Supreme Court Denies TPS Holders a Chance at Permanent Status

by Gianna Borroto


In a unanimous decision, the Supreme Court ruled this week in Sanchez v. Mayorkas that people with Temporary Protected Status (TPS) who entered the United States unlawfully are ineligible to obtain a green card in most cases. The decision has a devastating effect on thousands of long-time TPS holders who are now left without the possibility of ever obtaining permanent status in the United States.

TPS is a form of humanitarian protection granted to foreign nationals living in the United States. To be designated for TPS, a country must be undergoing armed conflict, a natural disaster, or similar extraordinary and temporary conditions that make it difficult or unsafe to return.

In the Court’s third unanimous decision in the last few weeks, Justice Kagan wrote that although federal immigration law states that TPS holders are to be “considered . . . as a nonimmigrant” when applying for a green card, they must still have gone through a process known as “inspection and admission” to be approved for a green card.

Jose Santos Sanchez, the petitioner, had argued that “nonimmigrants” by definition have undergone inspection and admission. But because Sanchez entered unlawfully, the Court disagreed. It contended that lawful status and admission are distinct concepts under the law.

The Court held that because of this distinction TPS holders who entered the United States unlawfully had not been inspected and admitted and are ineligible for a green card.

The petitioners in the case, Sanchez and his wife Sonia Gonzalez, were born in El Salvador. They entered the United States unlawfully in the late 1990s and have four children, one of whom is a U.S. citizen. After a series of earthquakes in El Salvador, the U.S. government designated El Salvador for TPS in 2001. Sanchez was given TPS that year and has held it ever since, building a life for himself and his family in the United States for over two decades.

Though TPS is usually only authorized for a period of up to 18 months at a time, the government can and often does decide to extend the designation. In the case of El Salvador, the TPS designation has been extended from its initial issuance in 2001 until the Trump administration attempted to terminate it in 2018. That decision was blocked by a federal court.

Without a means to obtain a green card, the Sanchez decision leaves thousands of TPS holders like Sanchez and his family in limbo.

TPS holders often form strong ties to the United States, have U.S. citizen children, and make important contributions to their communities. However, as seen under the Trump administration, their ability to remain in the United States can be put at risk under the political whims of a hostile administration.

After the Sanchez decision, the fate of TPS holders rests with Congress. As Justice Kagan noted, the pending Dream and Promise Act of 2021 would give TPS holders what the Supreme Court was not able to find in the text of the current immigration statute—a chance at permanent residency and a path to citizenship for thousands of people who have called the United States home for decades.

This post originally appeared on Immigration Impact . Reprinted with permission.


About The Author

Gianna Borroto Gianna Borroto is a Litigation Attorney with the American Immigration Council, where she works to protect the rights of noncitizens through impact litigation, advocacy, and practice advisories for immigration attorneys. Before joining the Council, Gianna was a litigator with the National Immigrant Justice Center (NIJC), focusing on affirmative litigation defending the rights of asylum seekers, immigrant youth, and separated families. Previously, Gianna was a Supervising Attorney with NIJC’s Immigrant Children’s Protection Project, where she represented unaccompanied immigrant children in removal proceedings and oversaw the project’s delivery of legal services, particularly in the areas of asylum, counter-trafficking, and special immigrant juvenile status. Gianna holds a J.D. from Harvard Law School and a B.S. in psychology from the University of Florida.


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