The Injustice of Temporary Protected Status

Earlier this month, on June 7, the Supreme Court unanimously ruled in Sanchez v. Mayorkas that Jose Santos Sanchez and Sonia Gonzalez (who petitioned along with her husband) cannot become lawful permanent residents (LPRs) without leaving the United States. This case illustrates the chasm between our existing immigration system and justice. In particular, it points to the need for a clear, fair, and easily obtained mechanism for allowing longstanding U.S. residents to obtain permanent residence and a path to citizenship.

Santos Sanchez entered the U.S. unlawfully in 1997, but was able to adjust his status after the U.S. government designated El Salvador with Temporary Protected Status (TPS) in the wake of the devastating 2001 earthquake. The Homeland Security Secretary has the authority to grant TPS in cases of ongoing armed conflict, environmental disaster, or other “extraordinary and temporary” conditions that make it unsafe or infeasible for people to return. TPS recipients are permitted to reside legally in the U.S. and to work, as long as their country continues to receive TPS. TPS recipients are not eligible for permanent residence, but some have opportunities to adjust their status through employment or marriage.

In 2014, immigration officials approved Santos Sanchez’s application for lawful permanent residence with his employer’s sponsorship, simultaneously adjusting the status of Gonzalez. It followed this decision by denying his application to adjust his status without leaving the country, effectively preventing him from becoming a permanent resident. People such as Santos Sanchez who entered the U.S. without authorization are barred from reentry for three years if they stayed more than 180 days with unlawful presence, ten years if they stayed longer than a year, and permanently if they stayed longer than a year, then re-entered unlawfully. The court’s ruling closes one of the few avenues for TPS holders to adjust their status, since—as Maryellen Fullerton observes in the SCOTUSblog—the vast majority of TPS holders entered the U.S. unlawfully.

Justice Kagan’s opinion from last week hinges around a distinction between “status” and “admission”—Santos Sanchez received lawful nonimmigrant status under TPS, but he was not lawfully admitted to the country. Legal scholars might contest Justice Kagan’s interpretation of the Immigration and Nationality Act’s ambiguities. My goal is instead to share insights about temporary status from political philosophy that help articulate what is so unjust about this decision.

Political philosophers have not written much about temporary protected status in the U.S. (Matthew Lister’s work on complementary protection is an exception), but they have examined the ethics of temporary worker programs and the conditions under when people should have a moral entitlement to regularize their status. Joseph Carens observes that people, regardless of their legal status, become members of the community where they live, working, marrying, raising children, and participating in community life.

In most cases, TPS is a misnomer. The program is designed for people unable to return to their homes for a short period of time. Instead, unsafe conditions typically persist over years or decades, leading to periodic renewals of status. Santos Sanchez’s length of residence in the U.S. is typical: about half of TPS holders maintain this status for over 20 years. TPS holders are members of our communities and deserve the accompanying legal status that confirms this membership.

Adam Hosein focuses on how the lack of opportunities to regularize status undermines immigrants’ autonomy, particularly the ability to securely form long term plans and relationships. Moreover, this has implications for the state's legitimacy. States that exercise power over long term residents whose legal status prevents them from shaping and contesting the laws and policies fall short of democratic ideals. The precarity of TPS holders’ lives was starkly illustrated during the Trump administration when the Department of Homeland Security attempted to terminate TPS for El Salvador, Haiti, Nicaragua, and Sudan. People with TPS are subject to U.S. law and policies, including the obligation to pay taxes. Nonetheless, they are permanently excluded from the franchise.

Furthermore, we tolerate a system in which millions of people live as part of our community, but with unequal status. This includes unauthorized or illegalized immigrants (I prefer the adjective illegalized which draws attention to how this status is created by state policies), as well as people with TPS. This undermines a commitment to the equal worth of people in our community and creates systemic vulnerabilities for people designated by law as possessing unequal rights. A just immigration system cannot indefinitely condemn people to unequal status. It must have mechanisms that allow people to acquire permanent residence and citizenship.

One hopes that Justice Kagan’s decision is remedied through the American Dream and Promise Act of 2021, which passed in the House and is currently with the Senate Judiciary. It provides a welcome legislative solution with the option of conditional permanent residence status DACA recipients and to people with TPS.