Preventing illegal immigrants from crossing the U.S.–Mexico border if U.S. officials say a port of entry is at capacity is illegal, a federal appeals court ruled on Oct. 23.
One judge dissented.
The so-called metering policy, implemented in 2016 under President Barack Obama and continued under President Donald Trump and President Joe Biden, saw federal immigration officials refuse to let illegal immigrants cross into the United States if the number of border crossers at ports exceeded a certain number.
“If we don’t have the resources to let them in on a particular day, they are going to have to come back,” Homeland Security Secretary Kirstjen Nielsen said on cable television in 2018.
Immigration rights advocates sued, arguing the policy was illegally denying migrants the right to enter the United States and claim asylum. A district court judge in 2021 ruled that the policy violated federal law that requires immigration officers to inspect newly arrived illegal immigrants and refer them for an interview if they say they’re applying for asylum.
Construing the law as allowing officers to turn back illegal immigrants until an unspecified time “would permit defendants to turn back asylum seekers any number of times—perhaps indefinitely—without running afoul of their statutory obligations,” U.S. District Judge Cynthia Bashant said at the time.
The policy was rescinded shortly after Bashant’s ruling.
“A noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under” the law, U.S. Circuit Judge Michelle Friedland wrote for the majority.
The law in question states in part, “Any alien who is physically present in the United States 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), irrespective of such alien’s status, may apply for asylum.”
Government lawyers had argued that immigrants had not arrived until they were on U.S. soil and had presented themselves to officials, but the judge indicated that that interpretation means an asylum seeker would be better off in some instances crossing the border between ports of entry.
“If she manages to surreptitiously cross the border, she will be able to apply for asylum. We do not think Congress would have created that incentive,” the judge said.
U.S. Circuit Judge John Owens joined Friedland.
U.S. Circuit Judge Ryan Nelson said in a dissent that the key point is the law says “arrives in,” not just “arrive.” He said the law means immigrants must be physically present in the United States to apply for asylum.
Nelson also said that the ruling “imposes on the federal government—for the first time—an obligation to interview asylum seekers who are still in Mexico.”
