal immigration system.

Those rulings — by the 6th Circuit in 2013 and the 9th Circuit this past spring — have made it possible for TPS holders in those jurisdictions to get their green cards or work visas, advocates say.

The class-action lawsuit filed Thursday seeks to broaden that approach to parts of the country that aren’t under the order of the Atlanta court, whose jurisdiction covers Georgia, Florida and Alabama.

TPS holders were repeatedly allowed to renew their statuses under presidents George W. Bush and Barack Obama. But that has changed under Trump, greatly increasing the urgency for immigrants as advocates on both sides of the issue call for a more consistent approach.

“Quite frankly, if I was a lawyer, I would advise my client to move to San Francisco or move to some place in the San Francisco district and apply there,” said Andrew Arthur, who writes about law and government policy for the Center for Immigration Studies and agrees with the Trump administration’s decision to end TPS for several populations that have been entitled to it for years.

“It’s extremely problematic. We’re supposed to have a uniform system of naturalization,” said Arthur, a former immigration judge. “And yet, when it comes to immigration, we don’t have a uniform rule of law, by and large.”

In response to a request for comment, U.S. Citizenship and Immigration Services, which administers green cards and most visas, said anyone applying for lawful permanent residence must meet all eligibility requirements, and individuals with TPS should seek guidance from an attorney on whether they may qualify.

The suit cites cases from around the country of people whose TPS has allowed them to get driver’s licenses and other benefits — but who were unable to get green cards even though they had married U.S. citizens or obtained work visas through employers.

One case involves a Haitian trafficked into the United States as a 14-year-old.

TPS is set to permanently expire in November for 450 Sudanese, in January for 2,550 Nicaraguans, in July of next year for 50,000 Haitians and in September 2019 for 195,000 Salvadorans.  

“For many years, it wasn’t as big of a deal because TPS has gone on for longer than 15 years in most of these cases,” said Matt Adams, legal director of the Northwest Immigrant Rights Project, which brought the 9th Circuit case and is co-counsel on the case filed Thursday. “But now that they’re terminating TPS, it’s particularly outrageous that they’re refusing to give effect to this part of the statute.”

Read more:

What is TPS? And other frequently asked questions

‘We will lose practically everything’: Salvadorans devastated by TPS decision

How Trump is building a border wall that no one can see