Thousands of immigrants from Haiti, Central America and elsewhere with temporary immigration status in the United States will not be able to become green card holders, or permanent U.S. residents, if they entered the country illegally, the U.S. Supreme Court ruled Monday.
The court’s unanimous decision in the case of Sanchez v. Mayorkas is a huge blow and yet another roadblock for many of the 400,000 immigrants from 12 countries who have been granted the right to temporarily live and work in the U.S. after their homelands qualified for Temporary Protected Status because of war or natural disaster.
“This is devastating news for many TPS holders and would-be TPS holders,” said Guerline Jozef, co-founder of California-based Haitian Bridge Alliance, and a leading advocate for TPS for Haitians. “It is sad to see this outcome. Obviously, those people do not understand what TPS holders have been going through and that they have been literally at the forefront of COVID-19, from healthcare workers to farm workers who are TPS holders who this decision will be affecting their lives and their families. It literally is a move backward from where we need to be. This isn’t justice.”
Immigration advocates say the impact of the court’s decision varies from community to community, and puts pressure on Congress to pass immigration reform so that immigrants can stop living in legal limbo. The House of Representatives has passed legislation that would provide a path to legal residency and citizenship for immigrants with TPS. But the legislation, known as HR6, faces a tough road to approval.
“Ultimately, this ruling demonstrates once again the urgent need for legislative reform for immigrant communities in the United States,” said Gustavo Torres, executive director of CASA, a national immigrant advocacy organization. “The immigration laws are broken and all TPS holders, many of whom have lived in the U.S. for decades and have been working as essential workers during the COVID-19 pandemic, deserve a path to citizenship.”
Last month, the Biden administration granted a new designation of TPS to Haiti, and advocates have been pushing for renewals for Honduras, Nicaragua and El Salvador as well as Somalia, which is up for renewal on July 19. In expressing gratitude to the administration for Haiti’s TPS designation, which will allow thousands of recent arrivals to take advantage of the humanitarian protection, advocates called for permanent immigration reform.
Monday’s Supreme Court ruling now makes that even more imperative, said Marleine Bastien, a Haitian activist who sued the Trump administration after it attempted to end TPS for Haitians.
“It is now urgent and imperative that Congress passes bipartisan legislation to protect these families who have led successful lives, worked, paid taxes and raised their children here,” Bastien said. “It is inconceivable to force them to live in an indefinite legal limbo. It’d be too cruel and it would not make any sense.”
In September, President Donald Trump ended TPS for Haitians, which Bastien and other immigration advocates said showed just how fragile the humanitarian protection is. Several lawsuits ensued on behalf of Haitians and Central Americans, who were also targeted by Trump. Those suits remain active in the court.
The vulnerability of the program as well as the length of time one should be under TPS have also been a matter of debate. Salvadorans have had humanitarian protection since 2001, when earthquakes hit their homeland. The Supreme Court decision came about in a case involving a couple from El Salvador who had been living in the U.S. since the early 1990s.
Randolph McGrorty, the head of Catholic Legal Services, said it’s hard to say just how many of the 400,000 TPS holders will be affected by Monday’s ruling.
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“It all depends on how they enter the U.S. For example,the decision does not apply to those who came in to the U.S. on a visa, which many Venezuelans fall under, and overstayed. But for Haitians who arrived by boats and Central Americans who crossed [the southern border] illegally, it does. These people were never inspected or ‘admitted’ into the country.”
The U.S. immigration system, McGrorty said, is based on the need to know who is in the country.
“We have this system where you need to be inspected by us, vetted and allowed in. Obviously, people who entered without inspection have evaded that and so we punish them,” he said. “The arguments that the Supreme Court dismissed is that when we apply it, it basically accomplishes that policy objective. These individuals who apply for TPS have been vetted. Their application was inspected and they were deemed worthy so we know who they are. That was our argument and why we wanted them to be able to adjust [their status]. The Supreme Court says, ‘No,’ it doesn’t meet the technical definition of an inspection.”
Ira Kurzban, an immigration attorney, said the Supreme Court decision doesn’t address instances where TPS holders left the country, with the permission of immigration, and then came back.
“It is clear from the decision that if a person entered unlawfully, they cannot rely on TPS to correct their status and allow them to be residents because they were never ‘admitted’ into the U.S.,” Kurzban said. “What remains unclear is whether that extends to a person who unlawfully entered who then leaves on a parole and re-enters.”
Monday’s decision does not affect immigrants with TPS who initially entered the U.S. legally and then, say, overstayed their visa. Because those people were legally admitted to the country and later were given humanitarian protections, they can seek to become permanent residents.
The court, in a ruling written by Justice Elena Kagan, said that under federal immigration law, individuals with TPS who entered the U.S. illegally are prohibited from adjusting their status to become permanent residents or citizens because they never were “admitted” into the country.
“The TPS program gives foreign nationals nonimmigrant status, but it does not admit them. So the conferral of TPS does not make an unlawful entrant ... eligible” for a green card, she wrote.
The U.S. has granted TPS for people from El Salvador, Haiti, Honduras, Myanmar, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Venezuela and Yemen. TPS provides life-saving protection to non-citizens in the U.S., including undocumented immigrants, who cannot be safely returned to their home country.
Recently, 119 local, state, and national organizations led by the Temporary Status and Deferred Enforced Departure Administrative Advocacy Coalition (TPS-DED AAC) wrote to Secretary of the Department of Homeland Security Alejandro Mayorkas and Secretary of State Antony Blinken to urge an 18-month extension and redesignation of TPS.
Meanwhile, Kyle Bragg, president of 32BJ SEIU — a labor union that represents immigrant workers in Florida — said Monday’s Supreme Court decision won’t stop its members from speaking up.
“We will fast, and march, and speak out with our brothers and sisters with TPS until Congress confirms this self-evident truth,” Bragg said.
U.S. Sen. Bob Menendez, D-N.J., who introduced the U.S. Citizenship Act of 2021, called the court decision “disappointing.”
“[It] reiterates why we need to reform our immigration laws. Immigrants who have been living in our communities and contributing to our country for decades deserve a path to citizenship,” he said. “The U.S. Citizenship Act of 2021 provides an inclusive path to citizenship, bolsters our economy, addresses root causes of migration, and safeguards our country’s national security. It’s time to pass humane and bold immigration reform.”