WASHINGTON – A unanimous Supreme Court curbed a 30-year-old immigration program for foreign nationals whose countries are ravaged by war or natural disaster, ruling its temporary protection from deportation doesn’t guarantee a more permanent stay.
Some 400,000 people, most from El Salvador, live in the U.S. with Temporary Protected Status, which permits them to remain as long as the government determines they cannot safely return. At issue in the case was whether those immigrants could apply for lawful permanent residency, or green cards, if they entered the United States illegally.
Federal law requires immigrants seeking green cards to have been “inspected and admitted or paroled into the United States.” A New Jersey couple from El Salvador who lived in the U.S. for two decades argued they met that mandate when they become TPS recipients. Both the Trump and Biden administrations disagreed.
The court also found the argument unpersuasive.
The immigrant who filed the lawsuit “was not lawfully admitted, and his TPS does not alter that fact,” Associate Justice Elena Kagan wrote for the court. “He therefore cannot become a permanent resident of this country.”
The decision comes after subsequent presidential administrations have wrestled with how to stem the flow of migrants fleeing Central America, many of whom come to the United States seeking asylum from violence and instability. Vice President Kamala Harris is traveling in Guatemala this week in the latest effort to address that problem.
Experts said the decision would have a significant impact on TPS beneficiaries who, after living in the United States for decades, hoped to adjust their immigration status.
“The real life impact is pretty severe,” said Lisa Koop, an attorney with the National Immigrant Justice Center and an adjunct professor at the University of Notre Dame Law School. “We need Congress to meaningfully engage in our immigration statutes and clean up some of these ambiguities.”
The outcome of the case was not a surprise. During arguments in April, the court’s conservative majority – and even several of its liberals – appeared skeptical of the immigrants’ claim. Critics of TPS say the program is intended to provide temporary relief, not permanent residence.
“We need to be careful about tinkering with the immigration statutes as written, particularly when Congress has such a primary role here,” Associate Justice Brett Kavanaugh told a lawyer for the immigrants in April. “You have an uphill climb.”
In the opinion, Kagan wrote that the statute “does something” and, she added “this court does not get to say that the something it does is not enough.”
Ira Mehlman, a spokesman for the Federation for American Immigration Reform, said that the decision reinforces the notion that the program’s benefits are temporary.
“It makes it very clear that when you accept Temporary Protected Status in the United States it is not the first step on a pathway to a green card, which is how a lot of people look at it,” said Mehlman, whose group supports tighter immigration laws.
Others notedthat successive presidential administrations have already allowed many TPS beneficiaries to stay in the country for decades, permitting them to build roots, businesses and families in the United States. For instance, President George W. Bush granted TPS status to El Salvador in 2001 following two earthquakes and the status has been extended ever since.
Immigrant advocates note the eligibility requirements of the program mean it’s not open-ended: To be eligible for TPS, an immigrant must prove they have been in the United States since the designation was made. The Biden administration designated two new countries in March – Venezuela and Myanmar – bringing the number of countries to 12.
The decision comes months after the Supreme Court ruled against an immigrant in another case who lived in the country illegally for 25 years and who asserted he wrongfully faced deportation for using a false Social Security card.
Oscar Chacon, executive director of the migrant advocacy group Alianza Americas, stressed that the decision doesn’t change the status of current TPS beneficiaries. Nor does it mean that those people will necessarily not be able to receive a green card. But it will make it more complicated for those who initially entered illegally to do so.
“In no way, does this decision take any merit away from all TPS holders,” Chacon said. “The Biden administration and Congress are still working to give TPS beneficiaries the protection they deserve.”