Supreme Court Hears Challenge to Biden's Immigration Enforcement Priorities

The Supreme Court is set to hear the first major immigration case of this term, U.S. v. Texas, focused on whether the President of the United States has the power to prioritize the deportation of certain immigrants in the United States over others. The court is revisiting the issue after it issued a ruling four months ago temporarily blocking President Biden’s authority to prioritize immigration enforcement against individuals deemed a threat to public safety or national security.  A ruling in the case could have sweeping implications for the issue of immigration enforcement generally, as well as the ability for states to present legal challenges to immigration policies put forth by Presidential administrations. The case may set an important legal precedent as to just how much power a President has to enact specific immigration policies without the express direction of Congress. The outcome of the court’s decision will impact both Democrats and Republicans, as any limitations placed on the Biden administration could potentially limit aggressive actions of future Republican presidents that are seemingly outside the mandate of Congress.    

The case will center on arguments put forth by the conservative states that claim that federal law requires agencies such as Immigration Customs and Enforcement (ICE) to arrest and deport individuals who are in the United States unlawfully without room for discretion. The Biden administration has countered this argument by citing the lack of resources available to arrest and deport millions of individuals unlawfully in the United States and arguing for the need to set priorities as a natural consequence of this limitation.  Texas and Louisiana filed suit against the Biden administration to challenge a policy announced by the President in September of 2021 that sought to dedicate enforcement resources against a select class of immigrants, as opposed to the policy of mass enforcement that took place during the Trump era. The legal challenge presented by the states was before U.S. District Judge Drew Tipton, who ruled in favor of the conservative states and vacated President Biden’s policy. The U.S. Court of Appeals for the 5th Circuit declined to put the ruling on hold during appeals, leading the Biden administration to file an emergency request with the Supreme Court in July of 2022 to review the court's decision. The court ruled in a 5-4 vote that they would not grant Biden emergency relief and kept Judge Tipton’s ruling in place but agreed to hear the case in its emergency docket. Conservative critics of the current Biden policy, including Texas and Louisiana, claim that limiting immigration enforcement has resulted in economic burdens on their states, with more money being spent on law enforcement, education, and health care programs. They argue that the federal government's actions result in a drain on resources to states located near the border. Immigrant advocates challenge this argument.

"Just because you say it's a drain on resources doesn't actually mean that that is real," Sirine Shebaya, executive director of the National Immigration Project, whose group co-authored a brief in the case supporting Biden's position, told USA Today. "They are actively targeting this group and breaking it apart from the rest of the population, even though federal and state law requires that all residents of a state be treated similarly."Advocates have also pointed to a federal statute stating that the Homeland Security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities.” That statute had previously served as the basis for legal memos issued by the Obama administration to direct federal agencies to concentrate their resources on specific targeted groups. Legal analysts have been quick to point out that the Biden administration has faced numerous challenges from increasingly partisan judges, some of whom have relied on legally dubious reasoning. The legal challenges are bolstered by the decisions of many Trump-appointed judges, who many believe are keen on presenting judicial roadblocks to the Biden administration's major policies. In fact, many believe that states like Texas have intentionally filed cases in a manner to avoid liberal judges.

In an amicus brief filed with the court, University of Texas law professor Stephen Vladeck pointed out that the state of Texas has filed 20 suits against the Biden administration in Texas. Vladeck notes that of the 20 suits, 19 were heard by Republican-appointed judges. “Texas has intentionally filed its cases in a manner designed to all but foreclose having to appear before judges appointed during Democratic presidencies,” he argues. The Supreme Court has previously held that executive branch officials have broad discretion to exercise prosecutorial discretion, especially in the context of immigration laws. The court wrote in Arizona v. United States (2012), “A principal feature of the removal system is the broad discretion exercised by immigration officials.” As far back as 1985, the court held in Heckler v. Chaney (1985) that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”

