                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit I.O.P. 32.1(b)
                               File Name: 13a0157p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                                  X
                                                   -
 FRANIKA FONSHEA FLORES, et al.,
                                                   -
                                    Plaintiffs,
                                                   -
                                                   -
                                                       No. 12-3549

                                                   ,
                                                    >
                                                   -
 STACEY LEIGH SUAZO and SAADY SUAZO

                                                   -
 CALIX,

                          Plaintiffs-Appellants, --
                                                   -
                                                   -
                                                   -
            v.
                                                   -
                                                   -
 UNITED STATES CITIZENSHIP AND
 IMMIGRATION SERVICES, ALEJANDRO                   -
                                                   -
 NAPOLITANO, ERIC H. HOLDER, JR., Attorney -
 MAYORKAS, MARK HANSEN, JANET
                                                   -
                                                   -
 General, and STEVEN M. DETTELBACH,
                         Defendants-Appellees. -
                                                  N
                    Appeal from the United States District Court
                   for the Northern District of Ohio at Cleveland.
           No. 1:11-cv-00642—Solomon Oliver, Jr., Chief District Judge.
                             Argued: March 14, 2013
                        Decided and Filed: June 4, 2013
              Before: KEITH, MARTIN, and COLE, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED: Abraham Kay, Cleveland, Ohio, for Appellants. James R. Bennett II,
UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellees.
ON BRIEF: Abraham Kay, Cleveland, Ohio, for Appellants. Kathleen L. Midian,
UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellees.




                                         1
No. 12-3549 Flores, et al. v. USCIS, et al.                                     Page 2



                                  _________________

                                       OPINION
                                  _________________

        DAMON J. KEITH, Circuit Judge. This case illustrates the archaic and
convoluted state of our current immigration system.        While many suggest that
immigrants should simply “get in line” and pursue a legal pathway to citizenship, for
Saady Suazo and other similarly situated Temporary Protected Status beneficiaries, the
Government proposes that there is simply no line available for them to join. The law
does not support such a conclusion in this case.

        Appellants are Mr. and Mrs. Suazo. The are married and raising a minor child
together in the United States. Mr. Suazo is a citizen of Honduras, but has been in the
United States for about fifteen years. He was granted temporary protected status by the
Attorney General, which has allowed him to work and live legally in the United States
as a protected individual since 1999. After their marriage, the couple sought to obtain
lawful permanent resident status for Mr. Suazo. They were unsuccessful before the U.S.
Citizenship and Immigration Services (“USCIS”) and thus filed the present action in
federal district court.

        The Suazos appeal the district court’s dismissal of their claims under the
Administrative Procedures Act and the Mandamus Act. On appeal the parties dispute
whether 8 U.S.C. § 1254a(f)(4), a subsection of the temporary protected status statute,
provides a pathway for Mr. Suazo to obtain lawful permanent resident status pursuant
to 8 U.S.C. § 1255, the adjustment of status statute. For the reasons that follow, we
reverse the district court’s judgment and remand the case to the USCIS for further
proceedings with respect to the Administrative Procedure Act claim and decline to
address the mandamus claim at this stage.

        Saady Suazo is a Honduran immigrant. He entered the United States without
inspection on or about March 15, 1998. He has been in the United States continuously
No. 12-3549 Flores, et al. v. USCIS, et al.                                       Page 3



since that time. On September 3, 1999, Suazo was granted Temporary Protected Status
(“TPS”) due to his Honduran citizenship. His TPS designation has been continuously
renewed since then due to his continued good moral character. As of this writing, his
TPS designation has been renewed until July 5, 2013, but could potentially be
discontinued anytime without notice.

       On August 5, 2010, Saady Suazo married Stacey Leigh Suazo. On September
10, 2010, Stacey Suazo filed an Immediate Relative I-130 Petition on behalf of her
husband, Saady Suazo. The same day, Saady Suazo filed an accompanying I-485
Application for Adjustment of Status form, seeking to become a Lawful Permanent
Resident (“LPR”) of the United States pursuant to 8 U.S.C. § 1255. The Suazos had an
interview with immigration officials on November 29, 2010 at the USCIS Cleveland
District Office. Mrs. Suazo’s I-130 Petition for Mr. Suazo was approved—providing
him with an independent basis to become an LPR. Mr. Suazo’s LPR Application,
however, was denied on December 21, 2010. The stated reason for the denial was that
Mr. Suazo “entered the United States without inspection” on March 15, 1998.

