On June 7, the Supreme Court of the United States ruled that the immigration program known as Temporary Protected Status – protected from deportation – doesn’t necessarily mean a permanent stay. SCOTUS’ unanimous decision may represent a pause in the Biden administration’s relentless pursuit of never-ending, permanent immigration increases both at the border and, through weakened enforcement, in the interior. One can hope!
The case SCOTUS heard, Sanchez v. Mayorkas, was relatively straightforward. In the 1990s, Jose Santos Sanchez and his wife Sonia Gonzalez illegally entered the United States from El Salvador. The federal government granted them TPS in 2001 when the U.S. included El Salvador as part of the TPS program after that country’s earthquake. TPS allows unlawfully present foreign nationals to remain if conditions are deemed unsafe in their home countries.
For two decades, Republican and Democratic White Houses have on multiple occasions extended El Salvador’s TPS time limits. During those 20 years, Sanchez and Gonzalez stayed in valid TPS status. Sanchez’s employer, a yacht company, also filed a skilled-worker immigration-visa petition on Sanchez’s behalf which was granted.
The government, however, denied the couple’s subsequent application to use the adjustment-of-status process to transition from temporary to permanent residency. Citing the Immigration and Nationality Act’s Section 1255 (a) which restricts the in-country adjustment-of-status process to noncitizens who were “inspected and admitted or paroled into the U.S.,” immigration officials ruled that the couple’s original unauthorized entry disqualified them from obtaining the Green Cards they sought. Neither Sanchez nor Gonzales was inspected, admitted or paroled.
During April arguments, Associate Justice Brett Kavanaugh hinted at the eventual decision: Kavanaugh told lawyers for Sanchez and Gonzales: “We need to be careful about tinkering with the immigration statutes as written, particularly when Congress has such a primary role here. You have an uphill climb.”
In her opinion, Justice Elena Kagan confirmed Kavanaugh’s skepticism when she wrote that “Lawful status and admission… are distinct concepts in immigration law: Establishing one does not necessarily establish the other.” Kagan added that “because a grant of TPS does not come with a ticket of admission, it does not eliminate the disqualifying effect of an unlawful entry.”
SCOTUS’ ruling is the third in recent weeks in which the high court has disagreed with the 9th Circuit Court on immigration law interpretation. Last week, SCOTUS set aside a ruling that presumed immigrants seeking asylum were telling the truth unless an immigration judge found an “explicit” lack of credibility. Earlier, the court ruled immigrants who were once deported could be prosecuted for an unlawful entry, even if their original deportations were questionable.
TPS is one of dozens of immigration programs that devolved from compassionate and well-intended to comically permissive. No rational person would define “temporary” as a 20-year span, the exact period that Sanchez and Gonzales have lived in New Jersey. Whether Sanchez’s employment in the yachting company represents a “skilled” job is likely debatable; Gonzales works at Atlantic City’s Borgata Casino. The couple has American birthright citizenship children.
For Sanchez and Gonzales to return home after 20 years would be disruptive, perhaps cruel. Blame the U.S. government which doesn’t insist that TPS recipients from all nations return home when conditions permit. The devastating impact of El Salvador’s earthquake ended long ago; the country is now a tourism hot spot. The Pew Research Center found that Salvadoran migrants, as well as those from Guatemala and Honduras, identify economic opportunity and reuniting with relatives as the reasons they traveled north, not personal safety. Were Salvadorans with admirable work ethics like Sanchez and Gonzales to return to El Salvador, they could become agents for change in that troubled country.
Since TPS is poorly administered – no one goes home – the program has no credibility. TPS represents a ticket to lifetime U.S. residency. Central Americans who refuse to go home, and the U.S. government that refuses to make them go home after civil wars and natural disasters have ended are, like Sanchez and Gonzalez, holding U.S. jobs that would otherwise be filled by unemployed Americans.
But as expected given its expansionist agenda, the Biden administration added Venezuela and Burma to the TPS-eligible list, bringing the total nations to 12, and the total persons covered to more than 600,000. In the government’s eyes, more immigration is always better.