In Mullin v. Al Otro Lado, the Roberts Court interpreted a simple statutory phrase with vast consequences. The end result is a decision that gives the executive branch license to undermine asylum protections at the border – despite contrary congressional intent – and to undercut a foundational principle of refugee law. The 6-3 decision by Justice Samuel Alito held that U.S. law and international treaty obligations do not prohibit immigration officers from “metering” access to ports of entry to effectively deny access to asylum processing. The decision does so under the pretence that the metering system merely delays individuals’ access to asylum. In fact, it functionally bars them.
The case challenged a policy first adopted in 2016 but expanded and formalized in 2017 instructing Customs and Border Protections (CBP) officers to stand directly at the U.S.-Mexican border to keep anyone who is seeking asylum physically outside the United States. The question in the case is whether a noncitizen seeking asylum at the border’s threshold who is blocked from crossing is entitled to apply for protection. The Court held they are not. Justice Sonia Sotomayor joined by Justices Elena Kagan and Kentanji Brown Jackson, filed a lengthy dissent, which was read, in part, from the bench as a sign of Justice Sotomayor’s strenuous objection.
Justice Jackson also dissented separately on mootness grounds because the policy had not been in place for years. Justice Clarence Thomas concurred alone to reiterate his views that the Court should expand the restrictions on injunctive relief in immigration cases and that the President has inherent authority – historically akin to the King of England – to expel noncitizens.
Metering
The so-called “metering” label suggests that individuals are temporarily turned away to control the flow and manage the processing of asylum applicants. If that were in fact the case, Al Otro Lado would not be as consequential as it is. But when the policy was in place, U.S. ports were effectively closed to asylum applicants and countless individuals were left to languish in dangerous and often-horrific conditions in Mexico never knowing if or when they would be allowed to present their protection claims. In fact, the decision below expressly noted that reasonable measures designed to maintain queues and manage port capacity were not the issue. Rather it was whether indefinite or complete blocking of access is permissible.
The specific statutory question addressed by the Court is whether the inspection and asylum obligations of the Immigration and Nationality Act (INA) apply only to those who are already physically present inside the territory of the United States, or whether they also apply to those who are in the final step of arriving but have not yet physically crossed onto United States land. For decades, and under governing immigration regulations, the processing and protection statutes applied to those at the border threshold. When the United States enacted the landmark 1980 Refugee Act, the law plainly stated that noncitizens were entitled to apply for asylum if they were “physically present in the United States or at a land border or port of entry, irrespective of [their] status.” Under that provision, there would be no doubt that a noncitizen seeking protection who arrived at the U.S. border’s dividing “limit line” but was denied entry could assert their claim.
The governing statutory language was amended in 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The 1996 amendments warrant a little additional explanation because the change in language is deemed significant by the majority and because Justice Alito confusingly overlooks or misstates the scope of the “expedited removal” process in his opening description. IIRIRA broadly and significantly revised many parts of the INA. It also enacted the current border asylum processing regime. The most significant aspect of that regime was creation of the Expedited Removal mechanism. That process allows for summary expulsion of certain noncitizens arriving at the border without valid documentation (an essential limitation on the scope that Justice Alito fails to recognize), unless the noncitizen asserts a fear of return and passes a threshold screening assessment. Only then is the applicant granted a full-fledged asylum proceeding.
As amended by IIRIRA, the INA imposed several clear obligations at the border. First, immigration officers must inspect a noncitizen who “arrives in the United States.” Relatedly and critically, the asylum statute provides that any noncitizen who “is physically present or arrives in the United States (whether or not at a designated port of arrival …), irrespective of such [noncitizen’s] status” is entitled to apply for protection. Likewise, the contemporaneous 1997 and 1998 regulations made clear that IRRIRA preserved the original scope (e.g., the “The “term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry.”) That regulation remains in effect today. Three factors – (1) the statute’s separation between those “physically present … in” versus “arrives in;” (2) contemporaneous regulations covering persons “attempting to come into the United States at” the border; and (3) evidence that Congress had no intent of diminishing the Refugee Act’s longstanding protection for applicants “at the border” – show the flaw of the government’s statutory argument that the Court endorsed.
