The Supreme Court will review the legality of a now-rescinded immigration policy that turned away noncitizens attempting to cross the border from Mexico without considering their asylum claims, the court announced Monday.
Federal law guarantees a noncitizen who “arrives in the United States” may apply for asylum. The case concerns whether that extends to someone stopped on the Mexican side of the U.S.-Mexico border.
“In ordinary English, a person ‘arrives in’ a country only when he comes within its borders,” Solicitor General D. John Sauer wrote in court filings. “An alien thus does not ‘arrive in’ the United States while he is still in Mexico.”
Under that interpretation, the federal government from 2016 to 2021 employed a “metering” policy to address an influx of migrant arrivals. It enabled the Department of Homeland Security (DHS) to turn back migrants just before they crossed the border and refuse to inspect their asylum claims.
Though the metering policy was rescinded, the Trump administration insisted the Supreme Court should still get involved to provide legal clarity given the likelihood the policy could return.
Sauer wrote that the lower court ruling “deprives the Executive Branch of a critical tool for addressing border surges and for preventing overcrowding at ports of entry along the border.”
But Al Otro Lado, an immigration advocacy and aid organization that filed the lawsuit alongside 13 asylum-seekers, said any decision by the high court would have “little ongoing significance.”
“And given DHS’s own evidence that its short-lived metering experiment simply pushed asylum seekers to cross between ports of entry, it is even harder to see why DHS would ever reimplement it,” the group wrote in court filings.
The case is set to be heard during the Supreme Court’s current term. Oral arguments are likely to be set for late winter or spring, with a decision expected by summer.
“The government’s turnback policy was an illegal scheme to circumvent these requirements by physically blocking asylum seekers arriving at ports of entry and preventing them from crossing the border to seek protection,” the plaintiffs’ legal team said in a statement.
“Vulnerable families, children, and adults fleeing persecution were stranded in perilous conditions where they faced violent assault, kidnapping, and death,” they continued. “We look forward to presenting our case to the Court.”
Though the Trump-era Justice Department is now in the role of defending the metering policy, it was the Obama administration in 2016 that first used it. The first Trump administration continued it until the Biden administration rescinded the policy in 2021.
Last year, a 9th U.S. Circuit Court of Appeals panel ruled 2-1 that metering violated federal law and DHS must inspect all asylum-seekers who arrive at a port of entry. The full 9th Circuit later declined to disturb that ruling.