Supreme Court weighs policy allowing border agents to block asylum seekers from entering

The Supreme Court on Tuesday appeared likely to uphold the federal government's policy of systematically turning back asylum seekers before they can reach the U.S. border with Mexico.

Objective Facts

During roughly 80 minutes of oral arguments in Noem v. Al Otro Lado on March 24, 2026, a majority of justices seemed to agree with the Trump administration that the policy does not violate a federal law allowing noncitizens to apply for asylum when they "arrive[] in the United States." A majority of the court's conservative justices signaled during oral arguments that the administration should have broad leeway over border control and that asylum seekers who have not yet stepped foot on U.S. soil probably do not have a legal right to file a claim seeking protection. The policy, sometimes called "metering" or the "turn back policy," was first sometimes used under President Barack Obama and later expanded during the first Trump administration before it was rescinded in 2021 by President Joe Biden's administration. The second Trump administration has sought to reinstate the policy, which is not currently in effect amid ongoing legal challenges. A decision in Noem v. Alt Otro Lado is not expected until later in the court's 2025-2026 term, which is slated to end in late June.

Left-Leaning Perspective

Immigration advocates argued before the Supreme Court that the Trump administration's turnback policy violated federal immigration law. Under the now-defunct policy, immigration officers at official border crossings physically and indefinitely blocked people seeking safety from setting foot on U.S. soil, flouting their legal responsibility to inspect and process those requesting asylum. According to Kelsi Corkran, Supreme Court Director of the Institute for Constitutional Advocacy and Protection, "For more than 45 years, Congress has guaranteed people arriving at our borders the right to seek asylum, consistent with our international treaty obligations. Yet this Administration believes that Congress gave it discretion to completely ignore those requirements, and turn back those who are seeking refuge from persecution at its whim." Melissa Crow, director of litigation at the Center for Gender and Refugee Studies, stated, "The Trump administration's crusade to slam the door on people seeking asylum has had deadly consequences. Any policy that pushes asylum seekers back to northern Mexico, where cartels routinely prey on migrants, violates the promises we made in response to the horrors of the Holocaust." Immigrant advocates emphasize that "our immigration laws require that every person seeking asylum at a U.S. port of entry has a meaningful opportunity to present their legal claims. The Trump administration cannot implement a policy that unilaterally rewrites our laws and flouts the rights that Congress gave asylum seekers." The history of asylum law provisions "demonstrates that Congress explicitly planned to regulate border officials in their interactions with asylum-seekers at ports of entry, no matter what side of the border the asylum-seekers stood on during the encounter." Justice Ketanji Brown Jackson posed the left's key interpretive concern: "Imagine a polite asylum seeker who wants to do everything by the book. He approaches the border but does not cross, precisely because the law says you are not supposed to enter the U.S. without authority. Why on earth would Congress have intended or meant for his asylum request to be discarded, not taken seriously, not entertained, but someone who manages to enter the U.S. unlawfully...and requests asylum gets their application entertained?" Justice Sonia Sotomayor challenged the government's position, stating "We didn't let them dock and interview them at all? 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. That's what we're doing here, isn't it?" Suri responded that he did not "deny the moral weight of claims" made by people seeking safe harbor in the US. Immigration advocates emphasize humanitarian and international law concerns, framing the metering policy as a potential death sentence for vulnerable asylum seekers forced to remain in dangerous Mexican border towns.

Right-Leaning Perspective

According to The Federalist, the Trump administration described the "metering" policy as involving "port officials … stand[ing] along the border and temporarily prevent[ing] aliens without valid travel documents from crossing into the United States, generally telling them that they would need to return to the port of entry later, when there were sufficient resources to process them." Assistant to the U.S. Solicitor General Vivek Suri argued that "the phrase 'arrives in the United States' would mean 'stopped outside the United States.' Such an interpretation...defies the statutory text. You can't arrive in the United States while you're still standing in Mexico. Moreover, the government's position is supported by the Supreme Court's 1993 decision in Sale v. Haitian Centers Council." Suri noted that "Congress could reasonably determine that the United States has greater responsibilities to aliens in the United States than to aliens in Mexico." Right-leaning commentary describes the challenger's position as a "radical interpretation of federal law: that merely walking up to a port of entry — while still standing on Mexican soil — entitled a foreign national to full asylum processing inside the United States." They characterize this as "a legal fiction so absurd that it could only survive in a system nobody was willing to challenge." Conservative outlets note that when Biden rescinded the metering policy in 2021, Barack Obama—described as "no one's idea of a border hawk"—had recognized the need for metering, initiating the policy in 2016. They argue: "When you've lost Obama on the issue, maybe it's time to rethink your position." Suri characterized metering as an "important tool in the government's toolbox for dealing with border surges," and the six conservative justices "seemed to agree with the Trump administration's position." Justice Samuel Alito criticized the asylum seekers' attorney for using the phrase "arriving at" rather than "arriving in," asking: "Do you think that there is no difference between 'arriving at' a location and 'arriving in' the location?" The right emphasizes statutory text, administrative efficiency, border management capacity, and separation of powers concerns—arguing that the executive branch needs flexibility to manage surges without court interference.

