     Case: 16-30165       Document: 00514548692         Page: 1     Date Filed: 07/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                       No. 16-30165                           July 10, 2018
                                                                             Lyle W. Cayce
ELDEN GUERRERO,                                                                   Clerk


               Plaintiff - Appellee

v.

KIRSTJEN M. NIELSEN, SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY, Secretary, Department of Homeland Security;
CINDY GOMEZ, District Director, United States Citizenship and
Immigration Services,

               Defendants - Appellants




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-1135


Before HIGGINBOTHAM and HIGGINSON, Circuit Judges.*
STEPHEN A. HIGGINSON, Circuit Judge:**
       This case concerns the interplay of two immigration statutes. The first




       *  Judge Edward C. Prado, a member of our original panel, retired from the court on
April 2, 2018, to become His Excellency the United States Ambassador to the Argentine Re-
public. He therefore did not participate in this matter, which is decided by a quorum. See 28
U.S.C. § 46(d).
        ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-30165
statute, 8 U.S.C. § 1255(a), creates a mechanism by which certain nonperma-
nent residents (or, in the statutory parlance, “nonimmigrants”) can obtain per-
manent lawful status. But by the statute’s plain terms, this mechanism “shall
not be applicable to an alien crewman.” § 1255(c)(1). The second statute, 8
U.S.C. § 1254a, authorizes the Secretary of Homeland Security to grant “tem-
porary protected status” (TPS) to nationals of countries afflicted with human-
itarian crises. And it says that “for purposes of adjustment of status under sec-
tion 1255,” any TPS-holder “shall be considered as being in, and maintaining,
lawful status as a nonimmigrant.” § 1254a(f)(4).
      The question is how these provisions apply to plaintiff Elden Guerrero.
Guerrero entered the country lawfully on a short-term nonimmigrant visa in-
tended for alien crewmen. He then overstayed that visa and received TPS. He
now seeks to become a lawful permanent resident via § 1255(a). We must de-
cide: Is Guerrero “an alien crewman” within the meaning of § 1255(c)(1)? And
if he is, does his TPS override § 1255(c)(1)’s express alien-crewman bar?
      We hold that § 1255(c)(1) renders Guerrero statutorily ineligible to ad-
just his status under § 1255(a). We first construe § 1255(c)(1) and hold that,
based on the undisputed law and facts, Guerrero is “an alien crewman” within
that statute’s meaning. We then construe § 1254a(f)(4) and hold that it does
nothing to obviate § 1255(c)(1)’s clear, categorical command: § 1255(a) “shall
not be applicable to an alien crewman.” To be sure, Guerrero’s TPS effectively
restores him to the status he enjoyed before he overstayed his visa (i.e., it gives
him “lawful status as a nonimmigrant”). But it cannot change the historical
fact that he last entered the country as an alien crewman, bringing him within
§ 1255(c)(1)’s ambit and excluding him from § 1255(a). Guerrero’s § 1255(a) ap-
plication was properly denied. The district court’s contrary holding is reversed,
and judgment is rendered in favor of the government.


