Sanchez v. Mayorkas and the Perilous Future of Migrant Rights in the United States
In a unanimous ruling, the U.S. Supreme Court held in Sanchez v. Mayorkas (2021) that all immigrants who entered the country illegally cannot obtain green cards, regardless of having already held temporary protected status. This decision highlights the vague way that U.S. court systems define “legal entry” into the United States— an issue which is a major concern among immigration attorneys and migrants alike, as its definition and application has lasting effects on present and future migrant populations. It is important to inspect the potential human rights implications of the Sanchez decision on migrants. Although the Supreme Court’s decision in Sanchez v. Mayorkas does not directly contradict existing international immigration law, the dangerous legal precedent set in Sanchez highlights the United States’s critical need to take further steps towards compliance with existing human rights law as it pertains to migrants.
Jose Sanchez, the petitioner in Sanchez v. Mayorkas, arrived in the United States illegally after leaving El Salvador in 1997, citing “unsafe living conditions.” [1] Multiple years after his entry, Sanchez applied for and received Temporary Protected Status (TPS), which was “entitling him to stay and work in the United States as long as those [unsafe living] conditions persist.” [2] Sanchez then filed to receive Lawful Permanent Resident (LPR) status, more colloquially referred to as a green card. In Sanchez v. Mayorkas, the Supreme Court analyzed “whether the conferral of TPS enables [Sanchez] to obtain LPR status despite his unlawful entry.” [3] On June 7th, 2021, Justice Elana Kagan gave the Supreme Court’s unanimous decision: despite Sanchez holding TPS, he could not obtain LPR status due to his entering the country unlawfully.
In coming to their decision, the Supreme Court turned to existing immigration law from the U.S. code to define what exactly constitutes legal entry. 8 USC §1255 emphasizes that LPR status is only eligible to those who have been admitted to the United States. [4] Kagan explains that “an ‘admission’ is defined as ‘the lawful entry of the alien into the United States after introspection and authorization by an immigration officer.’” [5] Since petitioner Sanchez was not inspected and authorized to enter the United States by an immigration officer when he first arrived in 1997, he therefore did not enter the United States “lawfully,” the Supreme Court asserted. [6]
Interpreting what constitutes legal entry for immigrants has become a critical issue in the context of international law. Internationally, migrant groups receive extensive protections from United Nations-backed treaties. One major source of protections is the International Covenant on Civil and Political Rights, also known as the ICCPR. Article 12 of the ICCPR highlights important protections for migrant groups; inalienable protections highlighted in the ICCPR include allowing for everyone living lawfully within a territory to have the freedom to choose their residence and move as they desire, as well as the ability to leave any country, including their own. [7] The ICCPR also emphasizes that these rights are generally unrestricted. [8] The United States Senate ratified the ICCPR in June of 1992, but with a major stipulation - the ICCPR would be “‘non-self executing,’ meaning that it would not act as binding law in United States courts.” [9] This means that the ICCPR would act as an advisory doctrine; United States case law would take ultimate precedence over the ICCPR. Another major U.N.-backed treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR) also guarantees equal socioeconomic protections for individuals, regardless of immigration status; there are no conditions to these protections for those residing in developed countries. [10] The United States is one of a few major developed nations that has yet to ratify the ICESCR.
The ICCPR and the ICESCR, out of respect for state sovereignty, give deference to each country’s own immigration laws. Decisions like that of Sanchez v. Mayorkas do not necessarily contradict existing international law, as there is a profound emphasis on individual states defining admission themselves; there is no overarching definition of admission or legal entry universally accepted across international bodies. Despite these limitations, many believe that domestic courts do not have complete deference over defining lawful immigrant entry and admission. In “The General Admission of Aliens under International Law,” Professor James Nafziger argues that domestic courts should not define their own means of excluding aliens “without regard to the exigencies of world order.” [11] Vincent Chetail, author of “The Human Rights of Migrants in General International Law: From Minimum Standards to Fundamental Rights,” further points out that states do not have complete discretion over the admission of non-citizens; a court’s ruling on migrant entry should align with existing international norms. [12] Both Nafziger and Chetail emphasize that decisions made by domestic states do not hold overarching superiority over international doctrines. Rather than having international laws bend to the will of domestic bodies, Nafziger and Chetail argue that domestic bodies should accommodate international laws, even if they are not necessarily required to do so.