       Following the USCIS’s denial of Mr. Suazo’s LPR Application, Mr. and Mrs.
Suazo filed a complaint in district court for declaratory judgment under the
Administrative Procedures Act (“APA”) and for mandamus relief. The Suazos argued
that the USCIS wrongfully denied Mr. Suazo’s LPR application. They argued for the
district court to assume jurisdiction over the case and approve the LPR application. The
Suazos argued below, and argue now, that Mr. Suazo’s TPS status under 8 U.S.C.
§ 1254a(b)(1) makes him eligible to adjust to LPR status pursuant to 8 U.S.C. § 1255.

       USCIS filed a motion to dismiss for failure to state a claim upon which relief can
be granted and for lack of subject matter jurisdiction. The Suazos opposed the motion.
Nevertheless, the district court granted the Government’s motion to dismiss. The district
court held that it lacked jurisdiction under the Mandamus Act because the Suazos had
an adequate remedy under the APA. It further held that the Suazo’s failed to state a
claim under the APA. The district court reasoned that the plain language of 8 U.S.C.
No. 12-3549 Flores, et al. v. USCIS, et al.                                          Page 4



§ 1255—the adjustment of status statute—precludes a TPS beneficiary who was not
initially “inspected and admitted or paroled” into the United States, as a matter of law,
from adjusting his status to LPR. The district court largely deferred to the Government’s
interpretation of the Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C.
§§ 1101–1537. The Suazos filed this timely appeal.

         This Court reviews a district court’s Federal Rule of Civil Procedure 12(b)(6)
dismissal of a complaint for failure to state a claim de novo. Brown v. Cassens Transp.
Co., 675 F.3d 946, 952 (6th Cir. 2012). Conclusions of law are also subject to de novo
review by this Court. Dicicco v. U.S. Dep’t. of Justice INS, 873 F.2d 910, 913 (6th Cir.
1989).

         We review Appellants’ APA claim and consider whether § 1254a(f)(4) of the
TPS statute provides a path to LPR status under the adjustment of status statute, § 1255.
Appellants argue that the plain language of the statutes allows for a path to LPR status,
otherwise there would be absurd results, as is apparent in the instant case. The
Government’s position was adopted by the district court—that there is no pathway to
citizenship for Mr. Suazo while he is in the United States as a TPS beneficiary.

         Under the APA, courts may review an agency’s interpretation of a statute.
5 U.S.C. § 706. “If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984); Nat’l Cotton Council of Am. v. U.S. EPA, 553 F.3d 927, 933 (6th Cir.
2009). In determining if the intent is clear, courts consider “the language [of the statute]
itself, the specific context in which that language is used, and the broader context of the
statute as a whole.” Nat’l Cotton Council of Am., 553 F.3d at 935 (internal quotation and
citation omitted).

         If the statute is found to be silent or ambiguous, and there is an agency
interpretation that does not constitute the exercise of the agency’s formal rule-making
authority, courts may defer to an agency interpretation, even when the agency is not
No. 12-3549 Flores, et al. v. USCIS, et al.                                                   Page 5



exercising its formal rule-making authority. Skidmore v. Swift & Co., 323 U.S. 134,
139–40 (1944). The weight of deference, if so given, depends on “the thoroughness
evident in [the agency’s] consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to persuade,
if lacking power to control.” Id. at 140.

        The plain language of the statute answers the question before the Court. Both
parties agree that § 1255, which has to do with adjustment of status from nonimmigrant
to LPR status, contains three requirements, two of which Mr. Suazo unquestionably
satisfies. First, he has made an application for adjustment of status and second, an
immigrant visa is immediately available through his American citizen wife. The parties
disagree, however, as to the meaning of § 1255(a) which reads “the status of an alien
who was inspected and admitted or paroled” may be adjusted in the Attorney General’s
discretion and also § 1255(a)(2), which states that an “alien is eligible to receive an
immigrant visa and is admissible to the United States for permanent residence.”1
§ 1255(a).

