Courthouse Steps Oral Argument Teleforum: Sanchez v. Mayorkas

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to this afternoon's Federalist Society Teleforum. Today, April 20, we discuss the Supreme Court's oral argument in Sanchez v. Mayorkas. My name is Evelyn Hildebrand and I'm an associate director of Practice Group at the Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Honorable Grover Joseph Rees, former ambassador and former General Counsel of the U.S. Immigration and Naturalization Service. After our speaker gives his opening remarks we will turn to you, the audience, for questions. So be thinking of those as we go along and have them in mind for when we get to that portion of the event.

 

      With that, thank you for being with us today. Mr. Rees, the floor is yours.

 

Hon. Grover Joseph Rees:  Thank you. The Teleforum, today, is about the Court's oral argument in Sanchez v. Mayorkas. And Sanchez v. Mayorkas is a statutory interpretation case involving the two statutes. One is for creating temporary protected status for people who otherwise wouldn't be able to remain in the United States, but there's an armed conflict or a natural disaster or some similar reason why it wouldn't be good to deport large numbers of people to a particular country.

 

      And, then, the statute on non-immigrants adjusting their status to that of lawful permanent residents. And let me begin by saying a couple of things that are not involved in this case. The petitioners, the lawyers for Sanchez, the Sanchez family, do not contend that by getting temporary protected status you are automatically entitled to adjust your status to lawful permanent resident at some point.

 

      It's strictly about whether the bar to adjustment of status -- adjustment of status means that you can get a visa that you'd normally have to get, an immigrant visa, lawful permanent residence, you'd normally have to get it overseas particularly in your home country. An adjustment of status says that certain non-immigrants can get an immigrant visa in the United States without leaving the United States and applying for a new visa.

 

      But there are several pre-conditions and several bars to adjustment of status. And the one that's most relevant here is that, with a couple of narrow exceptions or a few narrow exceptions, adjustment of status is only available to people who when they first came to the United States came lawfully. That is, they were admitted and inspected. They were inspected and admitted at a port of entry either at an airport or a land border. And most temporary protected status recipients, it turns out, did not initially come lawfully. They came across the border somehow, never got inspected, never got formally admitted.

 

      So what happened here is that the Sanchezes had had temporary protected status for 20 years. There was an earthquake in El Salvador. Salvadorans, actually, had had temporary protected status earlier beginning in 1991 and that had been taken away from them because the condition, the armed conflict in their country had ended and, so, there were other forms of relief for Salvadorans who would otherwise be deported.

 

      But in 2001, there was an earthquake and Salvadorans again got temporary protected status and that's been renewed continuously. Mr. Sanchez got a job and his employer went through the process to get an immigrant visa for him. And USCIS, U.S. Citizenship Immigration Services, denied -- he said they said, "When you came in, you came illegally and, therefore, the condition that you have been lawfully admitted is not present. You don't meet that condition. You cannot adjust. You can go back to your home country and then you might have to wait three or ten years," depending on how long, it would have been ten years in this case because he was in the United States unlawfully for a long time, "and after ten years you can apply again to come to the United States."

 

      Well, the Sanchezes sued and their lawyers maintained that because the TPS statute, the Temporary Protected statute says that during the time of temporary protected status, the recipient will be considered as being a lawful, pardon me, will be considered as being in non-immigrant status and as maintaining non-immigrant status.

 

      So the petitioners, the lawyers for the Sanchezes, their position is that by saying that TPS recipients are considered non-immigrants, Congress was saying that they are deemed to have been admitted because the only way to get to be a non-immigrant with a couple of explicit statutory exceptions is to be admitted. So when the statute says they are non-immigrants, it says they are deemed to be admitted.

     

      The government says no. There are two entirely different concepts in immigration law. Admission is an event; non-immigrant status is a status. It's true that almost always you have to have that event to get the status, but in this case, you don't. The TPS was never intended to have anything to do with creating a new route to lawful permanent residency; it was always intended to be temporary and Congress cured some of the bars to adjustment by saying that you are in the equivalent of legal non-immigrant status while you've got TPS, but it did not cure the bar against people who, when they first came, were not admitted.

