Background
Beginning in 2016, U.S. Customs and Border Protection faced surging numbers of noncitizens seeking admission at ports of entry along the U.S.-Mexico border—volumes that at times exceeded safe processing capacity. In response, DHS adopted a practice known as “metering”: CBP officers stationed on the U.S. side of the border would cap the number of noncitizens permitted to approach and seek inspection each day, turning the rest away until capacity allowed. Noncitizens who lacked valid travel documents and were stopped before crossing were told to wait, sometimes for extended periods, in Mexico.
In 2017, asylum seekers and the immigrant-rights organization Al Otro Lado filed a putative class action in the Southern District of California, arguing that metering violated the Immigration and Nationality Act (INA) by unlawfully denying inspection and asylum processing to noncitizens who “arrive in the United States.” The district court certified a class, granted summary judgment for plaintiffs, and entered a declaratory judgment that denying inspection and asylum access to class members “in the process of arriving” was unlawful. The government rescinded the metering policy in November 2021 shortly after that ruling. A divided Ninth Circuit panel affirmed, holding that a noncitizen “arrives in the United States”—and thus must be inspected and may apply for asylum—the moment the person, while still standing on Mexican soil, encounters a U.S. official at the border. The Supreme Court granted certiorari.
The case turned on the meaning of the phrase “arrives in the United States” as used in two INA provisions: 8 U.S.C. § 1225(a)(1), which deems a noncitizen who “arrives in the United States” an applicant for admission entitled to inspection, and § 1158(a)(1), which permits any noncitizen who “arrives in the United States” to apply for asylum.
The Court’s Holding
In a 6-3 decision authored by Justice Alito and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett, the Court reversed the Ninth Circuit. The Court first held that the case was not moot despite the rescission of the metering policy, because the district court’s declaratory judgment continued to bar the government from resuming metering within the Ninth Circuit’s jurisdiction, and the government had represented that it regarded metering as an important tool it would likely reinstate if border conditions warranted.
On the merits, the Court held that a noncitizen “arrives in the United States” only when the person actually crosses the border and enters the country—not when the person attempts, but fails, to do so. Applying ordinary meaning, the Court reasoned that one “arrives in” a geographic location only upon entering within its area; the preposition “in” requires presence within the bounds of the place, not merely proximity to it. Several features of the INA reinforced this reading: other provisions refer to both actual and attempted entry, but §§ 1158(a)(1) and 1225(a)(1) do not; Congress elsewhere used “near a land border” language it conspicuously omitted here; and the 1996 IIRIRA amendment replaced the prior phrase “at a land border or port of entry” with “arrives in the United States,” signaling that the new language demands actual presence in the country.
The Court also invoked the presumption against extraterritoriality as an additional reason to reject the respondents’ reading, finding no unmistakable congressional intent to extend inspection and asylum rights to persons still on foreign soil. The Court further rejected the argument that metering violated the United States’ non-refoulement obligations under Article 33 of the 1951 Refugee Convention, reaffirming its prior holding in Sale v. Haitian Centers Council, Inc. that the Convention’s bar on expulsion does not constrain a nation’s treatment of persons outside its territory.
Key Takeaways
- Physical presence in the United States is required before a noncitizen becomes entitled to INA inspection procedures and may apply for asylum; standing at the border on the Mexican side is insufficient to trigger either right.
- CBP’s metering policy—limiting daily throughput at ports of entry by holding noncitizens in Mexico—did not violate the INA or the 1951 Refugee Convention’s non-refoulement obligation, because those protections do not reach persons outside U.S. territory.
- The Court subordinated the canon against surplusage to the “cardinal canon” that statutes mean what they say, choosing an interpretation involving modest redundancy over one that would extend “arrives in” to persons still abroad.
- The government’s rescission of metering did not moot the case because the declaratory judgment remained operative and the government expressly sought to preserve the option of resuming the policy.
Why It Matters
This decision is a significant victory for executive border-enforcement authority. By confining the INA’s inspection and asylum-application rights to noncitizens who have physically crossed the border, the Court confirms that the government retains wide latitude to manage port-of-entry throughput—including reinstating capacity-based metering—without triggering the statutory asylum machinery. Practitioners advising asylum seekers or immigration advocacy organizations must now understand that the legal trigger for statutory protections is actual entry, not presentation at or approach to a port of entry.
The ruling also has implications beyond metering. Because the Court ties asylum-application eligibility and the inspection requirement to the moment of border crossing, it reinforces the legal asymmetry between noncitizens who wait at official ports of entry and those who enter irregularly between ports—the latter, despite facing criminal liability for illegal entry, are physically present in the United States and thus within the INA’s asylum framework once inside. The dissents by Justices Sotomayor and Jackson signal that the statutory and humanitarian dimensions of this question remain sharply contested, and related challenges to specific border policies are likely to continue in lower courts.