Majority
For the majority, the only essential question was a formalistic linguistic inquiry. What is the common meaning of “arrives in” and does either the inspection or asylum provision of the INA encompass persons seeking to enter at the border who have not yet physically crossed into U.S. territory because they are blocked by CBP officers on the U.S. side? The majority found that the meaning of “arrives in” is clear in “everyday speech” and is limited to circumstances when a person physically enters a geographic location. In a battle of examples with the dissent, the majority relied on a handful of locutions where “arriving in” would normally mean within the geographic confines of a space (football end zone, house guest, invading army). It rejected counterexamples, insisted that the language permitted only one meaning, and did not engage at all with the dissent’s enumeration of expressions where “arrives in” is commonly understood to mean nearly there or in the process of arriving (e.g., in a city when arriving by plane at an airport actually outside the city boundaries, approaching a central train station, crossing a bridge that is gateway to a city).
The majority offered various reasons for its conclusion, none of which grapple with the fundamental question of whether the government can deny processing and protection obligations to asylum applicants who are on the verge of physically crossing into the country but are prevented by U.S. officers. The majority compared the language at issue with other places in the INA that refer to attempted entry of noncitizens who are near a land border, rejected plaintiffs’ argument that the government’s reading makes the central statutory language entirely (and admittedly) superfluous, relied on the presumption against extraterritoriality, foreclosed reliance on the International Refugee Convention, and denied the plaintiffs’ contention that denying protection at ports of entry would mean Congress intended to create a perverse incentive for illegal entry.
The plaintiffs’ surplusage argument is especially compelling. The asylum statute entitles both those who are “physically present” and those who “arrive in” the United States to apply for asylum. If, as the government argued, “arrives in” means only those who are present in the country already, then that category is entirely subsumed within the “physically present” description and “arrives in” does no work. The “arrives in” category adds something only if it covers at least some people who are not yet physically present, namely those who are presenting themselves for inspection and actually in the process of arriving.
The majority conceded that the argument had “some force” but then retreated to intoning that the “anti-surplusage canon is not an iron rule.” Recognizing the significant problem posed by the government’s interpretation, the majority endorsed a rationale conjured by the government at oral argument. The supposed reason for the language is that the “arrives in” term relates to those subject to the Expedited Removal regime enacted in 1996, an explanation without any grounding in the text or history and demonstrated to be nonsensical by the dissent. Perhaps not really persuaded by its own analysis, the majority concluded that if forced to choose between what it deemed plain text and statutory redundancy, its (simplistic) reading of the text would prevail.
The majority also invoked the presumption against extraterritoriality to characterize the plaintiffs as giving the statute extraterritorial effect and rejected reliance on the Convention Relating to the Status of Refugees on the ground that Sale v. Haitian Centers Council had held that the Convention’s protections do not apply to a country’s actions against noncitizens outside its territory. However, as the dissent noted, the question is how the statute applies to U.S. officials acting on U.S. soil at the border, not to U.S. officials (or private actors) acting outside the United States.
Notably, the majority refused to credit the “perverse incentive” resulting from its interpretation of the statute, even though the Court has embraced that consequentialist rationale to deny legal protections to noncitizens at the border in other contexts. In this case, the demonstrable effect of the policy is clear. Plaintiffs made a persuasive point that foreclosing processing of asylum-seekers at ports of entry would encourage illegal crossings into the interior where the asylum provision irrefutably covers those who are present “irrespective of status.” In response, the majority claimed the incentive was not substantial and sought to diminish the alleged effect of “metering” altogether. The opinion claimed that metering “does not permanently bar” any noncitizen from arriving; it “merely delays the date when some may enter.” Hence, the majority suggested, there was little incentive to circumvent the metering.
It is hard to fathom how that characterization could be true. Indeed, that depiction is clearly at odds with the facts and inconsistent with the Ninth Circuit’s explicit caveat that reasonable regulation and management were not at issue in the case: “We stress that our decision leaves the Government with wide latitude and flexibility to carry out its duties at the border. … Even minimal steps by the Government, such as implementing and following a waitlist system … would shift the … analysis…. But because the Government in this case did not take any such steps, we need not (and cannot) reach the question whether any delay would have been reasonable. Sections 1158 and 1225 require border officials to inspect noncitizens seeking asylum at the border, and the metering policy withheld that duty.”
