Temporary Protected Status Not a Gateway to Green Card, US Supreme Court Rules

The fact that U.S. government policy allows aliens from troubled nations to remain here for humanitarian reasons does not mean they are entitled to apply for green cards, the Supreme Court ruled unanimously this morning.

By Matthew Vadum   June 7, 2021 Updated: June 7, 2021

The 11-page opinion in Sanchez v. Mayorkas, court file 20-315, was written by Justice Elena Kagan.

The decision came June 7 as the federal government finds itself overwhelmed by a rush of would-be immigrants flooding the nation’s border with Mexico. The White House wants the Mexican government to do more to curb illegal immigration to the United States. President Joe Biden ended the Trump-era “remain in Mexico” policy that required asylum-seekers at the southern border to wait in Mexico while their claims are processed.

Secretary of Homeland Security Alejandro Mayorkas, the respondent in the court case, spoke with Mexican Secretary of Foreign Relations Marcelo Ebrard June 4 about the two countries’ “close cooperation and partnership to manage northbound irregular migration flows and address southbound weapons flows to Mexico from the United States,” according to a government summary.

The petitioners, Jose Santos Sanchez and Sonia Gonzalez, a married couple from El Salvador living in New Jersey, now have four children one of whom was born in the U.S. Sanchez entered the country illegally in 1997. The United States gave El Salvador the Temporary Protected Status (TPS) designation in 2001 after a series of earthquakes in that country and gave protection to the couple under the program. The TPS program allows individuals from countries in crisis to temporarily reside in the United States while adverse conditions continue to exist at home.

Twelve countries currently have the TPS designation, according to U.S. Citizenship and Immigration Services (USCIS): El Salvador, Haiti, Honduras, Myanmar, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Venezuela, and Yemen.

In the court opinion, Kagan noted that Sanchez entered this country unlawfully from El Salvador and was given Temporary Protected Status.

“Sanchez now wishes to become a lawful permanent resident (LPR) of the United States,” she continued. “The question here is whether the conferral of TPS enables him to obtain LPR status despite his unlawful entry. We hold that it does not.”

In 2014, USCIS turned down Sanchez’s application for a green card because he was deemed not to have been lawfully admitted to the U.S.

“‘A grant of TPS does not cure a foreign national’s entry without inspection or constitute an inspection and admission of the foreign national,’” Kagan wrote, quoting the USCIS determination.

“‘Recipients of TPS,’ the agency reasoned, ‘must still meet the threshold requirement’ of a lawful entry,” the justice continued.

Sanchez challenged the decision and a U.S. District Court agreed with him, but the U.S. Court of Appeals for the 3rd Circuit reversed, holding that “a grant of TPS does not constitute an ‘admission’ into the United States.”

“The court observed that ‘admission’ and ‘status’ are separate concepts in immigration law,” Kagan wrote. “So, the court concluded, providing a person with nonimmigrant status (as the TPS provision does) does not mean admitting him.”

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