Sanchez v. Mayorkas

In this amicus brief, the ACLU, National Immigration Litigation Alliance, and Northwest Immigrant Rights Project urge the Court to hold that all noncitizens granted Temporary Protected Status (“TPS”) are authorized to seek lawful permanent residence in the United States.

Under the Immigration and Nationality Act (“INA”), the Secretary of Homeland Security may designate a foreign country for TPS due to conditions that prevent its nationals from returning safely. These conditions include an ongoing armed conflict (such as civil war); an environmental disaster (such as earthquake or hurricane) or an epidemic; or other extraordinary and temporary conditions. Applicants must pass a rigorous application and screening process. Once granted TPS, recipients may not be deported and can obtain work permits.

This case addresses whether TPS recipients may obtain lawful permanent residence in the U.S. (or a “green card”) based on sponsorship by a close family member or an employer. Specifically, the INA allows eligible noncitizens to adjust to lawful permanent resident status if they were “inspected and admitted” into the U.S. 8 U.S.C. § 1255(a).

The court below held that only some TPS recipients are eligible to apply for a green card: namely, those who have been inspected and admitted at a port of entry to the country. However, Congress crafted the TPS statute to treat all TPS recipients as “nonimmigrants” under the INA. Specifically, 8 U.S.C. § 1254a(f)(4) directs that noncitizens “shall be considered as being in, and maintaining, lawful status as a nonimmigrant” “for purposes of adjustment of status.” (emphasis added). Furthermore, nonimmigrants are, by definition, inspected and admitted into the U.S. Some are inspected and admitted at a port of entry; others are deemed to have been inspected and admitted stateside. Because Congress mandated that a TPS recipient “shall be considered as” a “nonimmigrant,” the recipient is also deemed to have been inspected and admitted, whether at a port of entry or within the U.S. TPS recipients, like nonimmigrants, are therefore eligible to adjust their temporary status to permanent resident status—so long as they meet the other requirements for doing so.

The amicus brief urges the Court to reverse the decision below and recognize that Congress purposefully cast TPS recipients like nonimmigrants, and thus deemed them inspected and admitted, for purpose of adjustment of status. The brief also argues that treating all TPS recipients as having been inspected and admitted for purposes of adjustment of status furthers the purpose of the TPS statute by permitting persons who have long lawfully resided in this country the opportunity to become permanent residents where otherwise eligible to do so, to the same extent that nonimmigrants may.