One step short

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JENNY ROUGH, HOST: It’s Monday the 13th of April. Glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

Our case today is Mullin versus Al Otro Lado—a case about asylum law asking a narrow question of application: when, exactly, someone “arrives” in the United States.

That might sound technical. But the answer has real consequences.

Immigration courts already face a backlog of more than three million cases. And in many places, asylum hearings are scheduled years into the future.

The government says that reality is part of why it needs flexibility at the border—to control how many people enter the system in the first place.

ROUGH: But the challengers say that cannot justify ignoring the law Congress wrote. Because under federal statute, an alien who is “present in” or who “arrives in” the United States may apply for asylum—and must be inspected.

So here’s the question:

Can the government avoid that obligation by stopping people just short of the line—before they count as having “arrived”?

The Supreme Court heard arguments in the case late last month. The dispute grew out of a policy to slow down the number of migrants entering. Back in 2016, ports of entry along the southern border were overwhelmed.

Here’s Vivek Suri ... arguing for the government.

SURI: The policy was put in place in 2016 when ports which might have a capacity—a holding capacity of 50 to a hundred people, were facing lines of aliens far larger than that. And those individuals were demanding entry at that particular time, and ports were overwhelmed.

The policy is called “metering.” It limited how many asylum seekers would be processed at ports of entry each day—turning others back to wait, often on the Mexican side of the border. It did so by placing agents on the border to stop those without valid travel papers from crossing.

SURI: Sometimes they didn’t have enough food to feed the people arriving at, in the United States. Sometimes they didn’t have beds in which they could sleep. They didn’t have places where they could hold them. So it was necessary for the ports to say, sorry, we’re at capacity, try again some other time.

EICHER: The policy was eventually extended to all ports of entry along the southern border.

The immigrant-advocacy organization Al Otro Lado and 13 asylum seekers filed suit. They claimed the metering policy violated the Immigration and Nationality Act. That says any alien who is physically “present in” the United States or who “arrives in” the United States may apply for asylum and must be inspected by an immigration officer.

ROUGH: For our purposes, there are two key phrases to remember—

First, present in. Second, arrives in.

The asylum seekers argued that the second phrase arrives in the United States should be read to include those who are in the process of arrival, even if they’re still on the Mexican side. But the government argued to read it that way goes too far.

SURI: You can’t arrive in the United States while you’re still standing in Mexico. That should be the end of this case.

EICHER: The justices weren’t so sure.

Cases usually wind up in court because there are good arguments on both sides. The asylum seekers argue the government’s reading would make part of the statute superfluous—basically redundant. Justice Elena Kagan pressed.

KAGAN: I totally get that if you just look at the language “who arrives in the United States” it sort of suggests, well, you have to be in the United States. So totally get that. It does seem to me that this statute—you don’t have to be a superfluity hawk to think that this statute has a massive superfluity problem. Because the way you’re understanding that second phrase—

The phrase “arrives in.”

KAGAN: —the statute ends up saying, essentially, any alien who is in the United States or who is in the United States. … It can’t mean that. So in the United States must mean something else. I mean these phrases are right next to each other.

ROUGH: The government said the phrases can overlap but still serve different functions. For example, distinguishing between those already there and those newly arriving.

Justice Sonia Sotomayor took things back to the spring of 1939. That’s when over 900 Jewish refugees boarded a ship to escape Nazi Germany. First, the MS St. Louis tried to dock in Cuba.

SOTOMAYOR: The refugees weren’t permitted to unload themselves. It then came to the coast of Florida, and the U.S. wouldn’t let it dock at all and turned it back. And it did the same in Canada. Canada wouldn’t let it dock.

EICHER: The ship had to return to Europe and more than 250 of its passengers would die in the Holocaust.

Sotomayor used that example to press the government on its obligations—arguing that people who reach the border and ask for protection should at least be heard. Here’s part of that exchange:

SOTOMAYOR: They’re not permitting the people who come to the line, to the door, and knock on it who want to claim refugee status. You’re saying we’re not going to inspect you. How does that not violate the Refugee Treaty Act or the Spirit of the St. Louis UN convention?

SURI: To start with the statute. The statute doesn’t say arrive at the door.

SOTOMAYOR: No but—They’re arriving. They’re knocking.

