Supreme Court to scrutinize former policy of turning away asylum seekers at southern border

By Devan Cole, CNN

(CNN) — The Supreme Court on Tuesday will consider the legality of a policy championed by President Donald Trump during his first term that prevented scores of migrants arriving at the southern border from starting the process of applying for asylum.

The policy was rolled out under President Barack Obama, formalized by Trump and rescinded in 2021 under President Joe Biden, but the Justice Department has continued to defend it in court over the years. Trump’s solicitor general, D. John Sauer, recently told the justices the measure is a “critical tool for addressing border surges and preventing overcrowding at ports of entry.”

The case is one of several before the high court this session testing controversial immigration policies that Trump wants justices to approve. Next month, the nine will review an order he issued last year that sought to end birthright citizenship, as well as his efforts to end temporary deportation protections for Haitians and Syrians.

Officials have not said publicly whether they plan to revive the asylum policy, known as “metering,” which was introduced during the waning weeks of the Obama administration and fleshed out by Trump in 2018.

But the current administration’s decision to continue backing it in court underscores its desire to keep the policy as a backup avenue to stem the flow of migrants at the border as other restrictive measures face challenges in court.

“The Supreme Court isn’t supposed to decide hypothetical questions, which is why it’s weird that it agreed to take up this appeal in the first place,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

“Whether or not the Trump administration wants to restart this particular policy, the fact that it isn’t currently in effect ought to be fatal to the Supreme Court’s power to decide this case, one way or the other,” he added.

Under federal law, the government must process a migrant who presents at a port of entry and is fleeing political, racial or religious persecution in their home country. A migrant covered under that requirement is defined as someone “who is physically present in the United States or who arrives in the United States.”

But the metering policy enabled federal agents stationed at the border to turn back such asylum seekers before they ever stepped foot on US soil. The policy, which aimed to help officials manage the number of migrants seeking safe haven in recent years, gave workers at ports the flexibility to let in migrants if they determined there was “sufficient space and resources to process them.”

The question before the justices on Tuesday is relatively straightforward: Is a migrant who is stopped by federal agents on the Mexican side of the border covered under the law that requires officials to begin passing them through the asylum process?

The administration contends the answer is “no.”

“The ordinary meaning of ‘arrives in’ refers to entering a specified place, not just coming close to it. An alien who is stopped in Mexico does not arrive in the United States,” Sauer wrote in court papers. “The phrase ‘arrives in the United States’ does not even plausibly, much less clearly, cover aliens in Mexico.”

But an immigrant rights group and more than a dozen individuals who represent a class of migrants that challenged the policy have countered that the answer is an unequivocal “yes.”

“Congress’s use of the present tense” in the statute shows that lawmakers wanted the law’s “mandates to apply not only to those who have arrived, but also to those who are attempting to step over the border,” the policy’s legal foes said in written arguments submitted ahead of Tuesday’s hearing.

“If Congress wanted the law to cover only noncitizens who had arrived, it would have said so,” their lawyers told the justices.

Lower courts sided against the policy

When Obama rolled out the first iteration of the policy in 2016, officials at the border were reeling from a surge of Haitian asylum seekers, which had overwhelmed their ability to manage the situation.

But after Trump took office and formalized a more robust version of the policy, the government was taken to court by Al Otro Lado, a nonprofit legal services organization for asylum seekers, and the 13 individual challengers.

A federal judge in California ruled the policy was unlawful and certified a class of individuals to be shielded from it.

In a divided decision in 2024, the 9th US Circuit Court of Appeals affirmed that ruling, concluding the policy ran afoul of the federal law.

“The phrase ‘physically present in the United States’ encompasses noncitizens within our borders, and the phrase ‘arrives in the United States’ encompasses those who encounter officials at the border, whichever side of the border they are standing on,” Judge Michelle Friedland wrote in the majority decision.

Notably, Friedland, who was joined by fellow Obama appointee John Owens, stressed that the ruling left the government “with wide latitude and flexibility to carry out its duties at the border.”

Federal laws, Friedland said, “require border officials to inspect noncitizens seeking asylum at the border, and the metering policy withheld that duty.”

A connection to the past

Policy decisions on managing asylum seekers at the southern border have changed frequently in recent years.

Biden’s solution was to have migrants use a phone app to schedule appointments with federal agents at a legal port of entry. They then waited outside the US until they could be inspected by an immigration officer and begin the asylum process.

Though Biden rolled back the metering policy in November 2021, his Justice Department continued defending its legality in court, telling the 9th Circuit that the policy was “reasonably based on demonstrated capacity constraints.”

Trump ended the Biden-era appointment policy after returning to office last year, and he shut down the border for asylum seekers. That decision is at the center of a legal challenge making its way through the federal courts in Washington, DC.

When the metering policy was in place, it frustrated the ability of tens of thousands of migrants to move forward in seeking asylum, according to the Strauss Center at the University of Texas at Austin.

Turning those people back, the policy’s challengers told the high court, “quickly created a humanitarian crisis in Mexico.”

“As CBP continued to refuse to inspect or process asylum seekers, many of those turned away found themselves living in makeshift camps on the Mexican side of the border,” they told the justices in court papers. “The growing bottleneck of asylum seekers turned back by (Customs and Border Patrol) waited near the ports for weeks and then months without reliable food sources, shelter, or safety.”

Some, they said, “attempted instead to enter the United States between ports and died while crossing the Rio Grande or the Sonoran Desert.”

That reality has drawn comparisons to a World War II-era episode during which the US turned away the MS St. Louis, a ship ferrying nearly 1,000 Jewish refugees fleeing Europe in 1939.

HIAS, formerly known as the Hebrew Immigrants Aid Society, told the justices in court papers that the metering policy “creates a legal no man’s land” that puts the safety of asylum seekers at risk.

“People are left in limbo in dangerous border towns, unable to access the process our laws guarantee to those who arrive at a port of entry and present themselves to US officials standing on US soil,” the group said in its friend-of-the-court brief. “It is the kind of purgatory experienced by the St. Louis passengers and that Congress eradicated for those who reach a port of entry: safety visible but unreachable.”

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