Supreme Court Argument Preview: When Does Asylum Begin at the Border?

The U.S. Supreme Court will hear a border asylum case on March 24 to decide whether the government may nullify the Immigration and Nationality Act’s (INA’s) asylum and inspection requirements by stopping asylum-seekers inches before they cross the border at a port of entry and turning them back to wait in Mexico. In Noem v. Al Otro Lado, the Court must decide if the INA’s definition of “arrives in the United States” stretches to cover someone who stands at the very threshold of a port of entry but has not yet set foot on U.S. soil.

This question carries real weight because “arrival” serves as the gateway in the INA’s asylum and inspection process. If someone halted on the Mexican side of a port of entry is still considered to have “arrived,” then the law’s asylum protections and inspection rules kick in right at the port of entry’s edge. If not, the government’s obligations only begin once the person sets foot on U.S. soil, meaning Customs and Border Protection (CBP) could avoid the INA’s inspection and asylum-processing requirements simply by stopping asylum-seekers just short of the border line. The result would make access to asylum depend on the government’s ability to keep applicants physically outside the line. The Court’s decision will ultimately define how far the INA’s protections extend when border policies keep asylum-seekers just out of reach.

The Case at a Glance 

As framed by the petitioners, the INA, 8 U.S.C. § 1101, provides that an immigrant who “arrives in the United States” may apply for asylum and be inspected by an immigration officer. The question presented is whether an immigrant who is stopped on the Mexican side of the U.S.-Mexico border “arrives in the United States” within the meaning of those provisions.

The dispute centers on the meaning of the term “arrives.” Section 1158(a)(1) states that “[a]ny alien who is physically present in the United States or who arrives in the United States” may apply for asylum. Section 1225(a)(1) treats a noncitizen “present in the United States who has not been admitted or who arrives in the United States” as an applicant for admission. And § 1225(a)(3) requires that these applicants “shall be inspected by immigration officers.” Together, these provisions link asylum eligibility to inspection: If a person has “arrive[d] in the United States,” the statute requires both asylum eligibility and inspection.

The U.S. Court of Appeals for the Ninth Circuit held in 2024 that the phrase is not limited to individuals already on U.S. soil. It found that § 1158(a)(1)’s two categories—those “physically present in the United States” and those who “arrive[] in the United States”—serve different purposes. According to the Ninth Circuit, the latter includes noncitizens who present themselves to border officials, regardless of which country they are in. The government, however, argues that “arrival” is territorial and excludes individuals who remain across the border in Mexico.

The case comes before the Supreme Court in a specific administrative-law context. The district court granted summary judgment for the plaintiffs on their Administrative Procedure Act (APA) § 706(1) and due process claims and later issued declaratory and injunctive relief. The Ninth Circuit described this relief as declaring unlawful the “denial of inspection or asylum processing” to noncitizens in the process of arriving in the United States at Class A ports of entry, which are open to all travelers. The circuit affirmed classwide declaratory relief, which meant the court formally declared that denying inspection or asylum processing to class members under the metering policy was unlawful, and portions of the permanent injunction concerning the metering policy and its effects.

Metering at the Border 

Since 1917, federal law has required immigration officers to inspect noncitizens seeking to enter through U.S. ports of entry. At land ports on the southern border, the process worked the same way for decades: Pedestrians approached the port on foot, crossed onto U.S. soil, presented themselves to CBP officers, and were inspected and referred for further processing.

In 2016, U.S. ports of entry faced a surge of noncitizens seeking asylum at southern border ports. In November of that year, under the Obama administration, CBP adopted a practice called “metering.” Under metering, immigration officers positioned at or near the border would stop noncitizens without valid travel documents from crossing into the United States, directing the immigrants to return at a later date when the port had the capacity to process them. In 2018, during the first Trump administration, CBP formalized the metering practice across all southern border ports, which had previously been applied on a port-by-port basis. Then-Secretary of Homeland Security Kirstjen Nielsen cited the strain that processing undocumented noncitizens placed on CBP’s other responsibilities, including drug interdiction and trade facilitation.

The parties in Al Otro Lado dispute whether metering reflected genuine capacity constraints. The government points to overcrowding at ports in Texas, Arizona, and California. The Department of Homeland Security’s Office of Inspector General, however, has concluded that CBP invoked capacity limitations at ports of entry regardless of actual conditions. The inspector general’s report also notes the agency’s formal guidance has no process for tracking turned-away individuals or ensuring their later inspection. In practice, asylum-seekers could be turned away repeatedly with no record of their prior attempts and no assurance they would eventually be processed.

