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06/08/2021

Sanchez v. Mayorkas: Are We All Textualists Now?
Michael Ramsey

The Supreme Court ruled yesterday in Sanchez v. Mayorkas that (as SCOTUSblog puts it): "An individual who entered the United States unlawfully is not eligible to become a lawful permanent resident under 8 U.S.C. § 1255 even if the United States has granted the individual temporary protected status." Justice Kagan's opinion for a unanimous Court relies principally on the text:

Section 1255 of the immigration laws provides a way for a “nonimmigrant”—a foreign national lawfully present in this country on a designated, temporary basis—to obtain an “[a]djustment of status” making him [a Lawful Permanent Resident] [LPR]. 8 U. S. C. §1255 (boldface deleted); see §1101(a)(15) (listing classes of nonimmigrants, such as students and tourists). Under that section, a nonimmigrant’s eligibility for such an adjustment to permanent status depends (with exceptions not relevant here) on an “admission” into this country. And an “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” §1101(a)(13)(A). The admission—or, to use the definitional phrase, “lawful entry”—requirement appears in two pertinent provisions of §1255. One states that a nonimmigrant may become an LPR only if he has been “inspected and admitted or paroled into the United States.” §1255(a). And another states that a nonimmigrant who has previously worked without authorization in the United States may become an LPR only if his presence here is “pursuant to a lawful admission.” §1255(k)(1); see §1255(c)(2).

As a result:

Section 1255 generally requires a lawful admission before a person can obtain LPR status. [Petitioner] Sanchez was not lawfully admitted, and his TPS [Temporary Protected Status] does not alter that fact. He therefore cannot become a permanent resident of this country. We affirm the judgment below.

It's become fashionable to argue that textualism cannot provide definite answers in contested cases.  (See this post from three days ago).  But in the Sanchez case it seems (to nine ideologically diverse Justices, anyway) to give a definite answer.  And lest one think this wasn't a contested issue, the Court granted certiorari to resolve a deep circuit split, per footnote 3:

Compare Sanchez v. Secretary U. S. Dept. of Homeland Security, 967 F. 3d 242, 245 (CA3 2020) (case below) (holding that such a person cannot do so); Nolasco v. Crockett, 978 F. 3d 955, 959 (CA5 2020) (same); Serrano v. United States Atty. Gen., 655 F. 3d 1260, 1265–1266 (CA11 2011) (per curiam) (same), with Velasquez v. Barr, 979 F. 3d 572, 578 (CA8 2020) (holding that he can); Ramirez v. Brown, 852 F. 3d 954, 958 (CA9 2017) (same); Flores v. United States Citizenship and Immigration Servs., 718 F. 3d 548, 553–554 (CA6 2013).

Again, the central claim in the article linked above is that "textualism is no more capable of providing a neutral truthmaker or of cabining the influence of evolving social values than any other leading method of statutory interpretation."  But that article focuses on Bostock v. Clayton County, an especially difficult case from a textualist perspective.  As I wrote in response: "It doesn't seem to me that the fact that textualism encounters hard cases (which no textualist denies) proves that 'textualism is no less 'living' than any other leading method of statutory interpretation.'  At most it shows that textualism is sometimes no less 'living' than any other leading method of statutory interpretation."  Sanchez in contrast suggests that textualism can provide a "neutral truthmaker" in the text that can prevail across ideological divisions (even against a sympathetic claimant, as Mr. Sanchez surely was).