on Apr 16, 2021
at 1:14 pm
Supporters of immigrants’ rights rally at the Supreme Court in April 2016 (Rena Schild via Shutterstock)
Sanchez v. Mayorkas, scheduled for oral argument on Monday, focuses on whether noncitizens who have been granted humanitarian relief from deportation can seek lawful permanent residency in the United States, through a process known as “adjustment of status,” without first leaving the country. Or must they depart the U.S. and complete their applications for permanent status while abroad?
The statutory question presented is whether noncitizens certified by the government for the humanitarian relief program known as Temporary Protected Status, or TPS, have been “admitted” to the United States, as required by the adjustment-of-status statute. Jose Sanchez and Sonia Gonzalez, a married couple from El Salvador who have lived in the United States for decades, argue that the specific provision regarding adjustment of status for those granted TPS demonstrates Congress’ intent to treat them as “admitted” for this purpose. The government rejects that interpretation, insisting that the general adjustment-of-status requirements apply.
This question has split the circuits and holds profound consequences for tens of thousands of people: those holding TPS, their families, neighbors and employers. Under the TPS program, certain foreign nationals are permitted to remain in the United States if their country of citizenship is deemed to be in crisis as a result of armed conflict or a natural disaster. Twelve countries currently have that designation. The Biden administration has adopted the same approach as the Trump administration, advancing a statutory interpretation that would render almost all TPS holders ineligible to adjust their status to lawful permanent residents (colloquially known as 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.
Access to the adjustment-of-status process in the U.S. is a lifeline for many noncitizens. Leaving the U.S. to accomplish a status change costs money and, because the immigration bureaucracy often moves slowly, can jeopardize employment and strain families. Moreover, the noncitizens’ location outside the U.S. may limit their ability to challenge government action should an unforeseen legal issue arise.
Most importantly, noncitizens may be barred from reentry for up to 10 years. In 1996, six years after creating the TPS program, Congress passed a law penalizing noncitizens unlawfully present in the U.S.: More than 180 days of unlawful presence leads to a three-year bar on returning; more than 365 days of unlawful presence results in a 10-year bar. These bars take effect once the noncitizen leaves the country. As a consequence, a noncitizen seeking a green card (often based on marriage to a U.S. citizen) may not be permitted to rejoin her U.S. family for 10 years. Permission to adjust status within the U.S. avoids this result.
Sanchez and Gonzalez came to the U.S. from El Salvador without authorization in the 1990s. They received protection after the U.S. designated El Salvador for TPS in 2001 in the wake of devastating earthquakes, and they have maintained TPS status for 20 years. In 2006, Sanchez’s employer filed an immigration-visa petition for Sanchez as a skilled worker. Immigration officials approved this petition as well as a derivative petition for Gonzalez. The government, however, denied the couple’s later application to adjust to lawful-permanent-resident status. Immigration officials ruled that their original unauthorized entry disqualified them from consideration for a discretionary grant of adjustment of status. Accordingly, the only way for Sanchez and Gonzalez to obtain green cards would be to leave the U.S. and then apply to return. But they would be barred from reentry for 10 years because they were in the U.S. without authorization for more than 365 days.
Petitioners challenged the denial of their application for adjustment of status and won at the district court. On appeal, the U.S. Court of Appeals for the 3rd Circuit reversed. This widened the circuit split: the 3rd Circuit joined the U.S. Courts of Appeals for the 5th and 11th Circuits, while the U.S. Courts of Appeals for the 6th, 8th and 9th Circuits took the contrary view.
The government argues that Sanchez and Gonzalez are ineligible for the Immigration and Nationality Act’s adjustment-of-status procedure, codified at 8 U.S.C. § 1255. Sanchez and Gonzalez argue that the TPS statute, codified at 8 U.S.C. § 1254a, affords the executive discretion to grant their applications for lawful permanent residency without leaving the country. The textual intricacies and dense cross-references in the statutes give the Supreme Court room to embrace either side’s perspective. Humanitarian, family unity and efficiency goals favor Sanchez and Gonzalez. Reinforcing the penalties for unlawful entry supports the government’s interpretation.
The Section 1255 adjustment-of-status process came into existence in 1952, long before the TPS program. It provides a mechanism for certain noncitizens living in the U.S. to change from temporary to permanent status without leaving the country. Congress made the adjustment-of-status process discretionary, but it occurs routinely. Roughly 50% of all the noncitizens who qualify for green cards – more than 550,000 noncitizens each year from 2016-2019 – take advantage of this procedure. After their employer sponsors them, or their spouse or parent petitions on their behalf, they obtain their green cards while remaining on U.S. soil. Critically for the purposes of this case, Section 1255(a) makes this in-country process available to noncitizens who were “inspected and admitted or paroled into the United States” so long as (1) the noncitizen applies for adjustment, (2) the noncitizen is eligible to receive an immigrant visa and is admissible as a permanent resident, and (3) an immigrant visa is immediately available.