In November 2021, the Biden administration rescinded the metering memoranda without adopting a replacement policy, but the Department of Justice continued to defend the legality of metering in the Al Otro Lado litigation.

From the Southern District to the Ninth Circuit

In 2017, Al Otro Lado, an immigrant-rights organization, and 13 individual asylum-seekers filed suit in the U.S. District Court for the Southern District of California. The plaintiffs alleged that metering unlawfully withheld the inspection and asylum processing required by §§ 1158 and 1225 of the INA, in violation of § 706(1) of the APA, which authorizes courts to compel agency action that has been unlawfully withheld or unreasonably delayed. The complaint also raised claims under the Fifth Amendment’s Due Process Clause.

The district court certified a class of noncitizens denied access to the asylum process at southern border ports on or after Jan. 1, 2016. On subsequent motions for summary judgment, the district court granted judgment in favor of the plaintiffs, declaring that the denial of inspection or asylum processing at ports of entry was unlawful absent independent statutory authority.

A divided Ninth Circuit panel affirmed in relevant part in 2024, holding that noncitizens stopped at the threshold of a port of entry have “arrived in the United States” under §§ 1158(a)(1) and 1225(a)(1). Judge Ryan Nelson dissented, arguing that the INA’s text plainly requires physical presence in the United States and that the majority improperly rewrote “arrives in the United States” to cover asylum-seekers still standing in Mexico. The court subsequently denied rehearing the case en banc over the dissent of 15 judges.

Before the Court 

The government filed a petition for certiorari on July 1, 2025. The Supreme Court granted review on Nov. 17, 2025, agreeing to decide whether a noncitizen stopped on the Mexican side of a land port of entry “arrives in the United States” within the meaning of the INA.

The Arguments

Petitioners (Noem/Department of Homeland Security/Customs and Border Protection)

The government argues that the INA’s plain text resolves the case. Sections 1158(a)(1) and 1225(a)(1) apply to noncitizens who “arrive in the United States.” To “arrive in” a place, the government contends, means to come within its borders. A noncitizen stopped on the Mexican side of a port of entry has not crossed the border and therefore has not arrived. The government emphasizes that Congress knows how to refer to noncitizens outside the United States when it wants to: A separate INA provision authorizes CBP/federal law enforcement to respond to immigrants “arriving off the coast of the United States, or near a land border.” Sections 1158 and 1225 use different language.

The government responds to the Ninth Circuit’s conclusion that its reading renders “arrives in the United States” redundant with “present in the United States.” Under a long-standing principle of immigration law known as the entry fiction, a noncitizen who crosses the border but has not been lawfully admitted is deemed legally as though the noncitizen was stopped at a boundary. The government argues that “arrives in” clarifies that §§ 1158 and 1225 cover these noncitizens, regardless of their legal status under the entry fiction. In its reply brief, the government adds that respondents’ own reading creates a surplusage problem: Section 1158 says “physically present” while § 1225 states “present,” making the word “physically” superfluous under the respondents’ interpretation.

The petitioners’ second argument invokes the legal doctrine of presumption against extraterritoriality. Federal statutes presumptively apply only within U.S. territory unless Congress clearly indicates otherwise. The government contends that “arrives in the United States” contains no such indication and that the statutes focus on the noncitizen, not the immigration officer. Applying §§ 1158 and 1225 to noncitizens in Mexico would therefore be an impermissible extraterritorial application. The Ninth Circuit’s amended opinion reasoned that the case involved domestic conduct because the officers stood on U.S. soil. Yet the government responds that any cross-border interaction between an officer in the United States and a noncitizen in Mexico raises the foreign relations concerns that the presumption exists to prevent.

Third, the government argues that the Supreme Court’s holding in Sale v. Haitian Centers Council confirms its interpretation. In Sale, the Court held that the INA’s withholding-of-deportation provision applied “only within United States territory” and upheld the interdiction and return of Haitian refugees at sea. Congress enacted §§ 1158(a)(1) and 1225(a)(1) three years after Sale, and the government argues that the parenthetical reference to noncitizens “interdicted in international or United States waters” confirms that its legislative drafters were aware of the decision. The government characterizes this case as easier than Sale: The statutory text here explicitly says “in the United States,” while the text in Sale implied a territorial limitation. In its reply, the government adds that the presumption against extraterritoriality draws a sharp line between U.S. and foreign territory and does not weaken with proximity to the border. Whether a noncitizen is a foot away or a gulf away, the government argues, the noncitizen is outside the United States.