Yet, the majority sought to cast doubt on the plaintiffs’ assertion that the government could in the future “bar all potential arriving asylum applicants from ever reaching the point where an application could be filed.” The opinion stressed that the current policy “merely delayed” entry for logistical, humanitarian, and safety reasons. Then in what is hard to understand as other than a deflection from the real effect of its holding, the majority insists that if a total bar policy were ever adopted, “we are confident it would be quickly challenged.”
As Justice Sotomayor’s dissent makes blindingly clear, this last statement appears intended to deny — or at least to camouflage — the scope of the majority’s ruling. The dissent explained that while a total shutdown may be quickly challenged, the outcome appears all but foreordained. The majority gave a green light to barring access to the territory while disclaiming that effect.
Principal Dissent
In a comprehensive dissent (twice the length of the majority), Justice Sotomayor, joined by Justices Kagan and Jackson, tackled the textual, linguistic ground on which the Court ruled and the broader historical context and principles at issue. She did not, as Justice Alito charged, offer simply “an impassioned argument” against the administration’s policy choice. Rather, she rebutted each of the majority’s textual arguments, parsed the statute, and detailed the grounds for reading “arriving in” as encompassing those who are presenting at the border.
Initially, Justice Sotomayor rejected the majority’s framing of the question at hand by explaining that the lower court opinion had addressed the metering policy as in fact being a complete withholding of processing, not merely a delay. She also exposed the hollowness of the proffered real-world justifications for metering with data from the DHS Office of Inspector General documenting that ports of entry in fact had ample capacity or were completely empty when metering was deployed to turn applicants away.
As the dissent explained, the plaintiffs’ APA claim was for “withholding of agency action” under APA 706(1) because the government had no system for tracking or allowing persons to apply later. Had the government been merely “delaying” action as the majority claimed, the plaintiffs would have needed to demonstrate that the delay was “unreasonable.” But the Ninth Circuit concluded that metering amounted to unlawful withholding. Recognizing logistical realities, the lower court accepted that border inspection need not be immediate and could take place within a reasonable period of time, but it determined that this is not what was occurring here.
Justice Sotomayor engaged in extensive textual analysis as well as considering the context of the provision, the INA’s usage of similar terms, the legislative history, and the government’s consistent interpretation in federal regulations over decades. In response to the majority’s invocation of the 1996 change in language, the dissent emphasized that in 1997, immediately after IIRIRA enacted the current provision, the government defined “arriving alien” to include those who “seek[] admission … at a port of entry” and noncitizens are arriving if they are “attempting to come into the United States” by applying for asylum at a port of entry. Thus, the executive branch itself effectively recognized the unchanged scope of the statute. As noted already, the dissent also provided counterexamples of usage of “arriving in” to denote “near to” or “about to” enter a location. Justice Sotomayor emphasized the superfluity created by the government’s reading, explained why the government’s last-minute response made no sense, and elaborated on why the majority’s statutory interpretation incentivized unauthorized entry.
Most fundamentally, the dissent recognized the core principle of refugee protection that the Court’s conclusion abandoned. Justice Sotomayor exposed the implications of the Court’s decision and contested the majority’s rhetorical effort to limit the purported impact of its holding.
Conclusion
At a time when border security and orderly border management are talismanic phrases invoked across the political spectrum, when many call for new and more sweeping border restrictions, when legal challenges against policies of multiple administrations are seeking to enforce the protections enshrined in the Refugee Act, Justice Sotomayor’s dissent reminds us of higher principles and what, in reality, is at stake.
Her dissent recounted the circumstances of the infamous St. Louis ship transporting Jewish refugees fleeing the Holocaust that the United States (and other countries) refused to let land. That disgraceful episode and other failures to provide safe haven to persons fleeing Nazi atrocities led to an “international moral reckoning” after World War II that generated the protection regime now under siege. But the legal regime endorsed by the Court in Al Otra Lado would deny access to asylum today if the St. Louis were a bus, or if Mexican nationals came to a port of entry seeking safety in the United States to escape a genocide in their own country.
The Refugee Act of 1980 adopted the principles of the international 1967 Protocol Relating to the Status of Refugees and enacted language that expressly encompassed persons “at the border” seeking protection. The Roberts Court’s decision undoes that key component and central safeguard. The looming question is how the country and the courts respond to further efforts to undo additional fundamental protections embodied in the Refugee Act.