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                                 No. 16-30165
                                        I
                                        A
      Federal immigration law refers to persons who are neither U.S. citizens
nor U.S. nationals as “aliens.” 8 U.S.C. § 1101(a)(3). It further divides aliens
into “immigrants” and “nonimmigrants.” § 1101(a)(15). “Nonimmigrants” are
aliens admitted to the United States for the limited times and purposes listed
in 8 U.S.C. § 1101(a)(15). To take a common example: an “H-1B” nonimmigrant
is someone temporarily admitted to work in a specialty occupation. See
§ 1101(a)(15)(H)(i)(b). More relevant here, a “C-1” nonimmigrant is “an alien
in   immediate   and    continuous    transit   through    the   United   States,”
§ 1101(a)(15)(C), and a “D” nonimmigrant is
            an alien crewman serving in good faith as such in a
            capacity required for normal operation and service on
            board a vessel . . . or aircraft, who intends to land tem-
            porarily and solely in pursuit of his calling as a crew-
            man and to depart from the United States with the
            vessel or aircraft on which he arrived or some other
            vessel or aircraft . . . .
§ 1101(a)(15)(D). Aliens outside the enumerated nonimmigrant categories, on
the other hand, are considered simply “immigrants.” § 1101(a)(15). “Essen-
tially, an immigrant is a person intending to remain in the United States on a
permanent basis.” Richard D. Steel, Steel on Immigration Law § 2:23 (2d ed.
updated Oct. 2017). And when the law permits an immigrant legally to do so,
that person is a “lawful permanent resident.” See § 1101(a)(20).
      Nonimmigrants seeking permanent lawful status generally have two op-
tions. One option is the route available even to persons with no connection to
the country: “apply for an immigrant visa at a United States Consul outside of
the United States.” Steel, supra, § 4.8. But Congress has also provided a sec-
ond, streamlined option for certain nonimmigrants (and others) who are al-
ready present here: seek an “adjustment of status” under 8 U.S.C. § 1255(a).
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                                      No. 16-30165
       Section 1255(a) provides that, once an applicant meets certain specified
requirements, the Secretary of Homeland Security may, “in h[er] discretion
and under such regulations as [s]he may prescribe,” “adjust[]” the applicant’s
immigration status to that of a lawful permanent resident. 1 But § 1255(c)
carves out categories of aliens to whom § 1255(a) “shall not be applicable.” For
example, § 1255(a) shall not be applicable to certain aliens who are in “unlaw-
ful immigration status.” § 1255(c)(2). And—critical to this case—§ 1255(a)
“shall not be applicable to an alien crewman.” § 1255(c)(1). 2
       The last piece of this case’s statutory puzzle is the TPS program estab-
lished by the Immigration Act of 1990 and codified at 8 U.S.C. § 1254a. This
program allows the Secretary of Homeland Security to designate foreign coun-
tries suffering from humanitarian crises. See § 1254a(b). When a country is
designated, eligible nationals of that country who are present in the United
States may apply for TPS. See § 1254a(a)(1),(c). TPS-holders are then protected
from removal and authorized to work. See § 1254a(a)(1). And “for purposes of
adjustment of status under section 1255,” they “shall be considered as being
in, and maintaining, lawful status as a nonimmigrant.” § 1254a(f)(4).
                                             B
       Guerrero is a citizen and national of Honduras. In June 1998, the State
Department issued him a combined C-1/D nonimmigrant visa. Such visas are
issued to alien crewmembers who intend to transit through the United States
(as C-1s) on their way to joining crews (as Ds). See § 1101(a)(15)(C),(D); 22
C.F.R. § 41.12; Dep’t of State, 9 Foreign Affairs Manual § 402.8-8(b). Guerrero



       1  As of March 2003, immigration-law references to the Attorney General and the Im-
migration and Naturalization Service refer to the Secretary of Homeland Security and the
U.S. Customs and Immigration Service, respectively. See 6 U.S.C. §§ 211(c)(8), 542, 557.
        2 Section 1255(c)’s restrictions do not apply to self-petitioners under the Violence

Against Women Act and certain types of aliens described in § 1255(i). Guerrero does not pur-
port to fit these categories.
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                                 No. 16-30165
was then inspected and admitted as a C-1 nonimmigrant. Per the terms of his
admission, he was required to depart the country or join a crew within the next
twenty-nine days. See 8 C.F.R. § 214.2(c)(3). He did neither.
      Guerrero instead has remained in the country to this day, receiving TPS
in 1999 and marrying a U.S. citizen in 2011. After his wife secured an immi-
grant visa for him on his behalf, Guerrero applied to have his status adjusted
to that of a lawful permanent resident under § 1255(a).
      The U.S. Customs and Immigration Service (USCIS) denied Guerrero’s
application. It interviewed him and found that “[his] last entry into the United
States was as an alien crewman.” It thus ruled him ineligible for adjustment
of status by virtue of 8 U.S.C. § 1255(c)(1) and 8 C.F.R. § 245.1(b)(2). Guerrero
sought reconsideration. In doing so, he conceded that “[h]is last entry into the
United States [was] as an alien crewman.” But he argued that this fact “has no
bearing whatsoever” on his § 1255(a) application because the TPS statute
“gives [him] lawful status regardless of his manner of entry.” USCIS denied
reconsideration in a short letter, which deemed Guerrero’s TPS immaterial in
light of § 1255(c)(1)’s alien-crewman bar.
      Guerrero then filed this action in district court to compel USCIS to grant
his § 1255(a) application. Although Guerrero styled his pleading a “petition for
writ of mandamus,” he did not invoke the district court’s mandamus jurisdic-
tion, see 28 U.S.C. § 1361, and all involved have construed his complaint as
instigating a civil action under the judicial-review provisions of the Adminis-
trative Procedure Act, 5 U.S.C. §§ 701–06.
      The government moved to dismiss the action on the ground that Guer-
rero is statutorily ineligible for § 1255(a) as “an alien crewman.” § 1255(c)(1).
The district court denied the motion, concluding that the TPS statute’s “hu-
manitarian aims” trumped the limitations in § 1255(c)(1). See Guerrero v.
Johnson, 138 F. Supp. 3d 754, 759–61 (E.D. La. 2015). Then, after providing
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                                    No. 16-30165
the parties a chance to respond, the district court entered summary judgment
sua sponte for Guerrero. We review that judgment de novo, asking whether
USCIS’s decision was “arbitrary, capricious, an abuse of discretion, not in ac-
cordance with law, or unsupported by substantial evidence.” E.g., Buffalo Ma-
rine Servs. Inc. v. United States, 663 F.3d 750, 753–54 (5th Cir. 2011).
                                           II
      The parties and district court opinion all skip the critical threshold ques-
tions: what does it mean to be “an alien crewman” under § 1255(c)(1), and does
Guerrero meet that standard? Based on the undisputed law and facts, we con-
clude he does.
      Congress amended § 1255 in 1960 to exclude “alien crewm[e]n.” Pub. L.
No. 86-648, § 10, 74 Stat. 504, 505. The rationale for doing so was straightfor-
ward: “to deter them from ‘jumping ship.’” Guinto v. INS, 774 F.2d 991, 992
(9th Cir. 1985). Specifically, Congress was concerned that, because crewmem-
bers “have relatively easy access to the United States,” they might “obtain legal
residence by deserting and hiding out.” Matter of Goncalves, 10 I. & N. Dec.
277, 279 (BIA 1963). To that end, USCIS and related agencies have consist-
ently interpreted the phrase “alien crewman” in § 1255 to mean:
             [a]ny alien who, on arrival in the United States, was
             serving in any capacity on board a vessel or aircraft or
             was destined to join a vessel or aircraft in the United
             States to serve in any capacity thereon . . . .
8 C.F.R. § 245.1(b)(2) (construing 8 U.S.C. §§ 1101(a)(10), (15)(D), 1255(c)(1)). 3
Two features of this interpretation bear on the resolution of this case.
      First, the government’s interpretation is functional. It asks not whether
an applicant’s paperwork formally labels him a “D” nonimmigrant. Rather, it