 

      Now, in the oral arguments, both sides made the case I've just described. And, then, the interesting thing about the Justices' reaction, there were a couple of interesting things: One, almost every Justice pretty much said that both interpretations, both arguments were reasonable. That you could look at the statute and you could conclude with the petitioners that admission is inherent in non-immigrant status and therefore that when Congress said that TPS recipients are deemed to be in non-immigrant status, they automatically said that they're also deemed to be admitted.

 

Or the government's position also makes sense, as a matter of statutory construction, that is there are lots of times when the statute refers to the status, non-immigrant status. There are lots of times when the statutes, the laws refer to admission and they don't always refer to them together.

 

So the questioning was genuinely Socratic; it was genuinely trying to figure out the answer and trying to get the help of the lawyers and trying to figure out the answer. The Chief Justice opened by saying, "Why doesn't the statute, if it does what you said, Congress -- there were other cases where Congress said that people were deemed to be admitted and in this case, they didn't. Why did the statute that we have now mean that there are two ways to be in lawful non-immigrant status? By being inspected and admitted or by getting TPS?"

 

It doesn't say that, or rather, it doesn't say that you're deemed to be admitted. It just says you're deemed to have the status. The lawyer, the arguing case for the petitioners, Amy Mason Saharia, said that formula would not have achieved everything the statute was trying to do. The beauty of what Congress did, she said, was to use broad language to achieve multiple goals.

 

Justice Thomas asked Ms. Saharia, he said, "Do you have a case to justify your contention that having non-immigrant status automatically entails that you were deemed to have been inspected?" She said, "Yes, but it's an unpublished Board of Immigration appeals opinion involving a new visa holder." That is a witness in a criminal case and that in this case, the Board said, "Well, of course, he was admitted because all non-immigrants are admitted." And the government agreed with that.

 

It was a government decision because it was an administrative decision. They said he was deemed admitted by virtue of having non-immigrant status and distinguished it from asylees who are not admitted. They are entitled to adjust even though they have not been admitted and the statute makes that clear.

 

So both sides were saying, by the way, that if Congress had wanted the statute to do what the other side said it could have written it that way and it didn't and, therefore, it means what we say. Breyer said pretty much the same thing that Chief Justice and Justice Thomas had said. Immigration statutes are pretty complex and that why, he asked the petitioners of Ms. Saharia, why can't we just read this the same that if you want to become a permanent resident you have to be inspected and admitted which your clients were not. And the statute says that your clients have non-immigrant status.

 

But, in contrast, the U Visa, which I just discussed, says that they may adjust status if they have been inspected and have been "or otherwise given non-immigrant status." Well, Saharia's answer to that was that the U Visa statute was a number of years later than the TPS statute and, so, to say that Congress knew how to write it the way they did in the U statute is not accurate because they hadn't done that yet.

 

But, you know, Breyer pretty much summarizes what I think all of us who were around and working on immigration issues in those days thought temporary protected status was going to mean. It was just the statutory equivalent of something that had existed before called Extended Voluntary Departure where you were absolutely deportable, you were going to go home, we weren't giving you any kind of a path to anything, we were just not going to deport you until it was safe.

 

And, so, Breyer without saying that he agreed with that view laid that out for Ms. Saharia and she answered simply by reiterating her position that the status and the event adjustment and non-immigrant status are so inextricably intertwined that when you say one, you mean the other.

 

By the way, I thought before I listened to the oral argument even after reading the briefs, I thought this was going to be a slam dunk for the government. I really thought that because of what everybody thought temporary protected status was -- and I was General Counsel of INS from 1991 to '93, the statute had just been enacted and we were implementing it for Salvadorans.

 

And this particular question didn't come up, but a lot of related questions came up, work authorization and so forth which they did get; which they do get. But it was certainly not our view that this was a new kind of non-immigrant, notwithstanding that they were to be treated as non-immigrants for certain reasons.