        USCIS argues that Mr. Suazo and other TPS beneficiaries who initially entered
the United States without inspection and have an independent basis for a visa can never
satisfy the threshold requirement of being “admitted or paroled” or “admissible.” The
USCIS argues that Suazo is only allowed protection under TPS as long as the
designation is conferred upon him. USCIS argues that he is unable to adjust to LPR
under the independent basis—through his wife’s application—because he was not
admitted. The Government argues that he would essentially have to leave the United
States and his family, risk his safety even though the Government has deemed him
worthy of protected status, take a chance at not being readmitted to the United States,
reapply on an independent basis to become an LPR, and then hope that he would finally



        1
          We recognize that using the term “alien” to refer to other human beings is offensive and
demeaning. We do not condone the use of the term and urge Congress to eliminate it from the U.S. Code.
We use it here, however, to be consistent with the statutory language and to avoid any confusion in
replacing a legal term of art with a more appropriate term.
No. 12-3549 Flores, et al. v. USCIS, et al.                                                 Page 6



be allowed to become an LPR in a country to which he has spent fifteen years
contributing.

        The Suazos, however, argue that the plain language, when considering the
“language itself, the specific context in which the language is used, and the broader
context of the statute as a whole,” shows that Congress’s clear intent was that a TPS
beneficiary is afforded with a pathway to LPR status. The Suazos agree that one must
be “admitted” or “admissible.” However, they argue that TPS beneficiaries are afforded
with an exception under the TPS statute which operates as an inadmissibility waiver.
See § 1254a(f). We agree.

        In this case, Mr. Suazo seeks to adjust his status to that of LPR. Section 1255 of
Title 8 of the U.S. Code authorizes the Attorney General to adjust the

        status of an alien who was inspected and admitted or paroled into the
        United States . . . if (1) the alien makes an application for such
        adjustment, (2) the alien is eligible to receive an immigrant visa and is
        admissible to the United States for permanent residence, and (3) an
        immigrant visa is immediately available to him at the time his application
        is filed.

8 U.S.C. § 1255(a).2 Additionally, aliens other than immediate relatives, among some
other categories, are barred from becoming LPRs if they

        continue[] in or accept[] unauthorized employment prior to filing an
        application for adjustment of status or . . . fail[] (other than through no
        fault of [their] own or for technical reasons) to maintain continuously a
        lawful status since entry into the United States . . . .

Id. at § 1255(c)(2).

        Currently, Mr. Suazo is legally in the United States under TPS. Under the TPS
statute, the Attorney General may grant temporary protected status to a national of a
foreign state in designated cases of ongoing armed conflict, environmental disaster, or

        2
           As noted above, the parties agree that Mr. Suazo has satisfied element (1) because he has
submitted an LPR application and that he also satisfied element (3) because Mrs. Suazo’s immediate
relative visa petition has been approved.
No. 12-3549 Flores, et al. v. USCIS, et al.                                        Page 7



other extraordinary and temporary conditions that prevent safe return. 8 U.S.C.
§ 1254a(b)(1). If eligible for TPS, such individuals are not subject to removal “from the
United States during the period in which such status is in effect.” § 1254a(1)(A). A TPS
beneficiary may “engage in employment in the United States” as well, as Suazo has.
§ 1254a(1)(B). Suazo has available to him a basis for LPR status, through his wife’s
immediate relative petition. The only thing preventing Suazo from adjusting to LPR is
the Government’s interpretation of the interplay between the adjustment of status statute,
§ 1255, and one of the subsections of the TPS statute, § 1254a(f)(4). The plain language
of the statutes leads us to our conclusion.

       The TPS statute details the “[b]enefits and status during [the] period of temporary
protected status.” § 1254a(f). Subsection (f) begins by stating, “During a period in
which an alien is granted temporary protected status[,] . . . for purposes of adjustment
of status under section 1255 of this title and change of status under section 1258 of this
title, the alien shall be considered as being in, and maintaining, lawful status as a
nonimmigrant.” § 1254a(f)(4). We interpret the statute exactly as written—as allowing
Suazo to be considered as being in lawful status as a nonimmigrant for purposes of
adjustment of status under § 1255.

       We are unpersuaded by the Government’s argument that the statement in
§ 1254a(f) regarding status as a lawful nonimmigrant pertains only to § 1255(c)(2)—a
subsection of the adjustment of status statute that precludes adjustment of status to LPR
if an immigrant works without authorization in this country. The Government argues
that because TPS beneficiaries are allowed to work as part of the TPS program, the
language in § 1254a(f) only exempts them from the work authorization issue in
§ 1255(c)(2). The Government has no support, other than the history of consistent and
incorrect agency interpretations, regarding this issue.

