Many of them would like lawful permanent resident status, usually referred to as a green card. But lower courts divided over whether those who entered the country illegally meet a requirement of the law that says they must have been “inspected and admitted or paroled into the United States.”
Jose Santos Sanchez, who entered the country unlawfully in 1997, contended that being granted TPS in 2001 satisfied that requirement for him.
But Justice Elena Kagan, writing for her unified colleagues, said the law was clear that it did not.
“Sanchez was not lawfully admitted, and his TPS does not alter that fact,” she wrote. “He therefore cannot become a permanent resident of this country.”
At oral argument in the case, conservative justices said a lawyer for the Justice Department seemed reluctant in opposing the suit brought by Sanchez and his wife Sonia Gonzalez. The case was inherited from the Trump administration, and separated the Biden administration from its usual allies calling for leniency in immigration matters.
Sanchez and Gonzalez are somewhat typical of those who seek 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. It is among 12 nations on a U.S. Citizenship and Immigration Services list for TPS eligibility.
Sanchez has worked for Viking Yachts while he has been in the United States, and his company was enthusiastic about him receiving a green card. Sanchez then applied on behalf of his wife.
But the immigration agency 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.
Lawyers for Sanchez argued that that was a constrained reading of the law. But Kagan said it was not up to the court to decide that what the law does “is not enough.”
She noted that it does not mean that everyone with TPS is barred from seeking permanent lawful status. For instance, she wrote, a foreign national who entered the country legally on a tourist visa but stayed on after the visa’s expiration would meet the requirement that he entered the country lawfully.
And Congress can change the law to help people like Sanchez, she said: “Legislation pending in Congress would do just that.”
The case is Sanchez v. Mayorkas.
Another state-secrets case
The court said it would also consider in the term that begins in October a case brought by the FBI, which does not want to turn over some information in a case brought by three Muslim men in California.
The men were seeking evidence for the claim that the FBI violated their religious rights by targeting their Orange County community in 2006 and 2007 using an informant who posed as a convert to Islam.
“The explicit purpose of this operation was to gather information on Muslims in Orange County — not terrorists, spies, or even ordinary criminals, but Muslims,” said a brief filed by the men, Sheikh Yassir Fazaga, an imam at the Orange County Islamic Foundation, and Ali Uddin Malik and Yasser AbdelRahim, who regularly attended services at the Islamic Center of Irvine.
The FBI invoked the state-secrets privilege, under which the government can refuse to produce evidence that would damage national security.
A district judge dismissed the case, but the U.S. Court of Appeals for the 9th Circuit revived it. In a decision that splintered the court, a majority of judges agreed with a panel’s decision that a provision of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a judge to look into certain government surveillance outside of public view.
The government told the Supreme Court that it was a “startling” decision that could override the executive branch’s invocation of the state-secrets privilege.
It is the second state-secrets case the court has accepted for the coming term. The government has also contested a 9th Circuit decision that sided with a Guantánamo Bay terrorism suspect’s request for more information about his CIA-sponsored torture.
The prisoner is Abu Zubaida, once a prized capture whose torture after the 9/11 terrorist attacks has been extensively documented. But the government has invoked the privilege to oppose his efforts for additional information about foreign intelligence officials who partnered with the CIA in detention facilities abroad.
The cases are FBI v. Fazaga and United States v. Zubaydah.