More SCOTUS, unanimously: Illegal immigrants don't have a right to green cards

(AP Photo/Charles Rex Arbogast, File)

A surprise ruling, especially considering the 9-0 vote and the author of the opinion. Justice Elena Kagan took the lead in denying a Salvadoran couple access to green cards after having entered the US illegally. The existing law is valid and constitutional, the court ruled, even when illegal immigrants are later granted Temporary Protected Status:

Justice Elena Kagan wrote for the court that federal immigration law prohibits people who entered the country illegally and now have Temporary Protected Status from seeking “green cards” to remain in the country permanently.

The designation applies to people who come from countries ravaged by war or disaster. It protects them from deportation and allows them to work legally. There are 400,000 people from 12 countries with TPS status.

The outcome in a case involving a couple from El Salvador who have been in the U.S. since the early 1990s turned on whether people who entered the country illegally and were given humanitarian protections were ever “admitted” into the United States under immigration law.

Kagan wrote that they were not. “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.

Kagan’s ruling is blessedly brief. The law requiring legal entry as a prerequisite for legal permanent resident status is clear, Kagan writes. The only remedy for the Sanchez’ situation is legislative, not judicial:

Section 1255, applied according to its plain terms, prevents Sanchez from becoming an LPR. There is no dispute that Sanchez “entered the United States in the late 1990s unlawfully, without inspection.” Brief for Petitioners 13. But as earlier described, §1255 requires an LPR applicant like Sanchez to have entered the country “lawful[ly],” with “inspection”—that is, to have been admitted. §1101(a)(13)(A); see supra, at 1–2. Indeed, §1255 imposes an admission requirement twice over. Its principal provision states that an applicant for LPR status must have been “inspected and admitted or paroled into the United States.” §1255(a). And another provision says that a person who has worked without authorization in the country—as Sanchez did for several years—may become an LPR only if his presence in the United States is “pursuant to a lawful admission.” §1255(k). Sanchez has never claimed that he can, without aid from the TPS provision, satisfy those demands for admission.4 A straightforward application of §1255 thus supports the Government’s decision to deny him LPR status.

Kagan also points out that Congress has had ample time to consider this, and chose not to address it:

Sanchez objects that if the TPS provision confers only nonimmigrant status for §1255, it accomplishes precious little. See Reply Brief 11–13; Tr. of Oral Arg. 27. Less than he would like, of course: It would not make him, or other TPS recipients who entered the country unlawfully, LPReligible. But some TPS recipients will benefit from the TPS provision’s conferral of nonimmigrant status for purposes of §1255. Recall that the provision gives all TPS recipients the status typically required to invoke §1255—that is, nonimmigrant status. See supra, at 5. Some TPS recipients need exactly that assistance—without needing a constructive admission. Consider, for example, a foreign national who entered the country legally on a tourist visa, but stayed on for several months after the visa’s expiration. He can satisfy §1255’s requirement of admission, but he founders in showing nonimmigrant status. The TPS provision relieves that difficulty and enables him to become an LPR. Congress, of course, could have gone further, by deeming TPS recipients to have not only nonimmigrant status but also a lawful admission. Legislation pending in Congress would do just that. See American Dream and Promise Act of 2021, H. R. 6, 117th Cong., 1st Sess., §203, p. 29 (introduced Mar. 3, 2021) (amending §1254a(f)(4) so that a TPS recipient shall be considered “as having been inspected and admitted into the United States, and” as being in, and maintaining, lawful status as a nonimmigrant” (emphasis added)). But even without that amendment, the statute does something—and this Court does not get to say that the something it does is not enough.

Section 1255 generally requires a lawful admission before a person can obtain LPR status. Sanchez was not lawfully admitted, and his TPS does not alter that fact. He therefore cannot become a permanent resident of this country. We affirm the judgment below.

So again we have another example of judicial restraint from the Supreme Court this term. This is a clear case of reliance on statute — and placing the responsibility for those statutes on whom they belong. PJ Media’s Tyler O’Neill predicts that those people aren’t going to be too happy about it:

This decision will come as a blow to many Democrats. Sens. Mazi Hirono (D-Hawaii), Richard Blumenthal (D-Conn.), Ed Markey (D-Mass.), Elizabeth Warren (D-Mass.), and Sheldon Whitehouse (D-R.I.) joined Reps. Diana DeGette (D-Colo.), Adriano Espaillat (D-N.Y.), Darren Soto (D-Fla.), and Debbie Wasserman Schultz (D-Fla.) in supporting Sanchez’s claim. Democrat attorneys general for Washington, D.C., Massachusetts, California, and 17 other states also backed the illegal immigration loophole.

Kagan’s opinion represents a blunt refutation of this sleight-of-hand attempt to undermine immigration law. Jonathan Turley has suggested that the Court’s recent string of unanimous decisions like this one may be a subtle message to Democrats, warning them against packing the Supreme Court. While Turley has a point, the Supreme Court often hands down unanimous decisions — yet these decisions do not often gain the same coverage as 5-4 rulings on controversial issues.

The other cases are rarely this straightforward. It’s good to remember that the court’s most contentious decisions usually come out at the very end of this month, too. However, this sudden pattern of restraint and judicial deference to Congress is at least a little encouraging.

Jazz Shaw Jul 06, 2022 9:01 AM ET