      3 This interpretation was adopted on July 23, 1960, see 25 Fed. Reg. 7014, 7014–15,
and enacted through notice and comment on December 19, 1961, see 26 Fed. Reg. 12,110,
12,114.
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                                  No. 16-30165
calls for a factual assessment of his purpose at the time of his latest entry. See,
e.g., Matter of Campton, 13 I. & N. Dec. 535, 537 (BIA 1970) (“[A] formal ad-
mission as a crewman is not required in finding that respondent, upon arrival,
intended to pursue his calling as a crewman . . . . [I]t is substance rather than
form which controls . . . .”); Goncalves, 10 I. & N. Dec. at 279–80 (C-1 transit
alien who overstayed his visa was “barred from relief” under § 1225 “because
he entered in pursuit of his calling as a seaman”); Matter of Tzimas, 10 I. & N.
Dec. 101, 101–02 (BIA 1962) (same); cf. Matter of G-D-M-, 25 I. & N. Dec. 82,
85 (BIA 2009) (similarly interpreting 8 U.S.C. § 1229b(c)(1)). Other circuits
adopt this view. See, e.g., Reganit v. Sec’y, Dep’t of Homeland Sec., 814 F.3d
1253, 1258 (11th Cir. 2016); Guerrero v. Holder, 734 F.3d 45, 49 (1st Cir. 2013).
And although our own circuit has yet to weigh in directly, that is immaterial
in light of Guerrero’s failure to contest the issue. Because Guerrero does not
challenge the government’s longstanding interpretation, we need not assess
whether he can overcome the Chevron headwinds and persuade us to go a dif-
ferent way. See Chevron v. NRDC, 467 U.S. 837, 842–43 (1984). We assume
without deciding that the government’s functional approach applies.
      Second, the government’s interpretation is retrospective. It looks only to
the facts as they existed at the time of the applicant’s last entry. See 8 C.F.R.
§ 245.1(b)(2). Our own caselaw is in accord. In Liu v. INS, 645 F.2d 279, 284
(5th Cir. Unit A May 1981), we held that “[b]y act of Congress,” § 1255 is “not
available to aliens who enter the country as crewmen” and that, even when a
crewmember later overstays his visa and marries a U.S. citizen, those actions
do “not change the immutable fact that he entered the United States as an al-
ien crewman.” Although we did not define the substance of what it means to
“enter as an alien crewman,” Liu makes clear that the retrospective aspect of
the government’s interpretation is already binding on us.


