Fredis Artola, also known as Jose Walter Merlos Giron v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 19-1286
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Fredis Artola, also known as Jose Walter Merlos Giron
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 17, 2020
Filed: May 5, 2021
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Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.
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GRUENDER, Circuit Judge.
Fredis Artola petitions us to review the Board of Immigration Appeals’
(“BIA”) decision denying his request for cancellation of removal. Artola argues that
his grant of Temporary Protected Status (“TPS”) obviates the need for him to
demonstrate he was “admitted” in order to be eligible for cancellation of removal.
Alternatively, he argues that his grant of TPS is an “admission” for cancellation-of-
removal purposes. We disagree with both contentions, so we deny Artola’s petition.

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I.
Artola, a native and citizen of El Salvador, entered the United States in 1998
without inspection. On March 25, 2003, he received TPS. In May 2008, he gained
lawful-permanent-resident status. On April 6, 2012, Minnesota police found cocaine
in Artola’s possession, and he was subsequently convicted of drug possession under
Minnesota law. In February 2018, Artola left the United States for a trip. When he
returned, the U.S. Department of Homeland Security learned of Artola’s cocaine
conviction, deferred Artola’s inspection, and ultimately sought his removal from the
country.
Before an Immigration Judge (“IJ”), Artola applied for cancellation of
removal pursuant to 8 U.S.C. § 1229b(a). Under § 1229b(a), an immigrant’s
removal may be cancelled if he has (i) been lawfully admitted for permanent
residency for at least five years, (ii) resided in the United States continuously for
seven years after having been admitted in any status, and (iii) not been convicted of
an aggravated felony. The IJ denied Artola’s request, concluding that Artola failed
the second condition because he did not meet the seven-year-residency requirement.
Artola appealed the IJ’s decision to the BIA, which affirmed the IJ’s decision and
reasoning. Artola petitions for our review.
II.
We review an agency’s legal determinations de novo. Llapa-Sinchi v.
Mukasey, 520 F.3d 897, 899 (8th Cir. 2008).1 Where, as here, the BIA issues a
separate opinion rather than summarily affirming the IJ’s decision, we review the
1 The Government urges us to give the IJ’s and BIA’s statutory interpretations
deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). But Skidmore
deference applies only when the statute is ambiguous. See Mansour v. Holder, 739
F.3d 412, 415 (8th Cir. 2014). Because the statutory provisions at issue here are
clear, “it [is] unnecessary to rely upon [the] agency view.” See Riegel v. Medtronic,
Inc., 552 U.S. 312, 326 (2008).

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BIA’s decision as the final agency action. See Alzawed v. Barr, 970 F.3d 997, 1000
(8th Cir. 2020). To the extent the BIA adopted the IJ’s reasoning, we review the IJ’s
decision too. Id.
This case presents a narrow question of statutory interpretation, which is an
issue of first impression in our circuit. Both parties agree that Artola’s residency
clock stopped in April 2012 when Minnesota police found cocaine in his possession.
See 8 U.S.C. § 1229b(d)(1)(B). The only question is when Artola’s residency clock
started. Artola argues that it started when he received TPS for two reasons: either
because his grant of TPS obviates the need to show that he was “admitted” in order
to obtain cancellation of removal or, alternatively, because his grant of TPS was
itself an admission for cancellation-of-removal purposes. We take each argument in
turn.
A.
To be eligible for cancellation of removal under § 1229b(a), Artola must
show, inter alia, that he “has resided in the United States continuously for 7 years
after having been admitted in any status.” The provision’s plain language makes an
“admission” a prerequisite to starting the seven-year clock.
Artola acknowledges this language but argues that § 1254a(e) creates an
exception to § 1229b(a)’s admission requirement. Section 1254a(e) states that:
With respect to an alien granted temporary protected status under this
section, the period of such status shall not be counted as a period of
physical presence in the United States for purposes of section 1229b(a)
of this title unless the Attorney General determines that extreme
hardship exists. Such period shall not cause a break in the continuity
of residence of the period before and after such period for purposes of
such section.

