The Supreme Court issued its unanimous decision in Sanchez v. Mayorkas on June 7, 2021.
Jose Santos Sanchez, a citizen of El Salvador, entered the United States illegally in 1997. Four years later, he applied for and was granted Temporary Protected Status (TPS) then in 2014, Sanchez applied for Lawful Permanent Resident (LPR) status.
The United States Citizenship and Immigration Services denied Sanchez’ LPR application, finding him ineligible based on his illegal entry—so Sanchez sued in District Court. The court sided with Sanchez, holding that the grant of TPS automatically made Sanchez eligible for LPR consideration.
On appeal, the Third Circuit reversed, finding Sanchez ineligible for LPR, based on his illegal entry, and the Supreme Court affirmed. The Court found that eligibility for LPR status under 8 U.S.C. Section 1255 requires “admission” defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” As a result, Sanchez’ illegal entry made him ineligible for LPR.
- Hon. Grover Joseph Rees, III, retired United States Ambassador to East Timor, General Counsel of the US Immigration and Naturalization Service from 1991 through 1993
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 The Federalist Society's virtual events. This afternoon, June 22, we discussed the Supreme Court's decision in Sanchez v Mayorkas. My name is Evelyn Hildebrand, and I'm an associate director of practice groups 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. He has been a law professor, judge, United States Ambassador, and he has worked in the executive and legislative branches of government. Of particular relevance in discussing the case this afternoon, is that for two years in the 1990s, he was General Counsel at the U.S. Immigration and Naturalization Service. We are very pleased to welcome him to discuss this decision.
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 for later in this afternoon's events. If you do have a question, please enter it in the chat with the Q and A feature at the bottom of your screen.
With that, thank you for being with us today. Mr. Rees, the floor is yours.
Hon. Grover Joseph Rees: Thank you. I appreciate the opportunity to have this discussion. Some of you may have listened into the Courthouse Steps discussion at the time of the oral argument a couple of months ago. And what I said then and what I'm going to say now are not very different which is that in many ways these results and these decisions are so unsurprising as to be almost uninteresting.
It's a unanimous decision that announces a fairly straightforward result that seems to be based on fairly obvious statutory interpretation. But there are some interesting things. And before I review exactly what the decision said, I will confess that as a conservative legal observer, I've probably been guilty of some cynicism. That there is a view among conservative legal observers that you only get unanimous Court opinions in favor of liberal results.
When the Constitution or the statute, the provision being interpreted, correctly leads to a policy result that's favored by people on the left the conservative Justices will often support it. But the same is not true, they will say, when the policy outcome would be favored by those on the right. So you can only get a unanimous result when the result-oriented liberals are voting in favor of the result they favor and the originalist or textualist conservatives are following their method, and they reach the same outcome for different reasons.
This is not such a case. The policy results in this case which was to deny Mr. Sanchez and deny hundreds of thousands of other people the opportunity to become lawful permanent residents and, therefore, eventually citizens of the United States is one that many people on the left and some on the right would not favor. And, yet, in a unanimous opinion written by Justice Kagan the Court reached that result. Reached the result that, from a policy perspective -- from a human perspective -- might have been fairly painful. And, so, I think the result is interesting. The opinion is interesting for that reason, and I will get back to that issue later.
So the background in this case is that in 1997, Mr. Sanchez entered the United States illegally from El Salvador. He entered surreptitiously; he did not present himself at a port-of-entry for admission to be admitted or denied; he was not paroled into the country; he simply came across the border and then lived and worked in the United States for several years until 2001. And in 2001, the U.S. Citizenship and Immigration -- well, it was then the U.S. INS, granted something called "Temporary Protected Status" to people who were here in the United States, either legally or illegally, from El Salvador. And it was because of some earthquakes that had made it very difficult for people to return to El Salvador.
And, for those of you who don't know about the "Temporary Protected Status Statute," it, actually, goes back to 1990 -- was adopted in 1990. And even then it was about a different set of crises in El Salvador -- political and civil war crises. And liberals, Democrats, were unhappy that the Reagan administration and the first Bush administration had not been granting asylum to Salvadoran applicants who'd come to the United States in the same percentages that they were granting, for instance, to Nicaraguans or to others who seemed to be more on our side from the standpoint of the administrations.
And so the response was well, while these people are fleeing violence but they're not fleeing fear of individual persecution themselves. And, so, the solution was to come up with a way for people to remain in the country temporarily until the crisis was over. And that was "Temporary Protected Status." It applied to political crises, political violence, but it also applied to other kind of crises such as natural disasters.
