Issues
Can noncitizens who were granted Temporary Protected Status in the United States after their home country experienced unsafe conditions apply for a green card when the noncitizens were not formally inspected and admitted into the United States?
This case asks the Supreme Court to determine whether noncitizens residing in the United States under Temporary Protected Status (“TPS”) are eligible to receive lawful permanent resident (“LPR”) status if they were not formally inspected and admitted into the United States. Jose Santos Sanchez and Sonia Gonzalez are a married couple from El Salvador who received TPS in 2001 after entering the United States unlawfully in the late 1990s. The couple argues that they are eligible to apply for permanent residency because TPS recipients are deemed, by definition and by Congress, as having met the requirements of formal inspection and admission for the purposes of changing residency status. The government counters that individuals who initially entered the country unlawfully cannot apply for permanent residency because they cannot overcome the requirement of being formally inspected and admitted into the United States, even if they were eventually granted TPS. The outcome of this case has important implications for resolving inconsistent application of the law by federal courts and for understanding the qualifications needed to receive permanent residency in the United States.
Questions as Framed for the Court by the Parties
Whether, under 8 U.S.C. § 1254a(f)(4), a grant of temporary protected status authorizes eligible noncitizens to obtain lawful-permanent-resident status under 8 U.S.C. § 1255.
Facts
Temporary Protected Status (“TPS”) protects foreign nationals within the United States from removal “during armed conflict, environmental disasters, or other extraordinary conditions in their homelands.” Sanchez v. Sec'y U.S. Dep't of Homeland Sec. at 244–245. 8 U.S.C. §1255(a) allows certain immigrants within the United States to adjust their status, including those granted TPS. Id. at 245. Under 8 U.S.C. §1254a(f)(4), once an immigrant has received TPS, “the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant” when adjusting their status under §1255. Id.
Petitioners Jose Sanchez and Sonia Gonzalez, a married couple from El Salvador, immigrated to the United States unlawfully, or without a formal inspection and admission process, in the late 1990s. Id. at 244. The couple received TPS soon after El Salvador was designated for the TPS program in 2001 due to an environmental disaster caused by several earthquakes. Id. Sanchez attempted to adjust his TPS to lawful permanent resident (“LPR”) status for employment-based immigrants in 2014, with Gonzalez listed as his derivative beneficiary. Id. U.S. Citizenship and Immigration Services (“USCIS”) denied Sanchez’s application, stating that he was statutorily ineligible for LPR status under 8 U.S.C. §1255(a) because he had entered the country without an inspection and admission process, a requirement for LPR status. Id. at 244.
Sanchez and Gonzalez challenged USCIS’s decision in the United States District Court for the District of New Jersey, arguing that receiving TPS constituted an admission into the United States. Id. The district court agreed and held that a grant of TPS qualifies as inspection and admission for status adjustment under §1255(a) because having “lawful status” with TPS is consistent with having been inspected and admitted into the United States. Id. The Court of Appeals for the Third Circuit reversed, holding that receiving TPS and having lawful status is distinct from lawful admission into the United States. Id. at 245–46. The appellate court reasoned that Congress did not intend for TPS to be an exception to the admission requirements under §1255(a), reasoning that Congress clearly and explicitly listed other exceptions to the admission requirement and intended TPS to be temporary protection from removal, rather than a pathway to permanent status. Id. at 247. The Third Circuit’s decision departs from the Sixth and Ninth Circuit’s decisions in Flores v. USCIS and Ramirez v. Brown, respectively. Id. at 248.
The United States Supreme Court granted Sanchez and Gonzalez’s petition for a writ of certiorari on January 8, 2021. Brief for Respondents, Alejandro Mayorkas, Secretary of Homeland Security, et al. at 1.
Analysis
STATUTORY INTERPRETATION: “LAWFUL STATUS” VERSUS “LAWFUL ADMISSION”
Jose Santos Sanchez and Sonia Gonzalez (“Sanchez”) assert that noncitizens with TPS are considered admitted into the United States, rendering them eligible to adjust their status to LPR status, despite not having undergone the formal inspection and admission process when they entered the country. Brief for Petitioners, Jose Santos Sanchez et al. at 18. Sanchez argues that the language in 8 U.S.C. §1254—specifying that TPS recipients are considered “being in, and maintaining, lawful status as a nonimmigrant” for status adjustment under 8 U.S.C. §1255—unambiguously equates those with TPS with those who have a lawful status as a nonimmigrant. Id. at 18, 20. Sanchez further reasons that because those with lawful status as nonimmigrants are considered inspected and admitted for status adjustment, those with TPS should be similarly eligible. Id. The phrase “being in,” says Sanchez, allows TPS recipients who had not previously had nonimmigrant status to receive it for the purposes of status adjustment. Id. at 22. Therefore, Sanchez asserts that they were lawfully admitted into the United States when they received TPS and they have maintained that lawful status ever since, making them eligible to adjust to LPR status. Id. at 17–20.