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From § 1254a(e), Artola argues that time in TPS counts toward the seven-
year-residency requirement even without a prior admission so long as the Attorney
General finds extreme hardship.2 But Artola reads too much from too little.
“Our analysis begins, as always, with the statutory text.” Argus Leader Media
v. U.S. Dep’t of Agric., 740 F.3d 1172, 1175 (8th Cir. 2014). Here, the plain
language of § 1254a(e) in no way indicates that it is creating an exception to
§ 1229b(a)(2)’s admission requirement. The “shall-not-unless” construction of
§ 1254a(e)’s first sentence indicates that, for those relying on time in TPS to satisfy
the seven-year-residency requirement, a finding of extreme hardship is a necessary
but not sufficient finding. See I.N.S. v. Doherty, 502 U.S. 314, 322-23 (1992)
(holding that a regulation with the same formulation established a necessary but not
sufficient condition); Gamero v. Barr, 929 F.3d 464, 472 (7th Cir. 2019); Manor
Care, Inc. v. United States, 630 F.3d 1377, 1381-82 (Fed. Cir. 2011). And
§ 1254a(e)’s second sentence merely states that a grant of TPS does not break an
existing period of residence, which similarly does not suggest that TPS recipients
need not show an admission. We agree with the only other circuit to have considered
this question that § 1254a(e) does not eliminate § 1229b(a)(2)’s admission
requirement. See Chavez v. Holder, 587 F. App’x 43, 45-46 (4th Cir. 2014) (per
curiam). Rather, § 1254a(e) imposes an additional requirement for those seeking to
use their time in TPS toward the seven-year-residency requirement—they must also
show that the Attorney General has made an extreme-hardship finding.
Artola counters that, if § 1254a(e) does not create an exception to the
admission requirement, it does nothing at all. He argues that, if someone has already
been admitted in a different status, they can rely on that admission to satisfy
§ 1229b(a)(2) and thus would never need to rely on the TPS grant. Thus, Artola
claims, our interpretation renders § 1254a(e) superfluous. But even assuming that
Artola is right, “our preference for avoiding surplusage constructions is not
2 Because we conclude that Artola otherwise has failed to satisfy the seven-
year-residency requirement, we need not consider whether Artola has satisfied the
hardship requirement.

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absolute.”3 Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004); see also Marx v. Gen.
Revenue Corp., 568 U.S. 371, 385 (2013). And, for two reasons, that preference
does not control here.
In Barton v. Barr, the Supreme Court acknowledged that its interpretation of
one immigration statutory provision rendered another provision superfluous. 590
U.S. ---, 140 S. Ct. 1442, 1453 (2020). Nonetheless, it explained that “redundancies
are common in statutory drafting” and that “[s]ometimes the better overall reading
of the statute contains some redundancy.” Id.; see also Rimini Street, Inc. v. Oracle
USA, Inc., 586 U.S. ---, 139 S. Ct. 873, 881 (2019). Thus, the Court ultimately held
that “[r]edundancy in one portion of a statute is not a license to rewrite or eviscerate
another portion of the statute contrary to its text.” Barton, 140 S. Ct. at 1453. So
too here, Artola’s proposed interpretation would have us rewrite § 1254a(e) to say
something it does not, thereby eviscerating § 1229b(a)(2)’s admission requirement
for all TPS grantees. We may not do so, surplusage notwithstanding. See Owner-
Operator Indep. Drivers Ass’n v. United Van Lines, LLC, 556 F.3d 690, 695 (8th
Cir. 2009) (“[S]urplusage[] does not warrant rewriting the text of a statute whose
meaning is plain and produces no absurd results.”).
Additionally, the presumption against surplusage presumes a degree of
carefulness in congressional drafting plainly absent here. Section 1254a(e) says that
TPS “shall not be counted as a period of physical presence . . . for purposes of section
1229b(a) . . . unless the Attorney General determines that extreme hardship exists.”
§ 1254a(e) (emphasis added). But § 1229b(a) requires a period of residency, not
physical presence. Section 1229b(b), on the other hand, does require a period of
3 And it is unclear if Artola is right. For example, in Chavez, the Fourth Circuit
held that § 1254a(e) did not excuse the admission requirement but nonetheless
explained that § 1254a(e) would still have effect because someone could be lawfully
admitted into the United States in one status, receive TPS, lose their initial status,
and thus have to rely on TPS to continue their residency. See 587 F. App’x at 45.
We need not resolve the issue because, even assuming § 1254a(e) is superfluous, our
conclusion remains the same.

