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. 

Legal Decisions Place TPS Status in Jeopardy for Many

On September 14, 2020, the Ninth Circuit Court of Appeals issued a decision in Ramos v. Wolf that allowed the termination of TPS (Temporary Protected Status) to move forward for El Salvador, Nicaragua, and Sudan and paved the way for the termination of TPS for individuals from Honduras and Nepal.  The decision reversed a lower court decision that had previously blocked the Trump Administration from ending TPS from those countries in 2017 and 2018.  While the Ninth Circuit also upheld the termination of TPS for Haitians, a separate injunction currently preventing the termination of TPS for Haitians remains in place. 

Last week’s court decision has jeopardized hundreds of thousands of TPS recipients.  TPS was established in 1990 by Congress under the Immigration Act of 1990, allowing the Secretary of DHS to consult with various government agencies in order to designate specific countries for TPS.  Temporary Protected Status is a form of temporary relief and work authorization provided to immigrants from certain countries experiencing a national crisis, including war or armed conflict, environmental disasters, or other emergency circumstances that make a safe return difficult or impossible.  Individuals receiving TPS cannot be deported from the United States and are eligible for a work permit.  

The primary countries affected by the Ninth Circuit ruling include El Salvador, Nicaragua, and Sudan, with an estimated 300,000 individuals impacted, many of whom have lived in the United States for decades. The decision may also impact the status of some 65,000 TPS holders from Honduras and Nepal who were involved in a companion lawsuit.  Without TPS and its protection against deportation, these individuals could face removal unless they obtain legal status through other means. 

Under the Trump administration, advocates have grown increasingly concerned that TPS-related policy is no longer based on humanitarian concerns and have criticized the administration for failing to provide a legal pathway to obtain status for individuals who have resided in the country for decades.  Advocates instead view the termination of TPS as motivated by xenophobic and anti-immigrant sentiments within the administration. 

Ahilan Arulanantham, senior counsel of the American Civil Liberties Union Foundation of Southern California, who represents TPS recipients in the lawsuit, issued a statement after the decision: “The president’s vile statements about TPS holders made perfectly clear that his administration acted out of racial animus.  The Constitution does not permit policy to be driven by racism.  We will seek further review of the court’s decision.”

However, even if last week’s ruling is upheld, it does not mean an immediate termination of TPS status for individuals from those affected countries. The U.S. Department of Homeland Security had previously stated that any termination of status for TPS recipients from Honduras, Nepal, Nicaragua, and Sudan would take effect no earlier than 120 days from the issuance of any appellate mandate to the district court and no earlier than 365 days for TPS recipients from El Salvador. 

This means that TPS recipients from Honduras, Nepal, Nicaragua, and Sudan will continue to have TPS “until at least March 5, 2021, and those from El Salvador until at least November 5, 2021.” 

Since both those dates are after the 2020 Presidential election, advocates are hopeful that if we have a change in administration, there is a possibility for a legislative or administrative solution that does not result in hundreds of thousands losing TPS. 

TPS Recipients Returning from Authorized Travel Abroad Face Challenge 

In addition to the ruling by the Ninth Circuit, attorneys and advocates have expressed concern over a recent decision by the U.S. Citizenship and Immigration Services (USCIS) to designate Matter of Z‑R‑Z‑C, a decision by the Administrative Appeals Office (AAO) focused on TPS, as an adopted decision. The result of this would mean that USCIS would rely on this ruling in making agency-wide determinations on individual cases.

The decision holds that those who travel abroad with TPS (advance parole) and return to the United States using a DHS-issued travel document will not meet the requirement of being “inspected and admitted or paroled.”  This means they will not have a lawful entry under the law that they can use to apply for lawful permanent residency from within the United States.  This decision will only apply prospectively to TPS recipients who depart and return to the U.S. after August 20, 2020.

The decision presents a serious hurdle for individuals with TPS who may have been eligible to adjust their status in the United States once they returned from authorized travel and were designated as having been “inspected or admitted or paroled.” It is yet another cruel way in which the Trump administration has eliminated one of the few means of obtaining legal status for those with TPS in the United States.

To understand how this decision may impact you or your loved ones, please seek an individual consultation with a qualified immigration attorney.