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                                       No. 16-30165
       With this legal definition in hand, we can turn to the facts. And factually
speaking, there is no dispute that Guerrero “was destined to join a vessel” upon
his last “arrival in the United States.” 8 C.F.R. § 245.1(b)(2). Indeed, USCIS
expressly found after an interview that “[his] last entry into the United States
was as an alien crewman.” And while the administrative record is too incom-
plete to fully assess that finding, Guerrero has conceded repeatedly in his
briefs—to USCIS, to the district court, and to us—that “[h]is last entry into the
United States [was] as an alien crewman.” He is thus “an alien crewman”
within the meaning of § 1255(c)(1). 4
                                             III
       Even so, Guerrero contends that the TPS statute exempts him from
§ 1255(c)(1)’s seemingly categorical bar. We assume without deciding that we
owe no deference to the agency on this issue. But even without such deference,
we still fail to see how Guerrero’s arguments can prevail.
       Statutory interpretation begins with the text. E.g., Esquivel-Quintana v.
Sessions, 137 S. Ct. 1562, 1569 (2017). And § 1255(c)(1)’s text is clear: the relief
Guerrero seeks “shall not be applicable to an alien crewman” like him. It falls
to Guerrero to locate some other statutory provision freeing him from
§ 1255(c)(1)’s effect. He points to § 1254a(f)(4), which (we repeat) provides: “For
purposes of adjustment of status under section 1255,” a TPS-holder “shall be
considered as being in, and maintaining, lawful status as a nonimmigrant.”




       4 Guerrero has never argued that his receipt of TPS constituted a new, “fictional” ad-
mission to the country, such that his 1998 entry as an alien crewman was no longer his most
recent entry or admission. Cf. Gomez v. Lynch, 831 F.3d 652, 659 n.9 (5th Cir. 2016) (recog-
nizing “legally fictional admissions”). Any such argument is forfeited or even waived, given
Guerrero’s failure to address the meaning of “alien crewman” at all, and given his concessions
to the agency that he “was inspected and admitted as an alien crewman” and that “[h]is last
entry into the United States [was] as an alien crewman.” We express no view as to the merits
of such an argument.
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                                         No. 16-30165
        But § 1254a(f)(4) cannot do the work Guerrero asks of it. Although Guer-
rero repeatedly asserts that this language “unambiguous[ly]” permits TPS-
holders to adjust their status “regardless of prior manner of entry,” that is not
what the statute says. Instead of offering TPS-holders carte blanche to become
lawful permanent residents, § 1254a(f)(4) extends to them the more narrowly-
crafted benefit of “lawful status as a nonimmigrant.” A full explication of what
that benefit entails is beyond the scope of this appeal. All that matters here is
whether Guerrero’s “lawful status as a nonimmigrant” erases the historical
fact that he last entered the United States “in pursuit of his calling as a sea-
man.” Goncalves, 10 I. & N. Dec. at 279–80; see Liu, 645 F.2d at 284; 8 C.F.R.
§ 245.1(b)(2). Guerrero has not shown that it does. 5
        To start, the “lawful” component of Guerrero’s “lawful status as a nonim-
migrant” says nothing about whether he is also “an alien crewman” under
§ 1255(c)(1). It does remove the consequences of him overstaying his visa, at
least for purposes of § 1255. But the fact that Guerrero overstayed his visa is
not why USCIS denied his § 1255 application, and it is not what makes him
“an alien crewman.” Rather, Guerrero is “an alien crewman” because of the
circumstances of his most recent entry to the country in 1998. As a result, he
is ineligible under § 1225(c)(1) today for the same reason he was ineligible dur-
ing the twenty-nine days in 1998 during which he held a valid visa. That
§ 1254a(f)(4) in some sense restores his lawful status does not change that fact.
        Nor does it matter that § 1254a(f)(4) grants Guerrero status “as a nonim-
migrant.” As explained above, “nonimmigrant” is a formal descriptor referring
to the classes of aliens defined in 8 U.S.C. § 1101(a)(15). Guerrero was classi-
fied    as     a “C-1”      transit nonimmigrant        when      he     first   arrived,   see




