The U.S. Supreme Court issued a unanimous opinion this week in Sanchez v. Mayorkas. It held that a grant of temporary protected status (TPS) does not constitute an “admission” for an alien who is seeking a green card through adjustment of status and who had entered illegally. That decision will likely bar tens of thousands of aliens from receiving lawful permanent resident status, but it still leaves some issues unresolved.
The petitioner, Jose Santos Sanchez, is a Salvadoran national who entered the United States illegally in 1997 and thereafter worked without employment authorization. In 2001, he was granted TPS under section 244 of the Immigration and Nationality Act (INA) after El Salvador was designated for TPS due to a series of earthquakes in that country. TPS for El Salvador is still in effect two decades later.
In 2014, Sanchez applied for adjustment of status under section 245 of the INA. That benefit allows an alien already present in the United States to obtain a green card without consular processing abroad, but it is particularly helpful for aliens (like Sanchez) who were unlawfully present in the United States for a year or more.
In that scenario, the alien is inadmissible under section 212(a)(9)(B)(i) of the INA for 10 years, meaning that they have to wait outside of the United States for a decade before reentering.
Not all aliens are eligible for adjustment of status, however. Pursuant to section 245(a) of the INA, it is only available to aliens who have been “inspected and admitted or paroled into the United States”, who are eligible to receive an immigrant visa, and for whom an immigrant visa is available.
Section 101(a)(13)(A) of the INA of the INA defines the terms “admission” and “admitted” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”. “Parole” under section 212(d)(5)(A) of the INA is a procedure available to DHS to allow an arriving alien seeking admission into the United States temporarily, without formally admitting the alien.
Sanchez is apparently eligible for an employment-based immigrant visa, and one is available to him, but, as noted, he entered illegally and therefore was not “admitted” at a port of entry. At issue in the case was whether, in granting TPS to Sanchez, DHS “admitted” him for purposes of adjustment of status. I will return to the question of parole — which the court did not consider — below.
Most of the confusion in this case arises from a single subsection in the INA, section 244(f) of the INA. It provides that “for purposes of adjustment of status under section” 245 of the INA an “alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” In other words, it deems aliens with TPS to be “nonimmigrants” — temporarily lawfully present — for as long as their TPS status lasts for purposes of seeking adjustment.
In 2014, Sanchez applied for adjustment of status with U.S. Citizenship and Immigration Services (USCIS). USCIS denied that application because he had never been “admitted” to the United States and therefore could not satisfy section 245(a) of the INA.
Sanchez next went to the U.S. District Court for the District of New Jersey, claiming that he was eligible for adjustment of status because he had been “admitted” when he was granted TPS.
The district court granted Sanchez summary judgment, relying on section 244(f) of the INA to find that he was eligible for adjustment of status because the provision “require[d] treating TPS recipients ‘as though they had been inspected and admitted’”. (Internal brackets omitted.)
The government appealed that decision, and in January 2020, the Third Circuit reversed the district court, concluding that “a grant of TPS does not constitute an ‘admission’ into the United States.”
That is the most logical interpretation of the referenced provisions in the INA. That said, until the Supreme Court’s decision, there was actually a circuit split on the question, with the Sixth Circuit, Ninth Circuit, and Eighth Circuit all holding that aliens who had entered illegally but who were subsequently granted TPS were eligible for adjustment of status.
The Sixth Circuit’s decision was the first that I can find, from 2013, and it began its decision as follows:
This case illustrates the archaic and convoluted state of our current immigration system. While many suggest that immigrants should simply “get in line” and pursue a legal pathway to citizenship, for Saady Suazo and other similarly situated Temporary Protected Status beneficiaries, the Government proposes that there is simply no line available for them to join. The law does not support such a conclusion in this case.
Respectfully, an introduction like that suggests that the outcome was foreordained, but I digress.
Justice Kagan wrote the opinion for the Court, and her reasoning was somewhat simple.
Her decision really comes down to just two sentences on page four of the 11-page opinion: “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 (like Sanchez) eligible under [section 245 of the INA] for adjustment to LPR status.”
