Turning Away Progress
Supreme Court Issues Ruling Allowing Denial of Asylum Seekers at the Border
On June 25, the Supreme Court slashed migrant rights with its 6-3 ruling in Mullin v. Al Otro Lado that asylum seekers may be turned away without consideration before they cross the border from Mexico into the United States.
The Immigration and Nationality Act of 1952 (INA) allows aliens to apply for asylum when they “arrive in the United States.” The deranged decision concludes recent discussions regarding the semantics of what precisely constitutes “arriving in” the U.S., which the majority took to mean setting foot within the country’s borders. The ability of thousands to escape from persecution hinges on the interpretation of a single preposition. Thanks to the majority decision, the pendulum has not swung in their favor.
This decision reopens the door to a prior border practice called “metering,” or allowing only a certain number of migrants to apply for asylum each day. If noncitizens never quite literally set foot in the U.S., the conservative majority reasons, they are not required to have their asylum case considered and are placed on a list for processing to even request asylum. Oversight becomes a disorganized mess that leaves migrants waiting for months, even with the Biden-era introduction of an app to maintain appointment lists.
Justifications for this procedure often claim that asylum-seekers are not denied entry, per se, but merely delayed due to border facilities’ processing capacity. Internal reports suggest that denial continues even when facilities are as empty as RFK Jr.’s brain.
Metering arose as a government response to the influx of migrants pursuing entry to the U.S. in early 2016, especially along the California border with Mexico. In 2018, the Department of Homeland Security formally allowed southern border patrol officials to integrate metering. After backlash from a migrant advocate group called Al Otro Lado, a California district court revoked the policy in 2021, and the Ninth Circuit affirmed this decision in 2024.
While these are welcome decisions, the reversal is the judicial equivalent of putting a “Caution! Hot!” sign on a fire: it should not have been necessary, yet was made so thanks to a few special snowflakes (also known as the federal government).
The Trump administration, however, demanded in 2025 that the Supreme Court review these decisions, which it agreed to do despite the fact that the practice had not been in use for years. Obviously, this administration has nothing better to do than act like a group of cartoon supervillains.
The conservative justices took a literal approach to the dissection of rhetoric. Justice Samuel Alito, who prefers his women submissive and his American flags upside down, even cited football in his simple interpretation. He suggested that “a running back does not arrive in the end zone when he reaches the 1-yard line.” His cherry-picked examples fit circumstances in which arrival requires presence within a physical location or across a certain point.
The issue is that these examples are not representative of the spectrum of appropriate situations in which one can consider having arrived. Justice Alito’s sample circumstances quite frankly lack any context, consideration, or complexity. Frankly, I’m not sure he’s capable of any of the three.
Justice Sonya Sotomayor, the embodiment of “do no harm but take no shit,” quoted the 2016 Sturgeon v. Frost case in her scathing dissent as a reminder of the need for nuance in such analysis.
“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”
The basis for the Court’s rhetorical analysis primarily comes from Title 8 of the United States Code 1225, which codified the INA. Justice Sotomayor acknowledged that in §1225, the phrases “arrives [in]” and “arriving [in]” are used interchangeably.
Not all of the justices–you can guess which ones–seem entirely invested in the outcome, which indicates more strongly to me that voting took place along party lines rather than based on unbiased conclusions. Some of the justices even contradicted themselves. Justice Brett Kavanaugh, who desperately wants you to know he still likes beer, said in oral argument that “the sole issue before us is trying to figure out what ‘arrives in’ means when you’re at the border.” Only several minutes later, he stated that “in other words…I think the ‘arrives in’ thing seems kind of artificial.”
“The bigger question,” Kavanaugh said, “is can the government physically stop people before they get to whatever that line is, no matter how we define it, and that seems not like a statutory question, more of an arbitrary and capricious question.”
Capricious indeed. Though the Court’s analysis seems trivial to at least some of the judges, the potential implications of this decision are not quite so minor.
Part of what frightens me most is the last few paragraphs of Justice Clarence Thomas’ concurring opinion, presumably written while wearing a locket with Harlan Crow’s face in it. He claimed that Congress cannot require the President to “allow aliens to cross the border against his will,” since such action falls beyond Congress’ constitutional power to “establish an uniform Rule of Naturalization.”
While Mullin v. Al Otro Lado does not immediately reinstate a metering policy, the case clears a path for the Executive Branch to reverse this decision. In deferring to the President, the Court essentially provides carte blanche for the government to remain in accordance with asylum laws even as border patrol stops these asylum seekers from reaching the point where their case has to be processed and considered. Funny how quickly government loopholes can turn into nooses.
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Here are a few of the conversations we have had just this week!