Supreme Court majority seems to back Trump policy turning away asylum-seekers at US border

WASHINGTON — U.S. Supreme Court justices seemed split Tuesday on whether the Trump administration should be allowed to turn away asylum-seekers who present themselves at ports of entry at the U.S.-Mexico border.

The question presented to the justices was whether migrants have to fully cross into the United States in order to have the right to apply for asylum and be processed, or if they can apply for asylum when they appear at a port of entry while on Mexico’s side of the border. 

The policy requiring a full crossing, known as metering, is defunct, but the Trump administration is asking the high court to make a determination in order to potentially revive the practice for future use at the southern border.

“This is an important tool in the government’s toolbox for dealing with border surges when they occur,” Vivek Suri, assistant to the U.S. solicitor general, told the court during oral arguments on the asylum case. “I can’t predict when the next border surge occurs, but I can say that when it does occur, this is a tool that (the Department of Homeland Security) would want in its toolbox. It’s not something the court should leave to future uncertainty.”

The six conservative justices seemed to agree with the Trump administration’s position, and questioned the definition of when a migrant “arrives” in the United States and can therefore seek asylum — legal protection granted to those fleeing danger or persecution in their home country.

The three liberals of the Supreme Court — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson —  asked whether the policy violated federal law protecting refugees. 

Lower and appeals courts have repeatedly blocked the metering policy, finding it violated U.S. asylum and refugee law for those escaping persecution after the first Trump administration expanded its use in 2017. The Biden administration rescinded the policy in 2021. 

A 2020 investigation by the Department of Homeland Security’s Office of Inspector General found that up to 680 migrants per day were turned around as a result of the metering policy. 

The ‘magic thing’

Conservative Justice Amy Coney Barrett asked Kelsi Corkran, an attorney who argued on behalf of the immigrant legal aid and humanitarian group Al Otro Lado, how close an asylum seeker has to be to qualify as “arriving” in the U.S.

The immigration advocacy group originally brought the challenge in 2017 after asylum seekers were turned away by border officials at U.S. ports of entry. 

“What is the magic thing, or the dispositive thing, that we’re looking for, where we say, ‘Ah, now that person we can say arrives in the United States?’” Barrett asked. 

Corkran said someone arrives in the U.S. at a port of entry “when they are at the threshold of the port’s entrance, about to step over.” 

“I think that’s consistent with ordinary meaning,” she said. “I arrive at my house, or I arrive in my yard, when I’m going through the gate. Now that process of arriving is interrupted by the border officer physically blocking them from completing the arrival.”

Barrett also asked Suri if the Trump administration plans to reinstate the metering policy. 

Suri said the Trump administration would like to, “when border conditions justify.”

Jackson noted the policy, in practice, would require an asylum seeker to violate U.S. immigration law by entering into the country without authorization, based on the Trump administration’s argument that a migrant has to be on U.S. soil before making an asylum claim. 

That would be considered entering the U.S. unlawfully.

“So imagine a polite asylum seeker who wants to do everything by the book, he approaches the border but does not cross precisely because the law says you are not supposed to enter the United States without authority,” Jackson said. “If we’re trying to think about what ‘arriving in’ means, surely Congress was contemplating that a person would be coming to the United States, would be doing so with an intent to comply with the law that says you’re not supposed to enter, and thereby asking for entry.” 

Justice Brett Kavanaugh also questioned Suri about how the policy seems to give preference to migrants to enter the U.S. without authorization, rather than those who are seeking to make an asylum claim. 

Suri said the metering policy doesn’t prevent a migrant from seeking asylum. 

“It’s saying ‘our port (of entry) is at capacity today, try again some other day,’ and that time when that person comes in, that person could come in legally,” he said. 

Refugee laws

Sotomayor questioned Suri how the metering policy didn’t violate the United Nations Refugee Convention of 1951. That act, which the U.S. signed in 1967, was created after the M.S. St. Louis ship, carrying more than 900 Jewish refugees during World War II, was prevented entry to the U.S. and turned back to Europe. 

Some passengers were able to find refuge in other countries, but 254 died in the Holocaust.

Suri said the metering policy doesn’t send people back to their home country. 

“No, you’re just telling them to walk back,” Sotomayor said, adding that if the turn-back policy were applied to the Jewish refugees on the St. Louis, it would be the same as telling them to swim back. 

“They happened to be on a boat, but that’s what we did,” she said. “We didn’t let them dock. We didn’t consider whether they were being persecuted. And the majority of those people were shipped back or had to go back from where they came and were killed. That’s what we’re doing here, isn’t it?”

Suri said that he does “not deny the moral weight of claims made by refugees, but that is not the question before the court.”

He said the issue is whether Congress imposed the obligation “in the asylum and inspection statutes, and those refer only to aliens who arrive in the United States.”

Sotomayor pushed back and noted that if someone were to fly into LaGuardia Airport in New York, they “may not have put their foot on U.S. land, but they’ve arrived in the United States. They’re knocking on the door.” 

The justices are likely to make a decision on the case by late June.