Justice Brett Kavanaugh voiced concern over how the border “metering” policy at the center of Supreme Court arguments on Tuesday could give people who cross into the United States illegally an advantage over those who seek asylum at ports of entry.
The justices heard arguments in Noem v. Al Otro Lado, a case that looks at whether an asylum-seeker at the border has arrived “in the United States” even if he or she is stopped on the Mexican side of the border. The case centers on the “metering” policy at the border to prevent migrant surges from overwhelming federal immigration officials, which was formalized by the first Trump administration but revoked by Biden administration and has yet to be reinstated.
During arguments, Kavanaugh expressed concern over the dormant border policy, specifically over how it could give an advantage to those who enter the country through illegal means, rather than through a port of entry, to claim asylum.
“The distinction is between the illegal entrant and the person who lawfully gets very close and wants to follow the rules, that person is disadvantaged on asylum as compared to the person who illegally enters. And the question, as I understood it, is, why would Congress do that? So what’s the answer?” Kavanaugh asked DOJ lawyer Vivek Suri.
Suri denied that the metering policy disadvantages “the polite asylum-seeker” and noted that the metering policy, which involves physically barring migrants from reaching U.S. soil to legally claim asylum, is only a temporary policy intended for when ports of entry are overwhelmed by migrants.
“Metering is not saying to the person, the polite asylum-seeker in Justice [Ketanji Brown] Jackson’s words, ‘You can never enter the United States and your only option is to enter illegally.’ It’s saying, ‘Our port is at capacity today, try again some other day,’ and that time when that person comes in, that person could come in legally,” Suri said.
The DOJ lawyer also speculated that Congress felt the country had “greater responsibilities to aliens
in the United States than to aliens in Mexico.” Suri separately noted that entering the country illegally carries “other penalties” and could negatively factor into an asylum application.
Suri received a grilling from Justices Sonia Sotomayor, Elena Kagan, and Jackson over the legality of a policy physically barring migrants from reaching U.S. soil to claim asylum and how such a policy comports with treaties and other obligations the country has to refugees. The DOJ lawyer remained adamant that the policy keeps the U.S. in line with its treaty obligations and would be an important tool for border security if upheld by the high court.
Kelsi Corkran, the lawyer representing Al Otro Lado before the justices, faced sharp questions from Justices Neil Gorsuch and Amy Coney Barrett over how close to the border someone would need to get in order to be considered as having arrived “in the United States” under the law for claiming asylum.
“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? I mean, what if there’s a queue and they’re far back, or what if they arrive not at a port of entry? How close do you have to be to the border?” Barrett asked.
“Could you say that someone arrives in the United States if they’re at a portion of the border that does not have a port of entry?” Barrett added. “If it’s not crossing the physical border, 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?””
The “metering” policy has not been used since 2021 and would not be usable if the administration attempted to revive it now, given a 2024 ruling from the U.S. Court of Appeals for the Ninth Circuit, which is still in effect. That ruling, which the DOJ appealed and is the basis of the current case before the Supreme Court, found that those on the Mexican side of the border can be legally considered to have arrived in the U.S. for purposes of claiming asylum.
With the policy not currently in effect or actively being revived, Jackson questioned the court multiple times during oral arguments on Tuesday about why it was even hearing the case, since it centers on a dormant policy. Suri responded to those questions by arguing that future conditions at the border may require a revival of the policy.
“Administrations of both parties since 2016 have consistently said that this is an important tool in the government’s toolbox for dealing with border surges when they occur. I can’t predict when the next border surge occurs, but I can say that when it does occur, this is a tool that DHS would want in its toolbox. It’s not something the court should leave to future uncertainty,” Suri said.
“We’ve been faulted here for not having a specific policy in place, but that’s not really fair to us. There’s a class-wide declaratory judgment saying that this practice is unlawful. And I think the government should not be faulted for conforming its current conduct to what a court has declared to be the law. Once that declaratory judgment is lifted, we’ll take appropriate steps at that time,” he added.
SUPREME COURT TO CONSIDER WHEN ASYLUM-SEEKERS AT THE BORDER HAVE ARRIVED IN THE US
A ruling by the high court in Noem v. Al Otro Lado is expected by the end of June at the latest, when the current Supreme Court term concludes.
The Supreme Court’s oral arguments in the case came a day after the justices heard arguments in a case over the legality of late-arriving mail ballot laws. Next week, the high court will hear arguments in a case challenging the legality of Trump’s birthright citizenship executive order.