And Salvadorans have enjoyed "Temporary Protected Status" almost the whole time since the statute was enacted in 1990. They were actually specifically given "Temporary Protected Status" by the 1990 statute. When that expired a few years later, and I happened to be at INS at the time, we gave them instead something called "Deferred Enforced Departure" which was a lot like "Temporary Protected Status" except it didn't require it to be currently unsafe to go back.
Then there were various other extensions, then you had the earthquakes in 2001 and since then that "Temporary Protected Status" has been extended several times. And, so, if you came illegally as a Salvadoran you're probably in "Temporary Protected Status. Or if you came legally but couldn't go back at the expiration at the time of your visa, maybe you came as a tourist or a student and the earthquakes happened, at that point you'd be eligible for "Temporary Protected Status."
Well, Sanchez lived and worked in the United States. Did well and some years later, his employer applied for an employment-based visa which would have made him a lawful permanent resident -- a Green Card -- lawful permanent resident of the United States. And he was deemed by U.S.C.I.S. to be a skilled worker. He was -- the visa was approved. But once
-- those of you who know about immigration law will know -- once a visa is approved by U.S.C.I.S., you then have to do one of two things to, actually, get the visa.
The normal course, since the presumption is that the visa holder is not currently -- the visa beneficiary is not currently in the United States -- is that he or she goes to an embassy or consulate, typically, in the beneficiary's home country and proves that, "Yes, I'm the person who is named on this approved visa petition and I haven't committed any crimes," and some other things that have to be proved. And then the visa is granted and the person can come to the United States.
But lots of times, the applicant is already in the United States. Perhaps illegally, perhaps on another kind of visa. Perhaps on a temporary visa. And in those cases, provided there is no bar to it, there is a provision called, "Adjustment of Status." And "Adjustment of Status" means you don't have to go back to your home country and go to the embassy or consulate and get a visa. You can get it right here in the United States. You pay an additional fee which, last I checked, was about $1000, but it's processed right here in the United States and your status simply changes from the temporary status you had to that of a lawful permanent resident.
Unfortunately for Mr. Sanchez, there is a requirement for adjustment of status that the applicant either have been admitted to the United States or paroled into the United States -- paroled being a procedure being a procedure that's like admission except there's no legal basis for it there's just a good reason for it, and parole is generally temporary. So, in his case, he had not been admitted because he came across the border surreptitiously, and he was never paroled into the United States. He was simply given Temporary Protected Status.
Now, Sanchez and Sanchez' lawyers argued by getting TPS he was constructively admitted. He should be deemed to have been admitted because the TPS, "The Temporary Protected Status" Statute says that, "The TPS beneficiary shall be considered to be in lawful non-immigrant status during the course of the temporary protection." And, so, Sanchez' lawyers argued that the whole idea of being in non-immigrant legal status is that you were -- if you're considered to have been that, then you should be considered to have been admitted because admission is linked. That's how you get legal non-immigrant status.
The district court agreed and, indeed, three circuit courts in similar -- three U.S. circuit courts in similar cases had agreed with that analysis. They said, "We're going to deem these people to have been admitted and, therefore, to be eligible for adjustment of status. The Third Circuit, however, reversed and said, "No, admission and status are two different things." And they pointed to several circumstances where you might be in lawful non-immigrant status without having been admitted, or where there are separate requirements for admission on the one hand and status on the other hand.
The Supreme Court granted cert in order to resolve the conflict in the circuits, and the Supreme Court affirmed the Third Circuit. As I said, it was a unanimous opinion by Justice Kagan. And the opinion itself is very straightforward. It just reads as a straight factual analysis. It says, "Admission and status are two different things." Adjustment of status -- the adjustment of status statute requires both. It requires that you be in lawful status which Sanchez was because he had TPS, but it also requires that you either have been admitted to the United States or that you have been paroled into the United States.
And, in his case, neither was true. Actually, he had on one occasion been paroled, but that didn't cure him of a bar for adjustment against people who had worked in this country. So he was relying on what he deemed to be his admission under the TPS and Justice Kagan said, "There is no admission." She pointed specifically to two situations in which you can be in lawful non-immigrant status, but clearly you haven't been admitted.
And one of them is alien crewmen who might come in, you know, flight crews and so forth or ships crews who might come into the United States for a day or two. They're in lawful non-immigrant status while they're here, but the process by which they're allowed to come in is not called admission. And the statute makes that very clear.
