Justices to consider the rights of asylum seekers at the U.S.-Mexico border

The Supreme Court will hear oral arguments next week in a challenge to the government’s policy of systematically turning back asylum seekers before they can reach the U.S. border with Mexico. The policy at the center of Noem v. Al Otro Lado is no longer in place, but the Trump administration calls it a “critical tool for addressing” surges in immigrants at the border. The immigrant rights group and asylum seekers who are challenging the policy counter that it is contrary to federal immigration law and, when it was in effect, “created a humanitarian crisis in Mexico.”

Asylum is a form of legal protection for people who flee their own countries because they fear persecution or harm there. Under U.S. law, noncitizens can apply for asylum when they are “physically present in the United States” or when they “arrive[] in the United States.” Noncitizens who arrive at a port of entry, an officially designated site to enter the country, such as an airport or a land crossing – and indicate that they want to seek asylum – are inspected and processed. That is, they are screened by border officials and then channeled into the asylum system, which may include either an interview with an asylum officer or proceedings in immigration court.

Nearly a decade ago, in response to a surge in the number of Haitian immigrants seeking asylum in San Ysidro, a port of entry outside San Diego, the Department of Homeland Security initiated a policy known as “metering.” Officials from the Customs and Border Patrol agency would stand along the U.S.-Mexico border and turn back noncitizens without valid travel documents, including asylum seekers, before they could enter the United States. In 2017, the government extended that policy to all ports of entry across the U.S. border with Mexico, and it was formalized in a memorandum in 2018.

Al Otro Lado, an immigrant rights group, and 13 asylum seekers went to federal court in southern California to challenge the policy. In 2024, a divided panel of the U.S. Court of Appeals for the 9th Circuit ruled that, for purposes of being able to apply for asylum under federal immigration law, noncitizens who were turned away from ports of entry before they could enter the United States had “arrived in” the country. “The phrase ‘physically present in the United States,’” Judge Michelle Friedland wrote, “encompasses noncitizens within our borders, and the phrase ‘arrives in the United States’ encompasses those who encounter officials at the border, whichever side of the border they are standing on.”

The full court of appeals turned down the federal government’s request to reconsider the case. In a dissent joined by 11 other judges, Judge Daniel Bress wrote that the panel’s holding “violates clear statutory text, precedent, the presumption against” applying U.S. law outside the United States, “and long-held understandings limiting application of the asylum and inspection laws to aliens ‘in’ the United States—which aliens in Mexico are not.”

The federal government then appealed to the Supreme Court, which agreed last fall to weigh in.

In its brief on the merits, the government pointed first to the text of the federal immigration law at the center of the dispute. “In ordinary English,” U.S. Solicitor General D. John Sauer argued, “a person ‘arrives in’ a country only when he comes within its borders. A person does not ‘arrive in the United States’ if he is stopped in Mexico.” In reaching a contrary conclusion, Sauer wrote, the 9th Circuit “effectively replaced the statutory text (‘arrives in the United States’) with alternative text of its own (‘presents herself to an official at the border’).”

Second, the government emphasized, the Supreme Court held more than 30 years ago, in Sale v. Haitian Centers Council, Inc., that immigration laws do not protect refugees who are trying to reach the United States but are intercepted at sea before they do so. That case was a challenge to an executive order directing the U.S. Coast Guard to stop boats illegally transporting Haitians to the United States and return the passengers to Haiti without determining whether they qualified as refugees. According to Sauer, “Sale’s logic confirms that the immigration laws at issue here likewise do not protect aliens who are stopped on land before reaching U.S. soil.”

Sauer also told the justices that there is bipartisan opposition to the 9th Circuit’s ruling – which, he said, “deprives the Executive Branch of a critical tool for addressing border surges and preventing overcrowding at ports of entry.” And although the Department of Homeland Security rescinded the memoranda authorizing “metering” more than four years ago, he said, “it seeks to retain the option of reviving the practice” if needed.

Finally, Sauer argued that the 9th Circuit’s ruling violates the presumption against extraterritoriality – that is, the principle that federal law applies only in the United States unless Congress clearly states otherwise. “The phrase ‘arrives in the United States’ does not even plausibly, much less clearly, cover aliens in Mexico,” Sauer wrote.

In their brief on the merits, the challengers contended that the text of the federal immigration law actually supports their reading. First, they said, Congress’ use of the present tense – the phrase “arrives in the United States” – shows that it intended federal laws instructing immigration officials to inspect noncitizens seeking admission in the United States and asylum “to apply not only to those who have arrived, but also to those who are attempting to step over the border.” “If Congress wanted the law to cover only noncitizens who had arrived, it would have said so,” the challengers stressed. Moreover, they added, by limiting the phrase “arrives in the United States” to people who are already in the country, the government’s interpretation would also render the other phrase in the law – “physically present in the United States” – superfluous. 

The policy also conflicts with regulations that were issued in 1997, shortly after the law was enacted, the challengers continued, which provide that noncitizens “‘attempting to come into the United States at a port-of-entry’ are ‘arriving.’” The understanding embodied in those regulations, the challengers added, “is consistent with longstanding practice: Since 1917, immigration law has been understood as requiring federal officials to inspect all noncitizens who present themselves at ports of entry, whether or not they yet have a foot on U.S. soil.”

The challengers pushed back against the government’s argument that the 9th Circuit’s reading would violate the presumption against extraterritoriality. That principle does not apply here, they wrote, because the federal laws at the center of this case simply apply to “immigration officers’ conduct on U.S. soil.” By contrast, they contended, the government’s reading would conflict with the United States’ obligations under international law to refrain from sending refugees back to countries where they face persecution – a principle known as non-refoulement.

The government’s policy, the challengers cautioned, would “create a perverse incentive to cross the border between ports of entry by affording people who do so greater rights—the exact result Congress sought to avoid when it adopted” this law. And in any event, the challengers said, the ruling by the court of appeals only means that noncitizens who arrive at the border must be allowed to apply for asylum; “it does not foreclose reasonable delays” in procedures for dealing with asylum seekers. If the federal government wants to change this rule, they concluded, it should go to Congress, rather than the court, to do so.