Supreme Court to Decide Whether Alien on Mexican Side of Border Is ‘Arriving in the United States’

The Supreme Court this week granted DOJ’s petition for a writ of certiorari in Noem v. Al Otro Lado. At issue is whether a migrant CBP stops on the Mexican side of the Southwest border is “arriving in the United States” such that the alien must be allowed in to seek asylum. This is more than a simply statutory interpretation issue, as the answer will likely govern DHS’s ability to use force to keep aliens out of the United States.

Section 208(a)(1) of the INA

Section 208 of the Immigration and Nationality Act (INA) is the asylum statute under U.S. law, and paragraph (a)(1) therein states, in pertinent part:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum.

In 2016, under the Obama administration, large numbers of aliens seeking asylum under that provision appeared at the Southwestern ports of entry even though they lacked proper admission documents, like passports and visas, or Border Crossing Cards.

That was an issue, because even if an alien lacks admission documents, section 235 of the INA requires CBP officers at the ports of entry to inspect those “applicants for admission” and to detain them during that inspection process.

Such applicants for admission are subject to “expedited removal” under section 235(b)(1) of the INA, meaning CBP could exclude them without first obtaining a removal order from an immigration judge, but if those aliens claimed a fear of persecution or torture, or requested asylum directly (their clear intent), that provision requires CBP to refer them to a USCIS asylum officer for a “credible fear” interview.

Again, however, section 235(b)(1) requires CBP to detain those aliens during the credible fear process as well, and the problem is that the Southwestern ports lack sufficient detention space to hold inadmissible aliens for extended periods.

“Metering”

In response, Obama’s CBP adopted a process called “metering”, under which CBP officers would stand at the borderline, turn applicants back before they could approach the ports, and require them to join a queue on the Mexican side of the border and await their turns to be processed at the port.

As DOJ explained in its petition for review to the Supreme Court: “DHS gave ports of entry flexibility to apply metering based on ‘what worked best operationally and whether it was required on any given day or at any specific location’”, and in practice metering meant aliens could wait weeks to months before they were allowed into the ports.

In 2018, the Trump I administration formalized that metering policy by issuing a memorandum which, as DOJ described it, “stated that CBP officers ‘may elect to meter the flow of travelers’ when appropriate to ensure ‘security,’ ‘safe and sanitary conditions,’ and ‘orderly processing’”.

The Trump memo “acknowledged, however, that ‘once a traveler is in the United States, he or she must be fully processed’”.

The metering guidance was rescinded by the Biden administration in November 2021, four years after Al Otro Lado, an immigrant advocacy group, and 13 asylum seekers filed a complaint with the U.S. District Court for the Central District of California.

In that complaint, the plaintiffs alleged that CBP had “systematically violated U.S. law and binding international human rights law by refusing to allow individuals … who present themselves at” ports of entry “along the U.S.-Mexico border and assert their intention to apply for asylum or a fear of returning to their home countries — to seek protection in the United States”.

Among the claims ultimately asserted by the plaintiffs was an argument that the metering policy violated section 706(1) of the Administrative Procedure Act (APA), which bars agencies from unlawfully withholding or unreasonably delaying actions they are required by law to take, here considering asylum claims by aliens “arriving in” the United States.

That was just one of the issues in Al Otro Lado, but fast forward to October 23, 2024 — less than two weeks before the presidential election in which Donald Trump defeated Kamala Harris — when a divided three-judge panel of the Ninth Circuit issued an opinion in the case.

As my colleague George Fishman explained five days after that opinion was issued:

What its decision means is that even if a new Trump administration is able to restore sanity to our border and prevent mass influxes of migrants from illegally crossing, it doesn’t matter. As long as the migrants reach the Mexican side of the border, they have won. For once the migrants encounter U.S. officials, they can demand to apply for asylum in the U.S. And that means they can enter and remain here.

That’s because the majority concluded an alien “arrives in” the United States for purposes of asylum even if the alien is stopped on the other side of the border, knocking on the metaphorical door and demanding to be let in.

Judge Ryan Nelson, in dissent, didn’t hide his disagreement with that opinion:

The majority’s holding is wrong, troubling, and breathtaking. In its struggle to create ambiguity in the statutory language, the majority skips over the statute’s plain meaning, ignores a common-sense understanding of the English language, misapplies a semantic canon, disregards the typical presumption against extraterritoriality, and usurps Congress’ authority to make law. By so doing, the majority strikes Congress’s selected language (“arrives in the United States,” whether or not “at a designated port of arrival”) and replaces it with language of the majority’s choosing (“stopped on the United States’ doorstep”).

I will return to what else Judge Nelson had to say, but after that opinion was issued the court took a number of subsequent actions (sua sponte consideration whether to reconsider the matter en banc, which the Ninth Circuit ultimately rejected, and a May amendment of the opinion and a denial of DOJ’s request for rehearing), which led to DOJ’s July 1 timely filing of its petition with the Supreme Court.

The “Law of Triviality”

All told, as DOJ explained in its petition:

Fifteen judges of the Ninth Circuit wrote or joined opinions at the panel and rehearing stages explaining that the decision below contradicts “decisive statutory language,”; “creates major impediments to the Executive Branch’s ability to manage our nation’s borders,”; and “needs to be corrected.”

