Supreme Court to hear case challenging Trump’s border turn-back policies

The Supreme Court said Monday that it will hear a case that asks where the U.S. border begins and whether someone still in Mexico can claim asylum protections that usually take effect only when someone actually reaches American soil.

At issue is a previous Trump administration policy to turn back migrants who showed up at border crossings demanding asylum.

A lower appeals court had ruled that they were “on the United States’ doorstep” and that border officers could not block them from entering and lodging their asylum claim.

The Trump administration urged the justices to take the case, arguing that the 9th U.S. Circuit Court of Appeals’ decision makes a mockery of the law, which only grants asylum rights to those who “arrive” in the U.S.

“An ordinary English speaker would not use the phrase ‘arrives in the United States’ to describe someone who is stopped in Mexico,” Solicitor General D. John Sauer told the justices in asking them to hear the case.

Andrew R. Arthur, a former immigration judge and congressional staffer who helped write immigration law, said the case tests whether the right to claim asylum trumps the rest of immigration law.

Asylum was a loophole to regular immigration law that helped fuel the Biden border surge, allowing millions of migrants to be caught and released into the U.S. from 2021 to 2024.

“This is an important case because it gets to the issue of whether [asylum law] controls everything with respect to the people who are coming to the United States,” Mr. Arthur said.

Attorneys for Al Otro Lado, the immigrant rights group that led the lawsuit, asked the justices to leave the appeals court decision in place, saying otherwise migrants seeking to reach the U.S. would be stranded in “perilous conditions.”

“The issue before the court is whether noncitizens seeking safety at ports of entry along the U.S. southern border have a legal right to apply for asylum in the United States,” the group said. “The government’s turn-back 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 case originated during the first Trump administration, when the Department of Homeland Security introduced a “metering” policy to limit the number of migrants who could appear at border crossings and request asylum.

The law says U.S. obligations kick in when a migrant “is physically present in the United States or … arrives in the United States.”

Judge Michelle Friedland, writing for the 9th Circuit majority, said the definition of physically present was clear enough, but “arrives” was not. And she said it couldn’t only mean being on U.S. soil, because that would be redundant with the “physically present” language.

“Indeed, the government’s reading would reflect a radical contraction of the right to apply for asylum because it would give the Executive Branch vast discretion to prevent people from applying by blocking them at the border,” Judge Friedland wrote in an opinion issued late last year.

She said the metering policy proved deadly for some migrants who got stuck in Mexico waiting for their chance to cross.

Some were killed, and others attempted to cross by other means, such as swimming the Rio Grande, where they drowned. That included young children, the judge said.

Judge Ryan Nelson, in dissent, said the court’s ruling subverted the notion of a border.

“A person at the border, but on the Mexican side, might be close to the United States. She might have arrived at the United States border. But until she crosses the border, she has not arrived in the United States,” he wrote. “This is not just the best reading of the statute; it is the only reading.”

Asylum is when a migrant already on U.S. soil seeks protection from torture or persecution in their home country. It’s similar to refugee status, which is for those who are not yet on U.S. soil.

Under the law, there is an annual limit on the number of people who can be accepted as refugees, but there is no limit on the number that can apply for, or be granted, asylum.

Matthew O’Brien, deputy executive director at the Federation for American Immigration Reform, said that immigrant rights groups are using the courts to expand the scope of asylum claims beyond what Congress intended.

He said parts of the current law were written before airplane travel was common, and when arrival was a matter of showing up at the coast or a land border.

Mr. O’Brien, also a former immigration judge, urged Capitol Hill to step in to clean up the mess.

“The whole arriving alien concept, I think, was a mistake for Congress to put that in because it just confused everybody,” he said. “This is a perfect example of how Congress has completely abdicated its authority to update this legislation to reflect the modern geopolitical realities.”

Mr. Arthur, now a fellow at the Center for Immigration Studies, said if the 9th Circuit’s decision stands, it could reshape the mission of Customs and Border Protection from a law enforcement agency to a welcome wagon.

“This really comes down to the question of whether CBP’s responsibility is to deter aliens from entering the United States illegally, or whether it is to process them once they are on the threshold of the United States,” he said.

Mr. Arthur pointed back to a case in 2021 in which the Biden administration referred horseback Border Patrol agents in Texas for potential prosecution because they used rough tactics to try to block Haitian migrants from wading the Rio Grande.

The U.S. attorney declined to prosecute, and Homeland Security eventually concluded that, contrary to what top Biden officials had said, no migrants were actually whipped.

“If you accept the logic of the 9th Circuit, then Border Patrol can’t stop anybody from climbing up the bank of the Rio Grande,” Mr. Arthur said.

It takes four justices to agree to hear a case.

Making this case all the more striking is that the sides all agreed that the metering policy at issue dated back to the first Trump administration and has been defunct for years.

Mr. Trump, in his second term, is now relying on emergency powers to block asylum claims.

Al Otro Lado had told the justices that the decision made the case a bad vehicle for the court.

Mr. Sauer said the 9th Circuit’s ruling could deprive Homeland Security of a tool that presidents of both parties “have deemed critical” during border surges.

That the court took the case suggests an interest on the part of at least some justices to undo the 9th Circuit’s ruling.