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Supreme Court: Government Can Block Immigrants with Temporary Protected Status

United States Supreme Court Building in Washington DC, USA.
By Laura Temme, Esq. on June 08, 2021 3:16 PM

The Supreme Court recently weighed in on an issue that has split federal courts for years: Whether a person who enters the United States illegally but obtains temporary protected status can apply for a green card.

The unanimous ruling holds that under current immigration law, those who enter the country illegally were not "admitted" as required for permanent residency.

Federal Courts Split

Roughly 400,000 people currently live in the United States with temporary protected status. TPS grants a person "lawful status" so they can live and work in the U.S. if a humanitarian crisis such as an environmental disaster or armed conflict makes it unsafe for them to return to their home country. Under the Immigration and Nationality Act, someone seeking permanent legal residence (often called a "green card") must be "inspected and admitted" into the United States.

In the case heard by the Supreme Court, a married couple from El Salvador who came to the U.S. in the 1990s wished to adjust their status from TPS to permanent legal residence. But USCIS denied their application because they had entered the U.S. illegally. A federal district court disagreed, finding that TPS status required treating an applicant as if they had been lawfully admitted. However, the Third Circuit reversed.

Federal appeals courts have been split on the issue. In 2020, the Eighth Circuit Court of Appeals concluded that those who arrive in the United States illegally but later attain temporary protected status are considered legally admitted for the purposes of getting a green card. The Sixth and Ninth Circuits agreed while the Third and Eleventh denied permanent legal residence to TPS holders who entered the country illegally.

With this decision, the Supreme Court has settled the split.

SCOTUS Denies Permanent Resident Status

Writing for the court, Justice Elena Kagan succinctly concluded that to be eligible for legal permanent resident status the law requires "admission" into the country. And 8 U.S.C. 1101(a)(13)(A) defines admission as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer."

"Lawful status and admission are distinct concepts in immigration law, " Justice Kagan wrote, "and establishing the former does not establish the latter."

It's important to note that the Supreme Court can only interpret the law as it stands now, it cannot create immigration policy. The justices have made it clear that Congress has the authority and ability to make changes to U.S. immigration if it chooses.

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