 

It was always our expectation in government, and not just because the government tends to like to deport people, I think it was our honest opinion that Congress was creating something temporary here and, therefore, I was surprised to learn that anybody thought that it would remove bars to adjustment of status to a lawful permanent resident. But the oral argument shows that the Court and all the Justices seemed to think that they could really go either way.

 

Now, another issue that came up and it didn't come up until -- now, Justice Alito also asked, Justice Alito, Sotomayor, and Kagan asked very similar questions to the petitioners. Kagan explicitly said, "If it's not true that all persons in non-immigrant status are automatically deemed inspected and admitted, can you win this case?" And, Ms. Saharia said, "No." And, so, Kagan says, "Okay. So where in the statute does it say that?" And the answer was the same as before: There's no other mechanism to get non-immigrant status except admission except in the case of alien crewmen where there's some specific statutory language and, therefore, if it says non-immigrant it means you're deemed admitted.

 

Now, Kavanaugh did say in his questioning that, "You have an uphill climb," textually speaking to the petitioners, "We need to be careful about tinkering with the immigration statutes as written." He mentioned that Congress was working on a bill on this. Why should we jump in? Why not let Congress fix the problem? And Saharia answered quite properly, I think, "Well, you're not jumping in. You've got the case because the case is before you. There's a split in the circuits on this, and it's natural that Congress would want to address the problem but they may or may not but that doesn't mean the Court shouldn't do its job."

 

Justice Barrett, the final questioner and her question to petitioners, asked about a provision in the TPS statute that requires a Senate supermajority to if Congress would decide that all TPS recipients from a certain country, say, were to be able to adjust their status as a result of having TPS, not because they qualify for some other visa. It requires a supermajority in the Senate. And, so, she said since it requires that why should we make it automatic?

 

And there wasn't a lot of discussion of this, by the way, but I'm pretty sure that that provision, if it were ever to become relevant, would be held unconstitutional because one Congress cannot by statute bind a future Congress. But Saharia said what I just said that is that the supermajority has to do with TPS itself creating a right to adjust status. It doesn't have to do with the situation in this case where the person was otherwise eligible for another visa.

 

And Saharia also mentions something a few times, which his that when TPS was being considered, there was a bill in the Senate -- one of the versions of the bill that was considered and this language was not adopted, would have expressly limited the benefits -- some of the benefits including the being deemed to being in lawful non-immigrant status to those who had been inspected and then admitted. And the language that was finally adopted did not do that.

 

So, in her summation, Saharia said having been admitted is inherent in non-immigrant status just as having been paroled into the country is inherent in parolee status. The government's case was argued by Assistant to the Solicitor General, Michael Houston. And both lawyers did a good job, by the way. Houston seemed more nervous and less sure of himself at key points or less sure of his arguments than Saharia did.

 

And he had a tougher time because the Justices and their questioning of the government focused, beginning with the Chief Justice, he said, "Your brief undersells your position." When the government sought cert, which was during the Trump administration, they specifically said that the textual interpretation of the government is obviously the correct and the only reasonable interpretation.

 

Whereas, in the briefs in the case once cert was granted which was under the Biden administration, it simply says the government's textual interpretation is reasonable. It doesn't say that it's the best one or the correct one. And Houston's answer is that, "Well, we addressed the standard the Court has always applied, Chevron deference, which is if the agency makes a decision, an interpretation and that interpretation is reasonable we're going to defer to the agency interpretation. So we don't have to prove that our position is the best."

 

And, then, other Justices followed up on that and said, "Which one?" Kavanaugh said, "There are three possibilities here. We could decide that your position is obviously correct, that admission and status are two different things and that's what the law says. We could say that it's the best interpretation or we could say merely that it's a reasonable interpretation and that we defer to it. Which would you prefer?"