Finally, the government argues that the Ninth Circuit’s decision deprives the executive branch of a critical border-management tool. Administrations of both parties have used or defended metering. The Obama administration adopted it in 2016, the first Trump administration formalized it, and the Biden administration defended its legality in litigation despite rescinding the guidance. The government contends that the decision impairs CBP’s ability to balance asylum processing against its other statutory responsibilities during border surges.

Respondents (Al Otro Lado/Class)

The respondents’ brief asserts that the Ninth Circuit correctly found the government cannot avoid the INA’s inspection and asylum-processing requirements by physically blocking asylum-seekers at ports of entry. Respondents argue that the case centers on the INA’s language regarding noncitizens who are “physically present in the United States” or who “arrive[] in the United States.” They maintain that this language covers individuals who present themselves at a port of entry and are in the process of arriving, even if officers stop them just before crossing the border.

Respondents note that Congress has long required immigration officers to inspect noncitizens seeking entry at ports, and that since the Refugee Act of 1980, asylum law has allowed those fleeing persecution to seek protection at land borders and ports of entry. Although the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) revised the INA, it retained this framework. Section 1225(a)(3) requires that applicants for admission “shall be inspected,” and § 1158(a)(1) allows noncitizens who are physically present or who “arrive[] in the United States” to apply for asylum. Respondents contend these provisions operate together: Once someone falls within the “arrives” category, the government must inspect and allow access to the asylum process.

Respondents describe the government’s “turnback” or “metering” policy as a significant departure from established practice. For decades, asylum-seekers reaching ports of entry were permitted to approach CBP officers for inspection and processing. Starting in 2016, the Department of Homeland Security directed officers to physically block asylum-seekers and keep them on the Mexican side of the border. Respondents argue that the government’s justification of limited capacity was contradicted by its own records, internal data, inspector general findings, and whistleblower testimony. They state the policy left people stranded in dangerous conditions in Mexico, exposed to violence, and led some to attempt unlawful and risky border crossings.

The respondents contend that petitioners’ reading violates ordinary statutory canons by making “arrives in the United States” redundant with “present in the United States.” The word “or,” they argue, shows that Congress intended these phrases to distinguish between two categories. Under respondents’ reading, one category includes noncitizens already inside the country, while the other includes those who have reached border officials and are in the process of entering. That understanding, they say, is reinforced by Congress’s use of “arrives” and “arriving,” terms that denote an ongoing process rather than a completed crossing.

The brief also argues that the government’s position conflicts with its own regulations and historical practice. After IIRIRA, the government defined an “arriving alien” as an applicant for admission “coming or attempting to come into the United States at a port-of-entry.” Respondents state this regulatory definition remains in effect and supports the Ninth Circuit’s interpretation. They further argue that inspection obligations have historically applied when noncitizens present themselves at ports of entry, not only after they set foot on U.S. soil.

A significant portion of the brief connects statutory interpretation to Congress’s intent to uphold the United States’ non-refoulement obligations under the Refugee Protocol. Respondents argue that asylum and inspection provisions must be interpreted to prevent refugees from being returned to persecution. They cite the Refugee Act’s history and Sale v. Haitian Centers Council to show that non-refoulement obligations apply at the border and that Congress maintained these commitments in IIRIRA. Respondents further stress that IIRIRA preserved INA’s mandatory inspection language and added specific credible-fear procedures for asylum-seekers in expedited removal.

On respondents’ account, the Ninth Circuit’s interpretation maintains the distinction between asylum under § 1158 and refugee admissions under § 1157, as asylum has always served as a separate humanitarian pathway from the refugee admissions cap. They further contend that the presumption against extraterritoriality does not apply because the statutes govern domestic actions by U.S. officers at ports of entry.

Finally, the respondents argue that the Ninth Circuit did not hinder reasonable border management but only prohibited the blanket refusal to inspect and process asylum-seekers. Respondents note that the Department of Homeland Security ended metering in 2021, yet the government continued managing the border through other legal tools. In their view, that showed turnbacks were not necessary, even though asylum-seekers who had already been turned away continued to face the consequences of those earlier turnbacks. The brief asserts that the government cannot avoid mandatory statutory duties by stopping asylum-seekers just short of the border.

Amicus Briefs 

For Petitioners 

Three amicus briefs were filed in support of the government.

