Justices spar over statutory text as asylum metering policy reaches Supreme Court

Chloe Miracle-Rutledge is a JURIST Supreme Court Correspondent and a 2L at Georgetown University Law Center in Washington, DC. This week, I attended oral arguments at the United States Supreme Court in Noem v. Al Otro Lado, a case concerning the government’s policy toward asylum seekers at the U.S.–Mexico border. It was quiet outside the Court when I arrived. Members of the press told me there had been a rally in support of asylum rights earlier that morning, but the demonstrators had moved off premises before arguments began. The details of this case are technical and largely procedural, revolving around the meaning of language in a federal statute. But the broader themes—migrant rights, immigration policy, and asylum—are among the most contentious issues in the United States today. The case arises from a challenge to the Trump administration’s “metering” policy, under which asylum seekers were turned away before they crossed into the United States. The Immigration and Nationality Act (INA) provides that any noncitizen who “arrives in” the United States may apply for asylum and must be inspected by immigration officials. Vivek Suri, Assistant to the Solicitor General, opened by urging the Court to uphold the metering policy, arguing that “arrives in” requires physically stepping onto U.S. soil. Under the challengers’ view, he contended, “arrives in the United States” would mean stopping outside the country. That interpretation, he argued, “defies the statutory text. You can’t arrive in the United States while you’re standing in Mexico.” Suri also relied on the Court’s 1993 decision in Sale v. Haitian Centers Council, which held that the United Nations Convention Relating to the Status of Refugees and federal immigration law do not apply to noncitizens outside U.S. territory. If Congress had intended to depart from that “territorial approach,” Suri argued, “it would have said so.” The challengers interpret the INA differently. Kelsi Corkran, Supreme Court Director at the Institute for Constitutional Advocacy & Protection, argued that through the Refugee Act of 1980, Congress created a statutory scheme to ensure the United States was meeting its treaty obligations not to return refugees to countries where they would be persecuted. In her view, the metering policy allows the government to evade those obligations by “blocking asylum seekers just as they are about to step over the port threshold.” She also argued that the government’s reading of “arrives in” is flawed because it “isolates the word ‘in’ at the expense of making the rest of the statute nonsensical.” Justice Clarence Thomas asked both sides how international law factored into their arguments. Suri responded that the international agreements cited by the challengers “don’t apply in this case and aren’t violated by metering,” because the policy operates outside U.S. territory and does not involve returning individuals to persecution. Justice Sonia Sotomayor appeared skeptical of that position. She suggested that refusing to process asylum seekers who are effectively “knocking on the door” may violate the United States’ international obligations. Justice Ketanji Brown Jackson also expressed concern, noting that the policy appears to disadvantage “polite asylum seekers” who attempt to enter lawfully, while those who cross unlawfully may still have their asylum applications considered. Justice Samuel Alito, however, was sympathetic to the government’s practical concerns. He asked what would happen if a port of entry were overwhelmed and officials were not permitted to implement metering. Suri responded that, in such circumstances, individuals “who may not necessarily be entitled to asylum” could be allowed to enter the United States. Justice Sotomayor pushed back, suggesting that the policy is less about capacity and more about the president “using this as a subterfuge for ignoring any inspection whatsoever.” Several justices returned repeatedly to the statutory text. Justice Elena Kagan pressed Suri on a potential redundancy problem: if “arrives in” means being physically present in the United States, why does the statute also include the phrase “present in”? Suri maintained that the terms describe distinct categories; “arrives in” encompasses those who just crossed the border while “present in” describes those already present in the country. Members of the Court’s conservative wing pressed Corkran on how her interpretation would work in practice. If “arrives in” does not require crossing the border, Justice Amy Coney Barrett asked, then what is the “magic” or “dispositive” factor that marks the moment of arrival? Corkran responded that a person “arrives in the United States … when they are at the threshold of the port’s entrance, about to step over,” and that the metering policy “physically block[s] them from completing the arrival.” Justice Neil Gorsuch probed that boundary further, asking whether arrival occurs a step from the border, on top of the wall, at its base, or while waiting in line to cross. Chief Justice John Roberts similarly questioned whether timing and processing speed matter, asking whether someone at the front of the line is “arriving” while someone at the back is not. Interestingly, Justice Brett Kavanaugh observed that determining the exact moment of arrival “seems very artificial,” noting that “wherever the line is, the government is presumably going to stop you on the other side of that line.” Justice Jackson repeatedly questioned whether the Court should reach the merits of this case at all, given that the government discontinued the metering policy more than four years ago and has no “concrete plan” to reinstate it. That argument, however, appeared to gain little traction. At times, the questioning grew tense. Justices Sotomayor and Jackson, visibly frustrated, posed lengthy and pointed questions to Suri. Justice Alito sharply remarked to Corkran that it would be “interesting to read the actual transcript of the oral argument,” because she and the liberal justices had repeatedly used the phrase “arriving at,” which does not appear in the statute. At one point, as several justices spoke over one another, Chief Justice Roberts raised his voice—“Please!”—before allowing questioning to continue. Although several justices questioned the government’s interpretation of the INA and its implications for international obligations, a majority appeared skeptical of the challengers’ textual conception of “arrives in.” A decision is expected by late June or early July.