The Supreme Court will hear arguments Tuesday in a key border policy case over whether migrants at the border can seek asylum from the Mexican side if they are stopped from reaching U.S. soil to make their claim.
The first-term Trump administration’s formalized “metering” policy at the border to prevent migrant surges from overwhelming federal immigration officials is at the center of the case Noem v. Al Otro Lado. While the second term of the Trump administration has not attempted to revive the policy, which was rescinded by former President Joe Biden, the Justice Department is seeking to allow the policy to remain effective if reinstated.
Solicitor General D. John Sauer urged the justices in his brief to reverse the U.S. Court of Appeals for the Ninth Circuit’s 2024 ruling finding that, under federal law, a migrant who “arrives in the United States” and must have asylum claims heard by a federal immigration officer includes people who are on the Mexican side of the border.
“That decision is incorrect. In ordinary English, 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,” Sauer wrote.
“Under the presumption against extraterritoriality, moreover, statutes apply only in the United States unless they clearly indicate that they apply abroad. But ‘arrives in the United States’ does not plausibly, much less clearly, mean ‘stopped in Mexico,’” he added.
The Department of Justice also cited the Supreme Court’s 1993 ruling in Sale v. Haitian Centers Council, Inc., which found that migrants intercepted in the ocean before reaching U.S. soil are not required to have their asylum claims heard or to be inspected by federal immigration officers, to support its stance.
“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 wrote.
“Administrations of both major parties have opposed the decision, which deprives the Executive Branch of a critical tool for addressing border surges and preventing overcrowding at ports of entry. This Court should reverse,” Sauer wrote, noting the “metering” policy began during the Obama administration before being formalized under the first Trump administration.
The migrant advocacy group suing the Trump administration over the policy urged the Supreme Court in their brief to uphold the Ninth Circuit’s ruling, claiming that the DOJ’s stance on what federal immigration law states “transforms the statutes’ inspection and processing mandates into mere suggestions that immigration officers can ignore at their discretion.” The brief also claims the stance of rejecting asylum seekers from being inspected at the border by physically blocking them from reaching U.S. soil is “contrary to the government’s own decades-old regulations and more than a century of practice.”
The brief from Al Otro Lado also claims the DOJ has “greatly” exaggerated the impact of the Ninth Circuit’s ruling, saying it only affects the defunct policy rather than having wider ramifications for border operations.
“Petitioners abandoned the challenged turnback policy more than four years ago and only sought this Court’s review on the off chance they might want to revive it in the future,” the brief said. “The decision below, moreover, holds only that §§ 1225 and 1158 do not permit petitioners to withhold inspection and asylum processing from noncitizens who arrive at ports of entry; it does not foreclose reasonable delays in inspection and processing, nor does it bear on other statutory authorities for addressing specific scenarios at the border.”
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The Supreme Court will hear oral arguments in two cases beginning at 10 a.m. Tuesday, with arguments in Noem v. Al Otro Lado beginning once arguments in the first case scheduled for the sitting have concluded. A ruling in the case is expected by the end of June, when the Supreme Court’s current term ends.
During the Supreme Court’s current two-week argument session, the high court heard arguments in a case over the legality of Mississippi’s late-arriving mail ballot law on Monday and will hear arguments in a case over the legality of President Donald Trump’s birthright citizenship executive order next week. The Supreme Court is also expected to release at least one opinion in a pending case on Wednesday.