In Sanchez v. Mayorkas, the Supreme Court ruled 9–0 that if a person entered the United States without inspection, but was later granted TPS, that person is not deemed to be “inspected and admitted”, and therefore cannot establish eligibility for adjustment of status under INA 245(a) (8 U.S.C. §1182(a)).
At first, the ruling appears to be a straightforward reading of the Immigration and Nationality Act. The general adjustment of status statute, INA 245(a), provides as follows:
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General …
INA 245(c)(2) also prohibits the approval of the application if the applicant has
unlawful immigration status on the date of filing.
The relevant TPS statute, INA 244a(f)(4) (8 U.S.C. §1254a(f)(4)), states as follows:
During a period in which an alien is granted temporary protected status under this section- […] for purposes of adjustment of status under section 1255 of this title and change of status under section 1258 of this title, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.
The argument advanced by DHS, and accepted by the lower court, was that INA 245 requires both a prior admission and a valid status at the time of filing, and that the language in INA 244a(f)(4) is targeted at this latter requirement; a person with TPS is considered to have lawful nonimmigrant status, but nothing in the statute requires that they be treated as if they were admitted.
I think Sanchez was probably screwed no matter what, but I also think that his counsel could have advanced more persuasive arguments. Their primary argument was that there is an
indissoluble relationship between admission and nonimmigrant status; that an understanding of the INA supports the point of view that anyone who has nonimmigrant status should be considered (for all purposes, and not just INA 245) to have been admitted. The Court noted that U status is an exception: a person who enters the United States without inspection, but is the victim of certain serious crimes, may apply for, and be granted U nonimmigrant status notwithstanding the fact that they weren’t admitted. So it’s no surprise that all nine justices found that the plaintiffs’ argument falls apart (and not only were there no dissents, but there were no concurring opinions either!): not all noncitizens who have nonimmigrant status under INA 101(a) are admitted; and therefore there’s no basis to say that the constructive nonimmigrant status granted by INA 244a(f)(4) entails an admission, either.
To me, there is a different, stronger argument that maybe, at least, Sotomayor and Breyer would have accepted. Sanchez still would have lost 7–2 or worse, but it’s interesting to think about. My argument is that if you look at the INA, you see that in general there’s a lot of sloppy drafting, where Congress, by writing
an alien admitted under section X or similar, really means
an alien who holds X status.
A great example of this is INA 245(l), which allows
a nonimmigrant admitted into the United States under section 1101(a)(15)(T)(i) to adjust status. However, if going by the literal definition of admitted, then no one can possibly qualify for this, because it’s impossible to be inspected by CBP and granted admission in T-1 status. T-1 status is only granted to people who can demonstrate that they are in the United States
on account of being a severe form of human trafficking. If CBP granted someone admission in T-1 status, then they would basically be giving the traffickers free rein to bring that person into the US. To have T-1 status, one of two things must happen: the traffickers must have smuggled you into the US, or you must have been coerced by the traffickers into entering the US in some legal manner (such as using a B-2 visa), after which you made your claim for T-1 status. Now, Congress obviously didn’t literally mean you must have been admitted in T-1 status in order to qualify under INA 245(l), since that would apply to nobody. Nor is it reasonable to interpret 245(l) as permitting adjustment only for people who were literally admitted into the US, and now hold T-1 status. That would yield an absurd result: people who were kidnapped and smuggled into the US by traffickers wouldn’t be able to benefit from 245(l).
It’s clear that when Congress wrote 245(l) (and we can find many other parts of the INA that were written similarly), the
admitted wording was not meant to denote literal admission, but rather, the granting of the relevant nonimmigrant status. Congress did, in some cases, use more precise wording such as
an alien admitted (or otherwise provided status) …. This reflects the fact that the different parts of the INA were not all written by the same congresspeople, and some of them (or their staffers, at least) are more precise than others.
Since Congress routinely conflates admission with the granting of nonimmigrant status, it would be reasonable to assume that, except where explicitly stated otherwise, any grant of nonimmigrant status is an admission. This is the obvious way to make 245(l) and other parts of the INA make sense.
