The Supreme Court will hear oral arguments in a challenge to the government’s policy of systematically turning back asylum seekers before they can reach the U.S. border with Mexico. The case, Noem v. Al Otro Lado, turns on a single legal question that will govern how asylum eligibility is applied at U.S. ports of entry for years to come: when does a noncitizen “arrive in the United States” for purposes of applying for asylum protection?
What changed
Nearly a decade ago, in response to a surge in Haitian immigrants seeking asylum in San Ysidro near San Diego, the Department of Homeland Security initiated a “metering” policy where Customs and Border Patrol officials would turn back noncitizens without valid travel documents before they could enter the United States. In 2017, the government extended that policy to all ports of entry across the U.S. border with Mexico, and it was formalized in a memorandum in 2018.
Al Otro Lado, an immigrant rights group, and 13 asylum seekers went to federal court in southern California to challenge the policy. In 2024, a divided panel of the U.S. Court of Appeals for the 9th Circuit ruled that, for purposes of being able to apply for asylum under federal immigration law, noncitizens who were turned away from ports of entry before they could enter the United States had “arrived in” the United States.
The full court of appeals turned down the federal government’s request to reconsider the case. In a dissent joined by 11 other judges, Judge Daniel Bress wrote that the panel’s holding “violates clear statutory text, precedent, the presumption against” applying U.S. law outside the United States, “and long-held understandings limiting application of the asylum and inspection laws to aliens ‘in’ the United States—which aliens in Mexico are not.” The federal government then appealed to the Supreme Court, which agreed last fall to weigh in.
The government’s core argument centers on statutory text. “A person ‘arrives in’ a country only when he comes within its borders. A person does not ‘arrive in the United States’ if he is stopped in Mexico.” The challengers counter that Congress’ use of the present tense—the phrase “arrives in the United States”—shows it intended federal laws instructing immigration officials to inspect noncitizens seeking admission to apply “not only to those who have arrived, but also to those who are attempting to step over the border.”
Why it matters
This case will determine whether asylum seekers can present themselves at a U.S. port of entry—doing everything by the book—and still be turned away without any opportunity to apply for asylum. The policy at the center of Noem v. Al Otro Lado is no longer in place, but the Trump administration calls it a “critical tool for addressing” surges in immigrants at the border. The immigrant rights group and asylum seekers who are challenging the policy counter that it is contrary to federal immigration law and, when it was in effect, “created a humanitarian crisis in Mexico.”
For practitioners and asylum seekers alike, the stakes are direct: a Supreme Court ruling that “arrives in” requires physical entry would allow the government to deny asylum screening to anyone still standing on the Mexican side of the border, even at an official port of entry. Conversely, a ruling that noncitizens at the border have begun the arrival process could restore asylum eligibility for people presenting themselves through lawful channels. The government’s policy challengers cautioned that it would “create a perverse incentive to cross the border between ports of entry by affording people who do so greater rights—the exact result Congress sought to avoid when it adopted” this law. And the ruling by the court of appeals only means that noncitizens who arrive at the border must be allowed to apply for asylum; “it does not foreclose reasonable delays” in procedures for dealing with asylum seekers.
Way forward
- Review current practice. If your office handles border or port-of-entry asylum cases, confirm whether your local USCIS or CBP field office is currently screening applicants at the border. The outcome of Noem v. Al Otro Lado will dictate whether that screening is mandatory or optional.
- Monitor the decision. Once the Supreme Court issues a ruling—expected in June 2026—treat it as binding law on all asylum eligibility questions touching the “arrives in” language. Update client advisories immediately.
- Preserve the record. If you represent a client affected by the metering or turn-back policy, document the date and location of the port-of-entry encounter, whether your client was screened or turned away, and any statements by CBP that the policy was in effect. That record may support class action or equitable relief arguments.
- Plan alternatives. In the interim, explore whether your client qualifies for other forms of relief (TPS, VAWA, U/T visas) that do not hinge on the “arrival” question, or whether expedited removal protections under the Trafficking Victims Protection Act (TVPA) apply.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. Folaform is a software company, not a law firm. Immigration law is complex and changes frequently. Always consult with a qualified immigration attorney licensed to practice in your jurisdiction before taking any action based on this information. Verify all information against the official Supreme Court filings and the primary source linked above.