With respect to section 244(f) of the INA, Justice Kagan explained that it provides aliens granted TPS with “the status traditionally and generally needed to invoke” adjustment under section 245 of the INA (it’s captioned “Adjustment of status of nonimmigrant to that of person admitted for permanent residence”, and largely has been limited to nonimmigrants), but doesn’t aid the applicant in meeting the “admission” requirement therein.
As she notes, “admission” and legal status are two different concepts in immigration law. A nonimmigrant can be “admitted”, but in unlawful status if the alien overstays. And an asylee could have entered illegally (and thus not have been admitted), but still have lawful asylum status. The same goes for aliens granted TPS who also entered illegally.
Justice Kagan did not base her decision solely on the bar to adjustment in section 245(a) of the INA for aliens who have not been “admitted or paroled into the United States”, however. She also relied on section 245(k)(1) of the INA, which applies to adjustment based on certain employment-based visas.
That provision limits adjustment of status to those aliens who “on the date of filing an application for adjustment of status, [are] present in the United States pursuant to a lawful admission”. Such aliens are also barred under that section from receiving adjustment of status if they “engaged in unauthorized employment”, which, as noted, Sanchez did.
Judge Kagan’s partial reliance on section 245(k) of the INA reveals the limitations on the scope of the Supreme Court’s decision.
That’s because here, as the Court notes in a footnote, Sanchez had been “treated as ‘paroled’ when he returned from an authorized trip abroad after obtaining TPS”.
That trip apparently was taken under the authority in section 244(f)(3) of the INA, which provides that an alien in TPS status “may travel abroad with the prior consent of” DHS. Such consent is similar to “advance parole” under 8 C.F.R. § 212.5(f), and is usually (and erroneously) referred to as “parole”.
Advance parole is a form of “parole” under section 212(d)(5) of the INA, under which DHS may allow aliens seeking admission into the United States temporarily without admitting them. That section also allows DHS to release those aliens into the United States, and has been interpreted to allow DHS to permit aliens quasi-lawfully present to travel abroad and return — hence “advance parole”.
The Court expressly did not decide whether aliens who are allowed to return to the United States after traveling abroad under section 244(f)(3) of the INA are thereafter eligible to adjust their status under section 245(a) of the INA, because it would not have made a difference in Sanchez’s case (he was still barred under section 245(k)(2) of the INA because he had “engaged in unauthorized employment”).
The use of “parole” in the TPS context has created confusion, however, to the point that the USCIS Administrative Appeals Office (AAO) had to issue a decision in Matter of Z-R-Z-C- last August to clarify that “TPS-authorized travel will not satisfy the requirements of ‘inspected and admitted or paroled’ into the United States for purposes of adjustment of status under section 245(a)” of the INA.
The AAO’s decision in Matter of Z-R-Z-C- is just that — an administrative decision that will likely be subject to court review. And even by its terms, that decision only applies prospectively, and does not affect aliens who had TPS and received green cards through adjustment following a trip abroad prior to its issuance.
Once more, Sanchez could not have contested the issue in his case, because even if he had alleged that he had been “paroled” when he returned from an authorized trip abroad after obtaining TPS for purposes of section 245(a), he still would have been barred from receiving adjustment under section 245(k) of the INA, as Justice Kagan noted.
That section of the INA, however, does not bar adjustment of status for aliens who are the beneficiaries of visa petitions as the immediate relatives (children, spouses, and parents) of U.S. citizens.
More than 400,000 aliens currently have TPS status (not counting an estimated 323,000 eligible Venezuelan nationals and an untold number of Burmese nationals, to whom TPS was recently made available). Potentially tens of thousands of them are eligible for immediate relative visas, and some subset of that group have been granted permission by DHS to travel abroad.
Theirs will be the next cases that will wend their way to the Supreme Court. In the interim, however, the Court has made clear that while TPS gives aliens nonimmigrant status, a grant of TPS is not an “admission” that would render an alien who entered illegally eligible for adjustment of status under section 245 of the INA.