The U.S. designates certain countries for TPS if they are deemed dangerous due to conditions such as earthquakes, hurricanes, civil war or other armed conflict or other “extraordinary and temporary conditions.” People from such countries who are already in the U.S. after entering illegally can receive privileges, such as employment and travel authorization, and are protected from deportation.
Circuit courts have been split over whether those who entered the U.S. illegally but now have TPS protection can apply for green cards without first leaving the U.S. and applying to come back. In the case before the court on Monday, Sanchez v. Mayorkas, the 3rd Circuit Court of Appeals had ruled against green card applicants Jose Santos Sanchez and Sonia Gonzalez, reversing a lower court decision.
A key issue is whether the granting of TPS protection constitutes “admission” to the U.S. for the purposes of another statute, which allows for the adjustment of status of someone if they have been “inspected and admitted or paroled” into the U.S.
“[A] grant of TPS cannot be an ‘admission’ because § 1254a requires an alien to be present in the United States to be eligible for TPS,” the Third Circuit said, referring to the statute covering TPS. “Consistent with that fact, we have recognized that TPS is not ‘a program of entry for an alien.’”
That decision also noted that Congress had carved out an exception to the admission requirement for some people, but not for those receiving TPS protection. “Instead, it said that an alien with TPS ‘shall be considered as being in, and maintaining, lawful status as a nonimmigrant,’” the Third Circuit noted.
The Third Circuit also stated that the temporary nature of TPS means that it is not meant to be a permanent admission.
“Treating a grant of TPS as an admission would open the door to more permanent status adjustments that Congress did not intend,” the court said.
In the lower court ruling, Judge Robert Kugler of the District of New Jersey stated that the “lawful status” granted by TPS “is wholly consistent with being considered as though Plaintiffs had been “inspected and admitted[.]”
The 5th and 11th circuits have ruled on the same side of the issue as the 3rd Circuit, but the 6th, 8th and 9th circuits took the opposite stance.
Should the Supreme Court rule in favor of Sanchez and Gonzalez, who came to the U.S. from El Salvador, it could result in tens of thousands of people currently residing in the U.S. gaining the ability to obtain green cards.
If the Supreme Court upholds the 3rd Circuit ruling, TPS beneficiaries would have to leave the U.S. in order to apply for green cards, which could take up to 10 years in some cases due to bars on reentry for those who entered the U.S. illegally.
The case comes at a time when the U.S. is seeing a surge of migrants at the southern border that President Biden characterized as a “crisis” on Saturday, with officials struggling to manage the influx of people crossing into the country from Mexico. Biden blamed that situation for why he has yet to raise the Trump administration’s cap on refugees.