author: CHRISTEN, Circuit Judge:

text:
    Barbara AVILA; Miguel Avila, Plaintiffs-Appellants, v. SPOKANE SCHOOL DISTRICT 81, Defendant-Appellee.
    No. 14-35965
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 5, 2016, Seattle, Washington
    Filed March 30, 2017

      Mark A. Silver (argued) and Jeffrey A. Zachman, Denton US LLP, Atlanta, Georgia; Richard D. Salgado, Dentons US LLP, Dallas, Texas; for Plaintiffs-Appellants.
    Gregory Lee Stevens (argued), Stevens Clay P.S., Spokane, Washington, for Defendant-Appellee.
    Before: M. MARGARET McKEOWN, RICHARD C. TALLMAN, and MORGAN CHRISTEN, Circuit Judges.
   OPINION

CHRISTEN, Circuit Judge:

The Avilas, parents of a student in Spokane School District 81, appeal the district court’s order dismissing their claims that the District violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. The Avilas argue that the district court misapplied the statute of limitations in 20 U.S.C. § 1415(f)(3)(C) to their claims that the District failed to identify their child’s disability or assess him for autism in 2006 and 2007.

In a question of first impression for this court, we conclude that the IDEA’S statute of limitations requires courts to bar only claims brought more than two years after the parents or local educational agency “knew or should have known” about the actions forming the basis of the complaint. Because the district court barred all claims “occurring” more than two years before the Avilas filed their due process complaint, we remand so that the district court can determine, when the Avilas knew or should have known about the actions forming the basis of their complaint.

BACKGROUND

Appellants Barbara and Miguel Avila are the parents of G.A., a student in Spokane School District 81. In 2006, when G.A. was five, the Avilas asked the District to evaluate him for special education services based on “[b]ehavior” issues. One of the reasons for this request was a preschool teacher’s concern that G.A. might be “showing slight signs of autism.” In December 2006, a school psychologist evaluated G.A. and concluded that although he displayed some “behaviors of concern,” G.A.’s behavior was not severe enough to qualify for special education services under the IDEA. G.A.’s mother was given a copy of the evaluation report and signed a form stating that she agreed with the evaluation results.

In the fall of 2007, G.A. enrolled in kindergarten. A private third-party physician diagnosed him with Asperger’s Disorder in October 2007, and the Avilas requested that the District reevaluate G.A.’s eligibility for special education services. A school psychologist concluded in a reevaluation dated April 14, 2008 that G.A. was eligible for special educational services under the category of autism and, from April 2008 until February 2009, the Avilas and representatives from the District met multiple times to discuss an Individualized Education Program (IEP) for him. The Avilas and the District initially disagreed, but eventually signed an IEP in February 2009. G.A. then began attending ADAPT, a specialized program in the District for students with autism.

About a year later, the District reevaluated G.A., assessing his behavior, speech and language, occupational therapy needs, and academic achievements, including reading, writing, and mathematics. The District then drafted another IEP. The Avilas did not agree with the reevaluation’s findings and did not sign it. Instead, they requested an Independent Educational Evaluation (IEE) at the District’s expense. See Wash. Admin. Code § 392-172A-05005(1). The District denied this request.

The Avilas filed a request for a due process hearing with the Washington State Office of Administrative Hearings on April 26, 2010. As required by law after the denial of a parent’s request for an IEE, the District also initiated a due process hearing with the Washington State Office of Administrative Hearings to consider whether the District’s reevaluation was sufficient. See Wash. Admin. Code § 392-172A-05005(2)(c). Ultimately, the ALJ ruled that the District’s reevaluation was appropriate and that the Avilas were not entitled to an IEE at the District’s expense. In a separate order, the ALJ ruled in favor of the District on all other claims. Specifically, he concluded that eleven of the Avilas’ pre-April 2008 claims were time-barred. These claims consisted of nine procedural claims concerning the District’s alleged failure to give prior written notice to the Avilas and two substantive claims. The substantive claims alleged that the District denied G.A. a free appropriate public education (FAPE) by failing to identify him as a child with a disability in 2006, and that the District failed to assess his suspected disability in 2006 and 2007. The ALJ concluded that no statutory exceptions applied and held that the Avilas’ claims were time-barred, reasoning “[t]he Parents[’] due process complaint was filed on April 26, 2010 and any complaint by Parents regarding the District actions or inactions occurring prior to April 26, 2008 are barred by the statu[t]e of limitations.”

The Avilas timely appealed both decisions to the United States District Court for the Eastern District of Washington, where their appeals were consolidated. The consolidated appeal addressed seven of the claims the ALJ deemed time-barred: five of their prior written notice claims and the two substantive claims arguing denials of G.A.’s right to a FAPE.

The district court agreed with the ALJ’s determination that neither exception to the statute of limitations applied and affirmed the ALJ’s decision that the IDEA’S two-year limitations period barred the Avilas’ claims arising before April 26, 2008. The district court also affirmed the ALJ’s ruling that the April 2010 reevaluation was appropriate, that the IEP provided G.A. with a FAPE, and that the Avilas were not entitled to an IEE at the District’s expense. The Avilas timely appealed to this court. They argue that the district court improperly applied the IDEA’S statute of limitations to their two substantive claims. They do not appeal the district court’s ruling that their five remaining prior written notice claims lack merit.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 20 U.S.C. § 1415(i)(2)(A) and 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

Our court reviews de novo the district court’s conclusions of law, including the question whether a claim is barred by a statute of limitations. See Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1194 (9th Cir. 2014).

DISCUSSION

I. The IDEA’S statute of limitations requires courts to apply the discovery rule.

A. Statutory overview

“The IDEA provides federal funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedures.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993). The IDEA seeks “to ensure that all children with disabilities have available to them a free appropriate public education.” 20 U.S.C. § 1400(d)(1)(A). “A FAPE is defined as an education that is provided at public expense, meets the standards of the state educational agency, and is in conformity with the student’s IEP.” Baquerizo v. Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1184 (9th Cir. 2016) (citing 20 U.S.C. § 1401(9)). Upon request of a parent or agency, a local educational agency must “conduct a full and individual initial evaluation” to determine whether a child has a disability and the child’s educational needs. 20 U.S.C. § 1414(a)(l)(A)-(C). If a child is determined to have a disability, a team including a local educational agency representative, teachers, parents, and in some cases, the child, formulates an IEP. § 1414(d)(1)(B). The local educational agency must conduct a reevaluation of the child if it “determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation,” or if a reevaluation is requested by the child’s parents or teacher. § 1414(a)(2)(A).

The IDEA permits parents and school districts to file due process complaints “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” § 1415(b)(6)(A). The state educational agency or local educational agency hears due process complaints in administrative due process hearings. § 1415(f)(1)(A). If a party disagrees with the administrative findings and decision, the IDEA allows for judicial review in state courts and federal district courts. § 1415 (i) (2) (A).

B. The IDEA’S statute of limitations

Prior to 2004, the IDEA did not include a statute of limitations for due process hearings or complaints. See 20 U.S.C. § 1415(b)(6) (1999); S.V. v. Sherwood Sch. Dist., 254 F.3d 877, 879 (9th Cir. 2001) (“The IDEA specifies no limitations period governing either a plaintiffs request for an administrative hearing or the filing of a civil action.”). Congress amended the IDEA in 2004 to add a two-year statute of limitations period that is now codified in two different provisions of the IDEA: 20 U.S.C.' § 1415(b)(6)(B) and 20 U.S.C. § 1415(f)(3)(C). Our circuit has not addressed these amendments, but in G.L. v. Ligonier Valley School District Authority, 802 F.3d 601 (3d Cir. 2015), the Third Circuit described § 1415(b)(6)(B) and § 1415(f)(3)(C) as alike “in almost all respects” except for one glaring ambiguity: “§ 1415(b)(6)(B)’s two-year limitations period runs backward instead of forward from the reasonable discovery date.” Id. at 610.

The Avilas contend that § 1415(f)(3)(C) requires this court to apply a discovery rule to IDEA claims, meaning that the statute of limitations is triggered when “a plaintiff discovers, or reasonably could have discovered, his claim.” See O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1147 (9th Cir. 2002). The District does not dispute that the discovery rule should apply to trigger the statute of limitations, but argues that the district court did apply the discovery rule and that the Avilas’ claims are barred because they failed to file suit within two years after they knew or should have known about their claims.

C. Analysis

The application of the IDEA’S statute of limitations is a question of first impression for this court: we have not squarely addressed the “knew or should have known” standard in the IDEA or the seemingly contradictory provisions in § 1415(b)(6)(B) and § 1415(f)(3)(C). In the first federal appellate decision addressing how § 1415(b)(6)(B) and § 1415(f)(3)(C) should be reconciled, the Third Circuit concluded that the IDEA’S statute of limitations requires courts to apply the discovery rule described in § 1415(f)(3)(C). Ligonier, 802 F.3d at 625. The statutory text of the IDEA, including its language and context, persuade us that the Third Circuit’s approach in Ligonier is correct and that the IDEA’S statute of limitations requires courts to apply the discovery rule described in § 1415(f)(3)(C). The Department of Education’s interpretation of the 2004 statutory amendments and the associated legislative history support this reading of the statute.

