In an aerial photograph, migrants are seen grouped together while waiting to be processed on the Mexico side of the border across from El Paso, Texas, on Sept. 21, 2023. (Photo by Brandon Bell/Getty Images)
WASHINGTON — The U.S. Supreme Court will hear oral arguments Tuesday in a case to determine if a migrant on Mexico’s side of a border crossing with the United States can legally apply for asylum when arriving at a U.S. port of entry.
The case, which stems from a policy during President Donald Trump’s first term that denied migrants the opportunity to present for asylum, is meant to settle if Customs and Border Protection officers are allowed to refuse to process an asylum seeker who walks up to a port of entry.
A 2019 memorandum created what was known as the metering or “turn back” policy that resulted in border officials physically turning away asylum seekers before they could enter the country. The policy was based on an argument that migrants must be in the United States to apply for asylum and that simply arriving at a border crossing did not qualify.
A 2020 investigation by the Department of Homeland Security’s Office of Inspector General found that up to 680 migrants per day were turned around as a result of the policy.
The Trump administration last year asked the high court to review a 2024 split decision from a panel of judges on the 9th U.S. Circuit Court of Appeals that affirmed a lower court’s order finding the policy violated administrative procedure law.
The lower court found that the “turn back policy” was illegal because CBP had a duty to inspect and process asylum seekers arriving at ports of entry.
The Supreme Court said in November it had decided to take the case, Noem v. Al Otro Lado.
Border doesn’t count, government says
U.S. Solicitor General D. John Sauer argued in briefs that a person has only arrived in the country once they are on U.S. soil.
“In ordinary English, a person ‘arrives in’ a country only when he comes within its borders,” Sauer wrote. “An alien thus does not ‘arrive in’ the United States while he is still in Mexico.”
He also argued that the appeals court decision interferes with the president’s “ability to manage the southern border” and set immigration policy.
“Before this litigation, border officials had repeatedly addressed migrant surges by standing at the border and preventing aliens without valid travel documents from entering,” Sauer said.
“The decision below declares that practice unlawful, on the theory that aliens stopped on the Mexican side of the border have a statutory right to apply for asylum in the United States and to be inspected by federal immigration officers.”
“The decision thus deprives the Executive Branch of a critical tool for addressing border surges and for preventing overcrowding at ports of entry along the border,” he continued.
“For people fleeing persecution the stakes are literally life and death,” said Melissa Crow, one of the attorneys representing Al Otro Lado, an organization that provides legal and humanitarian assistance to refugees and migrants, and a class of asylum seekers, who spoke to reporters before oral arguments.
No current or future implications
Crow, who has represented Al Otro Lado since the initial challenge to the metering policy in 2017, said “there is no reason to do this” because the policy the Trump administration is challenging has been defunct since the Biden administration ended it in 2021.
Because the federal government rescinded the metering policy before the lower court could enter a final judgment, the brief from Al Otro Lado argues that the challenge presented to the justices “thus has almost no present implications, and likely no future implications either.”
“The government nonetheless urges the Court to grant review just in case it decides at some point in the future to reinstate metering,” according to the brief from advocates.
The challengers of the policy also argue it could give the administration another tool in its immigration crackdown.
“While this case focuses on one defunct policy, we have no doubt the administration is seeking a decision that will give them even more leeway to restrict the rights of people seeking persecution,” Crow said.
Crow said she opposed the review by the justices, adding that “there are many other restrictions on the books that are preventing migrants from seeking asylum,” that should be addressed.
The Rev. Liz Theoharis, the executive director at the Kairos Center for Religions, Rights, and Social Justice, also briefed reporters. She leads a coalition of 31 faith groups that have submitted a brief in support of the groups and asylum seekers challenging the Trump administration’s move to overturn a court decision that blocked the metering policy.
“Every major faith tradition makes protecting the stranger a core value,” Theoharis said. “Protecting and welcoming the immigrant is one of Jesus’s first and most powerful teachings.”
