United States | Supreme Court issues key immigration decisions on TPS, asylum processing and birthright citizenship

The U.S. Supreme Court has issued a set of significant rulings this month addressing core immigration policy questions, including judicial review of Temporary Protected Status (TPS) terminations, asylum eligibility at the U.S. border and birthright citizenship under the 14th Amendment.

Key takeaways:

Birthright citizenship reaffirmed under the 14th Amendment. In Trump v. Barbara, the Court held that children born in the United States are citizens at birth regardless of whether their parents are unlawfully or temporarily present. The Court rejected a presidential executive order seeking to limit citizenship, emphasizing that individuals born on U.S. soil are “subject to the jurisdiction” of the United States and therefore entitled to constitutional protection.

Judicial review limited in TPS termination decisions. In Mullin v. Doe, the Court majority held that “the TPS statute’s judicial-review bar applies to all non-constitutional claims,” ultimately limiting federal court oversight and legal challenges to Department of Homeland Security determinations designating, terminating or extending TPS designations.

Interim relief for TPS holders overturned. The Mullin v. Doe decision also effectively reversed lower court rulings that had paused TPS terminations for Haiti and Syria during litigation (allowing beneficiaries to stay and work in the U.S. under their respective TPS designations). Guidance from U.S. Citizenship and Immigration Services for affected beneficiaries and their employers is expected to be issued soon.

Limited viability of constitutional challenges to TPS terminations. While constitutional claims may still be brought, Mullin v. Doe signaled that such claims face a high bar. In the case at hand, the Court found that an equal protection challenge to TPS termination was unlikely to succeed, stating, “Respondents are unlikely to prove that race was a motivating factor in the decision to terminate Haiti’s TPS designation, and it follows that they are not entitled to interim relief on their equal protection claim.” Thus, the government is allowed to proceed with ending TPS designations for Haiti and Syria during litigation.

Asylum rights limited to individuals physically entering the United States. In Mullin v. Al Otro Lado, the Court ruled that noncitizens must physically enter the United States to be considered as having “arrived” under the Immigration and Nationality Act. Individuals waiting at or near the border, even if interacting with U.S. officials, are not entitled to inspection or to apply for asylum until they cross into the country. The decision also supports the government’s ability to manage border flows, including practices such as limiting the number of individuals processed at ports of entry, as such individuals are not yet considered to have legally arrived under immigration law.

Additional information: BAL will continue to monitor related legal developments and provide updates. Employers are encouraged to consult with their BAL attorney for case-specific guidance. Those employers and immigration professionals who are not BAL clients but have questions regarding how these developments may impact their workforce can contact us here.

This alert has been provided by the BAL U.S. Practice Group.

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