Elena Kagan writes 9-0 Supreme Court opinion that says no to conflating legal and illegal immigration

In a unanimous decision, the U.S. Supreme Court has rejected what was possibly an attempt by open-borders activists and prominent Democrats to enable an end-run around existing law that would have conflated illegal and legal status under certain circumstances and given green cards to tens of thousands of illegal migrants.

The 9-0 ruling in Sanchez v. Mayorkas is particularly notable in that it is authored by liberal Obama nominee, Justice Elena Kagan.

The case, which is heavy on statutory construction and alphabet soup, revolves around an illegal alien from El Salvador who allegedly entered the U.S. in 1997. In 2001, he obtained Temporary Protected Status (TPR) from the federal government after earthquakes hit his home country, according to the case’s procedural history.

TPR allowed him and other similarly situated individuals to stay in the U.S. and put any potential deportation on hold as long as the dangerous conditions existed. In 2014, he applied for, but was turned down, for lawful permanent resident (LPR) status, prompting a lawsuit that eventually worked its way up to the Supreme Court.

The controlling law is set forth in 8 U.S. Code Section 1255 and requires persons to be first legally admitted to the U.S.

In her 11-page opinion, Justice Kagan appears to have closed a loophole in the law that the left might have sought to create.

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 (like Sanchez) eligible under §1255 for adjustment to his LPR status,” she wrote. “And because a grant of TPS does not come with a ticket of admission, it does not eliminate the disqualifying effect of an unlawful entry…”

“Section 1255 generally requires a lawful admission before a person can obtain LPR status. Sanchez was not lawfully admitted, and his TPS does not alter that fact. He therefore cannot become a permanent resident of this country,” Kagan concluded.

Several high-profile Democrat politicians formally supported the claimant’s case (which would have set a precedent for many thousands of others from about 12 countries) to gain permanent residency including Senators Elizabeth Warren, Richard Blumenthal, and Mazie Hirono, along with Florida Rep. Debbie Wasserman Schultz.

“Currently, there are about 400,000 people with TPS status in the country and 85,000 have managed to adjust status,” according to CNN.

George Washington University law professor and fair-minded legal scholar Jonathan Turley wrote last week that a flurry of unanimous opinions from the justices on a court with a purported 6-3 conservative majority (assuming Chief Justice Roberts could still be considered a conservative) could tamp down the left’s demand for court-packing.

“This is an extraordinary litany of unanimous decisions and could in part reflect an implied message from the justices that this is a court that is not nearly as rigid and divided as suggested by Democratic members and activists…The litany of unanimous rulings amplifies the fact that most cases are resolved with compromise and different alignments of the justices.

“There are always ‘big ticket’ cases that produce more ideological divisions but they are the exception rather than the rule for the Court.  These are honest ideological differences and we want the justices to be consistent on their underlying principles. However, most of the work of the Court remains less ideologically driven on issues ranging from statutory interpretation to evidentiary rules,” Turley explained.


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