“When interpreting a statute, we are guided by the fundamental canons of statutory construction and begin with the statutory text.” United States v. Neal, 776 F.3d 645, 652 (9th Cir. 2015) (citing BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004)). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.” Geo-Energy Partners-1983 Ltd. v. Salazar, 613 F.3d 946, 956 (9th Cir. 2010) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). “If the statutory text is ambig uous, we employ other tools, such as legislative history, to construe the meaning of ambiguous terms.” Benko v. Quality Loan Serv. Corp., 789 F.3d 1111, 1118 (9th Cir. 2015).

Read in isolation, § 1415(f)(3)(C) appears straightforward. Entitled “Timeline for requesting hearing,” it states:

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

§ 1415(f)(3)(C). However, an ambiguity arises when § 1415(f)(3)(C) is read in conjunction with § 1415(b)(6)(B). The latter states, under the heading “Types of procedures,” that the IDEA allows:

[An opportunity for any party to present a complaint] which sets forth an- alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this sub-chapter, in such time as the State law allows....

§ 1415(b)(6)(B).

The Third Circuit’s Ligonier decision recognized that litigants have advanced various interpretations of the IDEA’S statute of limitations: (1) the occurrence rule suggested by § 1415(b)(6)(B), under which the statute of limitations begins to run on the date the injury occurs; (2) the discovery rule provided in § 1415(f)(3)(C); or (3) the “2+2” rule. Ligonier, 802 F.3d at 607, 612-15. Under the 2+2 rule, the statute of limitations is triggered when a plaintiff knew or should have known of his claim, but the scope of redressable harm is limited to the “two years before the reasonable discovery date through the date the complaint was filed, which could be up to two years after the reasonable discovery date, for a maximum period of relief of four years.” Id. at 607.

We first conclude that Congress did not intend the IDEA’S statute of limitations to be governed by a strict occurrence rule. Both § 1415(b)(6)(B) and § 1415(f)(3)(C) include language pegging the limitations period to the date on which the parent or agency “knew or should have known about the alleged action that forms the basis of the complaint,” not the date on which the action occurred. See § 1415(b)(6)(B), (f)(3)(C). If Congress intended a strict occurrence rule, there would have been no need to include the “knew or should have known” language in § 1415(b)(6)(B) and § 1415(f)(3)(C).

The text of the two provisions also undercuts the 2+2 rule. Both § 1415(b)(6)(B) and § 1415(f)(3)(C) allow the two-year statute of limitations to be replaced by “an explicit time limitation ... in such time as the State law allows.” § 1415(b)(6)(B), (f)(3)(C). If states adopt their own statutes of limitations pursuant to these provisions, § 1415(b)(6)(B) and § 1415(f)(3)(C) provide that the federal exceptions to the statute of limitations still apply, see 20 U.S.C. § 1415(b)(6)(B), (f)(3)(C)-(D), and it would make little sense to incorporate the federal exceptions for equitable tolling if § 1415(b)(6)(B) were a remedy cap rather than a preview of the statute of limitations set forth in § 1415(f)(3)(C). See Ligonier, 802 F.3d at 615. We hold that the text of the IDEA cannot support the “2+2” construction of the statute.

The next question is how to reconcile these two seemingly conflicting provisions. Looking to “the specific context in which the language is used and the broader context of the statute as a whole,” Geo-Energy Partners-1983, 613 F.3d at 956, § 1415(b) provides an overview of the other provisions of § 1415, including § 1415(f), while § 1415(f)(3)(C) addresses in more specific language the allowable period for requesting a due process hearing. See Ligonier, 802 F.3d at 616-18. Section 1415 is entitled “Procedural Safeguards,” with subsection (a) mandating that any state educational agency that receives federal assistance under the sub-chapter must establish and maintain certain procedures. Subsection (b), entitled “Types of procedures,” broadly outlines the many procedures state educational agencies are required to adopt, including the opportunity for any party to present a complaint regarding the identification, evaluation or educational placement of the child, or the provision of a FAPE. § 1415(b).

In contrast, § 1415(f), entitled “Impartial due process hearing,” describes in detail the procedures required whenever a parent or local education agency files a due process complaint under subsection (b)(6) or (k). Section 1415(f)(2) addresses evaluations and recommendations to be prepared in advance of a due process hearing. Section 1415(f)(3), entitled “Limitations on hearing,” is divided into “Persons conducting hearing,” “Subject matter of hearing,” and “Timeline for requesting hearing.” § 1415(f)(3)(A) — (C). It is this last provision, located in the subsection that expressly limits the right to a due process hearing, which specifies that the hearing must be requested within two years from the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. § 1415(f)(3)(C). Thus, the structure of § 1415 supports the conclusion that “§ 1415(b)(6)(B), though poorly penned, was intended merely as a synopsis of § 1415(f)(3)[ (C) ]’s” “knew or should have known” benchmark for the statute of limitations. See Ligonier, 802 F.3d at 618.

We have considered that Congress might have intended different limitations periods for presenting complaints and requesting due process hearings, but that possibility is inconsistent with the overall statutory scheme. Read that way, subsections (b) and (f) cannot be harmonized because § 1415(b) would bar a complaint arising from conduct occurring more than two years before the discovery date, but § 1415(f) would preserve the right to request a due process hearing concerning the same conduct. Our task is to harmonize the statutory scheme as a whole, and our interpretation of § 1415 as having just one applicable limitations period is consistent with the Department of Education’s position that the two provisions provide the same limitations period, discussed infra. See U.S. W. Commc’ns, Inc. v. Hamilton, 224 F.3d 1049, 1053 (9th Cir. 2000) (stating the duty to harmonize statutory provisions is “particularly acute” when the provisions are enacted at the same time and are part of the same statute).

Other sources of statutory interpretation confirm this reading. First, the broader context of the IDEA shows that it has a wide-ranging remedial purpose intended to protect the rights of children with disabilities and their parents. One express purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). As the Supreme Court stated, “[a] reading of the [IDEA] that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009). The broad purpose of the IDEA is clear and has been acknowledged repeatedly by our court. See E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 758 F.3d 1162, 1173 (9th Cir. 2014) (citing Forest Grove, 557 U.S. at 244-45, 129 S.Ct. 2484); Michael P. v. Dep’t of Educ., 656 F.3d 1057, 1060 (9th Cir. 2011) (same); Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1184 (9th Cir. 2010) (same). Cutting off children’s or parents’ remedies if violations are not discovered within two years, as the occurrence rule and the 2+2 rule would do, is not consistent with the IDEA’S remedial purpose. See Ligonier, 802 F.3d at 619-20 (concluding that applying the occurrence or 2+2 rules would go against the broad remedial purpose of the IDEA and serve as a sub silentio repeal of prior court decisions confirming the intent of the IDEA).

In commentary addressing its enabling regulations, the Department of Education (DOE) stated that it interprets § 1415(b)(6)(B) and § 1415(f)(3)(C) to provide the same limitations period. Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg. 46,706 (Aug. 14, 2006). The DOE’s interpretation necessarily rejects the 2+2 rule, which assumes that § 1415(b)(6)(B) and § 1415(f)(3)(C) provide two different limitations periods, although the agency’s interpretation does not offer any guidance on. whether the discovery rule or occurrence rule should prevail. As the Third Circuit noted, the DOE’s interpretation of its own regulation should be respected if “it has the ‘power to persuade.’ ” Ligonier, 802 F.3d at 621 (quoting Gonzales v. Oregon, 546 U.S. 243, 256, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) and Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 .(1944)). The DOE’s rejection of the 2+2 rule is in accord with the text of § 1415(f)(3)(C), our contextual reading of § 1415(b) as providing an overview of procedures required by the IDEA, and the IDEA’S broader statutory scheme.

The IDEA’S legislative history is in accord. When the 2004 IDEA amendments were crafted, the House of Representatives’ initial proposal was for a one-year statute of limitations that relied on the occurrence rule and required that a complaint “set forth a violation that occurred not more than one year before the complaint is filed.” H.R. Rep. 108-77, at 36 (2008). The Senate version of the bill included the wording that later became § 1415(f)(3)(C). S. Rep. 108-185, at 222 (2003) (“A parent or public agency shall request an impartial due process hearing within 2 years of the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint....”). Considering the two draft bills, the Third Circuit concluded:

The conference committee then incorporated the Senate’s version at § 1415(f) and the House’s version in the summary listing at § 1415(b). When it did so, however, it omitted to change the backward-looking framework of the House’s version to the forward-looking framework of the Senate’s. Thus was created the problem we grapple with today.

