Tomorrow, the Supreme Court begins a two-week series of hearings, again doing so remotely and by telephone for reasons of health safety. The audio portion of all of the hearings will be broadcast on c-span.org/supreme court There will be no video broadcasts. Except for a single case to be heard in May, these will be the final scheduled hearings of the current Court term. The term is expected to end in late June or early July.
Among the 12 cases scheduled, six this week and six next week, some are quite technical and of limited general interest. As an example of such a case, the first hearing on Monday focuses on how a community of native peoples in Alaska can qualify as an “Indian tribe” and thus become eligible to share in an $8 billion federal pandemic relief fund that Congress approved in 2020 as part of the so-called CARES Act. This only requires an interpretation of how federal law defines “tribe.” That hearing will begin at 10 a.m. tomorrow.
Second hearing Monday, starting at about 11 a.m.:
Sanchez v. Alejandro Mayorkas, Secretary of Homeland Security
Background: In international law, and throughout history, a nation’s borders are closely related to its identity and to the reach of its governing power. For example, the nation of Ukraine is acutely sensitive to that these days, with Russian troops massed menacingly on its border.
Who will be allowed to cross a nation’s border involves a fundamental exercise of sovereign authority. But, at least under U.S. immigration law, there has long existed an odd phenomenon: a person can be physically inside the territorial borders of this country, and yet not be “in” it, in an official, formal sense. The theory is that, until a person has been lawfully “admitted” to enter the U.S., he or she remains – technically – outside the border, “looking in,” in a sense.
That is true, for example, of the 11 million or more immigrants now living in this country who entered it without legal permission. They may have lived here for many years, as many have, but they have not been formally “admitted,” so they are not treated as legitimate residents and remain subject to being deported at any time. In this context, “admitted” is a technical term: it means that a foreign national has been inspected by immigration officials and has been found to be within a category of people who are eligible to enter physically and to remain, at least for a time.
One can become admitted, for example, as a refugee fleeing to the U.S. to avoid persecution in their own country, or as a person found to be eligible for “lawful permanent resident” status – that is, as a “green card” holder who is allowed to live and work in the U.S. and may ultimately qualify for U.S. citizenship.
Monday’s case involves two citizens of El Salvador, Jose Santos Sanchez and his wife, Sonia Gonzalez. Their case raises the question of whether there is another legal way to be admitted to live at least temporarily in the U.S.: that is, as one who gained “temporary protected status” (TPS, for short) because of home country conditions — such as a civil war or other armed conflict, an earthquake or other environmental disasters, or some other extraordinary condition.
Federal law allows such a status to be conferred in response to such conditions, and a person with TPS can remain as long as the government treats that country as burdened by those conditions. But the question in this case is whether having that status is an admission, legally, making one eligible to seek lawful permanent resident status.
The Salvadoran couple were living in the U.S. illegally in 2001 when their home country was hit by a series of earthquakes. They received TPS and that status was extended several times, for them and other Salvadorans immigrants. (The Trump Administration sought to end that status for Salvadorans in 2018, but that has not happened yet because of ongoing legal challenges.)
In 2014, the couple applied to become lawful permanent residents. That was denied, with immigration officials declaring them not to be eligible to change their status because they had not been “admitted.” They sued in federal court in New Jersey, arguing that TPS constituted admission, and a trial judge ruled in their favor.
The government appealed, and a federal appeals court ruled that TPS was not an admission, legally. Although the two Salvadorans had had “lawful status,” that court said, that is not the same thing as having been “admitted” – that is, inspected and ruled eligible to enter. In short, the appeals court declared, they had never been “admitted” and thus had no right to seek a status beyond the emergency-related designation of TPS. They are entitled to remain in the U.S., that court added, only as long as the government continues to apply TPS to nationals of El Salvador.
The couple took their case on to the Supreme Court, arguing that the federal courts of appeals are split deeply on the issue, with three agreeing with their position and three on the government’s side of the TPS question. The Trump Administration urged the Justices to hear the case because of the division among lower courts; the Biden Administration has continued to defend the ruling against the Salvadorans. The Court agreed to clear up the conflict, as it often does when there is a significant disagreement among lower courts.
The question before the Court: does a foreign national who entered the U.S. illegally and remains here have a right to seek permanent legal status because they have been protected from deportation by the government’s grant to them of “temporary protected status”?
Significance: Congress created the “TPS” regime in 1990, and El Salvador was the first country to be so designated. Over the three-decade history of TPS, 12 countries that once had the status no longer do, while ten nations currently have that status – including, for the time being, El Salvador.
The protection afforded by FPS to foreign nationals depends solely on government policy choice, and it lasts for immigrants from such nations only as long as the government decides to continue it. It thus is purely temporary.
As this case has unfolded in the Supreme Court, human rights organizations have gotten involved, telling the court that El Salvador continues to be a dangerous country, and that hundreds of its citizens who have been returned home after living in the U.S. have been killed, tortured or have simply disappeared. They argue that Congress could not have intended that a program with a humanitarian purpose in the beginning should now be understood as no more than a temporary reprieve for nationals who come to the U.S. to flee dreadful conditions in their homelands.
The government counters that Congress did not intend the TPS to be a mechanism for people to enter the country illegally, and then seek to remain indefinitely by applying to be “admitted” when they were never technically admitted in the first place.
There is no constitutional issue at stake; the Court is only required to delve into the evidence of what Congress had in mind 31 years ago when it decided to provide another means for people to find refuge in the United States. The Court has long held the view that courts generally should defer to Congress because it has the primary role of deciding how to define and protect the nation’s borders and the sovereignty that border policy reflects.
In the Biden Administration’s legal brief in the case, it relied not only on the idea of deference to Congress’s authority in this field, but contended that the government policy at issue has been followed for so long that the Court should also defer to the Executive Branch as well.
