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The U.S. Supreme Court has recently consented to reevaluate a longstanding immigration policy that denied asylum seekers entry at ports along the southern U.S. border. President Donald Trump requested the justices to review a Ninth Circuit ruling that deemed the policy unlawful.
The Biden administration terminated the practice referred to by the government as “metering.” The Trump administration seeks to maintain flexibility while intensifying its immigration enforcement efforts.
U.S. Solicitor General John Sauer stated in November, “The Constitution assigns the authority to regulate the border to the political branches, rather than the judiciary.” Sauer stated that the decision below improperly undermines Congress’ authority to establish asylum policy, referencing its ties to active policies. It also ‘significantly encroaches upon the executive branch’s authority to regulate the nation’s borders.’
The nonprofit immigrant rights organization, Al Otro Lado, in conjunction with 13 asylum-seekers who initiated the lawsuit central to the dispute in 2017, expressed their endorsement of the Ninth Circuit’s ruling and are ready to uphold it before the Supreme Court.
“The government’s turnback policy constituted an unlawful strategy to evade these obligations by physically obstructing asylum-seekers at ports of entry and hindering their ability to cross the border for protection,” stated attorneys for Al Otro Lado and the asylum-seekers. “At-risk families, children, and adults escaping persecution were left in hazardous circumstances, where they encountered violent attacks, abduction, and mortality.”
Sauer stated, “According to the rationale of the decision below, [Customs and Border Patrol] was prohibited from obstructing the entry of an individual who arrived at the border without a prior appointment.” An alien could assert that he has arrived ‘in the United States,’ thereby necessitating government inspection and processing of his asylum application, which would enable him to circumvent the queue.
The asylum-seekers contested the government’s petition, asserting that the appellate court’s decision pertained solely to a specific group of migrants.
Kelsi Brown Corkran, an attorney with the Institute for Constitutional Advocacy and Protection at Georgetown Law, stated, “While the current administration’s border policies are subject to impending legal challenges, none of the plaintiffs’ assertions in those cases hinge on the issue raised by the petition here.” The court’s determination of the issue at hand would consequently constitute little more than an advisory opinion.
The Justice Department refrained from commenting on the Supreme Court’s decision to consider its appeal. The White House directed inquiries regarding the reinstatement of the metering policy to the Department of Homeland Security, which did not respond to questions concerning the potential revival of the policy by the Trump administration.
“Our attorneys have unequivocally articulated that the Trump administration has consistently upheld the explicit interpretation of federal law and fundamental logic in this matter from the outset,” Assistant Secretary Tricia McLaughlin stated in an email that contained a link to the government’s petition. “We anticipate presenting our case to the Supreme Court.”
The Immigration and Nationality Act stipulates that individuals in the United States, irrespective of their location, have the right to apply for asylum if they can establish a well-founded fear of persecution in their home country.
In 2016, in response to an influx of Haitian asylum-seekers at San Ysidro port of entry in Southern California, the Obama administration mandated that border agents refuse entry to newly arriving migrants.
Two years later, the Department of Homeland Security formally instituted the policy, supplying all southern border ports with “metering guidance.”
Under the 2018 policy, border agents were assigned the responsibility of identifying prospective asylum-seekers and actively obstructing their entry into U.S. territory.
In 2019, the Trump administration implemented a new barrier for migrants, declaring that individuals who traversed one or more countries prior to reaching the U.S. would be disqualified from asylum unless they had first pursued protection in at least one of those transit countries.
A lower court has certified a class for asylum seekers who arrived prior to Trump’s transit rule, issuing an injunction that reinstates claims previously denied under the 2019 policy.
The class facilitated the advancement of the case subsequent to the Biden administration’s abrogation of the metering policy in 2021. The transit rule was ultimately rescinded in 2023.
In 2022, the lower court issued a definitive ruling, imposing a permanent injunction that barred the government from enforcing the asylum prohibitions against that particular group. The court confirmed that individuals in this category possessed the right to seek asylum in accordance with prior policy directives.
The Ninth Circuit assessed the legality of the metering policy to ascertain whether the remedy should be maintained.
The panel adjudicated in favor of the asylum-seekers, rejecting the government’s assertions that migrants denied entry at ports were not unlawfully deprived of asylum under the metering policy due to their absence from the U.S. The Trump administration urged the Supreme Court to reverse the ruling, arguing that alternative solutions, like the Biden-era CBP One app designed for asylum appointment scheduling for migrants, could be at risk.
