By Maryellen Fullerton
on April 22, 2021
at 1:46 pm
Amy Saharia argues for Jose Sanchez and Sonia Gonzalez (Art Lien)
The humanitarian interests were not revealed at the hearing in Sanchez v Mayorkas on Monday morning, which examined whether non-citizens granted temporary protection status were eligible for the legal process known as “status adjustment” come to become lawful permanent residents. Only Judge Brett Kavanaugh alluded to the 400,000 people granted TPS, most of whom have lived and worked in the United States for decades. The prospect of permanent residency would be eliminated by the Supreme Court’s confirmation of the U.S. Court of Appeals decision of the 3rd Circuit. Instead, the interview was technical and focused on whether the petitioners Jose Sanchez and Sonia Gonzalez had been “admitted” to the United States under the statute of change provisions. The approach was textual, the tone skeptical, and the chevron doctrine floated everywhere. Another issue also attracted attention: whether the Biden government is considering changing its stance on the legal issue.
Deciphering the hearing requires understanding the somewhat opaque underlying immigration process. There are two ways to obtain lawful permanent residence for people temporarily residing in the United States who are approved as permanent residents by immigration authorities. They can return to their homeland and complete the transition there. Alternatively, they can complete the transition to LPR status while staying in the United States through the status adjustment process codified in 8 USC § 1255. Only those who have been “admitted” to the United States – a legal art form – can participate in the status adjustment.
A small fraction of the TPS-approved were initially “admitted” to the United States, but the vast majority were not because they had entered the United States without a permit. Congress expressly authorized TPS holders to use the status adjustment process, but the parties disagree as to whether this authorization extends to all TPS issued or only to the small number that were initially “approved”. In theory, those denied access to the status adjustment process should simply be able to return to their homes, complete the transition, and return to the US as an LPR. In practice, most people leaving the United States will be denied re-entry for 10 years even though they have already been approved for permanent residence by US immigration authorities.
The central argument of Sanchez and Gonzalez, an El Salvador couple who have targeted TPS since a series of devastating earthquakes in 2001, is based on 8 USC §1254a (f) (4), which states, “For the purposes of adapting the status … [the TPS holder] is considered and maintains legitimate non-immigrant status. With all persons having legal nonimmigrant status “admitted”, Sanchez and Gonzalez are closing Congress with the intent that those who have been granted TPS should be “admitted” for the limited purpose of status adjustment. The gist of the government’s response is that Congress would have used the term “approved” in Section 1254a (f) (4) if it had intended to question anyone with TPS for a status adjustment.
Attorney Amy Saharia, who represented Sanchez and Gonzalez, opened with a brief account of her main argument and immediately met resistance. Chief Justice John Roberts questioned the logic of the argument, noting that “admitted” non-immigrants and “lawful non-immigrants” are two different but overlapping categories. Judges Clarence Thomas, Stephen Breyer, Samuel Alito, Elena Kagan, and Brett Kavanaugh all pushed this point. The tone was skeptical; the focus textually. Thomas inquired about the “legal fiction” that might enable individuals who were not “inspected” and “approved” on arrival in the US to be later converted into “approved” nonimmigrants. Saharia took the comment “Legal Fiction” and made it her own. Legal fiction was abundant in the legal system and Congress had knowingly used the language in Section 1254a (f) (4) – “counts as such” – to signal that legal fiction should apply: Those TPS holders who those who have not “approved” should be treated as if they had been approved. Several judges, including Roberts, appeared to be dismissing this argument, commenting that Congress knew how to design a particular language to achieve the desired result. The questioning of Justice Sonia Sotomayor suggested a slightly more acceptable perspective.
Followed closely a related text question, Breyer and Alito found that certain non-immigrant crime victims are eligible to stay in the United States on “U” visas. Congress authorized this group to use the status adjustment procedure if they “have been admitted to the United States (or otherwise obtained nonimmigrant status”). They pushed Saharia for this ostensible legal recognition that non-immigrant status could coexist with admission and did not seem convinced of their response.
Saharia’s second line of argument also found little support. It argued that the government’s interpretation would obviate the need for the words “in” in Section 1254a (f) (4). Only Sotomayor examined this reasoning.
When it came time for the government’s argument, Assistant Attorney General Michael Huston faced a barrage of questions about and above the doctrine of judicial respect for government interpretation set out in Chevron USA v Natural Resources Defense Council, Inc. whether the government had changed its position since the Supreme Court decided to take the case. Roberts initially berated the government for not adopting a more assertive stance. “Your assignment undercut your position,” said Roberts, adding, with a touch of sarcasm, that the government was merely arguing “it would not be completely unreasonable” for the court to rule in his favor. Roberts then asked if the government was still claiming that the interpretation of Circuit 3 “is clearly the best given the legal text, structure and context”. Huston replied that this interpretation was the better one.
Kavanaugh later returned to the subject. He made three alternative decisions in favor of the government: (1) The government’s interpretation of the immigration law is appropriate. (2) the government’s interpretation is better; (3) The government’s interpretation is clearly correct. When Huston pushed for the government’s preferred outcome, he pushed for the first option. He argued that the immigration service is tasked with administering the immigration law and that the court generally gives the agency a degree of flexibility of interpretation. Huston repeated this point in an interview with Justice Amy Coney Barrett: “The court’s precedents indicated that in such a case the court will not prevent the agency from considering whether another alternative is possible.”
Throughout the government controversy, the judges asked whether the court should apply the chevron doctrine. Breyer noted that the parties’ conflicting interpretations suggested that the statue was ambiguous as to what would require the use of chevron. Alito reiterated that members of the court had different views on the Chevron Doctrine and asked if it needed to be addressed. Huston repeatedly urged the court not to turn to Chevron and simply to rule that the government had proposed the better interpretation of the statute to adjust the status. Alito’s next question was in the air: If we say that “the government has the better interpretation, won’t that stop you from changing your position later?” Huston contradicted this conclusion, but Alito and Barrett were openly skeptical of his answers.
The oral questions arose directly from the positions set out by the parties in their written pleadings. The only real surprise was that Judge Neil Gorsuch, who is generally active in oral hearings, asked neither side questions.
Overall, the judges did not seem convinced of the arguments in favor of Sanchez and Gonzalez. They have expressed reluctance to tackle the chevron doctrine in this environment, which makes it likely that they will conclude that the statute is clear. That conclusion would deprive Sanchez and Gonzalez of the opportunity to change their status from temporary to permanent in the United States. This would also deprive the government of the ability to exercise discretion in favor of tens of thousands of TPS holders who have been admitted as permanent residents by immigration officials. The government can win this case and tie its own hands.