The U.S. Supreme Court heard oral arguments Tuesday regarding the federal government’s authority to turn away asylum-seekers at the southern border. Semantics dominated the line of questioning from the justices on Tuesday.
The case Noem v. Al Otro Lado hinges on the interpretation of the U.S. Code 1157, which says that an “alien who is physically present in the United States or who arrives in the United States” has the right to apply for asylum.
The core debate during Tuesday’s oral arguments was how to interpret “arrives.” The federal government argued that the language means a person needs to be physically within the boundaries of the United States, whereas the attorney for Al Otro Lado, an immigrant rights group, argued that “arrives in” means at the entry points.
“The problem with the world’s refugees is not solely the United States’ burden to bear,” Vivek Suri, the Justice Department lawyer who argued on behalf of the Trump administration, said. “It’s a shared responsibility of nations throughout the world.”
He added, “You can’t ‘arrive in the United States’ while you’re still standing in Mexico. That should be the end of this case.”
The liberal justices expressed concern with the Trump administration’s approach to determining who can seek asylum, arguing that if the federal government’s language were taken literally, it could encourage people to enter the country illegally.
“Your suggestion that the United States would say, ‘unless you can figure out a way to illegally cross, we’re not going to entertain that claim’ seems very peculiar,” Justice Ketanji Brown Jackson said. “To suggest that it means that you have to actually illegally cross, doesn’t make sense.”
Another argument pushed by Justice Sonia Sotomayor was the moral issue of turning away people fleeing persecution. She brought up the MS St. Louis, a German fleet that held 937 Jewish refugees and was turned away by the U.S. and Canada during World War II.
“We didn’t consider whether they were being persecuted. And the majority of those people were shipped back or had to go back from where they came and were killed,” she said. “That’s what we’re doing here, isn’t it?”
But Suri argued that her argument is not at the core of the case.
“I do not deny the moral weight of claims made by refugees, but that is not the question before the court,” he said. “The question before the court is, what obligations did Congress impose in the asylum and inspection statutes, and those refer only to aliens who arrive in the United States.”
What brought the case to the Supreme Court?
After an influx of Haitians came to the United States seeking asylum in 2016, the Obama administration adopted “a practice that allowed CBP (Customs and Border Patrol) to prevent aliens without valid travel documents from entering the United States” called metering, per court filings.
In 2018, the first Trump administration formalized the policy in a memorandum that said CBP officers “‘may elect to meter the flow of travelers’ when appropriate to ensure ‘security,’ ‘safe and sanitary conditions,’ and ‘orderly processing.’”
Al Otro Lado and 13 asylum-seekers took the memorandum to court, and the U.S. Court of Appeals for the 9th Circuit ruled in favor of the immigration advocates.
The federal government then appealed to the Supreme Court after the lower court declined to rehear the case.