Zimmer's Books

It is true that the United States Supreme Court denied the petition of a TPS holder seeking acknowledgement of his eligibility to apply for LPR status in a precedential decision that impacts thousands of TPS holders like the Petitioner.  However, the law itself which the United States Supreme Court simply followed in this unanimous decision is the ultimate cause of the remonstrated effects.

The issue in Jose Santos Sanchez, et Ux., Petitioners v.  Alejandro N. Mayorkas, Secretary of Homeland Security, et al., 593 U.S. ___ (2021) No. 20-315 involves the interactive application of two well used immigration law provisions; Section 244 of the Immigration and Nationality Act, as amended (“the Act”) and section 245 of the Act.

In section 244 of the Act, Congress created a form of temporary humanitarian relief for the nationals of designated countries that had suffered natural disasters such as hurricanes and earthquakes affecting parts of Central America in 1990. See section 302(a) of the Immigration Act of 1990 (“IMMACT 1990”).

Before enacting TPS legislation, Congress provided for “adjustment of status.”  Adjustment of status is a term of art in United States immigration law.  It usually denotes a change from temporary immigration status or no immigration status to LPR status under section 245 of the Act.  As a matter of law, an applicant for adjustment of status must have been inspected and admitted or paroled into the United States, in addition to other criteria.  See section 245(a) of the Act.

The specific issue in the Sanchez decision revolves around the application of section 244(f)(4) of the Act which states that a recipient of TPS is “considered as being in, and maintaining, lawful status as a nonimmigrant” for the purpose of adjustment to lawful permanent resident status under section 245 of the Act.

As noted above, however, to be eligible for adjustment of status under section 245(a) of the Act an applicant must have been inspected and admitted or paroled into the United States.  In other words, aliens who enter the United States without inspection by an immigration officer are not eligible for adjustment of status under section 245(a) of the Act.

According to the record under review in Jose Santos Sanchez v. Mayorka, supra, Sanchez had entered the United States unlawfully in 1997 without inspection by an immigration officer. 

For clarity, “admission” and “admitted” required for adjustment under section 245(a) of the Act are defined in the immigration law as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”  See section 101(a)(13) of the Act.

Sanchez relied in his Petition on section 244(f)(4) of the Act:  "[F]or purposes of adjustment of status under section 245 . . . the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant."  Furthermore, Sanchez asserted the existence of an “indissoluble relationship between admission and nonimmigrant status.”  

Therefore, according to Sanchez, section 244(f)(4) of the Act necessarily legally recognized him as being admitted after inspection and authorization by an immigration officer within the definition of section 101(a)(13) of the Act, as required for adjustment of status under section 245(a) of the Act.

Justice Kagan, writing for a unanimous court, reasoned as follows:

• Section 245 of the Act, applied according to its plain terms, prevents the Petitioner from becoming an LPR.
• There is no dispute that the Petitioner “entered the United States in the late 1990s unlawfully, without inspection.”
• Although according to section 244(f)(4) of the Act, a TPS recipient is “considered as being in, and maintaining, lawful status as a nonimmigrant” for the purpose of adjustment to lawful permanent resident status under section 245 of the Act, section 244(f)(4) of the Act does not aid the TPS recipient in meeting section 245 of the Act’s independent legal entry requirement. 
• Lawful status and admission are distinct concepts in immigration law: Establishing one does not necessarily establish the other.
• Individuals in two immigration categories have what Sanchez says does not exist: nonimmigrant status without admission.
• The first immigration category is for “alien crewmen”—foreign nationals who serve on board a vessel or aircraft. See section 101(a)(10) of the Act. They receive nonimmigrant status when their vessel or aircraft “land[s]” in the United States. See section 101(a)(15)(D)(i) of the Act. But still the law provides that they are not “considered to have been admitted.” See section 101(a)(13)(B).
• The second immigration category is for foreign nationals who have been the victim of a serious crime in the United States and can assist with the investigation. These individuals may receive nonimmigrant status even if they entered the country unlawfully (i.e. even if they were not admitted). See sections 101(a)(15)(U), 212(d)(14) of the Act.
• The TPS statute permits an alien granted TPS status to remain in the country; and it deems him to be in nonimmigrant status for purposes of applying to become an LPR. The statute, however, does not constructively “admit” a TPS recipient (i.e. “consider” him as having entered the country “after inspection and authorization”). See sections 244(f)(4) and 101(a)(13)(A) of the Act.  
• In short, Congress, based on the plain language of the governing statutes intended TPS to be a temporary status that does not by itself waive or cure entry without inspection to serve as a gateway to LPR status.

Congress must amend or change the law to reach a different outcome.

Finally, it seems appropriate to note that, contrary to the expectations of some political activists, United States Supreme Court Justices appointed under both "liberal" and "conservative" administrations unanimously reached the same conclusion by conscientiously applying the law as Congress plainly wrote it, rather than twisting, distorting and straining the law to reach a preferred result.