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physical presence, not residency. Thus, § 1254a(e) is facially nonsensical. In all
likelihood, Congress either wrote “section 1229b(a)” when it meant “section
1229b(b)” or wrote “physical presence” when it meant “residence.” But under either
explanation the point remains the same—strict adherence to the canon against
surplusage in this case makes little sense. See King v. Burwell, 576 U.S. 473, 491
(2015) (explaining that “rigorous application of the canon [against surplusage]”
would not be useful in part because the law there “contain[ed] more than a few
examples of inartful drafting”).
As the Supreme Court has explained, when confronted with a choice between
an interpretation that honors a statute’s plain meaning but produces surplusage, and
an interpretation that ignores the plain meaning but avoids surplusage, there is no
choice at all—the plain meaning must control. See Lamie, 540 U.S. at 536.
In sum, § 1254a(e) does not excuse § 1229b(a)’s admission requirement for
TPS recipients.
B.
Artola alternatively argues that, even if he is required to show that he was
“admitted,” his TPS grant qualifies as an admission.
The law defines “admission” as “the lawful entry of the alien into the United
States after inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A). This definition refers to inspection and admission at a port-of-
entry. Roberts v. Holder, 745 F.3d 928, 932 (8th Cir. 2014) (per curiam). Artola
does not argue that his grant of TPS satisfies this definition. Nor could he. See
Velasquez v. Barr, 979 F.3d 572, 578 (8th Cir. 2020) (acknowledging that the grant
of TPS does not satisfy § 1101(a)(13)(A)’s definition). Rather, he argues that we
should give “admitted” a different meaning in this context. We are unpersuaded.

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Artola primarily argues that our prior decision in Velasquez requires us to
conclude that his TPS grant constitutes an admission for cancellation-of-removal
purposes. It does not. In Velasquez, we considered whether a grant of TPS was an
admission for adjustment-of-status purposes. Id. at 575. There, we noted that
§ 1254a(f)(4) stated that “‘for purposes of adjustment of status under section 1255,’
a TPS beneficiary ‘shall be considered as being in, and maintaining, lawful status as
a nonimmigrant.’” Id. (quoting § 1254a(f)(4)). In turn, we found that having a
lawful nonimmigrant status necessarily requires an inspection and admission. Id.
Accordingly, we held that a grant of TPS for § 1255 adjustment-of-status purposes
was to be considered an “admission.” Id. In doing so, we made clear that we were
not holding that a grant of TPS was actually an admission but that “Congress used
the term ‘considered’ to create a legal fiction for adjustment purposes.” Id. at 580.
Our holding in Velasquez is thus limited to adjustment of status and does not bear
on whether TPS is an admission for cancellation-of-removal purposes.
Artola also argues that, even if Velasquez does not resolve this case, we should
still count a TPS grant as an admission for cancellation-of-removal purposes because
§ 1254a(f)(4) treats it as an admission for adjustment-of-status purposes under
§ 1255 and change-of-status purposes under § 1258. To the contrary, the fact that
§ 1254a(f)(4) expressly provides that TPS time counts for these specific purposes
indicates it does not apply for other purposes—like cancellation of removal. See
I.N.S. v. Phinpathya, 464 U.S. 183, 190 (1984).
In sum, a grant of TPS does not constitute an admission for § 1229b(a).
III.
For the foregoing reasons, we deny Artola’s petition.
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