Supreme Court upholds border policy that blocks asylum applications before entry

Why it matters locally: While Oregon does not share a border with Mexico, this Supreme Court decision will impact the state's refugee and asylum services, as well as the individuals and families who may seek asylum in Oregon but are now blocked from application at the border.

---

The Supreme Court upheld a border policy that prevents asylum seekers from applying for protection when officials turn them back before they physically enter the United States. The 6-3 decision in *Mullin v. Al Otro Lado* rejected a challenge to the "metering" policy, which Customs and Border Protection agents began implementing in 2018. Under metering, officials stationed at border crossings deny entry to noncitizens without valid travel documents, including those seeking asylum, before they can cross into U.S. territory. The challengers included Al Otro Lado, an immigrant rights organization, and 13 asylum seekers who argued that people stopped at ports of entry had already "arrived in" the United States for purposes of asylum law. The U.S. Court of Appeals for the 9th Circuit agreed, but the Supreme Court reversed that judgment. Justice Samuel Alito wrote the majority opinion, framing the case as a question of ordinary language. "In everyday speech, no one would say that a person 'arrives in' a place before the person enters that place," Alito wrote. He compared the concept to a football player reaching the 1-yard line without entering the end zone. Alito surveyed major dictionaries and concluded that "a person arrives in a destination when he enters within its area, not before." He noted that asylum law distinguishes between actual and attempted entry into the country, suggesting Congress understood these as separate concepts. Had lawmakers intended to allow asylum applications from people at the border, Alito wrote, they could have drafted the statute differently. Alito rejected arguments that the metering policy violated international refugee conventions or the Refugee Act of 1980. Those agreements prohibit nations from returning refugees already within their borders to places where they face persecution, but they do not guarantee refugees the right to enter at any particular time, he wrote. Alito also addressed a concern that the ruling might encourage illegal border crossing. Metering "does not permanently bar any alien from arriving in the United States and then applying for asylum," he wrote. "It merely delays the date when some may enter." Justice Clarence Thomas filed a separate concurring opinion arguing that the lower court had improperly granted relief prohibited by federal law. Thomas added that Congress cannot compel the president to allow noncitizens to cross the border against his will. The three dissenters offered different concerns. Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, argued that the majority misinterpreted the phrase "arrives in." She offered an example: calling someone upon their arrival at Washington D.C. when they land at an airport across the river in Virginia. Sotomayor predicted consequences from the ruling. "More people will die. More people will attempt to cross the border illegally, and some will make it while others will not," she wrote in an opinion she read aloud from the bench. Sotomayor also contended the decision creates contradictory incentives, making asylum available to those who enter illegally but unavailable to those physically blocked at official ports of entry. She cited the *MS St. Louis*, a ship carrying over 900 Jewish refugees seeking escape from Nazi Germany that the United States turned away in 1939, with many subsequently dying in the Holocaust. Sotomayor argued Congress passed the Refugee Act in 1980 to prevent such historical mistakes. "Yet if the refugees on the MS St. Louis were to walk up to a port of entry on our southern border today, the majority's interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto U.S. soil." From the bench, Alito responded briefly to Sotomayor's dissent, noting the metering policy had operated "by two different administrations" as "a way of dealing with surges" in "an orderly and humane" manner. Justice Ketanji Brown Jackson wrote a separate dissent arguing the Court should not have heard the case because the metering policy was rescinded in 2021, leaving no current factual dispute for resolution. The metering policy originated a decade ago in response to increased asylum applications from Haitian immigrants near San Diego. When asylum seekers reach a port of entry, officials typically screen them and channel them into the asylum system, which may include an interview with an asylum officer or proceedings in immigration court. Under metering, officials prevented this process from occurring by denying entry.