Legal scholar Jonathan Turley noticed something interesting a little while ago: The Supreme Court has released a string of unanimous decisions, something the modern Court very seldom does. He believes that the Court may subtly be telling Democrats not to alter the Court’s numbers for partisan purposes. It’s certainly telling that, on Monday, the Supreme Court released another unanimous decision, this one holding that people who enter the country illegally cannot get green cards under the “Temporary Protected Status” program. Even more surprisingly, Justice Elena Kagan, a leftist, wrote the decision. The case is Sanchez v. Mayorkas. Sanchez, an El Salvadoran citizen, entered the United States illegally in 1997. In 2001, the government issued “Temporary Protected Status” (“TPS”) to El Salvadorans in America because their country was deemed unusually dangerous. That meant those here illegally could not be deported.
In 2014, Sanchez applied to become a lawful permanent resident (“LPR”) or, in common parlance, to get a green card. The statute under which he applied (8 U.S.C. §1255) says that foreign nationals who are not technically immigrants but are nevertheless legally in the country on a temporary basis can get a green card. U.S. Citizenship and Immigration Services, however, denied Sanchez’s application because he had entered America illegally. The district court ruled in Sanchez’s favor, but the Third Circuit reversed that ruling – and a unanimous Supreme Court affirmed the Third Circuit’s decision.
For the Supreme Court, the keyword in the statute was “admission.” As Kagan wrote, “under [§1255] a nonimmigrant’s eligibility for such an adjustment to permanent status depends (with exceptions not relevant Opinion of the Court here) on an ‘admission’ into this country.” She continued, explaining that the word “admission” has a specific legal definition.
And an “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” §1101(a)(13)(A). The admission—or, to use the definitional phrase, “lawful entry”—requirement appears in two pertinent provisions of §1255. One states that a nonimmigrant may become an LPR only if he has been “inspected and admitted or paroled into the United States.” §1255(a). And another states that a nonimmigrant who has previously worked without authorization in the United States may become an LPR only if his presence here is “pursuant to a lawful admission.” §1255(k)(1); see §1255(c)(2).
Having made clear a limiting feature on green cards, Kagan turned her attention to the TPS program. Under that program, anyone from a country deemed extremely dangerous can get the protection of a TPS designation, regardless of whether the person was “admitted” to the country or sneaked in. Sanchez, as noted, fell into the latter category.
Kagan’s relatively short legal analysis boiled down to this summary:
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 (like Sanchez) eligible under §1255 for adjustment to LPR status.
The language of the two statutes is too clear to allow for any other outcome. This is especially true for §1255, which applies to all green card applicants (footnotes and citations omitted):
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.” 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. 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.” 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.” Sanchez has never claimed that he can, without aid from the TPS provision, satisfy those demands for admission. A straightforward application of §1255 thus supports the Government’s decision to deny him LPR status.
In times past, that clarity would not have stopped an activist Court anxious to achieve a specific political goal. Here, though, Kagan, writing for a unanimous Court, behaved like a pure strict constructionist, looking to clear statutory language to reach an obvious outcome.
This decision is going to be a tremendous blow to Democrats who have assumed that the illegal aliens entering America by the hundreds of thousands will soon obtain green cards and, from there, become citizens who will reliably vote for Democrats. Technically, of course, the decision is limited to the 400,000 or so people who cannot be deported because of their TPS. However, the key language isn’t in the TPS statute. It’s in the green card statute. To the extent “admission” for purposes of green cards precludes illegal entry, this decision would seem to apply in the future to all illegal aliens in America.