The U.S. Supreme Court ruled on Thursday that immigrants waiting on the Mexican side of the southern border cannot claim a legal right to asylum processing or border inspections until they actually cross the boundary line into the United States. The 6-3 decision reverses a lower court ruling that had labeled the federal government’s border “metering” policies unlawful.
The case, Mullin v. Al Otro Lado, centered on a policy introduced in 2016 under which U.S. Customs and Border Protection officials managed historic surges of migrants by limiting how many people could be processed each day at land ports of entry. To enforce the cap, border agents stood at the international boundary line, keeping excess applicants on the Mexican side. The advocacy group Al Otro Lado and several asylum seekers sued in 2017, arguing the policy unlawfully denied migrants their right to seek asylum under the Immigration and Nationality Act (INA).
Writing for the majority, Justice Samuel Alito stated that the statutory phrase “arrives in the United States” must be interpreted according to its everyday meaning.
“In ordinary speech, no one would say that a person ‘arrives in’ a place—for example, a house, a city, or a country—before the person enters that place,” Alito wrote. He added that “an alien who is standing in Mexico does not ‘arriv[e] in the United States’ by attempting, and failing, to set foot in this country. An alien ‘arrives in the United States’ only when he crosses the border.”
The majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, also pointed out that other areas of federal immigration law explicitly mention “attempted” entry, but the asylum and inspection provisions do not. Furthermore, the majority noted that nothing in the law suggests Congress intended for these provisions to apply outside of U.S. territory.
Justice Thomas filed a separate concurring opinion to raise concerns over the lower courts’ use of class-wide declarations, arguing they effectively bypassed federal laws that restrict courts from blocking immigration enforcement operations. Thomas also suggested that forcing the executive branch to allow foreign nationals across the border could infringe upon the president’s inherent constitutional authority to exclude aliens.
In a sharp dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, argued that the majority’s focus on a single preposition ignored the broader purpose of the American asylum system, which was built to align with international treaties following World War II.
“The Court today holds that the Executive Branch may circumvent all these mandatory procedures by having U.S. immigration officers stand at the border and physically block noncitizens from setting a foot onto U.S. soil,” Sotomayor wrote. She argued that the ruling “blesses the Executive Branch’s decision to slam the door shut on all who are fleeing persecution, despite the detailed inspection and asylum system that Congress enacted and commands.”
Sotomayor noted that federal regulations written shortly after the law was updated in 1996 defined an arriving alien as someone “coming or attempting to come into the United States at a port-of-entry,” which did not depend on the exact placement of a person’s feet.
Justice Jackson issued a separate dissent focusing on the fact that the government had already rescinded the written metering policy in November 2021 after a district court initially ruled against it. Jackson argued the Supreme Court should never have taken the case because there was no longer an active policy to evaluate.
“Today, the Court issues an advisory opinion on the lawfulness of metering—a policy that has not been in place for almost five years and that the Government has no concrete plans to reinstate,” Jackson wrote, arguing the court chose to “decide legal issues entirely in the abstract.”
Though the policy was ended in 2021, the government argued the case was not moot because it needed to preserve the legal option to use metering again if future border surges overwhelmed port capacities. The Supreme Court’s ruling sends the case back to the Ninth Circuit Court of Appeals for further proceedings consistent with the new decision.
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