What A Recent SCOTUS Decision Could Mean For Those With Temporary Protected Status
A few weeks ago, on June 7, the Supreme Court of the United States issued a unanimous opinion in the case of Sanchez v. Mayorkas. This opinion by the Court closes an avenue to permanent residency for temporary protected status (“TPS”) recipients and forces them to leave the country as part of their permanent residency application process. For some TPS recipients, leaving the United States means being subject to a three- or ten- year bar to entry into the U.S.
It is important to note that, while the Court’s opinion has been reported as making TPS recipients ineligible for permanent residency, the opinion is limited to the process to apply for permanent residency and not eligibility. Perhaps, the confusion comes from the fact that, throughout the Court’s opinion, there is a conflation between adjustment of status and eligibility. The two are are not the same. As relevant here, there are two methods or processes to apply for permanent residency: adjustment of status and consular processing. Pursuant to 8 U.S.C. § 1255(a), adjustment of status allows an individual already in the United States to complete the permanent residency application process without having to leave the United States. However, this method is only granted at the discretion of the U.S. Attorney General and to individuals who were “admitted or paroled” into the U.S.
The issue in Sanchez v. Mayorkas concerned this adjustment of status statute and whether Mr. Sanchez was “admitted or paroled” into the U.S. when he obtained his TPS. If the Court found him to have been “admitted or paroled” into the U.S., he would have been eligible to complete his permanent residency application without having to leave the country. Mr. Sanchez entered the U.S. irregularly in 1997 and obtained TPS in 2001. In 2014, he applied for permanent residency and requested the adjustment of status process. However, his request for adjustment of status was denied on the basis that he was not “admitted or paroled” into the U.S. The government contended that while Mr. Sanchez had legal status, he was never “admitted or paroled” into the U.S., making him ineligible for adjustment of status. The Court, throwing the ball to Congress, found a difference between having lawful status and being admitted into the U.S., and, in the absence of an explicit grant of admission by Congress to TPS recipients, held that TPS recipients only have lawful status but not admission.
Interestingly, missing in the Court’s opinion is a mention of the effect its decision will have on TPS recipients. Closing the adjustment of status avenue forces eligible TPS recipients to apply for permanent residency through consular processing. In these instances, their application is processed at a U.S. embassy or consulate, typically one in their home country. This means that they will have to leave the U.S. to attend the immigration interview at said U.S. consulate or embassy. For several TPS recipients, this is not a mere travel expense. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) significantly changed the immigration system. Among other bars to admissibility, IIRIRA created the unlawful presence bar. Pursuant to 8 U.S.C. § 1182(a)(9)(B)(i), an individual that accumulates unlawful presence of six months, but less than a year, is barred from seeking admission into the United States for three years. Those that accumulate a year or more of unlawful presence are barred for ten years. This is what many TPS recipients will face through consular processing.
How is this unlawful presence bar different through adjustment of status and consular processing? It goes back to admission. The unlawful presence bar only applies when an individual is seeking admission into the U.S. The adjustment of status process does not trigger the bar because the individual is not seeking admission as she or he has already been admitted. On the other hand, consular processing is a request for admission into the United States, triggering the unlawful presence bar. While there is a waiver of the unlawful presence bar, it is only available to spouses or progeny of U.S. citizens or permanent residents. The waiver leaves out parents of U.S. citizens or permanent residents, but that is an issue for another time.
While the Court’s opinion in Sanchez v. Mayorkas is solely on the adjustment of status process, it has the unintended, or maybe intended, consequence of preventing or barring many TPS recipients from obtaining permanent residency. Many TPS recipients entered the United States irregularly and, through the consular processing method they must now follow, these TPS recipients will immediately trigger the unlawful presence bar. Eligible TPS recipients now face the difficult decision of continuing in the uncertainty of TPS or travel to the country they were fleeing from to apply for permanent residency and run the risk of being subject to a three- or ten- year bar.
