Government’s position in asylum case could incentivize unauthorized migration

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

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Receiving asylum in the United States is complicated, but, traditionally, beginning the application process has been straightforward. A migrant had to travel to the United States and inform an immigration official that they came in search of safe harbor. Starting in the last year of Barack Obama’s presidency, the federal government tried to control the number of asylum applications that border officers received by stopping migrants from reaching United States territory. On Nov. 17, the Supreme Court agreed to review a federal appellate court decision, Noem v. Al Otro Lado, that prohibits the government from blocking migrants before they cross the nation’s threshold. If the court sides with the government, however, it may inadvertently incentivize attempts to circumvent border-enforcement tactics.

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The crossing points that dot the United States’ land border with Mexico typically consist of short segments of well-marked, highly-surveilled roads and sidewalks that link office buildings in which government officials, on both sides of the border, question people and inspect goods. Historically, people heading into the United States, whatever their citizenship or immigration status, would leave Mexican territory and then queue to speak with a U.S. official. According to federal law, anyone “who is physically present in the United States or who arrives in the United States … may apply for asylum.” Whether in a vehicle or on foot, by the time people reach a U.S. government officer stationed inside an office building located a short distance from the borderline – typically a few dozen yards – they have already entered the United States. At that point, there is no question that they are “physically present” in the United States and therefore entitled to request asylum.

To limit how many asylum applications border officials received, Customs and Border Protection, the Department of Homeland Security unit that operates border crossings, changed its longtime practice toward the end of the Obama administration. From 2016 to 2021, CBP stationed officers at the actual physical borderline where the United States meets Mexico. The officers would then question some people heading toward the United States about their citizenship or immigration status before they reached the border. For much of this time, DHS also followed a policy, sometimes called the Asylum Transit Rule, which required non-Mexicans who traveled through Mexico to apply for asylum there. In a process called metering, officers stationed directly at the borderline would permit only U.S. citizens, migrants with valid travel documents, and asylum-seekers who had complied with the Asylum Transit Rule to enter the United States.

The immigrant rights’ group Al Otro Lado, which provides legal services to people in California and Baja California, along with six migrants, sued DHS in 2017, arguing that the government’s new policy violated the law providing access to asylum as well as a separate law dictating the procedures that executive branch agencies use to adopt new policies. The U.S. District Court for the Southern District of California largely agreed, concluding that Congress’ use of the phrases “physically present in” and “arriving in” the United States mean that anyone who is already inside the United States or who approaches a port-of-entry is entitled to request asylum even if CBP officers block them from stepping foot inside the United States.

The U.S. Court of Appeals for the 9th Circuit affirmed the district court. The appellate court concluded that migrants “stopped at the border” are eligible to apply for asylum and, that under a separate law, government officials are required to process their requests. At the Justice Department’s request, the Supreme Court agreed to decide whether someone who is stopped before reaching U.S. territory “arrives in the United States.”

The court’s decision to add Al Otro Lado to its calendar is a curious one. Unlike many cases that the Supreme Court hears, there aren’t any federal circuit court decisions that conflict with the 9th Circuit. In fact, Al Otro Lado is the only federal appellate court decision addressing the metering policy and Asylum Transit Rule. Despite their being no lower court conflict to resolve, the U.S. solicitor general, D. John Sauer, urged the Supreme Court to weigh in because the 9th Circuit’s decision applies to “a substantial stretch of the U.S.-Mexico border, including all of California and Arizona.”

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Before implementation of these policies, applying for asylum was clearly laid out: reach the United States and inform an immigration officer. The two challenged policies, working in tandem, thus curtail access to asylum by limiting how many people can initiate the application process. Under the solicitor general’s interpretation of federal law, CBP can systematically prevent people from requesting asylum by forcibly stopping them at the nation’s border. Standing outside the United States – by literal feet or inches – migrants can ask for protection, but the U.S. immigration officers who hear their pleas have no authority, much less obligation, to act.

The government’s position would create an odd incentive for migrants. Barred from having an asylum claim considered by U.S. officials, migrants would have no reason to approach CBP agents but, instead, would have reason to skirt presenting themselves to government agents altogether. Indeed, that is exactly what happened when these policies were previously in place. According to sociologist Bertha Alicia Bermúdez Tapia, migrants stopped from entering Texas “increase[d] clandestine crossings with the goal of circumventing the metering hurdle.” Left to wait in Mexican border cities that even the U.S. government describes as dangerous, migrants sometimes paid cartels to funnel them into the United States; other times they were killed for not doing so, Bermúdez Tapia found. The 9th Circuit also acknowledged this real-world effect, noting that some migrants “attempted to reach U.S. soil by other means, such as running down vehicle lanes … Others, including young children, tried to swim across the Rio Grande River and drowned.”

The Justice Department’s legal argument invites the Supreme Court to permit DHS to once again implement such border policies blocking access to the asylum legal process by blocking access to the United States. If a majority of the justices agree, they may then end up allowing CBP to create conditions incentivizing unauthorized migration, the very opposite outcome of what the government claims that it seeks to achieve.