Ligonier, 802 F.3d at 623. This legislative history suggests that Congress intended to adopt the discovery rule, not the occurrence rule, in the final version of the 2004 amendments. See id.

The text and purpose of the IDEA, the DOE’s interpretation of the Act, and the legislative history of the 2004 amendments all lead us to the same conclusion. We hold the IDEA’S statute of limitations requires courts to apply the discovery rule without limiting redressability to the two-year period that precedes the date when “the parent or agency knew or should have known about the alleged action that forms the basis of the complaint.” § 1415(f)(3)(C).

II. The district court erred by concluding that the IDEA’S two-year statute of limitations necessarily barred claims arising in 2006 and 2007.

Having concluded that the IDEA’S statute of limitations is triggered when “the parent or agency knew or should have known about the alleged action that forms the basis of the complaint,” we turn to the Avilas’ claims. See § 1415(f)(3)(C) (emphasis added). In dismissing the Avilas’ complaint, the district court cited the correct standard from § 1415(f)(3)(C), but concluded, “Parents’ due process complaint was made April 26, 2010. Accordingly, unless an exception is shown, the Court finds any alleged misconduct prior to April 26, 2008, was not timely raised by Parents.” In other words, apart from considering the two express exceptions to the IDEA’S statute of limitations, the district court barred the Avilas’ claims arising before April 26, 2008 based on when the actions complained of occurred, rather than applying the discovery rule.

The district court found that Ms. Avila signed forms agreeing with the 2006-2007 evaluation results, but this does not end the inquiry because the Avilas’ awareness of the evaluations does not necessarily mean they “knew or had reason to know” of the basis of their claims before April 26, 2008. Cf. AG. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1205 (9th Cir. 2016) (holding that parents’ consent to a disabled child’s placement does not waive later challenges to the placement under Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act, “at least where the issue is one that requires specialized expertise a parent cannot be expected to have”). Other courts have held that the “knew or had reason to know date” stems from when parents know or have reason to know of an alleged denial of a free appropriate public education under the IDEA, not necessarily when the parents became aware that the district acted or failed to act. See, e.g., Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2d Cir. 2008) (holding that the “knew or should have known” date occurred when parent viewed a child’s rapid improvement in a new program); Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1288 (11th Cir. 2008) (holding the “knew or should have known date” occurred after new evaluation and declining to hold that “families] should be blamed for not being experts about learning disabilities”).

Because the district court barred the Avilas’ pre-April 2008 claims based on when the District’s actions occurred, we remand to the district court to make findings and address the statute of limitations under the standard we adopt here, namely. when the Avilas “knew or should have known about the alleged action[s] that form[] the basis of the complaint.” See § 1415(f)(3)(C).

Each party shall bear its own costs.

REVERSED and REMANDED.

      . The Avilas’ claim that the District violated the IDEA by failing to assess their child for dyslexia and dysgraphia is addressed in an unpublished memorandum disposition filed concurrently with this opinion.

      . The IDEA requires IEPs, which are "written statements] for each child with a disability,” as part of its mandate of ensuring students are provided with a free appropriate public education. See 20 U.S.C. §§ 1401(9)(D), 1414(d).

      . There are two express exceptions to the IDEA’S two-year statute of limitations: (1) when a local educational agency misrepresents that it has resolved issues underlying a claim; and (2) when a local educational agency withholds necessary information. 20 U.S.C. § 1415(f)(3)(D). The Avilas do not argue that either of these exceptions apply.

      . An IEP includes the following: 1) a statement about the child's level of academic achievement; 2) “measurable annual goals’’; 3) a description of how the child’s progress towards the goals will be measured; and 4) a statement of the special education and other services to be provided. 20 U.S.C. § 1414(d)(1)(A).

      . The events underlying this action took place from 2006 to April 2010, and the applicable version of the IDEA was in effect from 2004 to October 2010. See Amanda J. ex rel. Annette J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 882 n.1 (9th Cir. 2001) (applying the 1994 version of IDEA to events that took place in 1995, despite 1997 revision of IDEA). The 2010 amendments do not materially affect the analysis or outcome of this case. See Pub. L. No. 111-256, 124 Stat. 2643 (2010) (amending the IDEA to change references from "mental retardation” to "intellectual disabilities”).


source: Caselaw Access Project

author: PER CURIAM: GOULD, Circuit Judge,

license: Public Domain

text:
    IN RE: Cliven BUNDY, Cliven Bundy, Petitioner, v. United States District Court for the District of Nevada, Las Vegas, Respondent, United States of America, Real Party in Interest.
    No. 17-70700
    United States Court of Appeals, Ninth Circuit.
    Petition for Writ of Mandamus Submitted March 24, 2017

    Filed March 30, 2017

      D.C. No. 2:16-cr-00046-GMN-PAL-1
    Larry E. Klayman, Esquire, Attorney, Freedom Watch, Inc., Washington, DC, for Petitioner.
    Elizabeth Olson White, Esquire, Assistant U.S. Attorney, USRE — Office of the US Attorney-Reno, Reno, NV, for Real Party in Interest.
    Before: W. FLETCHER, GOULD, and BYBEE, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument.

        'See Fed. R. App. P. 34(a)(2).

   OPINION

PER CURIAM:

Attorney Larry Klayman applied to be admitted pro hac vice in the high-profile criminal trial of Cliven Bundy. The district court denied his application without prejudice. Bundy filed an emergency petition with us for a writ of mandamus to force the district court to admit Klayman. We declined to do so in October 2016. See In re Bundy, 840 F.3d 1034 (9th Cir. 2016). We wrote then:

Under our decisions, the district court had more than ample cause to turn down Klayman’s application: he is involved in an ethics proceeding before the District of Columbia Bar, and he was not candid with the court about the status of those proceedings; he disclosed that he was twice barred in perpetuity from appearing pro hac vice before judges in the Central District of California and the Southern District of New York, but he failed to list numerous cases — all available on We'stlaw or LEXIS — in which he has been reprimanded, denied pro hac vice status, or otherwise sanctioned for violating various local rules; and he has a record of going after judges personally, and shortly after Chief Judge Gloria Navarro denied his application, Bundy filed a frivolous Bivens action against her in her own court. This litany of reasons for denying Klayman pro hac vice status demonstrates that the district court did not abuse its discretion, much less commit clear error.

Id. at 1036. Bundy petitioned for en banc review, but his petition was denied on December 13, 2016. Bundy then petitioned the Supreme Court for a writ of mandamus, but that petition, too, was denied on February 27, 2017. In re Bundy, No. 16-908, — U.S. -, 137 S.Ct. 1213, 197 L.Ed.2d 259, 2017 WL 237570 (2017) (mem.).

Barely a' week later, Bundy, through Klayman, filed the instant emergency petition for a writ of mandamus. Bundy cites to “fundamentally changed circumstances that underscore [his] compelling need to have a full legal defense team, including Klayman, ready and able to represent him at trial.” Emergency Pet. for Writ of Mandamus at 6-7, Mar. 9, 2017, ECF No. 1 [hereinafter Petition]. The petition is procedurally irregular in a number of respects. First, Klayman purports to be representing Bundy in his request for a writ of mandamus. Bundy has counsel of record, Nevada attorney Bret 0. Whipple. Whipple, however, did not sign the motion, file an affidavit, or otherwise join in any way Bundy’s latest motion. Indeed, Bundy, in his reply filed on March 23, explains that his current attorney refused to file a new pro hac vice application on behalf of Klayman because Whipple did not want to “tarnish his reputation.” Appellant’s Br. in Reply to Hon. Gloria Navarro’s Answer and Real Party in Interest’s Answer at 11, Mar. 23, 2017, ECF No. 8 [hereinafter Reply]. We have no affidavit or other evidence that Bundy authorized Klayman to file this motion or still wants Klayman to join his defense team. Nevertheless, Klay-man, purporting to represent Bundy, represents that “Mr. Klayman had no other recourse but to file [the] instant Emergency Petition for Writ of Mandamus.” Id. Mr. Klayman’s “recourse” is his own affair; it is not clear that he represents Bundy in anything he has presented to us. Why Bundy (or Klayman) thinks that Whipple had to file a pro hac vice application on behalf of Klayman, but that Klayman could file a petition for a writ of mandamus on behalf of Bundy, we do not understand.

The motion is irregular for a second reason. It is not clear what Bundy wants us to do, so it is not clear what standards we must apply to the request. If Bundy is asking us to reconsider our prior decision, the request is late. We have already denied Bundy’s petition for rehearing en banc, and the Supreme Court has denied certiorari. If, as Bundy claims, there are “fundamentally changed circumstances,” then Klayman’s renewed request for admission pro hac vice should have been addressed to the district court in the first instance. It was not, which means — we think — that Bundy or' Klayman is asking this court to issue a writ of mandamus to the district court for its failure sua sponte to admit Klayman pro hac vice. So construing Bundy’s motion, and because the district court and government filed answers to the petition, we will proceed to the merits.