It is pertinent to further consider the human rights implications of the decision in Sanchez v. Mayorkas. The Supreme Court’s narrow definition of legal entry is incredibly harmful to immigrant communities. Temporary Protected Status is just that— temporary. To deny lawful permanent residence to those who have remained in the United States for simply “entering illegally” is inhumane. Sanchez and other migrants who hold TPS have built their lives in the United States, and deserve to live without fear of being deported to their homelands in the off chance that their TPS status is revoked. By denying green cards to certain TPS holders, the U.S. is limiting legal pathways to citizenship. Furthermore, discriminating against those who enter the United States “unlawfully” does not align with the U.N.’s existing position on migrants. The International Organization on Migration (IOM), an agency of the U.N., posts an annual session document recounting their yearly accomplishments in promoting migrant rights. The 69th Session Document, released in 2014 by the U.N. General Assembly, highlights an emphasis on recognizing immigrants as persons with “legal status” (even if they did not enter a country legally) and as “drivers of development.” [13] The IOM further recommends that domestic migration laws should comply with international standards and promote migrant rights. [14] The United Nations Human Rights Office of the High Commissioner recognizes that “States are entitled to exercise jurisdiction at their international borders, but they must do so in light of their human rights obligations.” [15]
The Supreme Court’s recent decision in Sanchez v. Mayorkas has inflicted a sobering gut-punch to migrant communities across the United States. The Sanchez decision has only made life more precarious for immigrants who entered this country without admission by denying them the possibility of obtaining LPR status. By decreasing migrants’ mobility, the Supreme Court’s decision could play into existing exclusionary precedent for immigration policy. In the past four years alone, presidential acts such as Executive Orders 13769 and 13780— both known as “the Muslim ban”— and attempted repeals of Deferred Action for Childhood Arrivals (DACA) have inhibited migrants’ ability to enter and stay in the United States, fueling anti-immigrant rhetoric. [16] It is pertinent for the United States to remedy past orders by reaffirming its commitment to humanitarianism.
There are specific steps that can be taken by the United States to rectify the damage caused by the ruling in Sanchez v. Mayorkas. First, the United States should restart the ratification process for the ICESCR. Second, Congress should circumvent the ruling in Sanchez by passing the pending American Dream and Promise Act. Under this bill, inadmissibility would not be a factor in rejecting LPR status. [17] It is critical to take action and protect the human rights of immigrant populations both here in the United States and abroad; remedying dangerous legal precedent such as the one set in Sanchez is essential to comply with international human rights law.
Edited by Genevieve Cabadas
Sources:
[1] Sanchez v. Mayorkas, 593 U. S. ____ (2021)
[2] Id.
[3] Id.
[4] Adjustment of status of nonimmigrant to that of person admitted for permanent residence, U.S. Code 8 (2008), §1255.
[5] Sanchez v. Mayorkas, 593 U. S. ____ (2021)
[6] Id.
[7] The United Nations General Assembly, “International Covenant on Civil and Political Rights,” opened for signature December 16, 1966, Treaty Series 999: 171.
[8] Id.
[9] Aaron Thompson, “The United States and the ICCPR” 2 The SAIS Review of International Affairs 28, 105-06 (2008).
[10] The United Nations General Assembly, “International Covenant on Economic, Social, and Cultural Rights,” opened for signature December 16, 1966, Treaty Series 999: 171.
[11] James A. R. Nafziger, "The General Admission of Aliens under International Law," 77 The American Journal of International Law 4, 804-47 (1983).
[12] Vincent Chetail, “The Human Rights of Migrants in General International Law: From Minimum Standards to Fundamental Rights.” 28 Georgetown Immigration Law Journal 1, 225-255 (2013).
[13] United Nations General Assembly, Report of the Special Rapporteur on the human rights of migrants (New York, NY: UN Headquarters, 2014).
[14] International Organization for Migration, “106th Session Migration Governance Framework,” C/106/40, November 4, 2015.
[15] United Nations Human Rights Office of the High Commissioner, Recommended Principles and Guidelines on Human Rights at International Borders (New York, NY: UN Headquarters, 2014).
[16] Eleanor Acer and Robyn Barnard, “CIVIL RIGHTS: The "Muslim Ban" Violates U.S. Law and Treaty Commitments,” 43 Litigation 4, 9-10 (2017); Shoba Sivaprasad Wadhia, "Deporting Dreamers," Banned: Immigration Enforcement in the Time of Trump, 62-78 (NYU Press 2019).
[17] H.R.6 - 117th Congress (2021-2022): American Dream and Promise Act of 2021, Congress.gov (June 15, 2021), online at https://www.congress.gov/bill/117th-congress/house-bill/6 (visited July 17, 2021).