Entry Fiction in U.S. Immigration Law

This week the Supreme Court issued a unanimous decision in Sanchez v. Mayorkas, which distinguished between being granted Temporary Protected Status (TPS) and being formally “admitted” into the country. It ruled that Jose Santos Sanchez, a Salvadoran, will not be able to become a legal permanent resident even though he has lived in the United States for more than twenty years. This is not the first time the courts have made rulings that might satisfy jurists, but seem Kafkaesque to the rest of us.

In 1980, 125,000 Cubans fled the island from the port of Mariel just outside of Havana. When they arrived in Florida, they were labeled as “entrants,” a strange new designation that meant that they were considered to be on the threshold of the country even though they were now living in the U.S. with legal status.

Most of the Mariel Cubans were eventually paroled into the U.S. Some had married and even had U.S. citizen children. However, because of the “entry fiction” whereby they were considered to not be inside of the country, they were denied due process. Some of them ended up committing crimes in the U.S., mostly low-level offenses like drug possession. However, once their criminal sentence was completed, they were deported because their criminal record made them ineligible to become permanent residents.

Given that Cuba refused to receive these deportees, more than 2,400 of them spent years, some more than a decade, in indefinite detention, awaiting a deportation that was impossible to complete. At a congressional hearing in 1987, Representative Robert Kastenmeir declared, "We cannot stick our heads in the sand, hiding behind the legal fiction that the Mariel Cubans are not really here and therefore not due any legal rights."1

Flash forward to 2021, and the Supreme Court has decided that because Jose Santos Sanchez entered the country without authorization, that for the purposes of immigration he is not considered to have been “admitted” even though he was granted TPS. In the words of a Third Circuit Court, “a grant of TPS does not constitute an ‘admission’ into the United States.”

The fact that the Supreme Court was unanimous suggests that, according to the law, they are on solid ground. However, the mental gymnastics involved in pretending the Mariel Cubans were still outside the country even though they had lived for years within it, or that Sanchez was not admitted into the country even though he had lived here for more than two decades, suggests that our greatest jurists are really magical realist fiction writers in robes.