I

There are no merits. The standards by which we approach a petition for a writ of mandamus to direct a district court to admit an out-of-state attorney pro hac vice have not changed since October:

Mandamus “is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’ ” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947)). “As the writ is one of ‘the most potent weapons in the judicial arsenal,’ three conditions must be satisfied before it may issue.” Id. (citation omitted). “First, ‘the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires....’” Id. (first alteration in original) (quoting Kerr v. U.S. Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)). Second, the petitioner must show that “[his] right to issuance of the writ is ‘clear and indisputable.’ ” Id. at 381, 124 S.Ct. 2576 (alteration in original) (quoting Kerr, 426 U.S. at 403, 96 S.Ct. 2119). “Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id.

In re Bundy, 840 F.3d at 1040 (alterations in original). We further explained:

Because, on direct appeal, we “normally review a denial of a motion to appear pro hac vice for abuse of discretion,” United States v. Walters, 309 F.3d 589, 591 (9th Cir. 2002), our review in mandamus proceedings is “especially deferential,” In re United States, [791 F.3d 945, 955 (9th Cir. 2016)]. On petition for a writ of mandamus, we look to see if the district court abused its discretion in a manner so obvious that the error is “clear” to all.

Id. at 1041.

II

We hold that the district court’s failure sua sponte to grant Klayman pro hac vice status as of March 2017 was neither an abuse of discretion nor clear error. Bundy raises three claims of “changed circumstances”: (1) the district court’s refusal to dismiss all charges against Bundy in light of the issuance of a report that may cast doubt on the credibility of one of the government’s potential witnesses; (2) a hearing at which defense counsel agreed to strike the district court’s husband, Brian Rutledge, who is a deputy district attorney in Clark County, from its potential witness list; and (3) the lack of federal criminal experience of Bundy’s current counsel of choice, Bret Whipple. The circumstances cited by Bundy have nothing but the most attenuated connections with the denial of Klayman’s pro hac vice application. And none of them come close to demonstrating that the “district court abused its discretion in a manner so obvious that the error is ‘clear’ to all.” In re Bundy, 840 F.3d at 1041. This is particularly so when Bundy failed to present his case for “changed circumstances” to the district court in the first place. We will address each “circumstance” in turn.

A

First, Bundy complains that alleged prosecutorial misconduct occurred when the government did not promptly turn over a report on ethical misconduct by a Bureau of Land Management (BLM) official who may or may not testify for the government. The misconduct was related to an event at the Burning Man Festival in Northern Nevada, and does not involve Bundy. See Office of Inspector Gen., U.S. Dep’t of the Interior, Investigative Report of Ethical Violations and Misconduct of Bureau of Land Management Officials (2017) https://www.doioig.gov/sites/doioig. gov/files/EthcialViolationsAndMisconduct ByBLMOffieials_Public.pdf. Bundy argues that the district court should have dismissed the charges against Bundy, and further alleges that earlier disclosure of the report would at least have allowed Bundy and his co-defendants “to conduct a meaningful investigation, move for discovery, and effectively impeach the credibility of [the official].” Reply at 4. At first blush, it is unclear how this possibly constitutes a changed circumstance related to Klay-man’s pro hac vice admission and the district court’s determination (as well as our own) that Klayman’s admission would be a substantial impediment to the “ethical and orderly administration of justice.” In re Bundy, 840 F.3d at 1042 (quoting United States v. Ries, 100 F.3d 1469, 1471 (9th Cir. 1996)).

Bundy, likely recognizing this logical gap, claims that only if Klayman is immediately recognized as counsel will Bundy’s ability to respond properly to this late-disclosed report be constitutionally adequate. Bundy further argues that, by not dismissing the action entirely as a result of the allegedly-late-disclosed report, the district court erred. See Petition at 8. In fact, he claims this is but one in a seemingly never-ending series of “severely prejudicial ruling[s]” by the district court. Id. at 9; Reply at 4. Bundy asserts that only Klayman will be able to properly fight these prejudicial rulings.

Bundy’s claim of district court error in refusing to dismiss the charges on the basis of the report is not, absent clear error, remediable at this stage of the proceedings through mandamus. See DeGeorge v. U.S. Dist. Court, 219 F.3d 930, 935 (9th Cir. 2000) (“[Djirect appeal after trial, as opposed to immediate review, is the typically adequate means of review.”). There will be ample opportunity for Bundy to renew his claim before the district court in advance of trial. He may preserve his argument by raising his claim again at trial, which is not scheduled until April, at the earliest. And, failing that, Bundy may appeal to this court. Similarly, Bundy is free to argue that the report may be used to impeach the BLM official at trial, if he testifies. It is premature for us to grant mandamus at this point.

B

Bundy further complains about the manner by which the district court struck the district court judge’s husband (Rutledge) from Bundy’s proposed witness list. Upon seeing Rutledge on Bundy’s witness list, the district court held an ex parte hearing in which Bundy and three of his co-defendants were ordered to “produce an offer of proof that complies with Federal Rule of Evidence 602 regarding their listing of the husband of the presiding judge as a witness” on their witness lists. Minute Order in Chambers, United States v. Bundy, No. 2:16-cr-00046-GMN-PAL-1 (D. Nev. Mar. 8, 2017), ECF No. 1691; see Fed. R. Evid. 602 (requiring a witness to have personal knowledge). Bundy characterizes the district court’s issuance of this show-cause order as “threatening to hold Whipple in contempt” and as an “attempt to neutralize anyone who even attempts to represent [Bundy].” Petition at 17.

As evidence, Bundy states that Ms. Bundy said that Whipple told her that the district court, at the ex parte hearing, told Whipple that he would'be sanctioned unless he agreed to withdraw Rutledge. The district court informs us that it never threatened Whipple with contempt. District Ct. Judge Navarro’s Answer at 2, Mar. 21, 2017, ECF No. 7 [hereinafter Dist. Ct. Answer]. (And the sealed brief filed by Whipple in response to the district court’s show-cause order where Whipple effectively concedes removing the name calls into question the veracity of Bundy’s double-hearsay evidence and supports the district court’s recollection of events.) Bun-dy had wanted to call Rutledge because he worked in the district attorney’s office and the Bundys had asked the district attorney’s office to investigate what they claimed were abuses by federal agents. Petition at 17. When Whipple admitted that he could not satisfy Rule 602 for Rutledge and had no good faith basis for leaving the name on the list, the district court struck Rutledge’s name from the witness list. Dist. Ct. Answer at 3-4. Complaints about properly enforcing the rules of evidence are not the proper subjects of petitions for writs of mandamus.

C

Bundy’s real complaint — or, at least, Klayman’s complaint — is that these adverse rulings, combined with other factors, demonstrate that Whipple is not able to defend Bundy adequately. Bundy claims that Whipple is not fully prepared to defend Bundy because “Whipple has no federal criminal defense experience.” Petition at 9. He adds, “Klayman has extensive experience in complex, contentious federal criminal defense, and Petitioner’s local counsel, [Whipple], has none.” Id. at 10; see also id. at 14 (“Klayman ... has federal criminal defense experience.... ”); id. at 17 (“Klayman [is] the only defense counsel with federal criminal experience that [Bun-dy] has been able to find.... ”); id. Ex. I ¶ 9 (Bundy Aff.) (“[Whipple] does not have comparable experience to Larry Klayman who is a former federal prosecutor in any event.”).

The assertions made by Bundy about his counsel are demonstrably false. Either Klayman has failed to ascertain the facts by, for example, talking with Whipple or looking at Whipple’s website, or he has deliberately misled this court. Neither option paints Klayman in a good light. At best, Klayman has shown such a casual acquaintance with the facts that he is guilty of at least gross negligence in his representations to this court. As both the government and the district court point out to this court in their responses to Bundy’s petition, Whipple is well qualified to serve as Bundy’s counsel. Dist. Ct. Answer at 4; Answer from the United States at 13, Mar. 20, 2017, ECF No. 6. Whipple has been a member of the Nevada Bar for more than twenty years. For six years, he was a public defender in Clark County, including three years in the Special Public Defender’s Office, which has responsibility for capital cases in Nevada state courts. The district court verified that Whipple, now in private practice, has extensive experience in federal criminal cases. For some thirteen years, Whipple has accepted federal appointment under the Criminal Justice Act, where he has defended some 99 criminal cases, including complex, multi-defendant cases. At least" one of his recent cases was the subject of a high-profile, multi-defendant, fourteen-day trial. Dist. Ct. Answer at 4.

Confronted with these facts, Bundy shifted his argument in his reply. First, Klayman now candidly admits in an affidavit that he “did not check Mr. Whipple’s PACER history prior to preparing the Emergency Petition for Writ of Mandamus.” Reply at 7. (PACER is our public, electronic database, which would have informed Klayman of Whipple’s substantial federal criminal experience.) Klayman offered no explanation for missing Whipple’s six years as a public defender. According to Klayman’s affidavit, he now “believes that Mr. Whipple is a highly competent attorney,” but that “Mr. Whipple, on his own, does not have the necessary federal criminal defense experience or the resources to mount a zealous and effect [sic] defense.” Id.; id. Ex. C ¶¶ 11-12, 16 (Klay-man Aff.).

