Supreme Court tries to define where the U.S. border begins for asylum purposes

It turns out that where the U.S. border begins, at least for purposes of asylum, is not actually clear.

The Supreme Court waded into that thorny question Tuesday, with the justices forced to confront whether migrants who make it in the vicinity of the boundary but who are still in Mexico or Canada are entitled to the same protections as someone clearly in the U.S.

Unsurprisingly, the justices struggled with where to draw the line, if not at the actual border.

“How do you know under your theory when the person is close enough that we could say they have ’arrives in,’ or arrived in, the destination?” said Justice Amy Coney Barrett, a Trump appointee. “How close do you have to be to the border?”

Under the law, asylum is open to someone either already present or who “arrives in” the country.

Immigration advocates told the high court that latter part means the law stretches beyond U.S. soil to reach into Mexico or Canada to cover all of those who are knocking on America’s door. Being on the “threshold” was good enough, said Kelsi Corkran, a lawyer for the immigration groups.

“I’m arriving at a stadium when I’m at the entrance going through the turnstile,” she said.

At issue is a policy first adopted during the Obama administration that restricted the number of migrants who could enter the U.S. seeking asylum at official border crossings.

Migrants had figured out the system was overloaded, and if they made a claim, even if it was bogus, they could earn a quick catch-and-release and spend years here, with quasi-legal status, while their case wound its way through the immigration courts.

Immigrant rights advocates had challenged the policy and the 9th U.S. Circuit Court of Appeals agreed with them, finding that those still in Mexico could be considered to have arrived in the U.S.

But justices said Tuesday that raised all manner of line-drawing problems.

“Does a person arrive in the house when the person is not in the house and is knocking at the door?” said Justice Samuel A. Alito Jr., a George W. Bush pick.

Chief Justice John G. Roberts Jr., another Bush pick, wondered if someone standing in a 50-person queue to try to get into the U.S. would qualify.

Justice Neil M. Gorsuch, meanwhile, wondered if someone in the middle of the Rio Grande or walking along the boundary between official crossings had arrived.

“So anybody who’s arrived at the fence is in?” he wondered.

Ms. Corkran said it was more complicated than that, but said arriving has to be considered a process, and someone who’s begun the process is entitled to make an asylum claim.

“Arrives in means when you reach the threshold,” she said.

Asylum is a protection granted to those who are already here in the U.S. and who have a realistic fear of persecution if they were forced to return home. It’s similar to refugee status, which is granted to those who are still outside the U.S.

Vivek Suri, assistant U.S. solicitor general, said the fact that U.S. law makes a distinction between inside and outside America means that the asylum law cannot apply to those who are only on the doorstep and not yet here.

“The court should respect the line that Congress drew,” he said.

But justices on both sides of the ideological spectrum said the law is drafted strangely and the line isn’t as clear as Mr. Suri suggested.

“Arriving at the border means you’re knocking on the door, correct?” Justice Sonia Sotomayor, an Obama pick, prodded Ms. Corkran. “Up until 2016, anyone who knocked on the door had the opportunity to make the claim. They weren’t guaranteed success, but they could make the claim.”

She said the country’s refugee and asylum laws grew out of the tragedy of the St. Louis, a German ship carrying some 937 Jewish migrants that was turned away from Cuba, the U.S. and Canada in 1939.

It eventually returned to Europe with most of those passengers. Some 254 of them would perish in the Holocaust, according to the U.S. Holocaust Memorial Museum.

Mr. Suri said the metering policy isn’t a permanent bar on entry but rather a processing rule designed to keep the ports of entry open and efficient.

“It’s saying our port is at capacity today, try again some other day,” he said.

The alternative, he said, was either to have overcrowding at the ports or to do the kind of mass catch-and-release that happened under President Biden.

Mr. Suri said he didn’t know how many people were “paroled” by the Biden administration. “It would not surprise me if it was in the millions,” he said.

The Trump administration does not currently use metering because it has flexed other authorities to rule out asylum claims. But the administration says it wants to have the tool available.

Justice Ketanji Brown Jackson repeatedly argued that since no metering policy is in place, the case itself is moot and the high court should bow out.

“There is no policy in effect,” she said.