With so much division politically in our country, it is kind of unusual to see a unanimous decision from the Supreme Court on something as polarizing as immigration. But that is exactly what happened in the highest court of the land.
It was a 9-0 decision that was issued this week by the Court, ruling that the law which barred illegal immigrants from getting a green card is constitutional. They further noted that those illegal immigrants who ultimately earned a Temporary Protected Status (TPS) are still ineligible to apply for permanent residency.
It was one of the Court’s most liberal justices who wrote the unanimous opinion on the case. Justice Elena Kagan upheld a ruling that barred “unlawful entrants” who later received Temporary Protected Status from applying to remain in the United States.
Kagan wrote that the TPS “gives foreign nationals nonimmigrant status,” but the status does not rubber-stamp an “unlawful entry.” She went further in explaining that the Temporary Protected Status “applies to people who come from countries ravaged by war or disaster. It protects them from deportation and allows them to work legally.”
The origin of this case focused on a couple from El Salvador who has been in America since early in the 1990s. They were given protected status in 2001, but they had originally entered the United States illegally. When they were given Temporary Protected Statius, they also were enabled to apply and receive a green card.
Kagan made it clear that the Court did not find this practice constitutional. “The TPS program gives foreign nationals nonimmigrant status, but it does not admit them. So the conferral of TPS does not make an unlawful entrant…eligible,” she wrote.
The liberal Supreme Court justice declared that if Congress wanted to give “admission” into the United States with the TPS, they could have done so when they wrote the law. She further explained that Congress also has a chance to approve “pending legislation” that refines the Temporary Protected Status to include “admission.”
“Congress, of course, could have gone further, by deeming TPS recipients to have not only nonimmigrant status but also a lawful admission. Legislation pending in Congress would do just that,” Kagan wrote in her opinion.
Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, disagreed with the decision writing: “Today’s decision is not just a setback for those immigrants currently in Temporary Protected Status who did not enter the United States lawfully; it also reinforces the barriers that Dreamers would face until and unless Congress provides a statutory path to some kind of permanent lawful status.”
“The Executive Branch may have some authority to confer forms of temporary legal status on those who crossed the border without permission, but the Supreme Court today reinforced, however indirectly, that only Congress can provide a permanent answer,” he added.
In the actual courtroom, Amy M. Saharia, a lawyer for the El Salvadorian couple Jose and Sonia Gonzales, argued that having been admitted is “inherent” in the TPS status. But Michael R. Huston, assistant to the US solicitor general, made a distinction between status and admission, arguing against the couple.
This decision will affect approximately 400,000 people who may not have entered the country by lawful means from 12 countries — Haiti, Honduras, Myanmar, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Venezuela, and Yemen.
This recent ruling will create even more frustration between the Biden administration and certain immigrant groups that are uneasy with the president’s immigration agenda. They want him to be more liberal when it comes to letting immigrants who enter the United States illegally stay.