Deep Dive

The Supreme Court on Tuesday appeared likely to uphold the federal government's policy of systematically turning back asylum seekers before they can reach the U.S. border with Mexico. The "metering" policy was adopted almost 10 years ago in response to a surge in Haitian asylum seekers at San Ysidro, a port of entry outside San Diego. Officials from Customs and Border Patrol stood along the border and turned back asylum seekers before they could enter. In 2017, the government extended the policy to all ports of entry across the U.S. border with Mexico, and it was formalized in a memorandum in 2018. The practice was first sometimes used under President Barack Obama and later expanded during the first Trump administration before it was rescinded in 2021 by President Joe Biden's administration. The second Trump administration has sought to reinstate the policy, which is not currently in effect amid ongoing legal challenges. The core legal disagreement turns on statutory interpretation of when a noncitizen "arrives in" the United States for purposes of asylum eligibility. The case asks whether a noncitizen stopped on the Mexican side of the border "arrived in the United States" under the Immigration and Nationality Act. Petitioners argue that plain meaning and the presumption against extraterritoriality support requiring physical presence in the United States, while Respondents contend the statute applies to people on both sides of the border. Justice Ketanji Brown Jackson posed a key dilemma during arguments: "Imagine a polite asylum seeker who wants to do everything by the book. He approaches the border but does not cross, precisely because the law says you are not supposed to enter the U.S. without authority. Why on earth would Congress have intended or meant for his asylum request to be discarded, not taken seriously, not entertained, but someone who manages to enter the U.S. unlawfully...and requests asylum gets their application entertained?" The left's strongest argument is that requiring physical entry incentivizes illegal crossing and contradicts statutory language explicitly protecting those who "arrive in" the country. The right's strongest argument is that textualist interpretation of "arrives in" naturally means physical presence, and that 1993 Supreme Court precedent (Sale v. Haitian Centers Council) already established that asylum law does not apply extraterritorially. At its core, the case concerns separation of powers—whether the executive branch can effectively redefine the scope of statutory rights through operational control of the border. If the government's position prevails, it would allow executive agencies to determine when statutory protections apply by regulating physical access. In practical terms, this would mean asylum eligibility could be constrained not by Congress's language, but by enforcement tactics. What the right omits is that accepting the government's position could allow the executive to render statutory asylum protections meaningless through administrative gatekeeping. What the left omits is the genuine administrative burden that unlimited asylum access at the border creates and the government's legitimate interest in managing surge capacity—concerns even liberal administrations have grappled with. A decision is not expected until late June.

OBJ SPEAKING

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Supreme Court weighs policy allowing border agents to block asylum seekers from entering

The Supreme Court on Tuesday appeared likely to uphold the federal government's policy of systematically turning back asylum seekers before they can reach the U.S. border with Mexico.

Mar 24, 2026· Updated Mar 27, 2026
What's Going On

During roughly 80 minutes of oral arguments in Noem v. Al Otro Lado on March 24, 2026, a majority of justices seemed to agree with the Trump administration that the policy does not violate a federal law allowing noncitizens to apply for asylum when they "arrive[] in the United States." A majority of the court's conservative justices signaled during oral arguments that the administration should have broad leeway over border control and that asylum seekers who have not yet stepped foot on U.S. soil probably do not have a legal right to file a claim seeking protection. The policy, sometimes called "metering" or the "turn back policy," was first sometimes used under President Barack Obama and later expanded during the first Trump administration before it was rescinded in 2021 by President Joe Biden's administration. The second Trump administration has sought to reinstate the policy, which is not currently in effect amid ongoing legal challenges. A decision in Noem v. Alt Otro Lado is not expected until later in the court's 2025-2026 term, which is slated to end in late June.

Left says: The Trump administration cannot implement a policy that unilaterally rewrites our laws and flouts the rights that Congress gave asylum seekers. For far too many people subjected to the government's turnback policy, denial of access to the asylum process was a death sentence.
Right says: Under the challengers' reading of the law at the center of the case, the phrase "arrives in the United States" would mean "stopped outside the United States." Such an interpretation, he argued, "defies the statutory text.
✓ Common Ground
Some voices on both left and right acknowledge that the metering policy was initially adopted by the Obama administration, suggesting the policy itself has received bipartisan attention rather than partisan invention.
A number of commentators, regardless of leaning, note that the U.S. asylum system should be more efficient, though disagreement centers on how to achieve that balance without weakening protections.
Observers across perspectives acknowledge that managing border flows presents genuine administrative challenges, as evidenced by Biden's scheduling appointment system and his initial continuation of metering's legal defense despite rescinding the policy in practice.
Conservative justices including Kavanaugh and Gorsuch raised concerns during arguments that any ruling defining "arrives in" would likely spawn further litigation, and that the government could potentially circumvent any line drawn by the court—a practical reality acknowledged implicitly by both sides.
Objective Deep Dive

