Chloe Miracle-Rutledge is a JURIST correspondent at the Supreme Court and 2L at Georgetown University Law Center in Washington, DC
This week I attended oral arguments before the Supreme Court of the United States Naomi v. To the other sidea case about the government’s policy toward asylum seekers at the U.S.-Mexico border.
When I arrived, the yard was quiet. Press representatives told me that this was the case a rally in support of the right to asylum earlier in the morning, but protesters had left the site before clashes broke out.
The details of this case are technical and largely procedural in nature and revolve around the meaning of language in a federal law. But the broader issues — migrant rights, immigration policy and asylum — are among the most contentious issues in the United States today.
The case stems from a challenge to the Trump administration’s “metering” policy, which turned away asylum seekers before they entered the United States. The Immigration and Nationality Act (INA) Provides that any noncitizen who “arrives” in the United States may apply for asylum and must be screened by immigration officials.
Vivek SuriAssistant Attorney General, began by urging the court to uphold the measurement policy, arguing that “arriving in” required physically entering U.S. soil. According to challengers, he claimed, “arriving in the United States” would mean stopping outside the country. That interpretation, he argued, “contradicts the letter of the law. You cannot enter the United States while standing in Mexico.” Suri also cited the Court’s 1993 decision Sale v. Haitian Centers Councilwhich held that the United Nations Convention Relating to the Status of Refugees and federal immigration law do not apply to noncitizens outside the U.S. territory. If Congress had intended to depart from this “territorial approach,” Suri argued, “he would have said so.”
The challengers interpret the INA differently. Kelsi CorkranSupreme Court Director at the Institute for Constitutional Advocacy & Protection, argued that with the Refugee Act of 1980, Congress created a legal system to ensure that the United States met its treaty obligations not to send refugees back to countries where they would be persecuted. In their view, the metering policy allows the government to circumvent these obligations by “blocking asylum seekers just when they are about to cross the port threshold.” She also argued that the government’s reading of “arrives in” was flawed because it “isolated the word ‘in’ at the expense of rendering the rest of the law nonsensical.”
Justice Clarence Thomas asked both sides how international law factored into their arguments. Suri responded that the international agreements cited by the challengers “do not apply in this case and are not violated by the measurement” because the policy applies outside U.S. territory and does not involve the return of individuals for persecution.
Justice Sonia Sotomayor seemed skeptical of this position. She noted that refusing to process asylum seekers who are effectively “knocking on the door” may violate the United States’ international obligations.
Judge Ketanji Brown Jackson also expressed concern, noting that the policy appears to disadvantage “polite asylum seekers” who attempt to enter legally, while those who enter illegally may still have their asylum applications considered.
Justice Samuel AlitoHowever, he was sympathetic to the practical concerns of government. He asked what would happen if a port of entry was overwhelmed and officials were not allowed to take measurements. Suri responded that under such circumstances, people “who may not necessarily be eligible for asylum” could be allowed entry into the United States. Justice Sotomayor declined, suggesting that the policy was less about capacity and more about the president “using this as an excuse to ignore any inspection.”
Several judges repeatedly returned to the text of the law. Justice Elena Kagan Suri pressed on a potential dismissal issue: If “arriving in” means being physically present in the United States, then why does the law also include the phrase “present in”? Suri claimed that the terms describe different categories; “Arriving in” includes those who have just crossed the border, while “present in” describes those already in the country.
Members of the court’s conservative wing pressed Corkran on how their interpretation would work in practice. If “arriving in” does not require crossing a border, Judge Amy Coney Barrett What then is the “magical” or “dispositive” factor that marks the moment of arrival? Corkran responded that a person “arrives in the United States … when he is at the threshold of the port entrance and is about to step over it” and that the metering policy “physically prevents him from completing the arrival.”
Justice Neil Gorsuch further examined this border, asking whether the arrival occurs one step from the border, at the top of the wall, at its base, or while waiting in line to cross. Chief Justice John Roberts Similarly, the question was asked whether timing and processing speed play a role, asking whether someone at the front of the queue “arrives” while someone at the end does not “arrive”.
Interesting, Judge Brett Kavanaugh noted that determining the exact time of arrival “seems very artificial” and noted that “wherever the border is, the government will probably stop you on the other side of that line.”
Judge Jackson repeatedly questioned whether the court should even consider the merits of this case, given that the government discontinued the metering policy more than four years ago and has no “concrete plan” to reinstate it. However, this argument seemed to have little traction.
At times the questioning became more tense. The visibly frustrated Justices Sotomayor and Jackson asked Suri long, pointed questions. Justice Alito sharply remarked to Corkran that it would be “interesting to read the actual transcript of the oral argument,” since she and the liberal justices had repeatedly used the phrase “arrive,” which does not appear in the law. At one point, as several justices spoke over one another, Chief Justice Roberts raised his voice: “Please!” before allowing questioning to continue.
Although several justices questioned the government’s interpretation of the INA and its impact on international obligations, a majority appeared skeptical of the challengers’ textual notion of “come in.” A decision is expected at the end of June or beginning of July.
The opinions expressed in JURIST Dispatches are solely those of our local correspondents and do not necessarily reflect the views of JURIST editors, staff, donors or the University of Pittsburgh.
