What happened
The U.S. Supreme Court on Thursday revived the federal government's ability to use border metering in the Ninth Circuit, reversing a divided appellate ruling that had required inspection and asylum processing for certain asylum seekers stopped at the U.S.-Mexico border before crossing into the country.
Writing for a six-justice majority, Justice Samuel Alito said the Immigration and Nationality Act provisions at issue do not treat a noncitizen as having arrived in the United States while still standing in Mexico. The Ninth Circuit had answered that question yes, he wrote. "That is wrong."
The majority held that an alien standing in Mexico does not arrive in the United States by trying and failing to set foot here, and that arrival occurs only once the person crosses the border. That reading, the court said, means the INA neither entitles a person still in Mexico to apply for asylum nor requires immigration officers to inspect that person.
The decision reverses a Ninth Circuit ruling that had affirmed relief for a certified class challenging the Department of Homeland Security's metering policy, which limited how many people CBP inspected and allowed to seek asylum each day at certain southern-border ports. DHS rescinded the policy in 2021 after the district court entered summary judgment, but the Supreme Court said the case remained live because the judgment continued to block the government from using metering in the Ninth Circuit and the government said it wanted the option when border conditions warrant.
The opinion reasoned that ordinary meaning, statutory context and the presumption against extraterritoriality all pointed to tying inspection and asylum processing to events on the U.S. side of the border. The court rejected the challengers' surplusage argument and said any concern that metering could encourage illegal entry could not defeat the best reading of the statutory text.
Justice Thomas concurred. Justice Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson, and Justice Jackson filed a separate dissent arguing the court should have waited for any renewed metering policy because no one was currently subject to the rescinded policy and the record lacked facts about how metering would operate on the ground. The case now returns on remand after reversal of the Ninth Circuit judgment.