SURI: I do not deny the moral weight of claims made by refugees. But that is not the question before the court. … The question before the court is what obligations did Congress impose in the asylum and inspection statutes? And those refer only to aliens who arrive in the United States.

ROUGH: Justice Ketanji Brown Jackson raised another concern:

JACKSON: So 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 United States 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 United States unlawfully, when the law says you’re not supposed to do it, and requests asylum gets their application entertained?

Suri pointed out there’s a separate statute that addresses protections for aliens outside the U.S. Also, the responsibility of the world’s refugee problem is a shared one among nations:

SURI: Congress could reasonably determine that if a refugee is in Mexico, then the Mexican government is primarily responsible for processing his claim. Once the refugee is in the United States, either legally or illegally, then the United States has greater responsibility for that person.

Right at about this point...

JACKSON: Think about the statute at issue. It says, “arriving in” … it says “arriving in.”

oral arguments got tense!

JACKSON: [Jackson, Suri, Chief cross-talk]

Chief Justice John Roberts had to step in.

CHIEF JUSTICE JOHN ROBERTS: Please! Counsel, the statutory language, is it “arriving in” or is it “arrives in”?

SURI: Arrives in.

ROBERTS: Okay. Thank you.

EICHER: The metering, or turnback policy, is not currently in place in the same form. That raised a threshold question: Is the case moot?

The government says no, it isn’t—and officials still need the option to use similar tools going forward.

Lawyer Kelsi Corkran argued for the asylum seekers. She says the government’s approach breaks with decades of practice at ports of entry—where people arriving to seek asylum were at least processed.

CORKRAN: ... which have recognized for nearly 30 years that the Act’s inspection and processing duties apply to noncitizens, quote, coming or attempting to come into the United States at a port of entry.

ROUGH:  In other words, Corkran argued the statute applies even to people in the process of arrival. But Justice Amy Coney Barrett wanted to know where exactly the line would be drawn.

BARRETT: How do you know under your theory when the person is close enough that we could say they have arrives in or arrived in the destination? I mean what if there’s a queue and they’re far back? … If it’s not crossing the physical border, what is the magic thing or the dispositive thing that we’re looking for that we can say, Ah, now that person we can say arrives in the United States.

CORKRAN: So a person arrives in the United States at a port of entry when they are at the threshold of the port’s entrance about to step over. So they are arriving there. I think that’s consistent with ordinary meaning.

EICHER: The ports have turnstiles, so Corkran later said, think of it like a stadium entrance.

But what about those who approach the border outside a port of entry? Meaning, an illegal location, the border line between ports of entry?

CORKRAN: I think you have to be at a place where you could, in fact, cross. … Have you made it to the threshold and are about to step over.

ROUGH: Justice Neil Gorsuch tested the line.

GORSUCH: So anybody at the water’s edge of the Rio Grande on the Mexican side has arrived in?

CORKRAN: No, the border is halfway through the water.

GORSUCH: Okay. So they’ve got one step short of halfway through. They’ve arrived but somebody who is on the water’s edge has not arrived?

CORCKRAN: I think that’s right. You’re looking at being at the threshold.

Justice Brett Kavanaugh failed to see how these distinctions helped the problem at all.

KAVANAUGH: This seems very artificial, trying to figure out at the threshold, on the line, in the middle of the river. Because wherever the line is, the government is presumably going to stop you on the other side of that line.

He said the real question is can the government block people … no matter where, exactly, the line is drawn.

EICHER: Before we wrap up, I want to circle back to something I said about a week and a half ago, when we first talked about the Supreme Court’s decision in Chiles versus Salazar. That’s the case about whether the state of Colorado can restrict what counselors say to minors seeking help with unwanted same-sex attraction or gender confusion.

I said the Court called Colorado’s law a clear violation of the First Amendment.

That overstates what the Court actually did—and I clearly misread it.

What the Court said is that the law regulates speech—specifically speech based on viewpoint—and that means it has to face the toughest legal test courts apply.

But under that test, laws like this are usually on very shaky ground.

ROUGH: And that’s the key distinction.

The Court said the law is presumptively unconstitutional. But it said the lower courts used the wrong test. So it sent the case back so the lower court could reassess the law under the proper First Amendment test, a rigorous evaluation known as strict scrutiny.

That doesn’t guarantee the outcome—but it does put the burden squarely on the state to justify the law. And the writing is on the wall.

And that’s this week’s Legal Docket.

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