The case was inherited from the Trump administration, and during Monday’s teleconference hearing, the court’s conservative justices wondered whether the government was either changing its position or intended to do so in the future.
“I was struck by the extent to which your brief undersold your position,” Chief Justice John G. Roberts Jr. told government lawyer Michael R. Huston. He joked that he half-expected the administration to argue that “it would not be entirely unreasonable for the court to rule in your favor.”
Justice Amy Coney Barrett asked Huston if the government had changed its position on whether the law was clear or ambiguous. And when Justice Brett M. Kavanaugh suggested three ways the government could win the case, Huston opted for what appeared to be the least binding one.
“We think the court generally does not foreclose the agency from thinking about the problem in the future,” Huston said.
The issue concerns as many as 400,000 immigrants who have temporary protected status (TPS), which means the United States is allowing them to stay because of unsafe conditions or crises in their native countries. There are 12 countries on that list, according to U.S. Citizenship and Immigration Services, among them El Salvador, South Sudan, Yemen and Syria.
Many of the immigrants would like lawful permanent resident status, usually referred to as a green card. But lower courts are divided about whether those who entered the country illegally meet a requirement of the law that they were “inspected and admitted or paroled into the United States.”
Jose Santos Sanchez and Sonia Gonzalez are typical of those who want permanent status. They are natives of El Salvador who have lived as a married couple in New Jersey for more than 20 years. They have four sons, the youngest of whom was born in the United States.
Sanchez and Gonzalez entered the country separately in 1997 and 1998. They applied for and received temporary protected status in 2001 because of conditions in El Salvador.
Sanchez has worked for Viking Yachts since he has been in the United States, and his company was enthusiastic about him receiving a green card. He also applied on behalf of his wife. But U.S. Citizenship and Immigration Services denied them the change in status because they had not been “admitted” to the country. The U.S. Court of Appeals for the 3rd Circuit agreed.
Washington lawyer Amy M. Saharia, representing the couple, said their ability to request permanent residency was initiated when the government granted their temporary protected status.
“TPS recipients are subject to rigorous scrutiny and risk removal by coming forward and registering,” she said. “In exchange, Congress made them eligible to adjust status if they acquire a qualifying relationship, assuming they meet all the statutory requirements, which not all will.”
But the justices were skeptical. Justice Clarence Thomas said it was clear that Sanchez and Gonzalez had not been legally “admitted” to the country. And Justice Stephen G. Breyer said that it was possible the government was being generous in extending temporary protection — but that “temporary” was the operative term.
The government could mean, “Mr. Smith, you came in absolutely illegally, absolutely wrong that you’re here, but you’re here,” Breyer said. “And if you’re here, we’re not going to ship you back to a place where you’re really in danger. Okay? While you’re in danger. But, once that’s over, goodbye.”
Kavanaugh said Saharia had an “uphill climb” because of the words in the statute. “Why should we jump in here when Congress is very focused on immigration and when you’re . . . putting forth a good argument but relying on chains of inferences rather than specific language, as I see it at least?”
Huston denied that the government’s position would eliminate the ability of TPS recipients to apply for permanent status.
“A student or an au pair or a temporary worker” who came to the country legally would be able to argue that “TPS will allow them to stay here longer than their status would normally have done,” Huston said, and “tens of thousands” have been able to shift to permanent status.