By contrast, although Klayman repeatedly assures us that he has “extensive experience in complex, contentious criminal defense,” he has provided us no evidence in support. Not a single example. As we noted in our prior opinion, we are well aware of Klayman’s substantial experience in federal and state courts, but from what we can tell, it is almost entirely civil in nature. See, e.g., In re Bundy, 840 F.3d at 1045-46. Klayman claims that he is a “former prosecutor with the U.S. Department of Justice.” Klayman Aff. ¶ 3. But the only example he identifies by name is United States v. AT&T, where he was “an instrumental part of the team that helped break up AT&T.” Id. The AT&T litigation was, of course, an enormously complex case brought by the Antitrust Division, but it was a civil, not a criminal, case. See, e.g., United States v. AT&T, 552 F.Supp. 131 (D.D.C. 1982). It may well be that Klay-man has extensive criminal trial experience, and perhaps even federal criminal trial experience, but we cannot verify this from anything Klayman has provided us.

Even if the record would support Klay-man’s claim to have extensive criminal defense experience, that would not be sufficient to warrant the issuance of a writ of mandamus. As we explained in our prior decision, Bundy has not offered any explanation for why, if he needs additional counsel, he cannot secure the services of attorneys in Nevada or out-of-state attorneys who can satisfy Nevada’s pro hac vice rules. See In re Bundy, 840 F.3d at 1048 (“[W]e do not" have an affidavit from anyone — Bundy, Klayman, [Bundy’s former attorney], or anyone else — telling us of unsuccessful efforts to find counsel.”). Bundy offers no case for why Klayman is the only attorney who can help him or why Nevada must bend its pro hac vice rules to accommodate him in the courtroom.

Even if the district court’s sole obligation while considering whether to grant pro hac vice admission to an attorney was to maximize the defendant’s chances of receiving the best trial outcome, the district court would not have abused its discretion or clearly erred in finding that Whipple could handle Bundy’s case. But that is not the district court’s sole obligation. Instead, as we discussed in In re Bundy, district courts have other legitimate policy considerations that bear on a pro hac vice admission decision, such as the ethical practice of the law and the orderly administration of justice. See id. at 1041-42. And evaluating the decision to deny Klayman pro hac vice status against the backdrop of these competing interests, the documents filed with this court in support of the petition for a writ of mandamus — by themselves and without looking to our earlier decision’s consideration of Klayman’s record — entirely support the district court’s decision. The petition and reply contain patently false assertions and lack the most basic of due diligence in fact checking.

The district court did not err, much less “clearly err” when it failed sua sponte to admit Klayman pro hac vice. Future motions from Bundy must be filed by counsel of record. Future filings from Klayman personally should be accompanied by either an affidavit from counsel of record or Bundy in support of the motion.

The petition for a writ of mandamus is DENIED.

GOULD, Circuit Judge,

dissenting:

I respectfully dissent from the court’s denial of the Emergency Petition for Writ of Mandamus filed March 9, 2017. The reasons for my dissent are essentially the same as for my earlier dissent to the majority’s published decision denying the first mandamus petition. See In re Bundy, 840 F.3d 1034, 1049 (9th Cir. 2016) (Gould, J., dissenting). So far as I can discern, Defendant Cliven Bundy’s high-profile political status and prospects for retaining a skilled and aggressive defense team have not substantially changed since my prior dissent. I do not doubt that attorney Bret Whipple is a fine lawyer who has some federal criminal case experience. But the long course of American justice shows that sometimes representation by multiple attorneys is key to a robust defense. And I continue to believe that Bundy’s needs for experienced defense counsel of his choosing are more important than the articulated concerns about Larry Klayman’s ethics, where he has not been disbarred or suspended by another bar association or proven to have engaged in unethical conduct that could justify disbarment. See In re Evans, 524 F.2d 1004, 1007 (5th Cir. 1975); Schlum-berger Techs., Inc. v. Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997). Attorney Klayman has told the district court and our appellate panel that he will in this case abide by all orders of the district court. I take him at his word on this.

This is a complex, multi-defendant proceeding, and the stakes could not be higher for Defendant Cliven Bundy. Bundy could spend the rest of his life in prison if convicted. To be sure, Klayman’s aggressive tactics are likely to irritate the district court judge. But in a tough case with experienced prosecutors, forceful advocacy can be necessary to a full defense. And concerns over Klayman’s aggressive style must yield to a superordinate concern: that Bundy have the counsel of his choice to receive a fair shake at this most critical trial. The government has chosen to marshal its massive resources towards convicting Bundy. We ought to let Bundy marshal the defense team he chooses. I rest my decision on the fundamental premise that Bundy has a Sixth Amendment right to counsel of his choice and that that right is not exhausted once he has one competent criminal defense lawyer. So long as he is footing the bill, the Sixth Amendment protects Bundy’s right to convene a defense team of his choosing. See United States v. Walters, 309 F.3d 589, 592 (9th Cir. 2002) (Sixth Amendment violation for pro hac vice denial where defendant was represented by other competent counsel). A system of extreme deference to a district court’s decisions on pro hac vice admission of an experienced lawyer long-admitted to other bars is not a valid reason to deny Bundy his counsel of choice in the circumstances of this case. I respectfully dissent.

      . This court had little difficulty confirming most of these facts from Whipple’s website, his Linkedln account, and PACER. See Bret Whipple, Linkedln, https://www.linkedin.com/ in/bret-whipple-67441117 (last visited Mar. 30, 2017); Las Vegas Nevada Attorney Bret Whipple, Just. L. Ctr., http://mylasvegas lawyer.com/las-vegas-nevada-attomey-bret-whipple (last visited Mar. 30, 2017). That Klayman, evidently, failed to use the most primitive modern tools to verify his serious accusations that counsel of record was not qualified is inexcusable.

      . We have also consulted Klayman’s own website. Although he says he "was a Justice Department prosecutor,” his sole example is that he "was on the trial team that succeeded in breaking up the telephone monopoly of AT&T, thereby creating competition in the telecommunications industry.” Biography, Larry Klayman, http://www.larryklayman. com/about.php (last visited Mar. 30, 2017).

      . We do not understand the dissent to support Klayman's reckless claims against Whipple. We understand our dissenting colleague to maintain the position he took in the initial action — that Bundy has a Sixth Amendment right to counsel of his own choosing. Dissent at 953 & n.l; see In re Bundy, 840 F.3d at 1052 (Gould, J., dissenting).

      . Lest there be any doubt, we agree with the dissent that a defendant's Sixth Amendment right to counsel "is not exhausted once [the defendant] has one competent criminal defense lawyer.” Dissent at 954; see United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993) (“[T]he defendant can’t be denied his choice of retained counsel just because ... the court thinks current counsel is doing an adequate job.”), overruled on other grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999) (en banc). But the adequacy of a defendant’s alternatives is a relevant consideration in making a pro hac vice decision that necessarily weighs a criminal defendant’s Sixth Amendment right to counsel against competing policy considerations. Cf. United States v. Nolen, 472 F.3d 362, 376 (5th Cir. 2006) (remanding to the district court "specifically for it to conduct and verbalize the necessary balancing analysis” before denying pro hac vice status). We do not evaluate constitutional rights in a vacuum. Bundy may add whatever counsel he wishes so long as they satisfy Nevada's minimal pro hac vice rules. Klayman has not satisfied those rules, so Bun-dy will have to look to other Nevada-qualified counsel to aid his defense.

      . I might have instead written a concurring opinion, accepting as circuit law the prior decision of this panel from which I previously dissented, but I think it makes my views clearer to understand when my views are framed as a dissent.