The other situation is what's called the U-Visa that was enacted, oh, about 20 years ago now. And the U-Visa is for victims of -- basically, victims of certain terrible crimes who are allowed to stay in the United States because they cooperate with law enforcement. And the U-Visa -- it makes very clear that they are, in some circumstances, that they're in lawful non-immigrant status and that in some circumstances -- not all -- they are "Deemed to have been admitted."
So she said, "Look, Congress knows how to say, 'you're deemed to have been admitted' when it wants to." She answered one argument that was made by Sanchez' lawyers which is: Well, if the statute doesn't -- if it only gives you status and it doesn't give you admission and, therefore, doesn't make you eligible for adjustment of status to permanent residence, then it does precious little. She said, "Well, it does something. Giving you lawful status is certainly something. It can be very important for lots of people even if it doesn't also give you admission." And she concludes by saying, "It does something and this Court does not get to say that what the statute does is not enough." So, again, very straightforward.
Let me talk a little bit about the background. And it's almost a shame that there wasn't dissent because if there was dissent, you know, you'd have a more interesting argument. So if you want to read what could have been the dissent and what dissent would have been really thinking if there had been a dissent, read the SCOTUS blog review of this decision because the writer, who I gather is an immigration attorney or an immigration law professor, is quite unhappy with the decision.
And she mentioned several things. She says, "Well, Justice Kagan didn't mention that the overwhelming majority of TPS beneficiaries in the country which is about 400,000 entered illegally. So none of them is going to be helped by this decision." She said, "Crewman and new visas are a separate case and there are very specific, odd, circumstances. And it doesn't indicate that Congress was necessarily thinking to exclude these people from constructive admission when they gave them constructive status."
And she says Kagan's opinion -- Justice Kagan's opinion had mentioned a statute that's currently been introduced in Congress that she said might fix this problem, and it is Congress' job not the Court's job to fix it. And the writer of "SCOTUS Blog" says that Justice Kagan ignores the fact that laws liberalizing immigration procedures have a way of not getting through, at least, not getting through in the absence of more comprehensive bills that do things on both sides.
So the objections, in other words, to Kagan's opinion are all policy objections. They're not really statutory objections. Both the text and the structure seem to support the result. I happen to have been around -- I happen to have been General Counsel of INS during -- not actually in 1990 when the TPS was enacted, but in 1991 to '93 when we were doing a lot of the initial implementation of the statute.
And I have to tell you that, to the extent legislative history was relevant, I think it also favors the outcome because like a lot of immigration laws, this was the result of a tug-of-war. And, therefore, some compromise between people who wanted to be more generous to immigrants including illegal immigrants or undocumented immigrants, and people who wanted to be less generous.
And what the people who wanted to be less generous -- who were worried about too many people coming across our borders -- what they were worried about was that TPS would be another incentive -- another, "Okay. Come to the United States something will work out Eventually, you'll get married, you'll get a job, you'll get Temporary Protected Status."
But they didn't want it to be an incentive. So it is quite possible that the text and the structure were intentional -- that they were not accidental. That they did not want to create a path to citizenship for these people. The whole idea of Temporary Protected Status was it was supposed to be temporary. It was supposed to help you even if you didn't qualify for any legal immigrant status. Even if you didn't qualify for asylum, but the trade-off was it was supposed to be temporary.
Now, the other part of the background here and why this really matters is that, in a way, the decision isn't really about TPS so much as it's about a law that was passed a few years later in 1996 as part of the Comprehensive Immigration Reform Bill that year which, generally, toughened things. And one of the ways in which it toughened immigration laws is it provided, for the first time, that if you had come illegally not only were you not eligible for a judgement of status, but if you were not admitted you had to go back to your home country.
And if you had worked in the United States, you have to go back to your home country and you can't come back for ten years. There are waivers of that ten year bar, but those waivers are generally for immediate relatives -- for spouses and other immediate relatives of U.S. citizens. They don't generally help people whose visa -- whose lawful permanent residence is going to be employment-based.
So the question is: Was that ten year bar going to matter in terms of TPS -- in terms of TPS beneficiaries, or were they basically going to get a way around the ten year bar. And the Court says, "No." And, although I don't like the ten year bar -- as a matter of policy, I think it's too harsh. I think there ought to be lots more circumstances in which you can get a waiver or in which you could avoid it by adjustment of status.
