The issue is whether noncitizens merely have to show up to the border and request to apply for asylum or if they have to cross the border fully to apply.
The majority of Supreme Court justices appeared to be sympathetic to the idea that the Trump administration should be able to turn away asylum seekers at the US-Mexico border. If the court rules in favor of the administration, the government will be able to revive a policy used during Trump’s first term, where those seeking asylum were stopped at the border from setting foot in the US.
Federal law dictates that those who arrive in the US and are “physically present in the United States” or “arrive in the United States” can apply for asylum. The issue is whether noncitizens merely have to show up to the border to request asylum or if they have to cross the border fully before applying.
The majority of justices appeared to be sympathetic to the Trump administration in the case, per the New York Times. Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett suggested that “arrives in” means that someone has fully crossed the border.
“‘Arriving” sounds more ‘in the process of.’ ‘Arrives in’ sounds more like ‘you’ve reached your destination,’” Justice Barrett said in the hearing. “If it’s not crossing the physical border, what is the magic thing?” Former President Barak Obama implemented the policy where some seeking asylum would be turned around at the border, which was expanded by Trump. However, that policy was rescinded under the Biden administration.
Biden rejected Trump’s border security measures and allowed tens of millions of illegal immigrants to cross into the United States, be paroled, and wait for immigration hearings that were often scheduled five or more years down the road. At one point during his term in office, Biden dismissed a bunch of immigration cases, leaving migrants in a legal limbo with neither legal status nor deporation orders.
The Trump administration has urged the justices to allow the policy to be reinstated. Justice Brett M. Kavanaugh suggested that the debate about where a migrant is at when they request asylum is “very artificial.” Two of the liberal justices, Sonia Sotomayor and Ketanji Brown Jackson, had tougher questions for the administration in the case. They were the only justices who appeared sympathetic to allowing the full embrace of asylum claims at the border.
“If you’re a refugee who’s arriving at the port of entry, if you’re knocking on the door and I’m staring you in the face, you have an obligation to at least listen to my application,” Justice Sotomayor said. Jackson said that because the policy was not around there was no question to be asked. Previous asylum rules state that a an asylum seeker must apply for asylum at the first safe country they enter after leaving their home nation and cannot just choose to seek asylum in the US over all other nearer nations.