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

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

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

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

The Trump administration urged the justices to take the case. It argues that the 9th U.S. Circuit Court of Appeals’ decision makes a mockery of the law granting asylum rights only 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.

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 through 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. Otherwise, they said, 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 take effect 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. She said it couldn’t mean only 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 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 on U.S. soil seeks protection from torture or persecution in their home country. It is similar to refugee status, which is for those who are not yet on U.S. soil.

The law puts an annual limit on the number of people who can be accepted as refugees but has no limit on the number who can apply for, or be granted, asylum.

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

“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 that 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 to a 2021 case 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 the Homeland Security Department eventually concluded that, contrary to what top Biden officials had said, no migrants were 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 all sides agreed that the metering policy dated back to the first Trump administration and has been defunct for years.

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

Al Otro Lado 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 the Homeland Security Department 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 some justices to overturn the 9th Circuit’s ruling.

The case is Al Otro Lado v. Noem. Kristi Noem is the homeland security secretary.