The Supreme Court’s conservative majority appears ready to let Donald Trump’s administration resume blocking asylum seekers from U.S. border crossings if ports of entry are too overwhelmed to hear their cases.
During a Tuesday hearing over the legality of a previous Trump policy, justices spent most of the time scrutinizing what it means to “arrive” — and the differences between “in” and “at.”
But it’s unclear whether the justices will allow the president to indefinitely block immigrants from starting the asylum process at the U.S.-Mexico border, or dismiss the case altogether. A decision is expected this summer.
The Immigration and Nationality Act allows an “alien who is physically present in the United States or who arrives in the United States” to apply for asylum. Those applicants are then referred for an interview to determine whether they have a credible fear of persecution.
But “you can’t arrive in the United States while you’re standing in Mexico,” according to Department of Justice lawyer Vivek Suri. “That should be the end of this case.”
Under Trump’s first administration, immigration officials could stop people seeking asylum from crossing while indefinitely declining to process their claims — stranding thousands of people on the other side of the border after fleeing violence, persecution and political volatility in their home countries. That move has been described as a “turnback.”
Suri called the policy an “important tool” to stop “surges” of immigrants from arriving at the border.
He said it’s “not really fair” for justices to reject the idea should the administration want to bring it back in the future.
That policy, called “metering,” was blocked by Joe Biden’s administration, but Trump — who has implemented sweeping restrictions on asylum seekers and refugees — is likely to revive the measure while he battles a mountain of legal challenges against his anti-immigration agenda.
Liberal Justice Ketanji Brown Jackson questioned how an immigrant would be expected to arrive “in” the U.S. to make an asylum claim if they’re not even allowed to step foot into the country in the first place.
“Why on earth would Congress have intended or meant for his asylum to be discarded, but someone who managed to enter the United States unlawfully … and requests asylum gets their application entertained?” she asked.
“That doesn’t seem to make any sense,” the justice said. “You are suggesting that ‘arriving in’ means the person who is literally standing on the U.S. side of the border, as opposed to the person who approaches.”
Conservative Justice Amy Coney Barrett also asked what it means to “arrive” in the U.S.
“How close do you have to be to the border?” Barrett asked. “What is the magic thing, or the dispositive thing, that we’re looking for?”
Kelsi Corkran, who is representing asylum advocates seeking to block the policy, argued that people arrive in the U.S. when they are at the “threshold of the port’s entrance about to step over.”
But under the “metering” policy, that process is cut off by an immigration officer who is “physically blocking them from completing the arrival,” she said.
Conservative Justice Samuel Alito compared an immigrant seeking asylum to a person showing up outside a house.
“Does a person ‘arrive in’ the house when a person is not in the house and is knocking at the door asking to be admitted to the house?” he asked.
People seeking asylum must be physically present in the U.S., and asylum can be granted to those who meet the international law definition of a “refugee,” under international human rights accords.
“The government’s turnback policy ran roughshod over our laws and treaty obligations,” according to Melissa Crow, litigation director at the Center for Gender and Refugee Studies.
“It fueled chaos and dysfunction at the southern border. And it was a complete humanitarian catastrophe, returning thousands of vulnerable refugees to grave harm,” she said after Tuesday’s hearing.
Denying entry can be a “death sentence,” she said.
“I came to the United States seeking safety after surviving torture and attempts on my life, but I was turned away again and again when I asked for asylum,” one asylum seeker said in a statement to The Independent.
“That rejection left me trapped in fear when I had nowhere else to go,” he said. “Finding refuge has given me a second chance at life.”
Asking for asylum is “not like taking a number at a deli counter and waiting for your turn,” according to Nicole Elizabeth Ramos, Border Rights Project director at Al Otro Lado, the lead plaintiff in the case.
“You cannot ask someone fleeing rape, torture or death threats to wait in danger indefinitely because a government has decided their lives are inconvenient,” she said.
The case is among the first major immigration-related cases before the Supreme Court under Trump’s second term, which is facing a wave of lawsuits against his attempts to deport millions of people while banning entry to immigrants from more than three dozen countries.
Next month, justices will hear arguments in legal challenges against the president’s attempts to unilaterally redefine birthright citizenship.
Justices will also hear arguments over the administration’s attempts to revoke temporary legal protections for tens of thousands of Haitians and Syrians living in the United States.
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