SCOTUS News: Court rules customs agents can turn back asylum seekers

An alien standing in Mexico does not “arrive” in the United States by attempting, and failing to set foot in this country and, therefore, is not entitled to apply for asylum pursuant to the Immigration and Nationality Act, the U.S. Supreme Court has ruled in a 6-3 decision.

Under 8 U.S.C. §§1158(a)(1), “[a]ny alien who is physically present in the United States or who arrives in the United States … , irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” In turn, §1225(b) states that an “alien present in the United States who has not been admitted or who arrives in the United States … shall be deemed for purposes of this chapter an applicant for admission.”

In response to a surge of aliens seeking admission at ports of entry along the U.S.-Mexico border, in November 2016 the Department of Homeland Security responded by adopting a policy of “metering” the number of arriving aliens whom U.S. Customs and Border Protection agents would inspect each day and allow to apply for asylum.

In implementing the policy, customs agents would stand on the U.S. side of the border to prevent aliens from entering the country beyond the number a port of entry could adequately process.

In 2017, asylum seekers and the immigration-advocacy organization Al Otro Lado filed a putative class action in the U.S. District Court for the Southern District of California. The plaintiffs alleged that the CBP’s metering policy unlawfully withheld inspection and asylum processing from aliens who arrived at the border to enter the country.

A federal judge certified a class of all noncitizens who seek or will seek to access the asylum process by presenting themselves at ports of entry on the U. S.-Mexico border and were or will be denied access to that process by government agents.

The court thereafter granted summary judgment for the class, declaring the government’s denial of inspection and asylum processing to class members who are in the process of arriving in the U.S. is unlawful regardless of the purported justification for doing so.

In response to the judge’s ruling, the government in November 2021 rescinded the metering policy. Thereafter, the 9th U.S. Circuit Court of Appeals affirmed the lower court’s judgment in relevant part, holding that an alien “arrives in the United States” —and, therefore, must be inspected and may apply for asylum — when the alien, while standing on the Mexico side of the border, encounters a U.S. agent at the border.

The Supreme Court granted the government’s petition for certiorari. In reversing the judgments below, the court held that an alien “arrives in the United States” only when he crosses the border, meaning that the INA neither entitles an alien standing in Mexico to apply for asylum nor requires an immigration officer to inspect him.

Click here to read the full text of the Supreme Court’s June 25 decision in Mullin v. Al Otro Lado.

To the point

“This case presents a straightforward question: whether an alien who seeks to enter the United States from Mexico ‘arrives in the United States’ when he or she is still

in Mexico. In the decision below, the United States Court of Appeals for the Ninth Circuit answered ‘yes.’ That is wrong. In ordinary speech, no one would say that a person ‘arrives in’ a place — for example, a house, a city, or a country — before the person enters that place. The context in which the phrase ‘arrives in the United States’ is used in the immigration statutes at issue here supports an ordinary-meaning reading. So does the presumption against extraterritoriality….

“The running back does not arrive in the end zone (and six points do not go up on the scoreboard) when he is tackled at the 1-yard line by the defense. The guest does not arrive in the house when the homeowner locks the door right before the guest tries to open it. The army does not arrive in the city when the city’s defenders repel the attack outside city limits. And the letter does not arrive in the mailbox when a dog assaults the carrier a step away from the mailbox. A person arrives in a destination only when he enters it, and that conclusion does not change because someone or something blocks entry. A person arrives in the United States, then, only when he enters it.”

— Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, opinion of the court

“The Court’s opinion correctly holds that an alien ‘who seeks to enter the United States from Mexico’ does not ‘“arriv[e] in the United States” when he or she is still in Mexico.’ I join it in full. I write separately to address two further problems with the decision below. First, the District Court appeared to effectively grant the classwide injunctive relief that Congress has prohibited in this context. Second, the relief that the

District Court provided may well have unconstitutionally infringed on the President’s inherent authority to exclude aliens from the country.”

— Justice Clarence Thomas, concurring

“The consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not. More people will be forced to walk along the U. S.-Mexico border in dangerous conditions, trying to find a port that will inspect them. More people will turn back and be subjected to violence because of something they cannot or should not have to change about themselves, such as their race, religion, nationality, or political opinion. Because this is neither what Congress said nor what its words permit, I respectfully dissent.”

— Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissenting

“Today, the Court issues an advisory opinion on the lawfulness of metering — a policy that has not been in place for almost five years and that the Government has no concrete plans to reinstate. In its rush to greenlight this retired practice, the majority elides serious justiciability concerns and decides legal issues entirely in the abstract. With potential mootness problems and without a factual record establishing how metering works in practice, the writ of certiorari in this case should never have been granted. I respectfully dissent from the Court’s unwise decision to plow ahead nevertheless. I also join JUSTICE SOTOMAYOR’s dissenting opinion because, in my view, her understanding of the Government’s asylum-processing obligations under 8 U.S.C. §§1158(a)(1) and 1225(a)(1) is correct.”

— Ketanji Brown Jackson, dissenting