 

And, Houston said, "Well, we'd actually prefer that you just decide that it's a reasonable interpretation and defer to us because that leaves the agency with the flexibility to change its interpretation." Under further questioning by Justice Barrett, he said, "Well, actually, we would still have the flexibility if it was the most reasonable interpretation. We could still adopt another reasonable interpretation and change the rules even if it was not reasonable -- even if it was not the most reasonable interpretation."

 

Now, by the way, Saharia the petitioners, especially in their briefs but a little bit in the argument, had said, "If you reach that question -- if you reach the question of is the government's position reasonable, even though it's not obviously correct and therefore should we defer to it?" She said, "You shouldn't defer to it under Chevron deference because the process by which the government arrived at its interpretation was informal; it was through a series of relatively informal, unpublished administrative decisions rather than a rulemaking process that involved an opportunity to comment and the other safeguards inherent in the administrative procedures act rulemaking.

 

So the government was in a tough spot because if they say we only want you to conclude that our position is reasonable and therefore we're entitled to Chevron deference, then they have to prove that they really are entitled to Chevron deference because was there really a rulemaking process here?

 

Another interesting thing that came up in the question of the government, is -- and this was Thomas' question that some of the other Justices then picked up on, which is:  If a TPS beneficiary briefly leaves the country, let's say, gets permission to leave the country in order to attend a funeral or some other important reason and then comes back, that person is typically inspected and admitted coming back. Would he or she then be eligible for adjustment?

 

And, it turns out, that the government until 2020 always said yes. That even though you were initially illegal and even though the only reason that you were never inspected and admitted when you came in, and even though the only reason that you allowed to be here, is your temporary protected status.

 

If during that temporary protected status, the government gives you permission to leave and come back, you'd be inspected and admitted and, therefore, you do meet that -- that erases the bar if you happen to eligible later for adjustment to lawful permanent resident status. That removes that bar to eligibility. And the government did announce in 2020 that from now on the answer is no, we're not going to recognize that entry as an inspection and admission and you won't be able to change to cure your ineligibility by taking a brief trip overseas, but they do not apply that retroactively.

 

So Thomas says at that point to the government, "Well, petitioners' general view, their general assertion seems reasonable. Why is admitted not inherent in lawful status?" So we have Thomas pretty much asking the same question that Breyer asks to both sides. It's why is the other side's position not reasonable and the Justices, again, seemed to think that either side's position could be seen as reasonable.

 

So, summing up for the government, the government said what it's been saying all along, the text is on our side, the text says that they're in lawful status and non-immigrant status or considered as being in non-immigrant status, but it doesn't say they were admitted; those are two different events. If Congress wanted to say they're deemed admitted, Congress knows how to do that. Did not do it.

 

And, then, in the rebuttal in her summation, Saharia pointed to other cases where the statute does distinguish between non-immigrant status and the process of admission. She said they didn't do it here, therefore, Congress if it had wanted to write the statute the way the government says, could have done that and didn't. Each side claims the text says what they say it says and each side says the structure of the immigration statutes. The very, very complex and confusing structure supports their position.

 

So this is one of those cases where, honestly, we could see a nine/zero decision either way. I still think the government has the edge. I think they got the edge because I think that their statutory case is a little more reasonable than their textual case. And because the Court does tend to defer to the government, particularly on immigration cases.

 

By the way, Houston as kind of a throw-away line, said a couple of times, "Oh, and there are foreign policy implications here, so that's another reason to defer to the government." So I still think the government is likely to win. I don't think it's going to break down along conservative/liberal lines as many cases do include many immigration cases. And I can't say how it's going to come out.

 

So, thank you. I'm ready to take any questions.

 

Evelyn Hildebrand:  Wonderful. Thank you. We’ll now go to audience questions. While we're waiting for our audience members to join the queue to ask a question, and I think you covered this already a little bit in your presentation just now, but were you surprised at all by the way the oral argument transpired?

