6.28.21

The U.S. Supreme Court has unanimously ruled that non-citizens who have been granted temporary humanitarian relief from deportation, known as Temporary Protected Status, and who came to the United States without being “inspected and admitted,” cannot apply to become lawful permanent residents through the adjustment of status application process.

The Court’s decision means that permanent resident status will not be available to these individuals unless Congress amends the applicable legislation.

Sanchez v. Mayorkas

According to the Supreme Court’s opinion, written by Justice Elena Kagan, the TPS program

provides humanitarian relief to foreign nationals in the United States who come from specified countries. The Government may designate a country for the program when it is beset by especially bad or dangerous conditions, such as arise from natural disasters or armed conflicts. The country’s citizens, if already present in the United States, may then obtain TPS [Temporary Protected Status]. That status protects them from removal and authorizes them to work here for as long as the TPS designation lasts. A person’s unlawful entry into the United States will usually not preclude granting him TPS. And relevant here, the TPS provision states: “[F]or purposes of adjustment of status under section 1255,” a person given TPS “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”

In 1997, Jose Santos Sanchez entered the United States from El Salvador without being “inspected and admitted” as required by U.S. immigration law. In 2001, the United States granted TPS designation to El Salvador because of severe earthquakes in that country. Mr. Sanchez applied for and obtained TPS that year and has kept his status current. In 2014, he applied for an “adjustment of status” to allow him to become a lawful permanent resident of the United States. The U.S. Citizenship and Immigration Services denied his application on the ground that his initial entry into the United States was not lawful. According to the USCIS, Section 1255(a) of the Immigration and Nationality Act provides that an “adjustment of status” is available only to non-citizens who were “inspected and admitted or paroled into the United States.”

Mr. Sanchez appealed, contending that the statute provided for adjustment of status even if the non-citizen had not been “inspected and admitted or paroled” before entry into the United States. He cited Section 1254a(f)(4) of the INA, which provides, “For purposes of adjustment of status under Section 1255…,” a TPS holder “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” Mr. Sanchez argued that this language grants a TPS holder status equivalent to that of a nonimmigrant who has been “inspected and admitted.”

A federal district court judge in New Jersey agreed with Mr. Sanchez, and granted him summary judgment. However, the U.S. Court of Appeals for the Third Circuit reversed. According to the Third Circuit, Section 1254(a)(f)(4) refers to “status” but does not mention “admission,” and immigration law historically has recognized “status” and “admission” as distinct concepts in the law.

The Supreme Court agreed with the Third Circuit. Justice Kagan’s opinion distinguishes “status” and “admission” by stressing that “Section 1255 generally requires a lawful admission before a person can obtain [lawful permanent resident]” status. (Emphasis added.) Because Mr. Sanchez was not initially admitted lawfully to the United States, he cannot be eligible for an adjustment of status despite his valid TPS.

Conclusion

The Sanchez decision does not affect the continued TPS status of individuals who entered the United States illegally. Nor does it prevent them from seeking waivers of illegal entry and, if the waivers are granted, the ability to apply abroad for immigrant visas to the United States. However, individuals with TPS who initially entered the United States illegally will not be able to apply for adjustment of status to become lawful permanent residents of the United States unless Congress changes the law. Although Congress has acted in the past to change laws after unpopular Supreme Court decisions, it is not clear whether it will do so in this case. It is also not clear that Congress would have the will to amend immigration law in today’s polarized political environment.

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