Yearslong case on border metering is back in court. SCOTUS centers on what counts as U.S. soil

The Trump administration is asking the U.S. Supreme Court to overturn a lower court ruling blocking a policy to limit asylum at the border.

Immigration officers began turning away asylum seekers at border ports of entry in 2016 — arguing requests needed to be metered out due to capacity issues. The advocacy group Al Otro Lado filed suit against the policy on the grounds that it went against a U.S. law guaranteeing the right to seek asylum on U.S. soil.

Attorney Kelsi Corkran, who is representing Al Otro Lado and the other plaintiffs, told justices that prior to the policy taking effect, asylum seekers were processed per U.S. law.

“ I think it's important to remember that from 1917 to 2016, 99 years … there was not a single example of a turnback,” Corkran said. “At that point when they were in the port, they would be inspected and processing would happen. So it's an unusual scenario we have here where we have the officer standing there and turning people back.”

At issue now is what arriving in the U.S. actually means. Justice Amy Coney Barrett asked that question during the roughly 90-minute hearing.

“How close do you have to be to the border? Could you say that someone arrives at the United States, if they’re at a portion of the border that does not have a port of entry? What is it, if it’s not crossing the physical border?” she said.

Corkran argues an asylum seeker who’s inside a port of entry has arrived in the U.S. The Department of Justice argues a person must be physically past it.

Justice Ketanji Brown Jackson pressed the Department of Justice attorney Vivek Suri on its definition of U.S. soil.

“You are suggesting that ‘arriving in’ means the person who is literally standing on the U.S. side of the border, as opposed to the person who approaches the U.S. side of the border, and I don’t understand why Congress would make that distinction,” Jackson said.

Suri argued people seeking protection from outside the U.S. should do so through refugee processing, and said asylum processing is for those already in the U.S.

“Congress could reasonably determine that if a refugee is in Mexico, then the Mexican government is primarily responsible for processing his claim. Once the refugee is in the United States, whether legally or illegally, then the United States has greater responsibility toward that person,” he said.

The Obama-era border policy was expanded under the first Trump administration and suspended under President Joe Biden. When asked whether the new Trump administration was seeking a ruling in order to reinstate the policy, Vivek said border conditions could not be predicted, but the government wanted the option to use the policy.

Justice Maria Sotomayor noted watchdog reports have found the policy’s been used to avoid processing asylum claims altogether.

“The Office of the Inspector General issued a report that said that some of the metering that was done was not done because of lack of space. It reported on the fact that there were empty beds in at least two ports,” she said. “There is a claim that at least one president was using this as a subterfuge for ignoring any inspection whatsoever.”

The 9th U.S. Circuit Court of Appeals ruled to block the policy in 2024. The Supreme Court is expected to make a ruling by June.