After having held a telephone hearing for a current case, Sanchez v. Mayorkas, the U.S. Supreme Court appears poised to support the Administration's position on a pivotal issue concerning Temporary Protected Status (TPS).
Specifically, the Supreme Court may soon rule that TPS holders who entered the U.S. illegally are not eligible to Adjust Status (i.e. become legal permanent residents). This is in accordance with a law that was enacted in 1990. In order to Adjust Status, an applicant must have previously been inspected and admitted at a Port of Entry (POE).
TPS provides temporary immigration benefits to individuals from countries experiencing armed conflict, environmental disasters, and/or other extraordinary and temporary conditions. TPS beneficiaries receive protection from removal, and eligible to apply for employment authorization and travel authorization.
TPS does not provide a special path to obtaining U.S. permanent resident status. However, TPS holders are permitted to apply for other immigration benefits (so long as they are qualified to do so).
Currently, there are over 400,000 persons present in the U.S. on TPS.
In the case at issue, Sanchez v. Mayorkas, the plaintiffs, Jose Sanchez and Sonia Gonzalez, illegally entered the U.S. without inspection in the 1990s. They were from El Salvador. In 2001, they applied for TPS after numerous earthquakes had ravaged El Salvador.
After working for several years with his employer, Mr. Sanchez applied for employment-based green cards for himself and his wife. These applications were rejected by U.S. Citizenship and Immigration Services (USCIS).
The plaintiffs are arguing that while they were not "inspected and admitted" by Customs and Border Protection (CBP) upon entering the U.S., the statute may nevertheless be read as equating inspection and admission with the receipt of TPS. Consequently, the plaintiffs believe that they are eligible to Adjust Status and become U.S. permanent residents.
The attorney representing the Biden Justice Department, Michael Huston, is asking the Supreme Court to tentatively rule that the Administration’s interpretation of the 1990 law is reasonable. Such a tentative ruling would allow the Department of Homeland Security (DHS) the freedom to alter its position. (USCIS is a sub-agency of DHS).
The Supreme Court agreed to hear the matter after lower courts had split whether TPS holders (who had previously entered the U.S. without inspection) were eligible to apply for permanent resident status.
The issue has generated much contention among Democrats. Some view the administration's arguments in court as hypocritical, considering President Biden is currently pursuing The U.S. Citizenship Act of 2021 in Congress, which would provide a path to permanent resident status for TPS and DACA beneficiaries.
Justice Brett Kavanaugh has his reservations about court involvement on the matter, stating, "Why should we jump in here, when Congress is very focused on immigration?"
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