To be clear, the Third Circuit did already reject this argument, citing In re H-G-G-, 27 I. &N. Dec. 617, 635 (AAO 2019) (citing In re V-X-, 26 I. &N. Dec. 147 (BIA 2013)), which found that a grant of asylum is not an admission. I believe that this precedent should also be overturned; a grant of asylum is also an admission (though not as a nonimmigrant, certainly). In re V-X- acknowledged that a grant of adjustment of status is an admission: for example, if a person had entered the United States without inspection but managed to get a green card (whether through asylum, the Cuban Adjustment Act, U status, or some other route) then the BIA would consider them
admitted as of the date LPR status is granted. This is because, in their words,
declining to consider adjustment of status as an “admission” would result in bizarre and absurd consequences, among them being the fact that “many lawful permanent residents would be considered inadmissible, despite their lawful status, based on their presence in the United States without having been admitted. (citing Matter of Alyazji, 25 I&N Dec. at 399). In In re V-X-, the BIA argues that no similar absurdities occur when they decline to also consider a grant of asylum to be an admission. I disagree! For example, INA 212(a)(9)(B) penalizes noncitizens who have been
unlawfully present in the United States for 180 days or more, where the class of
unlawfuly present noncitizens includes those who are
present in the United States without being admitted or paroled. There is an exception for periods of time
in which an alien has a bona fide application for asylum pending. It’s obvious that once the person’s asylum application is granted and the person has asylum status, they are no longer unlawfully present; it would indeed be bizarre and absurd to say that they are lawfully present while their application is pending, but not after it is approved. And yet there is no explicit language in the INA that says that a person (who entered without inspection) granted asylum is not unlawfully present, unless we consider that person to be admitted by such grant. To be clear, in most cases, this doesn’t matter; the asylee will adjust to permanent resident status, and 212(a)(9)(B)(i) will cease to apply to them. However, if the asylee, for example, married a Canadian citizen, relocated to Canada, and eventually became a Canadian citizen, it would be bizarre and absurd if they were banned from visiting the US on account of having once been an asylee, who was not
admitted to the United States, and was therefore considered unlawfully present while an asylee.
We can also apply this reasoning to the case of U status that the Court discussed. A person might have entered the United States without inspection and then obtained U status, and then left the US after the inspection was complete; USCIS policy is that anyone in nonimmigrant status (including U status) is not accruing unlawful presence. Yet again, looking at 212(a)(9)(B)(ii), unlawful presence includes being present without admission or parole. USCIS policy here (which is just common sense; a person who has valid status cannot be said to be unlawfully present) can again be squared with the statute by considering the grant of U status to be an admission.
It should be so for TPS as well. Any grant of LPR status, nonimmigrant status, asylum, TPS, or any other kind of status authorized by Congress, to a person who was not already admitted to the United States, should be considered an admission, because this is required in order to make sense of the INA.
Finally, I also reject the argument raised by the defense (and accepted by the Court) that if a grant of nonimmigrant status were automatically an admission, then the
inspected and admitted or paroled requirement of INA 245(a) would be superfluous. The reason why it is not superfluous is that some kinds of 245(a) applicants don’t need to have valid status at the time of filing: for example, immediate relatives of US citizens. We may draw an analogy with the following hypothetical
Narnian nationality law:
A person who, at the time of their birth, has at least 1 parent who is a Narnian citizen is a Narnian citizen at birth if:
- Both of their parents are Narnian citizens at the time of the person’s birth; or
- The person is born in Narnia; or
- The person would otherwise be stateless at the time of their birth.
This is a perfectly reasonable way to write the law: anyone claiming Narnian citizenship through this paragraph must satisfy the requirement to have one Narnian citizen parent, and at least one additional criterion. One of those possible criteria, namely having two Narnian citizen parents, clearly implies the threshold requirement of having one Narnian citizen parent. But there are other possible criteria which don’t; therefore, none of the words in this paragraph are superfluous.
It is the same with INA 245(a) and (c): the condition of being admitted or paroled in INA 245(a) is analogous to the requirement to have 1 Narnian citizen parent. The additional conditions in INA 245(c) are analogous to the following additional criteria: either you must have valid status at the time of filing (which implies having been admitted or paroled, the way that having 2 Narnian citizen parents implies having 1 Narnian citizen parent), or you must be an immediate relative of a US citizen. (I have simplified the statute a lot here; there are other requirements and criteria as well.)
In conclusion, having valid status (including status that was granted after entry, in the case of a person who entered without inspection) should be considered an admission (except in the case of parole); this is necessary to make sense of the INA, and it does not render INA 245(a) superfluous. Therefore, TPS holders should be considered to satisfy the requirement of INA 245(a).