        5   See supra note 4.
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                                  No. 16-30165
§ 1101(a)(15)(C), and not, it bears noting, as a “D” “alien crewman” nonimmi-
grant, see § 1101(a)(15)(D)(1). But none of that matters for purposes of
§ 1255(c)(1), which, under the government’s undisputed interpretation, looks
to “substance rather than form.” Campton, 13 I. & N. Dec. at 537 (holding that
a “B-2” nonimmigrant was nonetheless “an alien crewman” for purposes of
§ 1255 because, as a matter of historical fact, he entered the country in pursuit
of his occupation as a crewman); Goncalves, 10 I. & N. Dec. at 279–80 (same
for C-1 nonimmigrant); Tzimas, 10 I. & N. Dec. at 101–02 (same). Thus, re-
gardless whether § 1254a(f)(4) gives Guerrero the status of a “C-1,” a “D,” a “B-
2,” an “H-1B,” all of the above, none of the above, or something else entirely, it
still cannot alter the historical circumstances of his entry on which the
§ 1255(c)(1) inquiry depends. To that, § 1254a(f)(4) is irrelevant.
      Guerrero responds by pointing to the developing circuit split on whether
TPS-holders automatically fulfill § 1255(a)’s requirement of having been “in-
spected and admitted or paroled into the United States.” § 1255(a). Compare
Ramirez v. Brown, 852 F.3d 954, 958 (9th Cir. 2017) (yes), and Flores v. USCIS,
718 F.3d 548, 551, 554 (6th Cir. 2013) (yes), with Serrano v. U.S. Atty. Gen.,
655 F.3d 1260, 1265 (11th Cir. 2011) (no). But this case as presented does not
implicate that issue. USCIS denied Guerrero’s application based on
§ 1255(c)(1)’s alien-crewman bar—not a failure to meet the requirements in
§ 1255(a). Our review is thus confined to the validity of that alien-crewman
determination, leaving the effect of TPS on § 1255(a)’s requirements to be de-
cided another day. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943);
Garcia-Carias v. Holder, 697 F.3d 257, 261 n.1 (5th Cir. 2012).
      If anything, the Ninth Circuit’s Ramirez decision actually highlights the
flaw in Guerrero’s position. Ramirez held that receipt of TPS is legally equiva-
lent to being “inspected and admitted or paroled” for purposes of § 1255(a). 852
F.3d at 957. The court reasoned that § 1254a(f)(4) confers “lawful status as a
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                                       No. 16-30165
nonimmigrant,” and that, under the immigration laws, no one can be in lawful
status as a nonimmigrant without having been inspected and admitted or pa-
roled. Id. at 960. Thus, the court held, § 1254a(f)(4)’s grant must entail the
same thing. Id. But that same logic falls apart in Guerrero’s case. Clearly it is
possible to maintain “lawful status as a nonimmigrant” without being “an alien
crewman” (and vice versa): the two concepts are ships passing in the night. So
whereas Ramirez’s reasoning closes the gap between having “lawful status as
a nonimmigrant” and being “admitted and inspected or paroled,” Guerrero has
not shown that his “lawful status as a nonimmigrant” affects—let alone extin-
guishes—his last entry as “an alien crewman” under the uncontested interpre-
tation of § 1255(c)(1). Without a passable textual hook, Guerrero’s atextual
reading of § 1254a(f)(4) fails. 6
       Although the district court briefly discussed the statutory language, it
did so only to recognize that the text cut against its holding. 7 Then, rather than
re-aligning its interpretation of the statute to match what the statute says, the
district court concluded that it would be “unreasonable” to require Congress
specifically to amend §§ 1255(c)(1) and 1254a(f)(4) to accommodate alien crew-
members with TPS, and held that the TPS statute’s “humanitarian aims”
should take precedence over Congress’s expressed concern with crewmembers



       6  Guerrero also asserts that the description of 8 U.S.C. § 1254a(a)(5) given in United
States v. Orellana, 405 F.3d 360, 364 & nn.18, 20 (5th Cir. 2005), somehow means that he “is
not bound to the consequences of his initial entry as a crewman.” See Appellee Br. at 16–18.
Unable to make heads or tails of this argument, we deem it forfeited as inadequately briefed.
See, e.g., Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 796 (5th Cir. 2013) (ap-
plying briefing forfeiture rule to the appellee). We see no relevance in § 1254a(a)(5).
        7 See, e.g., Guerrero, 138 F. Supp. 3d at 758 (“[T]he language of § 1255 does not appar-

ently contemplate exceptions to the general bar on alien crewmen.”); id. at 759 (“Alien crew-
man status . . . can be a lawful [non]immigrant status (nonetheless barred from adjustment
under § 1255(c)(1)) and one could argue that all the language of § 1254a(f)(4) accomplishes in
a case like Guerrero’s is to remove ‘overstayed’ from Guerrero’s alien crewman status.’”); id.
at 760 (acknowledging that § 1254a(f)(4) does not “carefully interact with the finer details of
nonimmigrant visa statuses”).
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                                   No. 16-30165
“jumping ship.” See Guerrero, 138 F. Supp. 3d at 760–61. But because courts
“ha[ve] no roving license . . . to disregard clear language simply on the view
that . . . Congress ‘must have [or, as a policy matter, should have] intended’
something broader,” Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2034
(2014), this approach was error.
      We reverse and render judgment for the government.




                                       12
