By Taher Kameli and Chathan Vemuri
On June 7, 2021, the Supreme Court unanimously ruled that unlawful migrants in the United States whose presence was permitted by having Temporary Protected Status (TPS) were not eligible to apply for green cards to become lawful permanent residents.[1] This ruling followed a case involving Jose Santos Sanchez and his wife, who had arrived in the US unlawfully during the late 1990s and both of whom were granted Temporary Protected Status after the 2001 earthquakes in El Salvador, when the US made El Salvadorian nationals eligible for that status.[2] In 2014, Jose Santos Sanchez applied to adjust his status to that of lawful permanent residents, which was denied by the United States Citizenship and Immigration Services (USCIS).[3] The USCIS held that simply being granted a TPS was not sufficient to meet the requirements of a lawful entry for the purpose of having a citizenship status adjusted to that of a Lawful Permanent Resident.[4] Jose Santos Sanchez and his wife Sonia Gonzalez challenged the decision before the U.S. District Court for the District of New Jersey, who granted summary judgment for Sanchez and his wife, holding that “a TPS recipient ‘shall be considered as’ having ‘lawful status as a nonimmigrant’ for purposes of applying to become an LPR.”[5] The USCIS appealed to the Third Circuit Court of Appeals, who reversed the decision, “holding that ‘a grant of TPS does not constitute an ‘admission’ into the United states.’”[6] The Sanchez family took the case to the U.S. Supreme Court.[7]
Finding for the U.S. Government, the Supreme Court made a crucial distinction between the concept of having a “lawful status” and the concept of lawful “admission.”[8] The Court defined the latter under the Immigration and Naturalization Act (“INA”) as being “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”[9] Specifically, the Court looks to §1255, which states that “a nonimmigrant may become a [lawful permanent resident] only if [they have] been ‘inspected and admitted or paroled into the United States.’”[10] In other words, a lawfully admitted non-immigrant has to be “inspected and admitted” in order to be considered as such.[11] Distinguishing this from having a legal non-immigrant status, the Court cited the situation of a foreign student staying past their student visa as an example of being lawfully admitted but not having lawful status.[12] Whereas a person who entered the country unlawfully but was later granted asylum could be said to have lawful status but would not have been lawfully admitted at the time of entry into the United States.[13] As such, a TPS recipient could not be automatically said to have entered the country after “inspection and authorization” as required by §1255 of the INA.[14] The Court did not accept Sanchez’s argument that §1184 of the INA held that nonimmigrant status presupposes lawful admission, holding that nothing in that provision stated that admission was a prerequisite for any lawful nonimmigrant status or that the latter is dependent on the former.[15] Furthermore, the Court also noted that two of the categories of non-immigrants under §1184, a.) alien crewmen on vessel or aircraft and b.) foreign nationals who are victims of serious crimes, contradicted Sanchez’s argument in that both are allowed legal non-immigrant status even if they were not lawfully admitted to the country.[16] As such, a person with Temporary Protected Status classification has to independently meet the requirement of lawful admission in order to be eligible for a green card establishing lawful permanent residence. Simply granting TPS status does not automatically create lawful admission for a TPS applicant.[17]
This reading of Temporary Protected Status as it relates to the concept of “lawful admission” under §1255 may seem straightforward but it has problematic implications that spell trouble for a large section of foreign nationals in the US who are under or may be eligible for TPS classification. TPS was created in 1990 to apply to migrants from countries that met of the three criteria: 1.) it had an ongoing armed conflict that poses a serious threat to the safety of returning citizens; 2.) if the country made a request to not send back its citizens because of an environmental disaster such as an earthquake (as in the case of the Sanchez family’s native El Salvador), drought, flood or epidemic that caused substantial but temporary disruption of living conditions; or 3.) countries with other extraordinary and temporary conditions that would prevent citizens from returning safely.[18] This affects almost 320,000 individuals living in the US who come from several countries with political turbulence be it Syria, Yemen, Somalia, Burma, Haiti, El Salvador, Nicaragua and Honduras, among many others.[19] Many of these migrants crossed the border unlawfully via Mexico due to instability in their native countries.[20] Denying green card status to TPS applicants leave these migrants vulnerable to a status that continues without certainty and the constant threat of deportation if its deemed that countries no longer suffer from the conditions listed above. The recent Supreme Court decision only serves to keep these migrants in a type of perpetual limbo that does not respect the lives and investment these migrants have made in making this country their home as well as continuing to make little legal sense.[21]
Please contact the Kameli Law at info@kameli.com or please give us a call at (312)-233-1000, if you have any questions about the Supreme Court ruling in Sanchez v. Mayorkas or if you have any questions about the Temporary Protected Status classification.
[1] Liptak, Adam, Supreme Court Rules Against Immigrants Seeking Green Cards, N.Y. Times (Jun. 7, 2021) available at https://www.nytimes.com/2021/06/07/us/politics/immigrants-green-cards-supreme-court.html
[2] Id.
[3] Sanchez v. Mayorkas, 593 U.S. _, 3 (2021) available at https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf
[4] Id.
[5] Id. (citing Santos Sanchez v. Johnson, 2018 WL 627894, *4 (D. NJ, Dec. 7, 2018) (in turn citing §1254a(f)(4) of the Immigration and Nationality Act)).
[6] Id. at 3-4. (citing Sanchez v. Secretary U.S. Dept. of Homeland Security, 967 F. 3d 242, 252 (2020)).
[7] Liptak, Adam, Supreme Court Rules Against Immigrants Seeking Green Cards, N.Y. Times (Jun. 7, 2021) available at https://www.nytimes.com/2021/06/07/us/politics/immigrants-green-cards-supreme-court.html
[8] Sanchez v. Mayorkas, 593 U.S. _, 5, (2021) available at https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf
[9] Id. at 2 (citing §1101(a)(13)(A)).
[10] Id.
[11] Id.
[12] Id. at 5-6.
[13] Id. at 6.
[14] Id.
[15] Id. at 7.
[16] Id.
[17] Id.
[18] Frelick, Bill, What’s Wrong with Temporary Protected Status and How to Fix It, HRW (Mar. 1, 2020 9:00 AM EST) available at https://www.hrw.org/news/2020/03/01/whats-wrong-temporary-protected-status-and-how-fix-it#
[19] Wilson, Jill H., Temporary Protected Status and Deferred Enforced Departure, Congress. Research Serv. (upd. May 28, 2021) available at https://fas.org/sgp/crs/homesec/RS20844.pdf
[20] Stohr, Greg, Biden Clashes with His Allies in the Supreme Court Green-Card Case, Bloomberg (Apr. 19, 2021 1:00 AM) available at https://news.bloomberglaw.com/us-law-week/biden-clashes-with-his-allies-in-supreme-court-green-card-case
[21] Id.