      . It is not uncommon for a high-profile criminal defendant to have a team of skilled defense lawyers. Well-known examples include O.J. Simpson's defense to the charged 1994 murders of Nicole Brown Simpson and Ronald Goldman, and Dzhokhar Tsarnaev's defense to charges related to the 2013 bombing at the site of the Boston Marathon. Another famous case involving a defense team, this one without charges of violent crimes, was the so-called Scopes “Monkey” trial in 1925. There, Clarence Darrow and a team of several other distinguished lawyers defended a school teacher in Tennessee who had been charged with a crime for teaching evolution. See Scopes Trial, HistoryNet, http://www. historynet.com/scopes-trial.htm (last visited Mar. 28, 2017).


author: McKEOWN, Circuit Judge:

text:
    Jesus RAMIREZ; Barbara Lopez, Plaintiffs-Appellees, v. Micah BROWN, Acting Field Office Director, USCIS Seattle Field Office; Lori Scialabba, Acting Director, USCIS; John F. Kelly, DHS Secretary; Jefferson B. Sessions III, Attorney General, United States Attorney General, Defendants-Appellants.
    No. 14-35633
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 6, 2016 Seattle, Washington
    Filed March 31, 2017

      Ashley Young Martin (argued), Trial Attorney; Jeffrey S. Robins, Assistant Director; William C. Peachey, Director; Benjamin C. Mizer, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
    Christopher Strawn (argued) and Matthew Adams, Northwest Immigration Rights Project, Seattle, Washington, for Plaintiffs-Appellees.
    Before: M. MARGARET McKEOWN, RICHARD C. TALLMAN, and MORGAN CHRISTEN, Circuit Judges.
   OPINION

McKEOWN, Circuit Judge:

This appeal presents a question of statutory interpretation about the interplay between two subsections of the immigration code — one involving designation of Temporary Protected Status (“TPS”) and the other involving adjustment of status. The Attorney General may grant TPS to an alien who cannot safely return home to a war-torn or disaster-ridden country. During the pendency of the TPS designation, the U.S. government may not send the alien back to the unsafe country.

Jesus Ramirez, who came to the United States from El Salvador in 1999, was granted TPS in 2001 and has remained in that status to the present day. In 2012, he married Barbara Lopez, a U.S. citizen, and the couple sought lawful permanent resident status for Ramirez. Although they were unsuccessful before U.S. Citizenship and Immigration Services (“USCIS”), they prevailed in a lawsuit filed in district court.

The parties dispute whether being a TPS designee provides a pathway for Ramirez to obtain lawful permanent resident status under the adjustment statute. We hold that it does: under 8 U.S.C. § 1254a(f)(4), an alien afforded TPS is deemed to be in lawful status as a nonim-migrant — and has thereby satisfied the requirements for becoming a nonimmigrant, including inspection and admission — for purposes of adjustment of status under § 1255.

Background

I. Statutory Regime

Two statutory provisions are at the heart of this appeal. The first relates to TPS, a status that the Attorney General may grant to aliens that prevents then-removal from the United States while dangerous conditions persist in their home country. See 8 U.S.C. § 1254a(a)(l)(A), (b)(1). The second provision governs an alien’s ability to adjust to lawful permanent resident status. See id. § 1255(a). We offer a general description of the mechanics of the TPS statute and then address where the rubber meets the road in this appeal — the intersection of the TPS and adjustment statutes.

TPS first requires a designation. When the Attorney General determines that a foreign state (or any part of a foreign state) faces an ongoing armed conflict, environmental disaster, or other extraordinary and temporary conditions that prevent aliens from returning safely, the Attorney General may designate that state (or part of the state) for TPS and grant TPS to an alien who is a national of that state. Id. § 1254a(a)(l)(A), (b)(1). The Attorney General sets the initial duration of the designation, which may be extended following periodic review. See id. § 1254a(b)(2)-(3). An alien desiring TPS requests such status by submitting an application — including detailed information about identity, residence, and admissibility — to USCIS, which considers the application. See 8 C.F.R. §§ 244.2, 244.7, 244.10(b). To maintain TPS, aliens must periodically re-register. See 8 U.S.C. § 1254a(c)(3)(C); 8 C.F.R. § 244.17(a).

An alien granted TPS receives two primary benefits during the period in which TPS is in effect: he is not subject to removal and he is authorized to work in the United States (and supplied with the relevant accompanying documentation). 8 U.S.C. § 1254a(a)(l)-(2). The grant of TPS has other consequences. For example, the TPS beneficiary is not “considered to be permanently residing in the United States under color of law” and “may be deemed ineligible for public assistance by a State ... or any political subdivision thereof which furnishes such assistance.” Id. § 1254a(f)(l)-(2). If the beneficiary wishes to travel abroad, he must seek and obtain the prior consent of the Attorney General. Id. § 1254a(f)(3). The consequence pertinent to this appeal is that “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.” Id. § 1254a(f)(4) (emphasis added).

The interpretive challenge is figuring out the extent to which the just-quoted language affects a TPS beneficiary’s ability to adjust to lawful permanent resident status. Section 1255(a) — the first subsection of the adjustment statute — permits the Attorney General to adjust “[t]he status of an alien who was inspected and admitted or paroled into the United States.” Id. § 1255(a). In addition, some aliens are statutorily ineligible to adjust their status. Section 1255(c) lists multiple categories of aliens to whom “subsection (a) shall not be applicable.” Id. § 1255(c). One such bar under § 1255(c)(2) applies to an alien, other than an immediate relative or special immigrant defined under the statute, “who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed ... to maintain continuously a lawful status since entry into the United States.” Id. § 1255(c)(2). Reading the TPS and adjustment statutes together, the question we confront is whether the grant of TPS allows an alien not only to avoid the bar under § 1255(c)(2) but also to meet the “inspected and admitted or paroled” requirement in § 1255(a). We conclude that it does and affirm the district court.

II. Factual and Procedural History

The parties agree on the essential background facts. Ramirez is a native and citizen of El Salvador who entered the United States on May 30, 1999, without being inspected and admitted or paroled by an immigration officer. In 2001, the Attorney General designated El Salvador under the TPS program after the country suffered a series of earthquakes. See Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214-01 (Mar. 9, 2001). With his home country designated, Ramirez applied for and received TPS. Since then, the Attorney General has continually redesignated El Salvador, see Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg. 44,645-03 (July 8, 2016), and Ramirez has kept his TPS registration up to date.

On July 21, 2012, Ramirez married Barbara Lopez, a U.S. citizen. She filed a Form 1-130 “Petition for Alien Resident” on behalf of Ramirez, and Ramirez filed a Form 1-485 application to adjust his status to that of a lawful permanent resident. USCIS approved Lopez’s petition on April 16, 2013.

However, eight days later, on April 24, 2013, USCIS denied Ramirez’s separate application. The agency explained that Ramirez was “ineligible as a matter of law to adjust status in the United States” because he had not shown that he was inspected and admitted or paroled at the time of his May 1999 entry into the United States nor that he was exempt from that requirement. Although USCIS recognized that, by virtue of the grant of TPS, Ramirez is “considered as if [he] was in a lawful non-immigrant status,” it concluded that that treatment does not override the adjustment statute’s general requirement to be inspected and admitted or paroled.

Ramirez and Lopez then filed suit in the Western District of Washington, bringing an action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The district court determined that US-CIS’s interpretation is incorrect as a matter of law because the TPS statute clearly provides that recipients count as being “inspected and admitted” for purposes of adjusting their status.

The court also noted that, though it need not defer to the agency’s interpretation where the statute unambiguously answers the question at issue, the agency’s non-precedential decisions do not deserve deference because they reach the wrong conclusion and do not thoroughly examine the question at issue. Finally, the court closed with the policy consideration that Ramirez has established a life in the United States and should not have to leave the country to seek admission. For these reasons, the district court ruled that Ramirez is entitled to summary judgment because he meets the requirements of § 1255(a) to adjust his status. We review this judgment de novo, Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571, 578 (9th Cir. 2016), through the lens of the APA’s “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard, 5 U.S.C. § 706(2)(A).

Analysis

Ramirez desires to adjust his status to that of a lawful permanent resident, a process governed by 8 U.S.C. § 1255. All parties agree that Ramirez must comply with the requirements of the first subsection, which provides that

[t]he status of an alien who was inspected and admitted or paroled into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence 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.

Id. § 1255(a). Ramirez easily satisfies subsections (a)(1) and (a)(3) because he made an application for adjustment of status and an immigrant visa is immediately available through his American citizen wife. The prefatory language and subsection (a)(2) remain.

The prefatory language asks whether Ramirez “was inspected and admitted or paroled into the United States,” but for our case the question can be slightly narrowed from there. No party contends that Ramirez was “paroled into the United States.” The government also downplays or fails to make separate arguments about inspection, and Ramirez soundly argues that he has been “inspected” because TPS applicants undergo a rigorous inspection process by an immigration officer. Therefore, the action in this appeal centers on whether Ramirez has been “admitted” as that term is used in § 1255(a). Although the government separately contends that Ramirez flunks subsection (a)(2) because his May 1999 illegal entry renders him inadmissible, see id. § 1182(a)(6)(A)(i), the question whether Ramirez is “admissible” is bound up with whether the grant of TPS to Ramirez means that he has been “admitted.”

