On Tuesday, the United States Supreme Court will consider a challenge to the federal government’s practice of turning away asylum-seekers at ports of entry along the U.S.–Mexico border. In Noem v. Al Otro Lado, the government contends that turning asylum-seekers away is within the bounds of federal law and is a critical tool for managing immigration. Immigrant rights groups and asylum-seekers who are challenging the policy argue that it is contrary to the text of federal immigration law and poses serious consequences for asylum-seekers trying to enter the U.S.
What is the law at issue?
The dispute arises under the Immigration and Nationality Act (INA), which provides that any noncitizen who is “present in” or “arrives in” the United States may apply for asylum and must be inspected by immigration officials. People who flee their countries under fear of persecution may be eligible for asylum status, a particular form of legal protection. The central controversy in this case is whether individuals who present themselves at the border but are stopped before crossing into the U.S. have legally “arrived” within the meaning of the statute.
Who is challenging the law and why?
The challenge is brought by Al Otro Lado and a group of asylum-seekers who were denied the opportunity to apply for protection under a policy known as “metering.” Under that policy, U.S. Customs and Border Protection officers turn away migrants at ports of entry due to claimed capacity constraints, requiring them to wait in Mexico rather than allowing them to step onto U.S. soil and begin the asylum process. The government extended the metering policy to all ports of entry along the U.S.–Mexico border in 2017. The plaintiffs argue that this practice unlawfully blocks access to the asylum system and exposes vulnerable individuals to dangerous conditions while they wait.
What is the procedural background of the case?
In 2017, the plaintiffs filed a class action in federal district court, alleging that the government’s turnback policy violated the INA and the Administrative Procedure Act by withholding required inspection and asylum processing. The district court agreed and granted relief. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that migrants who present themselves at the threshold of a port of entry—even if physically on the Mexican side—have “arrived” in the United States for purposes of the statute.
The federal government then appealed to the Supreme Court, which granted certiorari and agreed to hear the case.
What specific legal issue is the Supreme Court being asked to decide?
The specific legal issue before the Supreme Court is whether federal law requires the government to process asylum claims from individuals who present themselves at the border, or whether officials may refuse them entry on the ground that they have not yet legally “arrived” in the United States. Put differently, the Court must decide where, exactly, statutory asylum rights attach: at the border line itself or only after physical entry into the country.
What is the government’s position?
The federal government argues that the INA does not require officials to accept or process asylum-seekers who remain outside U.S. territory. According to the government, the statutory phrase “arrives in” requires actual physical entry. The government also believes that allowing asylum claims from individuals who stop on the Mexican side of the border would undermine the executive branch’s ability to manage capacity and control migration flows. The government also emphasizes separation-of-powers concerns, warning that judicial intervention would interfere with sensitive border enforcement decisions that, according to the government, should be left to the executive.
What are the challengers’ positions?
The challengers, by contrast, contend that the INA’s text and structure make inspection and asylum processing mandatory for anyone who presents themselves at a port of entry. They argue that “arrival” includes reaching the border and seeking entry, not merely stepping onto U.S. soil. According to the challengers, the government’s interpretation would invalidate the INA’s statutory goals by allowing officials to block access altogether. They further stress the real-world consequences of the policy, including the risks faced by asylum-seekers forced to remain in Mexico.
What could happen at oral argument?
At oral argument, the justices are likely to focus on the meaning of “arrives in” and whether the statute imposes a clear, nondiscretionary duty on immigration officials. Questions may revolve around how to draw a workable line at the border, as well as the practical consequences of either interpretation—whether requiring processing would overwhelm border infrastructure or, conversely, whether permitting turnbacks would allow the government to avoid asylum protections entirely. The Court may also explore the proper scope of judicial remedies in this context and the extent to which courts can supervise executive action at the border.
Additional insights into this case can be found at SCOTUS Blog and the website of the Center for Gender and Refugee Studies at UC College of the Law, San Francisco.
