Supreme Court Weighs Border Asylum Rights

The Supreme Court will hear arguments next week on whether the federal government can legally turn asylum seekers away before they physically set foot on U.S. soil.

State of play: The policy in question — known as "metering" — allowed Customs and Border Protection officers to stand at the border and physically block noncitizens, including asylum seekers, from entering ports of entry. DHS formally rescinded it in 2021, but the Trump administration wants the legal authority preserved for future use.

Catch up quick:

• Metering began around 2016 at San Ysidro near San Diego in response to a surge of Haitian asylum seekers
• It was extended nationwide in 2017 and formalized in writing in 2018
• In 2024, the 9th Circuit ruled that migrants turned back at the border had still legally "arrived in" the U.S. for asylum purposes — even if they hadn't crossed the line
• The federal government appealed; SCOTUS agreed to hear the case last fall

The legal question: Federal immigration law lets noncitizens seek asylum when they are "physically present in" or "arrive[] in" the United States. The government argues neither phrase covers someone standing in Mexico. The challengers — immigrant rights group Al Otro Lado and 13 asylum seekers — argue that "arrives in" is present tense, covering the act of attempting to cross, not just having already crossed.

The 9th Circuit sided with the challengers. Writing for the panel, Judge Michelle Friedland held that "arrives in the United States encompasses those who encounter officials at the border, whichever side of the border they are standing on."

What they're saying:

• Solicitor General Sauer (government): "A person does not 'arrive in the United States' if he is stopped in Mexico."
• Challengers' brief: A person-already-crossed reading renders the phrase "physically present" superfluous — Congress wouldn't have written both if they meant the same thing.

The intrigue: Eleven 9th Circuit judges dissented from the full court's refusal to rehear the case. Judge Bress wrote that the panel's ruling "violates clear statutory text, precedent, the presumption against" applying U.S. law outside the country, "and long-held understandings" going back decades. That's a lopsided bench dissent — and SCOTUS tends to notice when that many circuit judges are yelling.

The government also pointed to a 30-year-old precedent, Sale v. Haitian Centers Council, where SCOTUS held that immigration law didn't protect refugees intercepted at sea before reaching the U.S. The administration argues the same logic applies on land.

Yes, but: The challengers counter that Sale involved the high seas — a distinct legal context — and that turning back migrants at land ports of entry conflicts with U.S. obligations under international law not to return refugees to countries where they face persecution. They also argue the ruling creates a perverse incentive: if port arrivals get fewer rights than people who cross the border illegally, more people will cross illegally.

What to watch: Even if SCOTUS reverses the 9th Circuit, the court's reasoning matters. A narrow ruling on statutory text leaves the door open for future litigation. A broader ruling invoking the extraterritoriality presumption could reshape how immigration enforcement authority is understood at the border for years.

The bottom line: This isn't about gun rights — but it's about the outer limits of executive enforcement power, statutory text versus agency practice, and how much the courts will let a president improvise policy that Congress didn't explicitly authorize. Those are questions gun owners have watched play out at ATF for years.