Sen. Ted Cruz (R-Texas), Rep. Darrell Issa (R-Calif), and four other members of Congress filed a brief arguing that recently enacted legislation confirms the government’s reading. The One Big Beautiful Bill, which several of the amici were involved in drafting, uses the phrase “arrive in the United States” in a parole-fee provision that only refers to physical presence in the U.S. Under the Ninth Circuit’s interpretation, an asylum-seeker in Mexico could satisfy the statute’s arrival requirement while still being physically unable to visit a dying relative or attend a funeral in the United States. The brief also identifies conflicts with other INA provisions: If a noncitizen “arrives” while still in Mexico, the attorney general’s authority to return that noncitizen to contiguous territory under § 1225(b)(2)(C) becomes incoherent.

The Federation for American Immigration Reform argues that the Ninth Circuit’s reading creates a conflict with § 1182(f), which grants the president authority to suspend the entry of any class of immigrants he deems detrimental to U.S. interests. If noncitizens at the Mexican side of the border must be inspected, and inspection requires their physical entry into the United States, the president would be unable to carry out a suspension order for anyone who reaches a port of entry. The brief invokes the canon against implied repeals and cites the Supreme Court’s description of § 1182(f) in Trump v. Hawaii as “exuding deference to the President in every clause.”

America’s Future, Citizens United, and the Conservative Legal Defense and Education Fund frame the Ninth Circuit’s decision as part of a pattern. Their brief catalogues four recent cases in which the Supreme Court intervened to stay lower-court injunctions limiting executive immigration authority, including Noem v. National TPS Alliance and Department of Homeland Security v. D.V.D. The brief draws a parallel to Department of Homeland Security v. Thuraissigiam, in which the Supreme Court reversed the Ninth Circuit’s expansive reading of habeas rights under the same statute at issue here.

For Respondents 

Nine amicus briefs were filed in support of the respondents.

The first set of briefs addresses statutory text, history, and interpretive structure. The Constitutional Accountability Center (CAC) contends that petitioners misapply the presumption against extraterritoriality, which historically concerns whether Congress legislated beyond U.S. authority, not abstract border concepts. Because this case involves directives from U.S. officials to U.S. officers at controlled ports of entry, CAC argues that the canon is largely irrelevant. CAC also maintains that §§ 1158 and 1225 were enacted with the understanding that individuals “attempting to come into the United States at a port-of-entry” are subject to U.S. inspection. CAC concludes that the statutory text and legislative history demonstrate Congress intended asylum and inspection protections to apply at ports of entry, even before physical entry into the United States.

A brief filed by immigration law professors focuses on the terms “arrives in” and “arriving in” as legal terms of art. The professors argue these terms refer to the process of arrival, not a completed presence. They highlight that §§ 1158(a)(1) and 1225(a)(1) distinguish between those “physically present” and those who “arrive[] in” the United States, and that petitioners’ interpretation conflates the two, violating the surplusage canon. They also reference verb tense, historical statutes, and regulations defining “arriving alien” as applicants “coming or attempting to come into the United States at a port-of-entry.” The professors conclude that presenting at a port of entry constitutes “arriving in” the United States for statutory purposes, and argue that Congress deliberately preserved asylum access for people at the border when it enacted both the Refugee Act and IIRIRA.

Like the professors, the congressional amici stress that “physically present” and “arrives in” must have different meanings. Petitioners ask the Court to impose, by interpretation, a restriction that Congress has repeatedly considered and declined to enact legislatively. The brief also argues that the executive cannot nullify a statutory right through operational tactics such as metering asylum-seekers away from the border and then cite the consequences of that obstruction to justify a narrower reading of the statute. On that view, affirmance is necessary not only to respect statutory text but also to preserve Congress’s lawmaking role in immigration.

A second set of briefs frames the dispute within international refugee law and the history of non-refoulement, the principle that a state may not return a person to a country or territory where the person faces persecution, torture, or other serious harm. The Global Strategic Litigation Council (GSLC) brief is the most focused on international law. It argues that non-refoulement under Article 33(1) of the Refugee Convention is a fundamental, customary, and treaty-based norm that applies at the border, including to rejection at a port of entry. GSLC highlights the breadth of the phrase “in any manner whatsoever,” the meaning of “refouler,” the convention’s drafting history, and its object and purpose, particularly the convention’s aim of preventing states from avoiding their protection duties by blocking refugees before entry. The brief relies on comparative and international authorities, including the United Nations High Commissioner for Refugees, foreign courts, the European Court of Human Rights, and the Inter-American system, to argue that non-refoulement now includes non-rejection at the border. It further emphasizes that if non-refoulement applies at the border, fair and effective screening procedures are required to determine whether a person faces persecution or torture if returned. Thus, turnbacks are unlawful both substantively and procedurally.

