This week, the U.S. Supreme Court engaged in spirited debate as it examined the legal nuances of a now-defunct Trump administration policy affecting asylum seekers at the U.S.–Mexico border. The case, Noem v. Al Otro Lado, scrutinizes the interpretation of statutory language in the Immigration and Nationality Act (INA), specifically the phrase “arrives in” the United States, which is at the heart of the contentious metering policy. This policy restricted asylum seekers from crossing into the U.S., effectively managing border entry numbers by requiring them to wait in Mexico.
During the oral arguments, Assistant to the Solicitor General Vivek Suri contended that the phrase “arrives in” necessitates physical presence on U.S. soil. This position draws from the precedent set by the 1993 Supreme Court decision in Sale v. Haitian Centers Council, which emphasized a territorial approach, arguing that U.S. immigration laws do not extend to noncitizens outside American territory.
Opposing this view, Kelsi Corkran of the Institute for Constitutional Advocacy & Protection suggested that Congress designed a protection scheme in the Refugee Act of 1980 to meet international obligations, preventing the U.S. from returning refugees to potentially perilous conditions. She argued that the metering policy disrupts this scheme by blocking legitimate entry attempts and challenges the government’s focus on the statutory word “in,” which seems to dismiss broader legal context.
The justices’ questions reflected a deep divide over statutory interpretation and international responsibilities. Justice Sonia Sotomayor appeared critical of the policy’s compliance with international norms, suggesting that it potentially breaches the U.S.’s commitments. Justice Clarence Thomas and others on the bench sought clarifications on the practical and legal implications of international treaties in such cases.
Justice Ketanji Brown Jackson highlighted the potential inequity faced by those seeking legal entry versus those entering unlawfully. Meanwhile, Justice Samuel Alito expressed concern about border management and resource constraints, arguing about the challenges if ports were barred from metering practices, a practical dilemma for the administration.
The court’s conservative justices pressed Corkran on the operational definition of “arrival,” seeking clarity on its real-world application, as Justice Amy Coney Barrett inquired about the “magic” defining moment of crossing the border. Justice Brett Kavanaugh remarked on the artificiality of such a determination, pondering logistical implications.
The court’s review becomes even more complex as the metering policy has been discontinued for years, raising questions outlined by Justice Jackson about the necessity of adjudicating this now. However, the issue remains poignant amid ongoing debates over U.S. immigration policy.
As the justices navigate these challenging interpretations, the decision, expected by mid-summer, could have profound implications for U.S. immigration practices and policies moving forward, holding potential sway over future handling of asylum seekers at U.S. borders.