       The Government’s interpretation of § 1254a(f) is unduly narrow and ignores the
plain language of the statute. We see no reason why Congress would have written the
exception in § 1254a(f) the way it did if it actually has to do only with § 1255(c)(2)—a
No. 12-3549 Flores, et al. v. USCIS, et al.                                         Page 8



quite specific reference—rather than what the statute actually says, which is § “1255.”
Under the USCIS’s interpretation, Congress also failed to reference any mention of work
authorization or employment in § 1254a(4)(f). If Congress meant for the broadly written
statement to apply to such a specific subsection, the USCIS has failed to explain how the
plain language supports such a specific interpretation. The language of § 1254a is
written as applying to § 1255, as a whole, and we interpret it as written. See Milner v.
Dep’t of Navy, 131 S. Ct. 1259, 1267 (2011) (reasoning that taking a red pen to a statute
to “cut . . . out some [words]” and “past[e] in others” ignores the plain meaning of the
statute) (internal citation omitted).

        When considering the statutory scheme as a whole, the Suazos’ interpretation has
even more support from the plain language. The Government’s argument that there is
no authority to exercise discretion is contradicted by the statute itself. The TPS statute
includes a section that states that the Attorney General may waive certain grounds of
inadmissibility, such as in the case of “individual aliens for humanitarian purposes, to
assure family unity, or when it is otherwise in the public interest.” § 1254a(c)(2)(A)(ii).
While the statute grants discretion to the Attorney General, it also imposes limits on the
Attorney General’s discretion and states that the Attorney General has no discretion to
waive the admissibility requirements for specific groups of people—certain criminals
and former Nazis. § 1254a(c)(2)(A)(iii)(I–III). TPS beneficiaries are notably not named
as one of the groups that is prohibited from discretionary relief. The TPS statute also
defines the “[a]liens ineligible” for TPS protection, none of which apply to the Suazos.
§ 1254a(c)(2)(B). These two sections of the statutory scheme show in the plain language
that Congress did not intend to strip the Attorney General of discretion to waive
admissibility requirements for all TPS beneficiaries, especially those that are not
specifically excluded in the statute.

        Section 1182 of Title 8 of the United States Code also provides an extensive list
of “[c]lasses of aliens ineligible for visas or admission.” 8 U.S.C. § 1182. This list
makes no mention of TPS beneficiaries being categorically barred from visa or
admission eligibility. When considering the statutory scheme and the language of the
No. 12-3549 Flores, et al. v. USCIS, et al.                                                       Page 9



statutes, it is impossible to accept the USCIS’s assertion that the plain language supports
its position. An interpretation based on plain language does not require one to imply
words and clauses to understand the meaning, nor does it require one to ignore other
signs pointing to a logical and congruous interpretation. CSX Transp., Inc. v. Alabama
Dep’t of Revenue, 131 S. Ct. 1101, 1115–116 (2011) (“[S]tatutory interpretation focuses
on the ‘language itself, the specific context in which the language is used, and the
broader context of the statute as a whole.’”) (internal citation omitted).

         Congress’s apparent intent supports our interpretation of the statute as well. It
is undisputed that a TPS beneficiary is a member of a class of people that Congress
chose to protect due to an extraordinary circumstance. The Government notes that
someone with TPS status cannot automatically become an LPR. The Government points
to the fact that Congress has identified groups of immigrants who in fact are
automatically given LPR status through acts such as the Cuban Refugee Adjustment Act,
Pub. L. No. 89-732, 80 Stat. 1161 (1966) and the Haitian Refugee Immigration Fairness
Act of 1998, Pub. L. No. 105-277, § 902, 112 Stat. 2681 (1998). The Government
argues that if Congress wanted to allow TPS beneficiaries to become LPRs
automatically, then the possibility of a special adjustment would be superfluous. The
USCIS’s argument is not on-point to the issue presented here. The issue is not whether
all TPS beneficiaries automatically qualify for LPR adjustment under § 1255. Mr. Suazo
argues that because he is a TPS beneficiary, who has been deemed to have good moral
character and has a visa available to him on an independent basis—here through the
immediate-relative petition filed by his wife—that he therefore qualifies for
consideration of adjustment of status under § 1255. This is exactly what § 1254a(f)(4)
provides because he is considered being in lawful nonimmigrant status and thus meets
the three requirements in § 1255.3

         3
           The parties dispute the relevance of the receipt of an I-94 Arrival-Departure record. Upon Mr.
Suazo’s conferral of TPS status, the USCIS issued to him an I-94 Arrival-Departure record. This is
something that the USCIS does when one is afforded the initial grant of TPS. The document is a
registration document that is normally issued to aliens only upon their admission, following inspection,
to the United States. Under a standard “inspection” and “admission,” the process only takes a few minutes.
However, when receiving this form through TPS application, the process takes several months to complete,
allowing the USCIS to more carefully review the case. The Suazos argue that TPS beneficiaries
No. 12-3549 Flores, et al. v. USCIS, et al.                                                           Page 10