The Supreme Court on Tuesday appeared likely to uphold the federal government's policy of systematically turning back asylum seekers before they can reach the U.S. border with Mexico. The "metering" policy was adopted almost 10 years ago in response to a surge in Haitian asylum seekers at San Ysidro, a port of entry outside San Diego. Officials from Customs and Border Patrol stood along the border and turned back asylum seekers before they could enter. In 2017, the government extended the policy to all ports of entry across the U.S. border with Mexico, and it was formalized in a memorandum in 2018. The practice was first sometimes used under President Barack Obama and later expanded during the first Trump administration before it was rescinded in 2021 by President Joe Biden's administration. The second Trump administration has sought to reinstate the policy, which is not currently in effect amid ongoing legal challenges.

The core legal disagreement turns on statutory interpretation of when a noncitizen "arrives in" the United States for purposes of asylum eligibility. The case asks whether a noncitizen stopped on the Mexican side of the border "arrived in the United States" under the Immigration and Nationality Act. Petitioners argue that plain meaning and the presumption against extraterritoriality support requiring physical presence in the United States, while Respondents contend the statute applies to people on both sides of the border. Justice Ketanji Brown Jackson posed a key dilemma during arguments: "Imagine a polite asylum seeker who wants to do everything by the book. He approaches the border but does not cross, precisely because the law says you are not supposed to enter the U.S. without authority. Why on earth would Congress have intended or meant for his asylum request to be discarded, not taken seriously, not entertained, but someone who manages to enter the U.S. unlawfully...and requests asylum gets their application entertained?" The left's strongest argument is that requiring physical entry incentivizes illegal crossing and contradicts statutory language explicitly protecting those who "arrive in" the country. The right's strongest argument is that textualist interpretation of "arrives in" naturally means physical presence, and that 1993 Supreme Court precedent (Sale v. Haitian Centers Council) already established that asylum law does not apply extraterritorially.

At its core, the case concerns separation of powers—whether the executive branch can effectively redefine the scope of statutory rights through operational control of the border. If the government's position prevails, it would allow executive agencies to determine when statutory protections apply by regulating physical access. In practical terms, this would mean asylum eligibility could be constrained not by Congress's language, but by enforcement tactics. What the right omits is that accepting the government's position could allow the executive to render statutory asylum protections meaningless through administrative gatekeeping. What the left omits is the genuine administrative burden that unlimited asylum access at the border creates and the government's legitimate interest in managing surge capacity—concerns even liberal administrations have grappled with. A decision is not expected until late June.

◈ Tone Comparison

The left uses emotionally resonant, rights-focused language referencing the Holocaust and humanitarian harm, characterizing metering as a "crusade" that constitutes a "death sentence." The right employs cool, textual analysis emphasizing plain statutory meaning and governmental necessity, dismissing asylum advocates' interpretation as a "legal fiction" that defies common sense. Both sides acknowledge litigation will continue, but frame the stakes differently—the left as fundamental human rights and congressional intent, the right as necessary executive flexibility and textual fidelity.

✕ Key Disagreements
Territorial reach of statutory asylum protections
Left: Asylum seekers and immigrant rights advocates contend that the statute applies to people on both sides of the border, and that the presumption against extraterritoriality does not apply because the INA regulates the domestic conduct of immigration officers.
Right: The government argues that the plain meaning and history of the statute, as well as the presumption against extraterritoriality, support the requirement of a physical presence in the United States.
Whether metering incentivizes illegal crossing
Left: Some justices questioned whether the policy would incentivize irregular border crossing by requiring asylum-seekers to cross the border rather than present themselves at it. Justice Brett Kavanaugh asked: "Why would Congress privilege someone who illegally enters the United States?"
Right: The government argues that metering doesn't prevent asylum-seeking but only delays it based on capacity: "It's saying 'our port (of entry) is at capacity today, try again some other day,' and that time when that person comes in, that person could come in legally."
International treaty compliance
Left: Justice Sotomayor challenged whether the metering policy violates the United Nations Refugee Convention of 1951, arguing that turning people away meant "the majority of those people were shipped back or had to go back from where they came and were killed."
Right: The government relies on the Supreme Court's 1993 decision in Sale v. Haitian Centers Council, holding that the United Nations Convention Relating to the Status of Refugees and federal immigration law do not apply to noncitizens outside the United States.
Separation of powers and executive discretion
Left: Critics argue that Noem v. Al Otro Lado is fundamentally about separation of powers—whether the executive branch can effectively redefine the scope of statutory rights through operational control of the border.
Right: The government emphasizes separation-of-powers concerns, warning that judicial intervention would interfere with sensitive border enforcement decisions that should be left to the executive.