High Court Forecasts Defeat for Immigrants Who Fled Earthquake

The married challengers have been ruled ineligible to upgrade their temporary protected status to legal permanent resident because they did not enter the United States legally.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — A couple that would have to go back to El Salvador after decades in the United States if they want to get green cards made little headway at the Supreme Court in seeking what their lawyer called a “humanitarian conclusion.”

The case involves limits on so-called TPS, or temporary protected status, which Congress created in 1990 to protect immigrants and refugees from deportation when they’re unable to return home due to natural disasters or armed conflicts, among other conditions.

Jose Santos Sanchez and his wife, Sonia Gonzalez, received this designation in 2001, having fled El Salvador after a devastating earthquake. When the couple sought to adjust their status to that of lawful permanent residents in 2015, however, the Third Circuit ruled them ineligible because they were not properly “inspected and admitted” at a U.S. point of entry.

Representing the couple, Williams & Connolly attorney Amy Saharia argued Monday that the federal immigration code should allow the Sanchez and Gonzalez to upgrade their status. 

“Some of the forms as lawful status, like asylum, do not require admission,” she argued.

Justice Brett Kavanaugh was skeptical from the get-go, saying Sanchez and Gonzalez faced an “uphill climb” with their interpretation of the framework.

“We need to be careful when tinkering with the way the statutes are written when Congress has such authority,” the Trump appointee warned.  

“Why should we jump in here, he continued, “when Congress is very focused on immigration, and you’re relying on inferences?”

Just last month, the House passed legislation called the Dream and Promise Act that would make legal permanent residence possible for the 400,000 individuals with temporary protected status, 80% of whom have been in the U.S. for more than 20 years like the Sanchez and Gonzalez.

For now, though, Assistant to the U.S. Solicitor General Michael Huston argued Monday that the law is clear. “Congress did create exceptions for adjustment of status but not for TPS,” he said.

Chief Justice John Roberts, a George W. Bush appointee, asked whether the government “undersold” its argument in their briefs with phrases like “the text doesn’t foreclose your position,” and “the court was not required to accept your reading.”

“Do you want us to say your interpretation of the statute is the correct one?” he asked.  

“When an agency, as in this case, has consistently interpreted the issues, the court has no need to decide otherwise,” Houston responded. “It’s the analytical approach and we think you should follow that here.” 

Justice Samuel Alito asked what resolution of the Sanchez and Gonzalez’s case would mean for future designations. 

“If we say the government has the better interpretation, won’t that foreclose you from later changing your position?” the George W. Bush appointee asked. 

“It’s not a question the court has reason to address now,” Houston responded. “The agency has a reasonable interpretation and it’s a better one.” 

Judge Amy Coney Barrett similarly pushed the idea of giving the agency control of the issue, known as Chevron deference.

“You’re asking us to give you Chevron, how do we avoid some of the issues around interpretations the government has taken?” the Trump appointee asked. 

“You could resolve the case by saying the government has the better reading, affirm the judgement below and say no more,” Houston said. “You could also say our position is reasonable and petitioners haven’t met the bar.” 

Jaime Aparisi, another attorney for Sanchez and his wife, said he hoped the high court would reach the “correct humanitarian conclusion that TPS beneficiaries are considered admitted for adjustment of status purposes.”

“Our clients are immensely grateful for the the support of the eleven amici that wrote briefs in support of our position, all of whom recognize the tremendous contribution of TPS recipients to their communities,” Aparisi said in an email, pointing to the hefty pile of briefs from states, human rights and labor groups who all hope to see the capacity for status adjustment extended to TPS immigrants. 

“The U.S. economy depends on workers with TPS to fill critical positions in essential industries, including healthcare,” Erica C. Lai with Cohen & Gresser wrote in one brief on behalf of labor unions. “Without an avenue to seek a permanent legal status, TPS workers are effectively trapped in legal limbo, and the long term availability of labor to employers in critical industries remains in question.”

In another brief, though, Christopher J. Hajec with the conservative Immigration Reform Law Institute wrote that the system is designed with purpose, “provid[ing] a strong incentive for aliens to comply with our immigration laws.”

“According to Petitioners’ view of the law, even aliens who evaded immigration officers and surreptitiously entered the country years ago, worked without authorization, and accrued years of unlawful status in the United States are deemed to have entered the country in accordance with our laws and to be in lawful status for purposes of adjustment of status,” Hajec wrote. 

Hajec was optimistic in a statement following Monday’s oral arguments.

“When it came to the government, the chief justice’s only criticism was that its brief hadn’t presented its case as strongly as it could have,” he said. “He successfully pressed the government’s counsel to say its interpretation was correct, not just that it should be deferred to as reasonable.

“The main action in this case may be whether the petitioners lose because the court concludes they are wrong, or because the court defers under Chevron to the government’s reasonable interpretation,” he added. 

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