 

Hon. Grover Joseph Rees:  Well, I was a little surprised. Starting with Justice Breyer's, you know, he's the third questioner. And that Breyer basically said to the petitioner, to Saharia, "Why doesn't this mean what the government says it means? You're illegal, you are supposed to go home, but because we're being generous we're going to let you stay here for a while there is a temporary danger in your country. But you don't get any other advantages. When the danger is over, you go home."

 

        And, again, that was so much like -- and then Thomas saying to the government, "Well, why isn't the petitioner's position on the statute perfectly reasonable? Why doesn't it say that when we say somebody's an immigrant -- a non-immigrant, we say they've been admitted?

 

        So I don't think that either of those Justices was just opposing or being a devil's advocate. I think they both genuinely wanted to know the answer. That shouldn't be a great surprise. Breyer worked in Congress until not long before when precursors of the TPS idea were being considered, so maybe he remembers those days. But that certainly is the way that TPS was sold at the time, and that's the way we all thought of it at the time.

 

Evelyn Hildebrand:  Thank you. I also wanted to ask you: Do you know what the next steps are for the litigants in this case depending on how it comes out?

 

Hon. Grover Joseph Rees:  Well, if the government decides that TPS does not automatically cure the bar for adjustment of status if you haven't been inspected and admitted. First of all, not every TPS recipient is going to be affected. I think, again, part of the way TPS was sold was that there were lots of people in the country legally who might have been here as a student and then, suddenly, there's a revolution in your country or there's a tornado or another natural disaster in your country and you can't go back.

 

        So it wasn't designed exclusively for people who were not in legal status to begin with. So those people could still adjust if they're eligible for an immigrant visa. So the next step for them is no problem. But it was pointed out that the majority of TPS recipients came illegally and there are over -- I guess the current 140,000 is the number from various countries who have TPS, and so that if I were their advocate I would go to Congress. The House has passed a bill which would make clear that this does eliminate the bar -- that TPS does eliminate the bar. It would create a path to adjustment of status, and I guess I would encourage the Senate to pass that bill if I were their advocate.

 

        The government, of course, the government hinted broadly that they would consider -- or maybe I just read this as a hint, but the government seemed to be saying we've got the right to change our opinion. So that would be the other thing that I would do if I were an advocate. Is I'd say, "Okay. You guys won the case. You have the right to exclude our people from adjustment, but you also have the right to change the rule and to recognize that they can adjust."

 

        And, so, assuming that the Court deferred to the government's opinion as reasonable instead of just saying it's the only reasonable opinion, then the government could always change the rule by rulemaking.

 

Evelyn Hildebrand:  Fantastic.  Thank you. At this point, in the absence of any audience questions, I will hand the floor back over to you for any closing remarks that you would like to make.

 

Hon. Grover Joseph Rees:  Well, like the petitioners and the government, in this case, my closing remarks are the same as my opening remarks. Immigration laws are terribly complex and this one is, perhaps, more complex than others. The Congress isn't always thinking about every possible consequence when they adopt language, so the argument that Congress knew how to do it the other side's way if they wanted to isn't always -- isn't always the final answer in cases of statutory construction.

 

        I think that my own view is that the language and the structure make the government's position somewhat more reasonable, but the Court obviously didn't seem to feel that way and so this may just come down to deference. And it does how -- I went to law school at LSU and I used to talk about the fact that if you were a lawyer and somebody comes to you with a case, you're supposed to make a judgment about whether you're the right lawyer to handle that case in terms of your own expertise, your own knowledge, your own ability to deal with that area of the law.

 

 And that, serendipitously, almost every lawyer believes that he or she is the best lawyer to handle almost every case. And the three exceptions to that rule are tax law, immigration law, and Louisiana law. So I guess I'll end there. Thank you.

 

Evelyn Hildebrand:  That's a great place to close. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your email for announcements about upcoming Teleforum calls and virtual events.

 

      And we do have one scheduled for a little bit later this afternoon at 3:30, another Courthouse Steps event on Yellin v. Confederated Tribes of the Chehalis Reservation. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.