Respondent the Secretary of Homeland Security and others (the “Secretary”) argue that lawful admission into the United States and lawful status in the United States are two distinct concepts in immigration law. Brief for Respondents, Alejandro Mayorkas, Secretary of Homeland Security, et al. at 16. The Secretary maintains that admission refers to lawful entry while lawful status refers to legal standing and the ability to be in the United States without threat of removal. Id. The Secretary notes that Sanchez’s receipt of TPS cannot be considered an admission because receiving TPS required Sanchez to already have been present in the United States unlawfully. Id. at 15. The Secretary recognizes that Sanchez currently has lawful status in the United States but argues that they have not gained lawful admission and therefore failed to maintain continuous lawful status since their entry into the United States. Id. at 14. Therefore, the Secretary concludes that Sanchez is not eligible for LPR status. Id. at 13.
INTERPRETING §1254a(f)(4)
Sanchez argues that the Secretary’s interpretation of §1254a(f)(4) is erroneous when considering the text and history of the statute. Brief for Petitioners at 30. According to Sanchez, the Secretary alleges that §1254a(f)(4) allows TPS recipients who initially entered the country legally as nonimmigrants to adjust their status after they lost their nonimmigrant status after having received TPS—despite §1255(c)(2) prohibiting status adjustment for individuals who failed to maintain legal status while in the United States. Id. at 30. Based on its failure to indicate a limited application of the section, Sanchez asserts, Congress did not intend for §1254a(f)(4) to apply solely for the purposes of §1255(c)(2), but rather the entirety of §1255. Id. at 31. Moreover, Sanchez contends there is no language in §1254a(f)(4) indicating that the section only benefits TPS recipients who had nonimmigrant status when initially admitted to the country. Id. Finally, Sanchez points to legislation passed by Congress at the same time as §1254a(f)(4)—such as the Emergency Chinese Immigration Relief Act, Chinese Temporary Protected Status Act, and the Chinese Student Protected Act—to indicate that if Congress had intended the Secretary’s limited application of §1254a(f)(4), then it could have effectuated this in a more direct way. Id. at 33–35.
The Secretary counters that Sanchez has misunderstood its argument, as the Secretary does not limit beneficiaries of §1254a(f)(4) to legally admitted nonimmigrants who received TPS after losing their nonimmigrant status. Brief for Respondents at 26. Rather, the Secretary explains, §1255(k) has allowed admitted noncitizens who had unlawful status for less than 180 days before receiving TPS to adjust their status to LPR since 1997. Id. at 26–27. Furthermore, the Secretary states that Sanchez’s argument that Congress did not explicitly identify §1255(c)(2) is irrelevant, because the USCIS has never prevented TPS recipients from relying on any subsection of §1255 when proving their lawful status. Id. at 27–28. In addressing Sanchez’s argument that §1254a(f)(4) does not apply solely to TPS recipients initially admitted, the Secretary states that the USCIS has not proposed the contrary. Id. at 28. Instead, the Secretary clarifies that all TPS recipients can invoke §1254a(f)(4) to show they have maintained lawful status, they simply cannot satisfy specific statutory requirements of inspection and admission by invoking a provision relating to lawful status. Id. at 28. Finally, the Secretary counters that Sanchez cannot reasonably infer Congress’s intention from legislation specific to Chinese nationals, as Congress may have been following past Executive grants of immigration relief. Id. at 30.
CONGRESSIONAL HISTORY & INTENT
Sanchez points to the congressional history of the Immigration and Nationality Act (“INA”) to show that lawmakers intended a broader, more expansive interpretation of the protections that TPS provides under §1254. Brief for Petitioners at 40. Namely, Sanchez highlights that Congress determined that TPS recipients should be considered as “being in, and maintaining, lawful status as a nonimmigrant,” affording TPS recipients more protection than merely maintaining lawful status. Id. at 32. This is distinct from the Senate’s original version, which included specific language that TPS recipients would only maintain, rather than be in, lawful nonimmigrant status for status adjustment purposes. Id. at 39–40. The House, according to Sanchez, altered that language to include the broader wording of “being in” so that TPS recipients who did not already have nonimmigrant status could reap the benefits of §1254. Id. at 40. Further, Sanchez notes that Congress was well aware that there were many Salvadorians unlawfully residing in the United States, and Congress specifically stipulated that El Salvador would receive TPS and recipients would be in, rather than merely maintain, lawful status as a nonimmigrant. Id. at 40. Sanchez cautions that the Secretary’s interpretation of §1254 and its relation to §1255 would revert the protections to what the Senate originally wrote but not to what Congress ultimately passed into law. Id. at 40.
