As we await the Supreme Court’s ruling on whether President Trump can unilaterally end birthright citizenship, the court released two decisions on Thursday that have huge implications for people who’d like to enter the U.S. legally or stay and work here legally under Temporary Protected Status.
The first decision comes in response to Mullin v. Al Otro Lado, a case that’s been ongoing for so long that it was originally called Al Otro Lado v. Johnson — as in Jeh Johnson, who was Homeland Security Secretary during President Obama’s second term. The case challenged the Obama administration’s decision to post border agents in front of the San Diego port of entry, sometimes physically preventing people from setting foot on U.S. soil to seek asylum. Under Trump, Biden, and then Trump again, agents routinely limited access to ports of entry all along the border. The second Trump administration, in addition to categorically denying people who enter the U.S. without papers from any kind of immigration protection, has simply blocked any asylum-seekers from presenting themselves at ports of entry at all.
Here’s why this matters. Federal law categorically allows people to request protection from persecution once they are within the United States — including people who cross into the U.S. illegally — or once they “arrive” here via a port of entry.
But even when the U.S. was actually allowing some people to seek asylum, it had a higher bar for that first group — people who “entered without inspection,” to use the technical term. The Biden administration put a regulation in place saying that people who entered between ports of entry would generally be presumed to be ineligible for asylum. They could still, however, qualify for a lesser form of humanitarian protection, but that would only prevent them from being deported to their home countries — which, under the Trump administration’s attempts to scale up third-country removals, still renders them vulnerable to deportation to places like South Sudan or Palau.
Federal officials used to claim that these restrictions were okay, because people could seek asylum without breaking any federal law by presenting themselves at a port of entry. (That was back when the U.S. government cared about complying with the Refugee Convention — or at least made an effort to seem like they cared.
But Thursday’s decision allows the federal government to physically prevent anybody from actually doing that — forcing them, presumably, to enter the U.S. illegally if they needed protection here.
None of this directly affects people who are already within the U.S. — including asylum-seekers. However, it is all but certain that the SCOTUS decision will further encourage the “hardening” of ports of entry, especially at the U.S./Mexico border. Those who cross into the U.S. from Mexico should expect to see more physical barriers and have their papers checked even before they reach the official border. (This would, of course, require extensive cooperation from the Mexican government — which Mexican presidents since 2016 have been happy to provide.)
However, it’s worth noting that a Supreme Court decision that came down last week gave those same Customs and Border Protection agents more power to decide that someone with a green card shouldn’t be let back into the United States, on grounds of being “inadmissible” under immigration law. It wouldn’t necessarily be legal for a border agent to summarily turn a green-card holder away and leave them stuck in Mexico. But given how little transparency exists at ports of entry — it is not impossible that some border agent might pull something funny. After all, the U.S. denied for years that it was limiting asylum-seekers from entering the country.
The second ruling, on the other hand, could have devastating effects over the next several months for hundreds of thousands of immigrants who have been living in the U.S. — some of them for decades.
The Supreme Court ruled in Mullin v. Doe challenged the Trump administration’s decisions to end Temporary Protected Status (TPS) designations for Haiti and Syria. Technically, the upshot of the ruling is that the Trump administration is allowed to move forward with stripping people of TPS status while lower federal courts consider whether the Trump administration acted lawfully in taking their countries off the protected list. But in practice, the majority opinion, authored by Justice Samuel Alito, makes some pretty broad claims indicating that the Court doesn’t think any TPS termination can really be blocked by judges. That could be a death blow to other lawsuits over other TPS terminations, and prevent lawsuits over the TPS designations it’s expected to terminate in future (including TPS for El Salvador, which comes up for termination in September).
This ruling is especially jarring given that just last week lawyers for Haitian TPS holders alerted the justices to new documents that had come to light in the lower-court lawsuit. The new evidence shows that Trump political appointees’ desire to push as many people off TPS as possible led them to overrule career executive-branch civil servants, who cautioned that Haiti still wasn’t safe enough to return to. (If this sounds familiar, it’s because similar documents were unearthed during Trump’s first term, in a lawsuit that ultimately preserved TPS for most of the people Trump tried to strip it from.)
The federal law governing TPS says that the government has to make its decision based on country conditions. The Trump administration would appear to have violated that law. But according to the Supreme Court, that essentially doesn’t matter. The opinion finds that TPS holders can’t sue the government for violating federal laws by terminating their protections — they can only sue to keep their TPS if the government violated the Constitution.
As it happens, the TPS holders in the Supreme Court case did make such an argument: that the Trump administration was motivated by racial animus toward non-European immigrants, and therefore violated the Constitutional guarantee of equal protection for all regardless of race. But the Supreme Court opinion states that if the Trump administration was just terminating TPS for everyone, it wasn’t a race-based policy, and thus was constitutional.
In other words, SCOTUS said that as long as the Trump administration acts constitutionally to terminate a country’s TPS designation – even if it acts illegally — it’s in the clear.
The ruling doesn’t affect anyone immediately. But pretty much everyone who still has TPS protections should be on alert for the rest of the year.
The first populations to be affected will be those covered in the lawsuits SCOTUS just ruled in: Haiti, with roughly 350,000 TPS holders, and Syria, with another 6,000 or so. Those people will lose their TPS status when Thursday’s ruling officially goes into effect, in 32 days (unless the government requests it be put into effect sooner). However, several lawsuits over other countries’ TPS terminations have also allowed TPS holders to preserve their protections until now. As of this writing, courts have preserved TPS for Burma, Ethiopia, Somalia, South Sudan and Yemen — an additional 10,000 people – due to ongoing lawsuits. The new Supreme Court opinion heavily implies that those lawsuits are also likely to fail — and that the Trump administration should be allowed to terminate TPS while the lawsuits are pending, anyway. Lower court judges are likely, over the coming months, to issue new rulings falling into line.
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Then there are the approximately 170,000 people from El Salvador whose current TPS grant lasts until September — when the Trump administration is almost certain to refuse to extend it. (Ukraine is also coming up for TPS termination or extension this fall — which would theoretically be a test of whether the Trump administration is willing to treat European TPS holders the same way it’s treated non-European ones.) Without a strong constitutional argument, a lawsuit over that termination isn’t likely to result in preserving anyone’s protections.
When 2026 comes to a close, it is entirely possible that barely anyone in the U.S. will have TPS. When that happens, the Trump administration’s effort to strip immigrants of discretionary protections – sometimes called “de-legalizing” them – will be nearly complete. The last domino to fall, of course, would be Deferred Action for Childhood Arrivals (DACA) — which the Supreme Court could to take up next year.
The breadth of the Thursday ruling on TPS is, in a way, an end to nearly 30 years of kicking the can down the road: an executive branch that kept extending temporary protections for people without giving them any chance to apply for more permanent status, and a judicial branch that stepped in under the first Trump administration to keep those protections from going away. Throughout that time, Congress has failed to act. Now, if Haitians — and everyone else — with TPS are going to have any shot of remaining in the U.S. legally, it’s going to have to be through the legislative branch.
