Supreme Court to Decide Whether Asylum Seekers Can Apply for Asylum at the Border

The U.S. Supreme Court is set to hear arguments on March 24 in a case to decide whether the government is required to allow asylum seekers to apply for asylum before they’ve crossed the border.

The case, Noem v. Al Otro Lado, questions when a person has “arrived” in the United States for the purposes of a federal law that says that “any alien who is physically present in the United States or who arrives in the United States … may apply for asylum,” regardless of legal status.

Attorneys for the Justice Department are disputing asylum seekers’ argument that arrival occurs when immigration officials stop them before they cross the border.

The issue started in 2016 when, under President Barack Obama, the Department of Homeland Security was facing an unprecedented surge of asylum seekers arriving at the U.S.–Mexico border.

Unable to handle the flood of requests, the Obama administration adopted a policy called “metering,” under which individuals were turned away at ports of entry before they could cross into the United States. That policy continued until it was rescinded by President Joe Biden in 2021, although his administration continued to defend its legality.

A group of 13 asylum seekers and an immigrants’ rights organization sued in 2017, arguing that the metering policy violated their legal right to seek refuge in the United States.

They argued further that it violated parts of the Immigration and Nationality Act, which required immigration officers to inspect “an alien present in the United States who has not been admitted or who arrives in the United States.”

Attorneys for the asylum seekers argued that metering allowed the government to flout these laws.

“The question presented is whether immigration officers may circumvent these inspection and asylum-processing mandates by physically blocking noncitizens attempting to come into the United States at ports of entry just before they step across the border,” their filing to the Supreme Court reads.

The disagreement turns on the meaning of the words “arrives in.” The U.S. Court of Appeals for the Ninth Circuit ruled 2–1 in 2024 that “a non-citizen stopped at the border” had “arrived” and had a legal right to seek asylum.

Judge Ryan Nelson dissented.

“After years of litigation, Plaintiffs have not identified a single example of when ‘arrives in’ means anything besides physically reaching a destination,” Nelson wrote.

“Imagine, for example, that Apple says a new iPhone will ‘arrive in stores’ on January 2. Hearing this, you would expect the phone to be on the shelves on January 2—not in an unloaded semitrailer behind the store.”

In a Supreme Court filing, the government also argued that parts of Section 1225—regarding the detention and removal of certain immigrants—would make no sense if applied to individuals still in Mexico.

Carrie Severino, president of legal advocacy group JCN, said the plain text of the statute “seems pretty straightforward.”

“My suspicion is that in a court that is very committed to textualism, that will carry a lot of weight,” she told The Epoch Times on March 23.

“I’m very curious to hear the arguments.”