This takes us to the TPS statute. The operative provision, § 1254a(f)(4), states that TPS recipients “shall be considered as being in, and maintaining, lawful status as a nonimmigrant” for purposes of adjustment of status. Under the familiar two-step framework for evaluating an agency’s statutory interpretation, we first consider whether the statute is unambiguous. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Employing the traditional canons of statutory construction at step one, we conclude that § 1254a(f)(4) unambiguously treats aliens with TPS as being “admitted” for purposes of adjusting status. Because the statutory language is clear, that ends the inquiry: the agency has no interpretive role to play but must instead follow the congressional mandate. Chevron, 467 U.S. at 842-43 & n.9, 104 S.Ct. 2778; see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446,107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

It bears noting, however, that even if we were to proceed to step two because the statute is unclear on the “admitted” issue, the government has not identified any controlling agency interpretation to which we owe deference. See Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. The cited published decisions do not address the statutory interpretation question at issue here. See In re Alyazji, 25 I. & N. Dec. 397 (BIA 2011); In re Sosa Ventura, 25 I. & N. Dec. 391 (BIA 2010). The remaining decisions — variously issued by the Immigration and Naturalization Service General Counsel, Board of Immigration Appeals (“BIA”), and USCIS — are non-preee-dential, see 8 C.F.R. § 1003.1(d)(1), (g), so the deference owed depends on their persuasive value, see Garcia v. Holder, 659 F.3d 1261, 1266-67 (9th Cir. 2011). While the decisions stretch back to 1991, that consistency is strongly outweighed by a pervasive lack of thorough and valid reasoning, as the decisions often state a eon-clusory answer without taking into account the various statutory and other considerations at play. See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Because the agency’s interpretation does not warrant deference, we must decide the proper construction based on the text, structure, and purpose of the relevant provisions.

I. The Plain Statutory Language

The language of the TPS statute itself strongly points to the conclusion that Ramirez qualifies as “admitted” for adjusting his status. See POM Wonderful LLC v. Coca-Cola Co., — U.S. -, 134 S.Ct. 2228, 2236, 189 L.Ed.2d 141 (2014) (noting the primacy of the text in statutory interpretation). In particular,' § 1254a(f)(4) broadly states that “[djuring a period in which an alien is granted temporary protected status under this section!,] for purposes of adjustment of status under section 1255 of this title ..., the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” (Emphasis added.) The language explicitly refers to the adjustment statute, § 1255, and confers the status of lawful nonimmigrant on TPS recipients when looking at adjusting their status.

The Sixth Circuit, squarely addressing the same interpretive issue, concluded that that text is clear. Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548, 551-53 (6th Cir. 2013). The court explained that “exactly what § 1254a(f)(4) provides [is that a TPS recipient] is considered [as] being in lawful nonimmigrant status and thus meets the [‘admitted’] requirement! ] in § 1255.” Id. at 554. Like the Sixth Circuit, “[w]e interpret the statute exactly as written — as allowing [a TPS recipient] to be considered as being in lawful status as a nonimmigrant for purposes of adjustment of status under § 1255.” Id. at 553.

The Eleventh Circuit has taken a contrary position, holding that the statutes unambiguously point the other way: “[t]he plain language of § 1255(a) limits eligibility for status adjustment to an alien who has been inspected and admitted or paroled” and “[t]hat an alien with Temporary Protected Status has ‘lawful status as a nonimmigrant’ for purposes of adjusting his status does not change § 1255(a)’s threshold [eligibility] requirement.” Serrano v. U.S. Attorney Gen., 655 F.3d 1260, 1265 (11th Cir. 2011) (per curiam). While the Sixth Circuit in Flores and the district court here attempt to distinguish Serrano on the ground that the petitioner there did not disclose his illegal entry into the country in his TPS application, see Serrano, 655 F.3d at 1265 n.4, that factual difference has no bearing on the Eleventh Circuit’s conclusion that § 1254a(f)(4) does not override § 1255(a)’s threshold “inspected and admitted” requirement. Nevertheless, for the reasons discussed below, we disagree with the Eleventh Circuit and decline to follow Serrano.

Under the immigration laws, an alien who has obtained lawful status as a nonimmigrant has necessarily been “admitted.” The statutory provisions refer to “[t]he admission to the United States of any alien as a nonimmigrant,” though the duration and purpose of the alien’s stay may be tightly circumscribed. 8 U.S.C. § 1184(a)(1) (emphases added); see id. §§ 1182(d)(1) (“alien’s admission as a non-immigrant”), 1184(g)(4) (“the period of authorized admission as such a nonimmi-grant”), 1187(a)(7) (“the conditions of any previous admission as such a nonimmi-grant”). Indeed, every alien “shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant, status.” Id. § 1184(b). In other words, by the very nature of obtaining lawful nonimmigrant status, the alien goes through inspection and is deemed “admitted.” See also id. § 1184(k)(3) (“the admission, and continued stay in lawful status, of such a nonim-migrant”).

As the governing statutes and implementing regulations demonstrate, in practice, too, the application and approval process for securing TPS shares many of the main attributes of the usual “admission” process for nonimmigrants. Like an alien seeking nonimmigrant status, see id. § 1184(b); 8 C.F.R. §§ 212.1, 235.1(f)(1), an alien seeking TPS must establish that he meets the identity and citizenship requirements for that status, usually by submitting supporting documentation like a passport, see 8 U.S.C. § 1254a(a)(l), (c)(1)(A); 8 C.F.R. § 244.9(a). Similarly, an alien on either track must adequately demonstrate that he is eligible to be admitted to the United States, with the possibility that some grounds of inadmissibility may be waived in individual cases at the Attorney General’s discretion. Compare 8 U.S.C. § 1182(a), (d)(ll)-(12), (g)-(i); 8 C.F.R. §§ 212.7, 214.1(a)(3)®, with 8 U.S.C. § 1254a(e)(l)(A)(iii), (c)(2)(A); 8 C.F.R. §§ 244.2(d), 244.3.

Once the request for nonimmigrant status or TPS has been submitted, the application is scrutinized for compliance — sometimes supplemented with an interview of the applicant — then approved or denied by USCIS. Compare 8 U.S.C. § 1184(a)(1), (b); 8 C.F.R. § 214.11(d)(6), with 8 U.S.C. § 1254a(a)(3)(A); 8 C.F.R. §§ 244.8, 244.10(b). That the TPS application is subject to a rigorous process comparable to any other admission process further confirms that an alien approved for TPS has been “admitted.”

The government pushes back, urging that the statutory definition of “admitted” at 8 U.S.C. § U01(a)(13)(A) — which requires something akin to passage into the United States at a designated port of entry — controls, but the awkwardness of the fit is telling and makes that definition inapplicable. The government itself concedes that the port-of-entry definition is not always appropriate by acknowledging and accepting the BIA’s decisions which hold that aliens can be “admitted” even if they do not meet the definition in § 1101(a)(13)(A). See, e.g., In re Alyazji, 25 I. & N. Dec. at 399 (holding that aliens who entered the United States without permission but who later adjusted to lawful permanent residents qualify as “admitted”). Although we have said that § 1101(a)(13)(A) provides the “primary, controlling definition” of “admitted,” we similarly have “embrace[d] an alternative construction of the term” when the statutory context so dictates. Negrete-Ramirez v. Holder, 741 F.3d 1047, 1052 (9th Cir. 2014) (citation omitted) (surveying situations where our court has held that the definition of “admitted” in § 1101(a)(13)(A) is inapplicable); see also Roberts v. Holder, 745 F.3d 928, 932 (8th Cir. 2014) (per curiam) (“The immigration statutes use the words ‘admitted’ and ‘admission’ inconsistently.”).

Turning again to the plain language, the adjustment statute uses “admission” in a way that is inconsistent with the port-of-entry definition when it states that “the Attorney General shall record the alien’s lawful admission for permanent residence” on the date the adjustment application is approved. See 8 U.S.C. § 1255(b). In the current context, the port-of-entry definition yields, and an alien granted TPS is considered “admitted.”

II. Structure of the Statutory Regime

Other familiar interpretive guides reinforce the plain meaning understanding that TPS recipients are considered “admitted” under § 1255. Section 1255 is titled “Adjustment of status of nonimmigrant to that of person admitted for permanent residence.” The heading is not without significance, as it uses language that directly links the adjustment statute to the TPS statute and § 1254a(f)(4)’s phrasing of “lawful status as a nonimmigrant.” This language and structure signal that Congress contemplated that TPS recipients, via their treatment as lawful nonimmi-grants, would be able to make use of § 1255. See Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (explaining that “the title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute” (internal quotation marks and citation omitted)).

A related provision also links § 1254a(f)(4)’s use of “lawful status as a nonimmigrant” to the concept of being “admitted.” Section 1254a(f)(4)’s mandate that TPS recipients “shall be considered as being in, and maintaining, lawful status as a nonimmigrant” expressly applies “for purposes of ... change of status under section 1258 of this title.” Section 1258(a) in turn provides that, subject to a number of exceptions, “[t]he Secretary of Homeland Security may ... authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status” and is not inadmissible. Tracking the language in the two provisions, § 1254a(f)(4) equates “being in ... lawful status as a nonimmi-grant” with § 1258(a)’s “lawfully admitted ... as a nonimmigrant.” This statutory mirroring is significant because § 1258 uses the word “admitted,” thus supporting the interpretation that “being in ... lawful status as a nonimmigrant” qualifies Ramirez as being “admitted” for purposes of both statutory provisions — §§ 1255 and 1258 — cited in § 1254a(f)(4).

