Judges deny inexperienced playing cards to non-citizens who’ve been granted short-term safety standing
By Maryellen Fullerton
on June 7, 2021
at 10:49 am
(Update, June 9, 2021, 11:07 am): This article has been updated with advanced analysis.
The Supreme Court unanimously ruled Monday that non-nationals granted temporary humanitarian deportation cannot use the process known as “status adjustment” to obtain legal permanent residence in the United States without leaving the country. The court ruled in the Sanchez v. Mayorkas that the adjustment of status is reserved for those who have been inspected at the border and admitted to the United States by an immigration officer, thereby excluding the majority of those granted temporary protection status from the domestic process of receiving green cards. Judge Elena Kagan wrote the opinion for the court.
Jose Sanchez and Sonia Gonzalez came to the United States from El Salvador without a permit in the 1990s. They were granted temporary protection by the US government in 2001 when the United States selected El Salvador as part of the TPS program after devastating earthquakes in that country. Under the TPS program, foreigners living in the United States are allowed to stay here due to unsafe conditions in their home countries.
Sanchez and Gonzalez maintained TPS status for 20 years, during which time Sanchez’s employer filed an immigrant visa application for Sanchez to work as a skilled worker. Immigration officials approved the petition and authorized Sanchez to be a legal permanent resident of the United States. At the same time, they approved Gonzalez, his wife, for legal permanent residence.
However, the government denied the couple’s subsequent request to use the status adjustment process to move from temporary to permanent residence without leaving the United States. Immigration ruled that the couple’s original unauthorized entry disqualified them from adjusting the status. The government relied on the text of Immigration and Nationality Act Section 1255 (a), which limits the status adjustment process in the country to non-citizens who have been “inspected and admitted to the United States or parole”.
Sanchez and Gonzalez argued that the TPS statute contains a provision that allows TPS holders to adjust their status even if they were not inspected and approved or parole when they originally entered the United States. In particular, Section 1254a (f) (4) states that “for the purpose of adjusting status under Section 1255, a TPS holder will be“ considered and maintained as a nonimmigrant in legal status ”. They claimed that the phrase “considered to be in … legal status” made the issuance of TPS equivalent to inspection and approval as a legal non-immigrant. Sanchez and Gonzalez argued that the detailed review that accompanies applicants for TPS is tantamount to the review that accompanies the inspection and approval at a port of entry.
A district court accepted the legal interpretation advocated by Sanchez and Gonzalez and concluded that Section 1254 (a) (f) (4) allowed TPS recipients seeking status adjustment “to be treated as if they were ‘ inspected and approved ”. of the appellate court for the 3rd district, whereby the views of several other appellate courts were rejected, vice versa. District 3 emphasized that immigration law recognizes “status” and “admission” as separate concepts and that the text of Section 1254 (a) (f) (4) refers to “status” but does not mention “admission”.
Kagan’s opinion includes the distinction between “status” and “approval”. It rejects the view held by Sanchez and Gonzalez that granting TPS recipients legal nonimmigrant status under Section 1254a (f) (4) necessarily implies the equivalent of admission by referring to non-civil “crew members” who have nonimmigrant status but not as approved upon arrival of their ships in the United States. She also notes that Congress makes a distinction between status and admission in the treatment of non-citizens who are victims of serious crimes in the United States. These individuals receive “U” visas and the law entitles them to a status adjustment in two alternative circumstances: if they are either “admitted to the United States” or “otherwise obtained nonimmigrant status”.
Turning to Sanchez, Kagan underscores his appreciation for not being inspected and admitted on his first entry into the United States. It points out that Section 1255 requires that an applicant for a status change be “inspected and licensed or parole” to the United States. She emphasizes that Section 1254 (a) (f) (4), Congressional Approval to Adjust Status for TPS Recipients, relates only to legitimate nonimmigrant status and does not mention admission. From this she concludes: “Section 1255 generally requires legal authorization before a person can obtain LPR status. Sanchez has not been legally approved, and his TPS does not change that fact. He can therefore not become a permanent residence in this country. “
In the case of a court that has recently adopted a textual approach to interpreting the law, the result in this case should come as no surprise to the Immigration Chamber. It is noteworthy, however, that the expert opinion does not recognize the factors that led three courts of appeal to different interpretations of the statutes. Kagan does not refer to the somewhat confused treatment of Sanchez (and other similarly minded individuals) that the court’s legal interpretation dictates, nor does he acknowledge the ruling’s impact on TPS recipients in general.
She formulates the question as to whether Sanchez “received” [lawful permanent resident] Status despite his illegitimate entry. ”She fails to say that immigration officials, knowing that Sanchez has entered illegally, have already approved an immigrant visa entitling him to become a lawful permanent member of US society. Exactly whether he can get his newly approved green card efficiently without leaving the country where he has lived for more than 20 years, or whether he will have to take the more complicated and dangerous route of leaving the United States and then back again, is debatable exactly to enter as a legal permanent resident. Kagan concludes that Congress will dictate the more cumbersome process.
Kagan also forgets to note that the vast majority of those granted TPS entered the country without a permit. She notes that the law, as interpreted by the court, could be characterized as doing “precious little” as it does not provide most TPS recipients with the “constructive approval” they need, but her proposal does pending laws could address this shortcoming seems extremely optimistic about the fate of immigration laws over the past decade. And it does not indicate the large number of people affected by the judgment of the court. Most TPS recipients are not eligible for a green card because they lack a family member or employer sponsor. Of those with a sponsor, the vast majority entered without approval. Many thousands of TPS recipients who have been granted green cards by immigration officials are now prevented from adjusting their status within the United States. In practice, they cannot leave the United States as they are likely to face years of re-entry bans due to unauthorized presence in the United States prior to receiving TPS.
Sanchez v. Mayorkas will have a profound negative impact on family unity, although this consequence is not mentioned in the statement. The circumstances that led to this case are atypical. Jose Sanchez was sponsored by an employer for a green card. The Immigration Act only grants 140,000 green cards per year based on employment compared to about a million green cards based on family sponsorship. As a result, most TPS recipients who are eligible for green cards, like most green card applicants in general, are sponsored by family members and especially spouses of US citizens. Because half of the 400,000 current TPS recipients have had TPS for more than 20 years and 80% for more than 10 years, tens of thousands of US citizens have married and have children. This opinion prevents most of them from receiving green cards.
In a significant footnote, the court reserved the question of whether TPS holders who were “paroled” after originally entering the United States without authorization may be eligible for a status adjustment. Section 1255 enables both the “probationary” as well as the “inspected and interned” to apply for a status adjustment. For 30 years, TPS recipients who go on an approved trip abroad could be paroled upon their return to the United States, entitling them to a status adjustment. The Trump administration announced on August 20, 2020 its intention to prohibit TPS recipients returning to the United States with early probation documents from retrospectively requesting a status adjustment. The repeal of the longstanding policy was immediately challenged in court and is currently unresolved. Sanchez v. Mayorkas increases the stakes on probation immeasurably to adjust status within the country.