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SCOTUS Unanimously Decides Some Protected Immigrants Ineligible for Green Cards
Peggy Sands Orchowski -- Immigration Expert Peggy Sands Orchowski -- Immigration Expert
Washington, DC
Friday, June 18, 2021


SCOTUS Unanimously Decides:

Some Protected Immigrants Ineligible for Green Cards

By Margaret Orchowski

"What part of illegal don't you understand?  

"What part of temporary do you not understand?"

 Those are the two questions that for decades, American citizens who want immigration laws to be enforced have demanded be answered by those who advocate that mere presence and working hard at a job in the U.S. are legitimate grounds for most all illegal immigrants to be given the coveted Legal Permanent Status – aka a green card.

On June 7, 2021, the Supreme Court of the United States answered those two questions, partially. In a unanimous ruling, all nine justices agreed that migrants who came into the country illegally and then were granted a temporary protected status, were ineligible to apply for a green card. The decision was written by (liberal) Justice Elena Kagen,  

The TPS designation is granted to migrant applicants who came from (currently) 12 designated countries "ravaged by war or natural disasters earthquakes or other extraordinary conditions that could make it dangerous for them to live there". It protects the qualified migrant from deportation and allows them to work legally in the United States until the extraordinary conditions in their homeland have been deemed ameliorated. As Justice Kagen wrote,  "The conferral of TPS gives foreign nationals non-immigrant status, but it does not admit them."

The distinction is important. The justices noted that federal law requires immigrants to have been "inspected and admitted or paroled" in the U.S. prior to seeking permanent residenc.  By definition those who enter illegally do not go through that process. Applying for and being accepted for a protected status does not count as entry inspection,

It is not known exactly how many of the some 600,000 TPS recipients identified by the PEW research center came in illegally. Some press reports refer to 400,000 TPS recipients could be affected by the ruling.  It also is unclear as yet whether TPS recipients who came into the United States legally on other temporary visas and then knowingly overstayed them – a misdemeanor – can apply for permanent status.

Are DACA recipients next?

DACA/DREAMERs   The TPS ruling could set a precedent for other court cases for illegal immigrants who applied for and received special waivers fro deportation – especially the so-called DACA (Deferred Action for Childhood Arrivals) program that President Obama created by an executive memo in June of 2012.  It allowed those "who came into the United States – legally or illegally -- before the age of 16 and before 2007 and are in unauthorized/illegal status at the time of application, to qualify for a two year deferral from deportation and a work visa. Those benefits were extended several times by the Department of Homeland Security, even as President Trump tried to rescind Obama's executive memo. DACA is not a law.

It is estimated that a large percentage of the current 680,000 DACA recipients came into the country illegally. The majority come from Mexico. By definition they are now in their mid 20s-30s.  Many have been here over ten years. All are currently "unauthorized" illegal immigrants – "documented undocumented immigrants" so to speak. Under the precedent of the June 7 ruling, those who came in illegally would not be eligible to apply for green cards.

The ruling may put pressure on Congress to pass a law that specifically allows DREAMERs to be eligible to apply for legal permanent status and eventually citizenship if they wish. That process has been included in every unpassed comprehensive immigration bill since 2007. Since 2010, even stand alone bills to give DREAMERs green cards have failed --  probably because the sympathetic though hyped image of innocent childhood arrivals is seen by Democrats as too good of a bait and switch for huge reform bills, to allow to be wasted on a single standalone bull.

DREAMER advocates may have waited too long.  Now DACA/DREAMERs who came in illegally may not qualify at all.  It now appears that all the justices on the supreme court justices do understand the words "Temporary" and "illegal".

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“We can’t know where we’re going if we don’t know where we’ve been”. Vice President of the Brookings Institution Darrell West wrote in recommending Peggy Sands Orchowski’s books   "The Law That Changed The Face of America: The Immigration and Naturalization Act of 1965" and  "Immigration and the American Dream: Battling the Political Hype and Hysteria" (Rowman & Littlefield, 2015 and 2008 respectively).  Peggy is a credentialed Senior Congressional journalist in Washington DC. She is available for interviews, article assignments and speaking engagements about immigration   porchowski@hotmail.com

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