It's pretty clear that what they were trying to accomplish in 1996 was precisely not -- that they wanted to punish -- they wanted to punish people who'd crossed the border more than they were being punished before people who had not been admitted. And before that you could just go to -- if you couldn't adjust status, you took a trip to see Ciudad Juarez and you -- you -- you left the country and you applied for -- you showed your approved visa petition in Ciudad Juarez and you got to come back in the country with a visa.
After 1996, that was no longer possible. So, on the one hand, that makes the result in the case much harsher. But, on the other hand, I think it bolsters the argument that what the Court was doing here was consistent with the legislative intent behind the whole immigration law scheme as it exists today.
I just want to go back to the idea of conservative legal scholars and observers saying you only get a good -- you only get a unanimous result where the policy outcome is favored by the left. And the textual or original was outcome leads the conservatives to support that outcome. I think that's more true in constitutional law than it is in statutory interpretation. And what the opinion reminds me of -- and particularly Justice Kagan's closing words about Congress -- but this Court doesn't get to do Congress' job. We have to interpret the statute and this is what the statute says, and it's up to Congress if they want to change that.
You know, in the 1980s, Dean -- now Judge Guido Calabresi, wrote a very interesting book called "The Common Law for the Age of Statutes." And he suggested that courts ought to have the -- that they ought to have the ability to modify statutes the way they always modify constitutional provisions to adapt to the times. And he gave a lot of arguments for that. I happen to write a long review arguing with it.
But the main -- the interesting thing to me was that Calabresi, who was a very smart man, just accepted without analysis that in case of constitutional law the court was going to adapt the constitution at the time. And in the case of the statute, they don't do that. To me, it should be almost the opposite. I just wish that Justice Kagan and Justice Breyer and Justice Sotomayor and others would use the same rigorous evidence-based analysis on constitutional interpretation that they do on statutory interpretation. And then we would get more unanimous decisions and, in my opinion, more -- just more correct decisions.
So I will leave it at that and, Evelyn, I guess we'll come back and I can take any questions.
Evelyn Hildebrand: Great. Thank you so much for that presentation. That was fascinating. And, in the meantime, I wanted to ask and I am by no means an immigration person. But I'm interested to know if a person is in the position of Mr. Sanchez where he has legal status but he does not have the admission necessary to get permanent status within this country, what kind of remedy is available for him? So if he left the country and applied again, like, what -- where does that leave people in his position?
Hon. Grover Joseph Rees: Well, if he left the country, the problem is -- then he's no longer applying for adjustment of status, he's just going to his embassy and applying, and that's the normal process. Unfortunately, because of the ten year bar, he did work illegally in the United States before he was ever given Temporary Protected Status. And, so, he would then be told by his embassy -- by the consular officer at the embassy in San Salvador, "Well, look, you're eligible for the visa, and that's great. Unfortunately, you are barred from re-entering the country for ten years. So you have to wait ten years." And, presumably, his job would not be waiting for him in ten years even if he could wait.
So it's a very harsh result, and I can't think of any other remedy. There are waivers of the ten year bar in the case of if he were to marry a U.S. citizen. But he's already married to, I believe, the same person who he was married to when he came. So that's not an option in his case. And I guess it's conceivable if he had children who were born here and who became adults and if they filed a family-based petition for him as an immediate relative -- as a parent, but I don't know those facts.
I mean, there will be some sets of facts where you can get around that in your bar, but they're all going to be about immediate family members. And they're not a cure-all. So the remedy is to try to get Congress to fix it.. And, unfortunately, one thing that -- unfortunately from my point of view because I'm pro-immigration and I think that even illegal immigrants are more like speeders than they are like murderers. So, while they shouldn't get off scot-free, they shouldn't always -- they shouldn't be treated like murderers, either.
And the Trump administration, even for some policy outcomes that President Trump said he favored -- when he said he favored giving some path to citizenship to Dreamers. That is to the people who came here as children illegally, but when they were too young to be making a decision themselves and, therefore, didn't intentionally violate the law themselves. He said he wanted to fix that, but he only wanted to fix it as part of a comprehensive immigration solution. In other words, he wanted to hold back this result, which he favored in order to get the pro-immigration people to give something which would have included, you know, funding the wall. But it also would have included reductions in the number of legal immigrants admitted to the country. So those comprehensive suggestions never went anywhere.
So, unfortunately even if this was an outcome we all favored, the bill probably wouldn't pass because somebody would put a hold on it asking for something else -- asking for a new restriction on immigration in exchange for this fix for the TPS people. And, arguably, there are people who would still say, "Look, TPS was supposed to be temporary. You violated the law. You should have -- probably, you could have safely gone back. Those earthquakes were 20 years ago, and you should have done it a long time ago. So there's no obvious solution.
