Temporary Protected Status Holders From El Salvador Urge Supreme Court to Let Them Apply for Green Cards

April 19, 2021 Updated: April 19, 2021

The Supreme Court heard arguments from the Biden administration that Temporary Protected Status (TPS) holders from troubled countries shouldn’t be allowed to upgrade to lawful permanent resident status from inside the United States.

The case, Sanchez v. Mayorkas, court file 20-315, comes at a time when the federal government finds itself overwhelmed by a rush of would-be immigrants flooding the nation’s border with Mexico, a situation President Joe Biden finally labeled a “crisis” on April 17. Biden said that situation prevents him from raising the refugee quota at this time.

A ruling in favor of the petitioners could allow thousands of TPS holders now living in the U.S. to apply for green cards without first having to leave the country and apply from abroad. There are reportedly around 400,000 TPS recipients in the U.S. who are allowed to temporarily stay in the country and work.

The petition seeking high court review of the 3rd Circuit Court of Appeals decision was granted Jan. 8.

The petitioners, Jose Santos Sanchez and Sonia Gonzalez, a married couple from El Salvador living in New Jersey, were represented in the telephonic hearing April 19 by Amy M. Saharia. The Department of Justice was represented by Michael R. Huston.

Chief Justice John Roberts seemed to suggest the government’s case was weak.

“I was struck by the extent to which your brief undersold your position,” he told Huston.

“Throughout it, you said things like the text doesn’t foreclose your position; the court was not required to accept the petitioners’ reading; the statute does not clearly exclude your reading; Congress did not unambiguously mandate the opponent’s position. And, of course, you ended by saying that it would not be entirely unreasonable for the court to rule in your favor.

“I made that last one up, but that’s … what I was expecting to see. Do you want us to say that your interpretation of the statute is the correct one?”

The case revolves around whether recipients of Temporary Protected Status privileges are deemed to have been “admitted” to the United States.

Sanchez and Gonzalez, who now have four children—one of whom was born in the United States—entered the United States illegally in 1997 and 1998. The United States gave El Salvador the TPS designation in 2001 after a series of earthquakes in that country and gave protection to the couple under the program. In 2014, their applications for green cards were turned down because they were deemed not to have been lawfully admitted to the United States.

The hearing consisted largely of discussions of the legal definitions of terms appearing in the Immigration and Nationality Act (INA), a statute Justice Stephen Breyer suggested during oral arguments was a difficult read.

“I have to admit that the immigration statute is pretty complicated,” Breyer said.

Under the program, some foreigners are allowed to stay in the United States if their country of citizenship is considered to be in crisis because of a natural disaster, armed conflict, or “extraordinary and temporary conditions.”

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

The Biden administration has followed the example set by the Trump administration, arguing that the INA makes nearly all TPS holders ineligible to adjust their status to lawful permanent residents, or green-card holders.

“From an institutional perspective, the government’s argument is somewhat counter-intuitive: In a statute that undisputedly authorizes executive discretion to alleviate hardship in the immigration process, the government argues that it should not be allowed to exercise discretion at all to noncitizens present for humanitarian reasons,” writes Maryellen Fullerton at SCOTUSblog.

During the 59-minute hearing, justices disagreed on the meaning of the word “admitted.”

Huston said the government’s position was reasonable.

“An agency does not act contrary to law when it interprets a statutory term in its accordance with its statutory definition. For petitioners to be eligible to adjust to lawful permanent resident status, they need to show, among several other things, that they were admitted into the United States,” he said.

“But ‘admitted’ is a defined term within the INA, and petitioners concede that they do not meet that definition. They did not make a lawful entry into the United States after inspection and authorization by an immigration officer. Petitioners instead contend that Congress implicitly deemed TPS recipients to be admitted by giving them lawful status as nonimmigrants.”

Justice Sonia Sotomayor disagreed with Huston, telling him, “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”

Justice Clarence Thomas seemed perplexed. He told Saharia the couple “clearly were not admitted at the borders, so is that a fiction, is it metaphysical, what is it? I don’t know.”

Justice Brett Kavanaugh told Saharia: “You have an uphill climb, textually speaking.

“We need to be careful about tinkering with the immigration statutes as written, particularly when Congress has … such a primary role here.

“Don’t you think … if Congress was intending to do what you want, it was almost certain there would be more explicit language?”