The government ■ would limit § 1254a(f)(4)’s effect to one subsection in § 1255 — specifically, § 1255(c)(2) — because those two provisions both refer to being in “lawful status” rather than being “admitted.” But we see multiple problems with the government’s interpretation. For one, § 1254a(f)(4) does not point to one particular subsection of § 1255 but instead says that it applies “for purposes of adjustment of status under section 1255.” We acknowledge that this statement of broad application does not answer all questions: it does not tell us which subsections § 1254a(f)(4) applies to, and § 1254a(f)(4)’s language clearly has no effect in some of § 1255’s subsections. But the general reference to § 1255 cuts against the government’s effort to confine the effect of § 1254a(f)(4) to one specific subsection in § 1255. Such an interpretation appears particularly crabbed when Congress easily could have written the statute to refer solely to subsection (c)(2) but chose not to do so.

The government’s interpretation would also yield an anomalous result because § 1254a(f)(4) would not benefit immediate relatives of U.S. citizens seeking adjustment — like Ramirez — for no discernible reason. By its terms, § 1255(c)(2) does not apply to a U.S. citizen’s immediate rela-fives — i. e., children, spouses, and parents, 8 U.S.C. § 1151(b)(2)(A)(i). Thus, if § 1254a(f)(4) were interpreted to apply only to § 1255(c)(2), as the government says, § 1254a(f)(4) would be meaningless for adjustment seekers who are immediate relatives of U.S. citizens. Such an interpretation would rob the statute of much force: in the government’s brief, the only groups that it pinpoints that would benefit from § 1254a(f)(4)’s elimination of the (c)(2) bar are applicants seeking adjustment based on employment-based visas and applicants seeking adjustment based on relatives other than spouses, children, and parents. Restricting § 1254a(f)(4) in this way seems especially peculiar in the face of § 1254a(f)(4)’s indication that it benefits all TPS grantees and the government’s failure to offer any explanation or clear language indicating that Congress meant for such a limited operation. These textual and practical incongruities suffice to reject the government’s construction, particularly because the language in §§ 1254a(f)(4) and 1255(c)(2) does not line up exactly.

Nor are we persuaded by the government’s identification of other provisions that it says provide more precise exceptions for particular groups of aliens to § 1255(a)’s “admitted” requirement. For example, § 1255(a) itself removes the “inspected and admitted or paroled” requirement for applicants covered by the Violence Against Women Act (“VAWA”), stating that “the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General.” Similarly, § 1255(g) explains that “[i]n applying this section to a special immigrant described in section 1101(a)(27)(K) of this title, such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United States.” But these exceptions do not bear on the remaining language in § 1255 or the TPS statute, and, regardless, they were added to the code after the enactment of § 1255(a)’s “admitted” requirement ■ and the TPS statute. See Violence Against Women and Department of Justice Reau-thorization Act — Technical Corrections, Pub. L. No. 109-271, 120 Stat. 750 (2006) (adding VAWA exception language); Armed Forces Immigration Adjustment Act of 1991, Pub. L. No. 102-110, 105 Stat. 555 (adding § 1255(g)); Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (enacting TPS statute). Even if those exceptions are formulated more precisely, there is no requirement that Congress draft an elegant statute. We can certainly identify good reasons why Congress may have written the statute the way it did; in addition to pure administrative ease, Congress may have wanted to vary the scope of the exceptions for different groups.

In general, the TPS statute places great — though not unfettered — discretion into the hands of the Attorney General to make specific determinations about an individual alien’s fitness to enter the country. Indeed, while the requirements related to certain criminals and former Nazis may not be waived, see 8 U.S.C. § 1254a(c)(2)(A)(iii), the Attorney General may waive other grounds of inadmissibility “in the case of individual aliens for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest,” id. § 1254a(c)(2)(A)(ii). The statute thus contemplates and confers the power to vet each applicant thoroughly and make delicate judgments on a particularized basis about whether the alien should be “admitted” into the United States.

III. Allowing Adjustment of Status Is Consistent with the Purpose of the TPS Statute

Finally, we note that interpreting § 1254a(f)(4) to confer a limited “admission” on TPS recipients is consistent with the purpose of TPS. See Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974) (stating that statutory interpretation involves looking at a provision in the context of the entire scheme, including the “objects and policy of the law”). The TPS regime provides a limited, temporary form of relief for the period that conditions render an alien’s return unsafe by creating a safe harbor and authorizing recipients to work in the United States to support themselves for the duration of their stay. See, e.g., 8 U.S.C. § 1254a(b), (e), (f)(1), (h)(1). Allowing TPS recipients to adjust their status comfortably fits within that purpose.

Because TPS confers an actual status on and provides a slew of benefits to an alien who satisfies rigorous eligibility requirements, it is different than other forms of temporary reprieve we ordinarily would not consider sufficient for “admission.” This designation puts an alien granted TPS in a different position than an alien granted employment authorization or approval of a visa petition, forms of relief that our court has ruled do not, by themselves, constitute an “admission.” See Guevara v. Holder, 649 F.3d 1086, 1093-94 (9th Cir. 2011); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1105-06 (9th Cir. 2011).

And the government’s interpretation is inconsistent with the TPS statute’s purpose because its interpretation completely ignores that TPS recipients are allowed to stay in the United States pursuant to that status and instead subjects them to a Rube Goldberg-like procedure under a different statute in order to become “admitted.” According to the government, an alien in Ramirez’s position who wishes to adjust his status would first need to apply for and obtain a waiver of his unlawful presence, which he could pursue from within the United States. See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Assuming that Ramirez demonstrates “extreme hardship” to his U.S. citizen wife and the waiver is granted, see 8 U.S.C. § 1182(a)(9)(B)(v), he would then need to exit the United States to seek an immigrant visa through processing at a U.S. embassy or consulate in another country. Such processing usually takes place in the alien’s home country — in this case, the country that the Attorney General has deemed unsafe — though it can occur in another country with approval from the Department of State and the third country. See 22 C.F.R. § 42.61(a). If he obtains the visa, Ramirez could then return to the United States to request admission as a lawful permanent resident. To be sure, other nonimmigrants must leave the country to adjust their status, see 8 U.S.C. § 1255®, but the invocation of these procedures in other circumstances does not undercut the clear language of the TPS statute on the “admitted” issue, and the convoluted nature of the government’s proposal underscores its unnatural fit with the overall statutory structure.

In short, § 1254a(f)(4) provides that a TPS recipient is considered “inspected and admitted” under § 1255(a). Accordingly, under §§ 1254a(f)(4) and 1255, Ramirez, who has been granted TPS, is eligible for adjustment of status because he also meets the other requirements set forth in § 1255(a). USCIS’s decision to deny Ramirez’s application on the ground that he was not “admitted” was legally flawed, and the district court properly granted summary judgment to Ramirez and remanded the case to USCIS for further proceedings.

AFFIRMED.

      . Significantly, the division in opinion between the Sixth and Eleventh Circuits on the plain meaning of the statutes does not establish ambiguity. On multiple occasions, the Supreme Court has held that a provision is unambiguous even when the circuits are split on the interpretive issue. See, e.g., Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S.Ct. 1702, 1706 & n.2, 1709-11, 182 L.Ed.2d 720 (2012) (holding that the term ''individual” as used in the Torture Victim Protection Act unambiguously encompasses only natural persons notwithstanding disagreement among several circuits); Roberts v. Sea-Land Servs., Inc., 566 U.S. 93. 99 & n.4. 113 & n.12, 132 S.Ct. 1350, 182 L.Ed.2d 341 (2012) (holding that § 906(c) of the Longshore and Harbor Workers’ Compensation Act is unambiguous despite disagreement between the Fifth, Ninth, and Eleventh Circuits about its meaning).

      . Even USCIS referred to Ramirez as being "admitted.” Ironically, in its letter denying Ramirez’s application to adjust his status, the agency remarked that Ramirez must keep his TPS current by "comply[ing] with all the conditions that apply to [his] nonimmigrant admission."

      . Not only does § 1255(c)(2) exclude immediate relatives from its coverage, but it also does not apply to certain special immigrants defined in § 1101(a)(27)(H), (I), (J), (K), or to various aliens classified as priority workers, advanced-degree professionals, or skilled workers under § 1151(b) if they meet the conditions specified in § 1255(k)(l)-(2). While we think the exclusion of immediate relatives is most striking, the fact that other large swaths of potential beneficiaries already fall outside the (c)(2) bar further bolsters our conclusion that the government does not leave § 1254a(f)(4) to do much work.

      . At oral argument, the parties also acknowledged that aliens present on a tourist or student visa could qualify. See Oral Argument at 33:30-34:20, Ramirez v. Dougherty, No. 14-35633 (9th Cir. Dec. 6, 2016), http://www.ca9. uscourts.gov/media/view_video.phpPpk_vid= 0000010663.