The Secretary counters that Congress created the TPS program as a form of humanitarian relief that allows Homeland Security to grant noncitizens in the United States temporary protection from removal because travel to their home country is unsafe. Brief for Respondents at 21. This protected status, the Secretary argues, delays the noncitizen’s removal based on these temporary conditions but does not create a new path towards permanent residence in the United States. Id. at 22. The Secretary points to similar legislation passed by Congress that specifically allows status adjustment for otherwise non-eligible immigrants of other protection programs, such as Deferred Enforced Departure, if recipients met certain criteria. Id. The Secretary notes that Congress has not provided similar provisions for TPS recipients. Id. at 24. Further, the Secretary maintains that its interpretation is consistent with the nearly 70 years of history specifying that the INA requires noncitizens to enter the United States lawfully to be eligible to become permanent residents. Id. at 25.
Discussion
RISK OF RETURNING TO HOME COUNTRY
Human Rights Watch and Alianza Americas (“HRW”), in support of Sanchez, contend that forcing individuals to return to their home country before applying for permanent residency creates significant risks of violence, blackmail, abuse, and possibly death as a result of the individual’s return following an extended stay in the United States. Brief of Amici Curiae Human Rights Watch and Alianza Americas, in Support of Petitioners at 27–29. HRW further asserts that individuals often return to the dangerous neighborhoods from which they fled and are not sufficiently protected by their government upon their return because they are seen as wrongdoers that the United States sent back home due to criminal behavior. Id. at 32–34. Furthermore, Harvard TPS Coalition argues, in support of Sanchez, that the Covid-19 pandemic has increased the dangers of compelling TPS recipients to return to their home countries to go through the difficult, if not impossible, process of attempting to re-enter the United States, thereby forcing individuals to senselessly jeopardize their health and safety. Brief of Amicus Curiae Harvard TPS Coalition, in Support of Petitioners at 27–28.
The Immigration Reform Law Institute (“IRLI”), in support of the Secretary, counters that the purpose of granting TPS is to provide noncitizens, who would face dangerous conditions if they returned to their home country, with the promise of safety in the United States. Brief of Amicus Curiae Immigration Reform Law Institute (“IRLI”), in Support of Respondents at 12. The Secretary agrees and emphasizes that TPS recipients are allowed to stay in the United States until conditions are safe for their return to their home country. Brief for Respondents, Alejandro Mayorkas, Secretary of Homeland Security, et al. at 25, 32. Furthermore, the Secretary maintains that there is no restriction barring TPS recipients from going to another country that is safer than their home country and applying for permanent residency in the United States from there. Id. at 4.
IMPACT ON THE LOCAL ECONOMY AND COMMUNITY
The District of Columbia and nineteen states (the “States”), in support of Sanchez, assert that TPS recipients have become essential members of their communities and have benefitted not only their employers, but also their neighborhoods, schools, and society. Brief of Amici Curiae District of Columbia et al., in Support of Petitioners at 6, 11, 15. The States continue that forcing TPS recipients to unwilfully return to their home country would not just harm the recipients and their families, but the U.S. communities that they have enriched. Id. Furthermore, the States argue that repatriating TPS recipients would cause severe distress to individual state economies and to the United States’ overall GDP, as TPS recipients provide essential services, especially during the Covid-19 pandemic, and contribute billions of dollars in taxes, Social Security and Medicare. Id. at 11–14. Service Employees International Union and other labor unions, in support of Sanchez, also contend that uprooting TPS workers would create a monumental deficit in industries that rely on the skilled labor of TPS employees and materially impair the U.S. workforce. Brief of Amici Curiae Service Employees International Union and Other Labor Unions, in Support of Petitioners at 8.
The Secretary counters that TPR, unlike lawful admission, is granted without inspection for disqualifying characteristics of the recipient, suggesting that future individuals could take advantage of this loophole and become a permanent “charge” for the public. Brief for Respondents at 35–36. IRLI, in support of the Secretary, also suggests that allowing noncitizens who did not go through the formal admission process could potentially harm U.S. economies and communities by creating inappropriate incentives for noncitizens to evade proper immigration procedures. Brief of IRLI at 4.
Written by
Edited by
Acknowledgments
Additional Resources
- Nicola Ai Ling Prall, U.S. Supreme Court to Hear Case Regarding TPS Status and Eligibility for Adjustment, National Law Review (Mar. 30, 2021).
- David Martin, Removing Barriers to Family Unity for Holders of Temporary Protected Status: An Opportunity for Biden Administration, Just Security (Mar. 11, 2020).