         Because our holding is based in the plain language of the statute, we need not
accord deference to the agency interpretation offered by the Government. Pub. Emps.
Ret. Sys. v. Betts, 492 U.S. 158, 171 (1989) (“[O]f course, no deference is due to agency
interpretations at odds with the plain language of the statute itself.”). Even if the statute
had been silent or ambiguous, however, the USCIS interpretation would have been
rejected. Under Skidmore, the weight of deference, if so given, depends on “the
thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it
power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140. Here, there
is no question that the consistency factor weighs in favor of the USCIS; the opinions
from the agency are consistent with the USCIS position. For the reasons stated above,
however, the “validity of reasoning” factor weighs heavily against the USCIS and
outweighs the consistency factor. Being consistently wrong does not afford the agency
more deference than having valid reasoning. The remaining factor—the thoroughness
of the reasoning—does not militate strongly for either side. Again, incorrect reasoning,
no matter how thorough, does not carry any weight. Any deference afforded would have
been minimal, if at all.

         The parties rely on two opinions that discuss the interplay between § 1255 and
§ 1254a from the Fifth and Eleventh Circuits: United States v. Orellana, 405 F.3d 360
(5th Cir. 2005) and Serrano v. U.S. Attorney Gen., 655 F.3d 1260 (11th Cir. 2011).
Neither case is binding on our court, and neither is particularly helpful in the instant
case.4


experience the same, if not a more rigorous, I-94 process, which shows a consistency with admission
procedure and thus supports his argument that he is able to adjust status to that of LPR. We decline to
address the relevance of the issuance of the I-94 because the plain language of the statute answers the
question before us.
         4
           Serrano involved a situation superficially similar to the one presented here. In Serrano, the
petitioner applied for TPS status, but did “not assert that he disclosed his illegal entry into the United States
on his application for Temporary Protected Status.” Serrano, 655 F.3d at 1265 n.4. Serrano was granted
TPS status and later moved for adjustment of status under § 1255 when an immediate relative visa became
available through his U.S. citizen wife. Id. at 1263. His LPR application was denied. The crucial
difference in Serrano from the present case is that in Serrano, the petitioner did not disclose on his TPS
application that he entered the country illegally, without inspection. Here, Suazo did.
         Orellana, the Fifth Circuit case cited by the parties, involved the effect of TPS status on a
No. 12-3549 Flores, et al. v. USCIS, et al.                                                        Page 11



         Policy considerations support our interpretation. Mr. Suazo seems to be the exact
type of person that Congress would have in mind to allow adjustment of status from TPS
beneficiary to LPR. He has been in the United States for about fifteen years. He has
roots here. His wife and minor child are here. They are both United States citizens. He
is of good moral character and a contributing member of society. He has waited his turn
for an independent, legal, and legitimate pathway to citizenship, through the immediate
relative visa application. If the statutes are interpreted as the Government argues they
should be, the result would be absurd. The Government is essentially telling him that
he is protected and can stay here, but that he will never be allowed to become an LPR,
even for an independent basis. Under the Government’s interpretation, Mr. Suazo would
have to leave the United States, be readmitted, and then go through the immigration
process all over again. This is simply a waste of energy, time, government resources,
and will have negative effects on his family—United States citizens. We are disturbed
by the Government’s incessant and injudicious opposition in cases like this, where the
only purpose seems to be a general policy of opposition for the sake of opposition.

         Accordingly, we REVERSE the district court’s judgment as to the APA claim
and REMAND the case to the USCIS for review. Because we grant Petitioners’ APA
claim, we decline to address the mandamus claim.




criminal indictment for an illegal alien in the United States in possession of a firearm. Orellana, 405 F.3d
at 361. The Fifth Circuit described Orellana’s status as a TPS beneficiary and stated “[a]s a result,
Orellana was granted protection from removal, authorized to seek employment, and given the ability to
apply for adjustment of status as if he were in lawful non-immigrant status.” Id. at 366. While the
language is dicta, it gives insight into the Fifth Circuit’s view of the issue. Orellana directly states that
the statutory language and scheme supports the Suazos’s view that there is a pathway for LPR status
contained in these statutes.
