The Supreme Court on Monday agreed to review the question of when a migrant actually arrives in the United States, in a case that could determine whether migrants intercepted before crossing U.S. borders can apply for asylum.
The Trump administration in July petitioned the Supreme Court to reverse a decision by the U.S. Court of Appeals for the 9th Circuit, which held that migrants stopped on the Mexico side of the U.S.-Mexico border have the right to apply for asylum in the United States and be screened for admission.
“The decision thus deprives the Executive Branch of a critical tool for addressing border surges and for preventing overcrowding at ports of entry along the border,” Solicitor General D. John Sauer and other Trump administration lawyers wrote in their petition.
The case arises from a class-action lawsuit filed in 2017 by 13 asylum seekers and the immigrants rights organization Al Otro Lado. They alleged then that U.S. Customs and Border Protection agents were unlawfully “denying asylum seekers access to the U.S. asylum process” by turning migrants away at border ports of entry.
In 2022, a judge in the U.S. District Court for the Southern District of California held that the class of migrants who are turned away in the process of arriving in the United States are unlawfully denied their right to seek asylum. A divided panel on the 9th Circuit affirmed.
The case centers on a former practice called “metering,” which allowed border officials to stop migrants without documentation before they enter the United States. It was implemented in 2016 during the Obama administration. The first Trump administration continued the policy and, in 2021, the Biden administration rescinded it.
In a brief in October, lawyers for Al Otro Lado and the other respondents wrote that the case is not ripe for Supreme Court review because the policy was not in use.
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