Case over turning away asylum seekers heads to Supreme Court
The case involving legal nonprofit Al Otro Lado started in 2017 in San Diego federal court because of the government's decision to tell people seeking protection at ports of entry that they had to come back on a different day.
Written by Kate Morrissey, Edited by Lauren J. Mapp
If a person walks up to a port of entry along the U.S.-Mexico border, have they arrived in the United States?
That question is central to a federal court case that began in San Diego in 2017 and that will be heard by the Supreme Court later this month. The class action case challenges a federal government practice of turning away asylum seekers at ports of entry before they reach U.S. soil. Lower courts have consistently sided with asylum seekers, saying that the federal government must process people who are coming to ports of entry for inspection. Now the federal government has appealed to the top court.
“It’s kind of mind boggling that we’re still fighting about this, but we are,” said Melissa Crow, an attorney on the case with the Center for Gender and Refugee Studies at the UC College of the Law in San Francisco.
The Department of Justice declined to comment and directed Daylight San Diego to its brief filed in the case.
How did we get here?
The asylum system is supposed to determine who among migrants coming to the U.S. qualifies as a refugee. (Other countries have their own systems for determining who counts as a refugee, and sometimes the United States will resettle some refugees identified in other countries to the U.S.)
To get recognized as refugees and win asylum, migrants have to show that they have a well-founded fear of persecution based on a protected aspect of their identity that they cannot or should not be forced to change. Those five protected characteristics are race, nationality, religion, political opinion or membership in a social group such as the LGBTQ+ community.
“People don’t leave their homes because they want to,” Crow said. “They leave because they have to, and not everyone who comes to a port of entry is going to win asylum. What our law provides is that they should have access to the process, an opportunity to seek protection in this country.”
To begin the asylum screening process, migrants first have to reach the United States. But in 2016, under the Obama administration, officials at the San Ysidro Port of Entry began telling asylum seekers approaching the port of entry that the port didn't have room for them and they would have to try coming back another day.
But it wasn't until December 2017 that a line of asylum seekers formed outside of the San Ysidro Port of Entry that would remain until the pandemic.
Under the Trump administration, turning away asylum seekers became a borderwide policy known as metering, and according to a whistleblower in the case heading to the Supreme Court, the government said it didn't have room even when it did.
In some cases, Customs and Border Protection officials would communicate with Mexican police to come remove the asylum seekers waiting inches from U.S. soil.
The federal government also built up infrastructure around the port of entry to block people from stepping onto U.S. soil before officials confirmed they had travel documents, first putting gates at the official line separating San Diego from Tijuana, known as the limit line.
When asylum seekers later began crossing in cars to reach U.S. soil and request protection, Customs and Border Protection installed barriers and officers at the limit line in the car lanes to make sure people without documents did not cross north.
Meanwhile, in 2017, Al Otro Lado and a group of unnamed asylum seekers sued to stop the metering practice.
The case hinges on what Congress meant in the part of immigration law that concerns processing people at ports of entry. The law says officials shall inspect applicants for admission to the U.S.
It defines an applicant for admission as “an alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters).”
The federal government under both presidents Donald Trump and Joe Biden argued that an asylum seeker would have to be on U.S. soil to be considered an applicant for admission.
“In ordinary English, a person ‘arrives in’ a country only when he comes within its borders,” the government wrote in its brief to the Supreme Court. “A person does not ‘arrive in the United States’ if he is stopped in Mexico.”
Several conservative organizations and six conservative members of Congress, including Sen. Ted Cruz and Rep. Darrell Issa, submitted amicus briefs making similar arguments.
But attorneys representing asylum seekers argued that the statute explicitly describes two groups of people, those who are present on U.S. soil and those who are arriving at ports of entry. They said that a government official blocking the person from stepping onto U.S. soil at a port of entry should not enable the government to shirk its duties to inspect people.
The attorneys wrote in their brief that if government officials want the law to change, they should take up the issue with Congress, not the Supreme Court.
A group of 26 Democratic members of Congress filed a brief supporting the asylum seekers and Al Otro Lado.
What's at stake?
The case comes with many more amicus briefs defending the right to seek asylum.
HIAS, a refugee resettlement agency that got its start helping Jewish people fleeing Eastern Europe in the late 1800s, told Supreme Court justices about the M.S. St. Louis, a ship carrying more than 900 Jewish migrants from Europe in 1939. Both Cuba and the United States refused to allow the ship to land and sent it back to Europe, where more than a third of its passengers died in the Holocaust.
“The St. Louis stands as a stark reminder of the consequences when a nation closes its borders to people fleeing persecution without any assessment of the dangers they face,” the agency wrote in its brief.
Crow said that the U.S. kept that ship in mind as it later created laws around refugees and asylum.
“We vowed never again would that happen, and yet here we are turning people back when they come to our borders,” Crow said.
After World War II, countries that were part of the newly formed United Nations met to discuss what to do about refugees who had been displaced by the war.
In 1948, the General Assembly passed the Universal Declaration of Human Rights, which includes the right to go to another country to seek asylum from persecution. In 1968, the U.S. signed on to a U.N. agreement about the treatment of refugees and asylum seekers.
In 1980, Congress codified the country's obligations under those agreements in the Refugee Act.
“Asylum is neither an obstacle to border enforcement nor a luxury to be doled out only when the government deems it convenient,” a group of bipartisan former federal immigration officials wrote in another amicus brief. “It is a central pillar of United States immigration law — one that reflects our country’s enduring commitment to help form a more perfect union by protecting and welcoming vulnerable people who arrive at our Nation’s doorstep fleeing from persecution.”
Though Congress has tweaked the process a few times over the years, such as by changing the wait time for asylum seekers to get work permits while they are waiting for decisions in their cases, the fundamentals of asylum law have not changed.
The former officials argue in their brief that stopping asylum seekers from reaching U.S. soil at ports of entry pushes them to more dangerous forms of crossing in order to get themselves into the United States to request protection.
In San Diego in the past decade, that has meant increased crossings in desert mountains or by panga boats at sea — both methods come with a great risk of injury or death.
In 2022, a 14-year-old girl fell from the 30-foot border wall and fractured her skull, neck and back after officials at the San Ysidro Port of Entry turned her family away.
Human rights researchers along the border also documented violence against asylum seekers waiting to cross at ports of entry due to the metering policy. Cartels and other criminal organizations learned that migrants were easy and vulnerable targets in northern Mexico border towns.
An amicus brief from several human rights groups tells the story of two Cuban women who tried to seek asylum and were turned away from a U.S. port of entry. The brief says armed men kidnapped the women and repeatedly raped them.
Asylum seekers forced to wait in Mexico “lived in constant fear of being attacked in Mexico
or being sent home to the country they were fleeing, both of which occurred with regularity,” the human rights groups wrote.
Crow said one named plaintiff, a woman with several children fleeing domestic violence in Mexico, never made it across the border.
Some of the other named plaintiffs were eventually allowed to seek asylum, won their cases and have made lives in the U.S., Crow said.
But many asylum seekers haven't been so lucky.
The Biden administration actually repealed the metering policy in 2021, but other policies implemented after metering have further restricted access to asylum. Those who come up to ports of entry today still don't have access to asylum screening.
Regardless of the Supreme Court's eventual decision in the case, that is not likely to change without further legal battles. Crow said she and fellow attorneys are fighting court cases about many of those policies as well.
“We are fundamentally a nation of immigrants,” Crow said. “So many of us many generations ago came here for all the same reasons that people are coming today, and the fact that we don’t recognize that, it’s just a travesty of justice.”