It would be easy to dismiss as overwrought all the attention those jurists focused on the question of what Congress meant when it described an alien as “physically present in the United States or who arrives in the United States” in section 208(a)(1) under Parkinson’s “law of triviality”.

That law, also known as “bikeshedding”, posits that organizations have a “tendency to devote a disproportionate amount of our time to menial and trivial matters while leaving important matters unattended”, in Parkinson’s example focusing on the design of a bikeshed over a (largely ignored) proposal for a nuclear power plant.

Members of organizations engage in bikeshedding because people can have equally valid opinions about the commonplace and mundane, in Al Otro Lado the meaning of one verb (“arrives”) and one preposition (“in”).

Pull back, however, and you’ll see that this “simple” case touches on larger questions hotly debated under Biden that echo to this day: What obligations does section 208(a)(1) impose on DHS to allow illegal aliens into the United States; and what steps (read: “force”) can immigration officers use to keep those “asylum seekers” from entering the United States illegally?

The “C-Wire” and the “Whipping” Incident

Two incidents among many garnered attention at the border during the last administration: the destruction by the Biden CBP of concertina-wire (c-wire) barriers the state of Texas installed on the banks of the Rio Grande to deter migrants from entering illegally in 2023; and White House and congressional pearl-clutching over the alleged “whipping” of illegal migrants by mounted Border Patrol agents in that river during a migrant surge into Del Rio, Texas, in September 2021.

In the former case, the Biden administration argued that it was obligated to destroy the c-wire because those migrants, having reached the U.S. side of the Rio Grande, were “present” in the United States and therefore DHS had allow them in to inspect them as “applicants for admission” under section 235 of the INA (and release them).

The “whipping” case, on the other hand, was referred to CBP’s Office of Professional Responsibility (OPR), and to the degree that the subsequent July 2022 OPR report is remembered, it’s because the office concluded that no migrants had ever been “whipped” (no migrant was touched, and the agents slung their reins around in a common maneuver used to calm horses).

That was far from the most important — or telling — takeaway from the OPR report, however.

One passage buried on p. 3 told you everything you needed to know about the Biden administration’s view of its border security responsibilities:

During this incident, instead of processing migrants for admission or directing them to an area where thousands of individuals already awaited, multiple mounted BPAs used force, or threats of force, to coerce or compel individuals to return to Mexico. For this reason, OPR presented the case to the United States Attorney’s Office for the Western District of Texas which eventually declined prosecutorial interest.

Keep in mind that those agents were in the river itself, meaning the migrants they were attempting to “coerce or compel” by force or threats of force weren’t actually “in the United States” and had been passing back and forth between the two countries well before the mounted agents had appeared.

In essence, Biden’s CBP attempted to make it a crime for Border Patrol agents to use “force, or threats of force” to prevent aliens from entering illegally. Only cooler and more experienced heads at the U.S. Attorney’s Office for the Western District of Texas prevented them from doing so.

That’s remarkable, given one of CBP’s “enduring mission priorities” is to “Protect the Homeland through the air, land and maritime environments against illegal entry, illicit activity or other threats to uphold national sovereignty and promote national and economic security.” (Emphasis added.)

Back to Judge Nelson’s Dissent

Picking up where I left off on Judge Nelson’s dissent, he next complained that the majority opinion “imposes on the federal government — for the first time — an obligation to interview asylum seekers who are still in Mexico”.

It may have been the first time a court imposed such an obligation on DHS, but as the OPR referral to the U.S. Attorney’s Office over the (fake) whipping incident shows, the prior administration had already tried to impose such an obligation on Border Patrol: So long as those aliens were in the river, force could not be used to keep them from entering illegally.

That logic and the Ninth Circuit’s reasoning could be carried one step further: What if an alien, standing on the Mexican banks of the Rio Grande, shouted over to agents that he intended to cross illegally to apply for asylum?

Under the appellate court’s logic and the OPR referral, agents would be powerless to “coerce or compel” that alien to remain on the Mexican side. He is on what the majority referred to as the “United States’ doorstep” and must be granted (improper) entry.

Taking it a step further, the same would be true if the alien were 1,000 miles away, at the Guatemalan border with Mexico and called the local Border Patrol station in Del Rio to inform the agents that he would be at a specific spot on the banks of the Rio Grande at a time certain.

In that instance, it would plainly be improper under such logic for the U.S. government to ask “partners” on the other side to impede that alien’s progress, because if it’s illegal for our officials to do so, it would be equally illegal to ask foreign officials to do so at our behest (the “extraterritoriality” concern Judge Nelson referenced).

Can DHS Use Force to Deter Migrants from Entering Illegally?

Remember — the metering policy at the heart of Al Otro Lado has ceased to exist, and therefore the Supreme Court could have passed on review on the basis that the issue is moot.

But so long as Al Otro Lado remains good law in the Ninth Circuit, it could be cited there and elsewhere for the proposition that an alien just about to enter the United States illegally has already arrived in this country, and therefore the asylum provisions in section 208(a)(1) of the INA require CBP to usher the alien in.

Ideally, moral suasion would deter aliens from violating our national sovereignty by entering illegally. Suasion has never been a silver bullet in the past and is only effective now to the degree migrants know Trump’s CBP will back up his rhetoric with action.

Can DHS use force to deter aliens at the nation’s “doorstep” from coming in the backdoor? Once the justices rule in Al Otro Lado, we will know for sure, one way or the other.