Subsequently, in 1990, Congress created the TPS program to furnish a framework for temporary humanitarian protection for individuals already in the U.S. whose home countries are in crisis. The secretary of homeland security has the discretion to designate countries experiencing humanitarian crises, including natural disasters and civil war; nationals of the designated countries, if present in the U.S., receive TPS, which authorizes them to seek employment and prevents deportation during the crisis. Section 1254a(f)(4) states that they are not lawful permanent residents of the U.S. but specifies that “for purposes of adjustment of status under section 1255 … the [TPS holder] shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”
Significantly, nationals of designated countries can obtain TPS even if they are not in lawful status. Thus, TPS is available to individuals who entered the United States without inspection and admission, and to those who entered lawfully but overstayed or did not maintain lawful status. In fact, the overwhelming majority of people who are granted TPS by the government entered without inspection. This raises the stakes of the statutory issue: When Congress mandated that a TPS holder “shall be considered as being in … lawful status as a nonimmigrant,” did Congress mean that all TPS holders should be treated as having been “inspected and admitted or paroled” as nonimmigrants under Section 1255 for adjustment of status?
The parties agree that Sanchez and Gonzalez were not “inspected and admitted or paroled” when they first entered the U.S. They agree that since 2001 Sanchez and Gonzalez have been granted, renewed and maintained lawful status pursuant to TPS. They disagree about almost everything else: the textual meaning, the statutory structure, the underlying policy goals, the pragmatic consequences of the court’s eventual decision, and the relevance of the doctrine of judicial deference to agency interpretation set forth in Chevron U.S.A. v. Natural Resources Defense Council, Inc.
Turning first to the text, both parties contend that the statute is clear but focus on different statutory provisions and draw opposite conclusions. The government looks to the general adjustment-of-status statute, Section 1255, which limits eligibility to noncitizens who were “inspected and admitted.” The statute, in turn, defines “admitted” as “lawful entry … after inspection and authorization by an immigration officer.” In contrast, Sanchez and Gonzalez argue that the TPS statute’s specific provision in Section 1254a(f)(4) controls: “for purposes of adjustment of status under Section 1255 and change of status under Section 1258, the [TPS holder] shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” They assert that the phrase “considered as being in” makes the grant of TPS status the equivalent of being inspected and admitted as a lawful nonimmigrant. They reason that when Congress directed that TPS holders shall be considered – for adjustment-of-status purposes – as being in lawful nonimmigrant status, Congress intended that TPS holders be treated – for adjustment-of-status purposes – as if they had been inspected and admitted. Sanchez and Gonzalez bolster this argument by describing the detailed vetting that accompanies applicants for TPS as equivalent to the vetting that accompanies admission at a port of entry. They further argue that their interpretation avoids surplusage in the key statutory language. “Maintaining lawful status” requires TPS holders to ensure that TPS protection does not lapse, whereas Congress must have meant “being in … lawful status as a nonimmigrant” to signify something other than ensuring that the noncitizen has not allowed TPS protection to lapse.
The government responds that the concept of “lawful status” is separate from the concept of “admitted,” and Section 1254a(f)(4)’s omission of an express waiver of the “admitted” requirement for TPS holders reveals Congress’ intent that only those who were inspected and admitted or paroled before they received TPS are eligible to adjust their status in the U.S. The government bolsters its argument by looking to other statutory provisions. For example, in authorizing noncitizens who served in the U.S. military to adjust status without leaving the country, Congress specified that the individual “shall be deemed [for adjustment-of-status purposes] to have been paroled into the U.S.” Similar legislation applies to certain noncitizen juveniles. The government concludes that the absence of similar text in the TPS statue indicates a congressional choice to leave the “admitted or paroled” requirement in place when TPS holders seek to adjust their status.
Sanchez and Gonzalez, too, look to other portions of the immigration code for support. They point out that Congress uses “admitted” or “admission” in multiple statutory provisions that clearly do not refer to inspection by an immigration officer at the initial entry into the U.S. They note that the special legislation adopting the “deemed … to have been paroled” text all post-dates the TPS statute. And they reinforce their textual argument by looking to 8 U.S.C. § 1258, which offers a “change of status” procedure analogous to “adjustment of status.” The text of Section 1254a(f)(4) tracks both requirements set forth by Section 1258, and Sanchez and Gonzalez argue that Congress intended a similar approach for Section 1255.
Although the Chevron deference doctrine frequently figures in immigration litigation, both parties in Sanchez v. Mayorkas argue that the controlling statutes unambiguously compel the – opposing – conclusions they reach. In November 2020, the Board of Immigration Appeals pronounced Section 1254a(f)(4) ambiguous in an unrelated case. If the Supreme Court sees ambiguity in the statutes, the government argues the court should defer to the consistent DHS practice of denying adjustment of status to TPS holders who entered without inspection. Sanchez and Gonzalez contend that the agency practice does not warrant Chevron deference because it developed via a series of informal, nonprecedential decisions generally involving litigants without legal representation and lacking briefing from stakeholders that could furnish a basis for full-fledged agency consideration.
Parsing the opaque and intricately cross-referenced statutory provisions will have momentous consequences. More than 400,000 individuals have TPS; half of them have lived in the United States for two decades. Although the majority are not eligible for a green card because they lack a family member or employer sponsor, thousands may meet the eligibility requirements, and most of them entered without authorization. If they cannot adjust their status in the U.S., they will, as a practical matter, be forced to forgo lawful permanent residency and continue to live in temporary status that is renewable every 18 months but can disappear if the government terminates TPS designation for their homeland. For many, leaving the country carries too significant a risk of years-long absence, or worse.