SCOTUS Allows Federal Gov’t to Turn Away Aliens Seeking Asylum Before They Cross the Border

The United States Supreme Court upheld the federal government’s authority to turn away people at the border before they have physically entered the country in a 6-3 ruling Thursday.

Known as “metering,” this policy calls for agents to stand along the nation’s southern border to turn away non-citizens without valid travel documents, including those who claim to be seeking asylum.

First adopted by Customs and Boarder Patrol (CBP) in 2016 as the nation faced a surge of aliens seeking entry at the border, metering was ultimately discontinued by the federal government in 2021.

An immigrants rights group and 13 people seeking asylum challenged the policy in court, claiming that for the purposes of applying for asylum, non-citizens turned away at the port of entry before crossing the border had already “arrived in” the United States.

The 9th Circuit Court of Appeals agreed with this interpretation in 2024, finding that asylum applicants were entitled to legal protection even if their applications are initially denied.

The majority of the Supreme Court, however, disagreed with this understanding of the law.

“We hold 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,” Justice Samuel Alito wrote in the majority opinion. “An alien ‘arrives in the United States’ only when he crosses the border.”

Alito went on to refute the challengers’ argument that metering violates the country’s obligation under international conventions, as well as the Refugee Act of 1980, to not return refugees facing persecution.

According the Court, this “imposes a duty on nations not to send refugees that are within their borders to certain places. It does not establish … that refugees have a right to enter a nation at the time they prefer.”

The justices also rejected the notion that their ruling would “create perverse incentives for aliens to enter the country illegally.”

“Metering does not permanently bar any alien from arriving in the United States and then applying for asylum,” the Court said. “It merely delays the date when some may enter. Illegal entry, on the other hand, may be expensive and dangerous, and it carries adverse legal effects.”

Justice Sonia Sotomayor read the dissent she authored from the bench, according to reports from Politico.

“If someone said, ‘Call me when you arrive in Washington, D. C.,’” she wrote, “it would be logical to call them once you have landed at DCA Airport, just across the river in Virginia.”

“The point,” Justice Sotomayor wrote, “is not that illegal entry always produces a net windfall for asylum seekers; it is that Congress was unlikely to devise a system in which asylum is available to those who unlawfully set foot over the border, but not to those who attempt to comply with the law and are physically blocked from entering at the threshold of a port of entry by an immigration officer.”

Alito responded to Sotomayor’s dissent verbally from the bench, a move that is extremely rare for the Supreme Court, according to reports from SCOTUS Blog.

He said that there would have been “much that [he] would have added” to his oral summary of the majority opinion if he had known she would be speaking at such length about her dissent.

Alito went on to say that metering had been employed “by two different administrations … as a way of dealing with surges” of asylum seekers at the border in an “orderly and humane” manner.

Justice Ketanji Brown Jackson separately dissented, arguing that the Court should not have granted review for this case in the first place because the government’s metering policy had been rolled back in 2021 and the case lacked “a factual record establishing how metering works in practice.”

This case has been remanded for further proceedings consistent with the Court’s opinion as outlined in Thursday’s ruling.

Click Here to Read the Full Opinion