Evelyn Hildebrand: And this may be a very obvious question: What kind of -- perhaps you could just give it a general overview of the benefits that someone would enjoy after applying for adjustment of status and receiving that adjustment as opposed to being in our country on a TPS kind of basis?
Hon. Grover Joseph Rees: Oh. Well, once you get the adjustment of status -- remember, what you're adjusting to is lawful permanent residence. You have a Green Card. In five years, you can become -- you can naturalize as a United States citizen. That is -- that's what everybody wants. You -- you can travel with a lawful permanent resident travel document if you don't have a passport from your home country. You can, of course, you can already work under TPS, but you have work -- once you're a lawful permanent resident, you have work authorization even if your TPS goes away.
You can leave the country and come back as long as you don't leave for more than six months. If you leave for more than six months. If you leave for more than six months, they start asking questions about whether you really intend -- whether you intended to give up your lawful permanent residence. But, even then, it's more like a year. If it hasn't been a year since you've been gone, you can keep that -- you can live somewhere else and still keep your lawful permanent residence in the United States. It's what everybody wants whose got some other immigration status or who doesn't have any status, at all.
Evelyn Hildebrand: That's very helpful for me to understand, as well. And, in the absence of other questions, I would just hand the floor back over to you, Mr. Rees, for any final comments that you'd like to make.
Hon. Grover Joseph Rees: Well, I would like to say one thing that I didn't mention -- which two things that I didn't mention which is the way that the newspapers reports this opinion, it was as though what Sanchez was arguing was, "That because I had TPS, I'm now entitled to a Green Card." That would have been even more clearly wrong than what he was arguing because, again, Temporary Protected Status is supposed to be temporary.
What he was arguing was much narrower than that and wouldn't have helped all 400,000 of those TPS recipients. He was saying, "Because I'm entitled to a Green Card, not -- and to adjustment of status to get that Green Card -- not because I have TPS, but because I have an employer who submitted an application in accordance with non-TPS related provisions of law. And the only thing that the TPS should get me is it should get me out of that bar to adjustment that's caused by my not having been admitted.
So he was actually making a fairly narrow argument. Even so, as the Court pointed out, the statute doesn't suggest even that narrow relief. It doesn't say anything about being deemed to have been admitted. It just says, "Your deemed to be in lawful status," -- considered to be in lawful status.
The second point is that, as I mentioned before in terms of relief for some people although not for Sanchez, the TPS does not -- rather, adjustment of status does not strictly require that you have been admitted. You have to been either admitted or paroled. And parole is something that happens, for instance -- and it happened to Sanchez. He was -- he went back to El Salvador. There was a death in his family or something and he went to USCIS and said, "Hey, I really need to go back to El Salvador." And so they gave him something called Advanced Parole which was a stamp in his travel document that said let him back into the country even though he's not eligible for a visa, right now.
Unfortunately for him, in his case that parole didn't help because there is a separate provision that is a bar to adjustment of status for people who have worked illegally in the country. And if you have worked illegally, you don't get to apply for adjustment of status unless you were admitted. Parole does not do the trick. But for somebody who never worked illegally in the country, even though he or she was present illegally in the country, that parole -- that subsequent parole -- you took a trip back to your home country because there was a death in your family. Advance parole is fairly common for people who are living here in a legal non-immigrant status and who, for some reason, can't just leave and come back would lose their status.
Advance parole will -- and that case is currently pending because the Trump administration announced that it was going to stop treating Advance Parole that way. It was going to say that if you got Advance Parole, it wasn't a parole for the purpose of making you eligible for adjustment of status. And there's a separate lawsuit going on about that. And the Supreme Court specifically said, Kagan's opinion -- Justice Kagan's opinion specifically said, "We don't address that issue. We don't address the issue of whether parole is sufficient to solve this problem." But, in his case, he did not rely on his parole because he still would have been barred because he worked illegally.
So if there are no further questions -- if there are no questions from the audience, I guess, that means not only was Justice Kagan really clear, but so was I. And I thank you.
Evelyn Hildebrand: I think that is what that means, yes. There are no questions at this time. So I will offer to you the thanks of The Federalist Society for your valuable time and expertise. And I want to thank our audience for participating and listening to Mr. Rees's remarks. We welcome listener feedback by email at firstname.lastname@example.org. As always, keep an eye on our website and your e-mails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.
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.