The Amnesty International, Human Rights First, Human Rights Watch, and Physicians for Human Rights brief adds a detailed factual record of the harm of turnbacks from the international law perspective. The groups document the real-world effects of the turnback policy, including kidnapping, rape, extortion, assault, robbery, denial of medical care, severe mental trauma, and ongoing danger in Mexican border towns. The brief argues these harms were predictable outcomes of denying asylum-seekers access to U.S. territory and fair procedures. Legally, the amici assert that the turnback policy violated both the domestic right to seek asylum and the international and domestic law of non-refoulement, including protections under the Refugee Convention, Convention Against Torture, and related U.S. statutes and regulations. They conclude that blocking asylum-seekers at ports and returning them to danger without screening is unlawful under both domestic and international law.

A third set of briefs grounds the case in history, administration, and operational reality. The Hebrew Immigrants Aid Society (HIAS) brief uses the 1939 voyage of the S.S. St. Louis as the central interpretive and moral frame. HIAS argues that the postwar asylum system, including the Refugee Act, was built precisely to prevent refugees from falling into the kind of legal void that doomed the St. Louis passengers—caught between borders, dependent on bureaucratic whim, and forced to rely on private efforts rather than a guaranteed legal process. It contends that Congress deliberately guaranteed a process for those who reach a port of entry, while choosing not to extend the same protections to those interdicted at sea unless brought to the United States. On this account, the turnback policy recreates the very legal no-man’s-land that modern asylum law was designed to eliminate. HIAS reinforces that historical argument with present-day facts, describing how nongovernmental organizations were forced to create ad hoc waiting-list systems that were inconsistent, corruptible, and dangerous.

The Bipartisan Former Officials brief provides the perspective of high-level executive experience. Former officials from the Department of Homeland Security, State Department, Department of Justice, and Immigration and Naturalization Service argue that the government’s position is both legally incorrect and operationally unsound. They emphasize that asylum has long been a core part of immigration law, not an optional benefit the executive can suspend during periods of border strain. These officials state that no prior administration interpreted the INA to allow an indefinite, categorical turnback policy that denies asylum unless a person first sets foot on U.S. territory. The brief notes that the government already has several border-management tools, such as expedited removal, appointments, temporary shelter expansion, and increased personnel, without the need for a policy that encourages irregular crossings, reliance on smugglers, or increased border disorder. The former officials also caution that turnbacks damage U.S. credibility in the international refugee protection system and risk reciprocal actions by other countries.

Finally, the religious amici present the case in moral, theological, and civilizational terms. The United States Conference of Catholic Bishops brief states that caring for refugees is deeply rooted in scripture, Catholic tradition, international law, and American political values. It views the turnback policy as a rejection of the moral duty to protect vulnerable individuals seeking refuge. 

The Kairos Center and allied religious organizations offer a broader interfaith perspective, asserting that asylum is among the oldest human institutions and is present in Jewish, Christian, Muslim, Hindu, Buddhist, Sikh, Indigenous, Baháʼí, and Unitarian Universalist, among other traditions. Their brief traces asylum from ancient sanctuaries and biblical refuge cities to medieval church sanctuary doctrine, colonial refuge, the Underground Railroad, and faith-based refugee resettlement in the United States. Both briefs argue that the government’s position is historically unprecedented, as asylum has always protected persecuted outsiders who reached the threshold of safety, not just those already inside a territory.

The Impacts 

If the Court Reverses the Ninth Circuit

If the Supreme Court reverses the Ninth Circuit, the executive branch would retain the authority to use metering during border surges, and noncitizens stopped on the Mexican side of a port of entry would have no statutory right to inspection or asylum processing until they cross onto U.S. soil. The decision would also reinforce the territorial line that Sale v. Haitian Centers Council drew for immigration statutes, extending that principle from interdiction at sea to turnbacks at land ports.

If the Court Affirms

If the Court affirms, Customs and Border Protection would be required to inspect and process noncitizens who present themselves at ports of entry, regardless of which side of the border they are standing on. The Ninth Circuit’s decision, however, left room for the government to manage the flow at ports through measures short of outright turnbacks, including waitlist systems and expedited removal.

If the Court Splits the Difference

The Court could also resolve the case on narrower grounds. The statutory question turns on the meaning of a single phrase, and the Court could interpret “arrives in the United States” to cover noncitizens at the physical threshold of a port without reaching the broader questions about extraterritoriality or executive authority that both sides press. A narrow holding would resolve the metering dispute while leaving open how the statutory language applies in other border-enforcement contexts.