The Supreme Court on Monday showed skepticism about allowing temporary immigrants protected from deportation to apply for green cards.
The case’s outcome could affect more than 400,000 noncitizens who entered the United States illegally but live here under temporary federal protection. It concerns whether these people, many of whom fled natural disasters, can apply for lawful residency without having to leave the country first. The court, on Monday, questioned whether the terms of the Temporary Protected Status program, which protects them from deportation, allows an ease of access to green cards.
“We need to be careful about tinkering with the immigration statutes as written, particularly when Congress has such a primary role here,” Justice Brett Kavanaugh told lawyers representing the immigrants. “You have an uphill climb, textually speaking.”
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The case arose out of an incident where two Salvadorean immigrants, Jose Sanchez and Sonia Gonzalez, attempted to obtain green cards after living under TPS for more than 20 years following a 2001 earthquake in El Salvador. The two attempted to adjust their status to “admitted” but were turned away because they originally entered the country illegally.
At present, the only way for the married couple to obtain green cards is by leaving the country and starting the immigration process over. That move brings its own pitfalls. Several years after Congress passed TPS, it passed another law that places a ban that can reach up to 10 years on anyone who enters the country illegally and stays for more than 365 days. Many people living under TPS have stayed for well over that time period.
Before the case reached the Supreme Court, lower courts were split on the issue. However, the federal government has remained constant. Both the Trump and Biden administrations sided against the immigrants in the case, arguing that because of their unlawful entry, Sanchez and Gonzalez are not eligible for the Immigration and Nationality Act’s adjustment-of-status procedure.
The Supreme Court leaned toward the federal government’s interpretation, pointing out that at no point were Sanchez and Gonzalez legally “admitted” at the southern border, even if they are currently protected because of a humanitarian disaster.
Justice Clarence Thomas pointed this out in his questions, saying that the two “clearly were not admitted at the borders.”
“So is that a fiction?” he said. “Is it metaphysical? What is it? I don’t know.”
Chief Justice John Roberts was also skeptical, saying that the immigrants can’t really make the case that they have been admitted to the country.
“I can’t follow the logic of your main submission,” he told the attorneys representing the immigrants. “It doesn’t say that you are deemed to have been admitted and inspected. It says that you have nonimmigrant status.”
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TPS was created by Congress in 1990 to give temporary shelter to people whose home countries are in crisis. There are currently 12 countries on the list of protected nations. El Salvador has been protected since the 2001 earthquakes and renewed every year since for various humanitarian reasons. The program is notable in that it provides protection even to people who did not enter the country legally.
President Joe Biden, who early in office rolled back many of former President Donald Trump’s immigration policies, has proposed a bill to allow people protected by TPS to apply for green cards, even as it defends the former administration’s position in the case.