The court went on to state that the principle “is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.”Despite the past precedent, there is reason to believe that the conservative composition of the Supreme Court may be willing to reverse course, as it did in overturning Roe v. Wade and issue a ruling that undermines a democratic administration. A decision against the Biden administration and in favor of states could have serious consequences. The Department of Justice argued in legal filings that such a ruling “would inject the federal courts into all manner of policy controversies at the behest of States seeking to secure by court order what they could not obtain through the political process.” While the Biden administration has faced significant challenges in the Supreme Court based on its judges' composition, it succeeded in a recent legal battle to end the so-called “Remain in Mexico” program, with a 5-4 decision in its favor. While the outcome of this case regarding immigration enforcement remains to be seen, what is clear are the high stakes for the executive branch, states, and the immigrant community. 

Supreme Court Bars Green Cards within the U.S. for TPS Holders Who Entered Without Inspection

On June 7th, the U.S. Supreme Court issued a unanimous decision that bars immigrants with Temporary Protected Status (TPS) from obtaining a green card within the United States if their initial entry into the country was not authorized. In other words, immigrants who did not go through inspection before entering the United States are not eligible to receive a green card in the United States, even if they were granted TPS while residing in the country. 

"The question here is whether the conferral of TPS enables him to obtain LPR [Legal Permanent Residency] status despite his unlawful entry. We hold that it does not," Supreme Court Justice Elena Kagan wrote in the ruling for the case. The case, Sanchez v. Mayorkas, was brought by Jose Santos Sanchez, a Salvadoran immigrant who brought suit after being denied the ability to adjust his status to that of a lawful permanent resident. 

The ruling would not prevent individuals who entered the U.S. with a visa and overstayed from adjusting their status but would prevent those who entered without inspection at the border from being eligible for a green card within the United States. 

The case has the potential to impact tens of thousands of TPS holders, preventing them from applying for adjustment of status and obtaining a green card while they reside in the United States. According to the Congressional Research Service, an estimated 320,000 immigrants with TPS are in the United States. This includes immigrants from Burma, Haiti, El Salvador, Nepal, Honduras, Somalia, Syria, Sudan, South Sudan, Nicaragua, Yemen, and Venezuela. Immigrants from these twelve countries are currently able to apply for TPS, allowing them to reside in the United States. 

The ruling is a significant blow to immigrants who have resided in the U.S. – in many cases for decades – and are part of mixed-status families. The court's ruling, focused on the technical requirement of being “lawfully admitted” as a prerequisite to being able to adjust status, ignores humanitarian and practical considerations for individuals who cannot safely return to their homeland. 

In an interview with the Associated Press, Lisa Koop, a lawyer with the National Immigrant Justice Center, underscored the dire circumstances faced by those with TPS. “All of these families that are established in the United States and have lived in our communities for decades faced a very real threat.”

Ultimately, the ruling leaves tens of thousands with TPS in limbo, having been denied a permanent status yet unable to return to their home countries. As a result, it may be up to Congress to legislate a pathway for TPS holders to obtain permanent residency. A bill to address this issue, the American Dream and Promise Act, has been passed by the U.S. House of Representatives but faces an uncertain future in the U.S. Senate. 

Erika Andiola, the San Antonio-based non-profit Refugee and Immigrant Center for Education and Legal Services chief advocacy officer, or RAICES, called the ruling disappointing in an interview with the Texas Tribune.

“What makes the ruling even more egregious is that the vote was unanimous,” she said in a statement. “TPS holders came to the U.S. because of unsafe conditions in their native countries, and this ruling prevents them from making a true home here. We call on Congress and the Biden administration to keep their promise and create a pathway toward citizenship for all TPS holders.”

This decision may still allow TPS holders to obtain a green card by leaving the United States, in a process referred to as consular processing. However, each case must be analyzed to determine what each individual qualifies for.  In order to understand exactly what legal options you may have in this case, it is important to consult with an attorney or qualified immigration expert.