The Supreme Court grappled Tuesday with whether the Trump administration should be able to revive an immigration policy that has been used to turn back migrants seeking asylum at the U.S.-Mexico border. Some conservative justices seemed receptive to the Justice Department’s push to overturn a lower-court ruling against the practice known as metering. A decision in the case is expected by late June or early July.
What changed
The Supreme Court heard oral arguments in the metering case, during which some conservative justices seemed receptive to the Justice Department’s push to overturn a lower-court ruling against the practice.
The legal dispute at the heart of the metering case centers around the meaning of the words “arrive in.” The Justice Department argues it means anyone who is in the United States already, so it doesn’t apply to people authorities stop on the Mexico side of the border. But immigration attorneys say the law has long meant anyone who comes to a port of entry must be able to apply, and it should stay that way.
Metering was first used during President Barack Obama’s administration when large numbers of Haitians appeared at the main crossing to San Diego from Tijuana, Mexico, and it was expanded to all border crossings from Mexico during Trump’s first term. President Joe Biden formally rescinded the use of metering in 2021, and U.S. District Judge Cynthia Bashant, an Obama nominee, ruled that metering violated the migrants’ constitutional rights and a federal law requiring officials to screen anyone who arrives at the border seeking asylum.
A divided 9th U.S. Circuit Court of Appeals affirmed her ruling, but nearly half of the judges on the full San Francisco-based appeals court voted to rehear the case, a strong signal that may have caught the justices’ attention.
Why it matters
If the Supreme Court reverses the Ninth Circuit and allows metering, your clients presenting at ports of entry could be lawfully turned away without a full asylum interview—even if they fear persecution and would otherwise qualify for protection. This would affect how you counsel asylum seekers on timing and port-of-entry strategy.
Some justices raised questions about whether the policy would allow people who entered the country illegally to apply for asylum while new arrivals seeking legal entry at the border could be blocked, with Justice Brett Kavanaugh asking, “Why would Congress privilege someone who illegally enters the United States?” The government’s position—that denied applicants can try again another day—may face scrutiny, as the Associated Press found thousands of immigrants on waiting lists when the policy was in place in 2019.
Under the Immigration and Nationality Act, migrants who arrive in the U.S. must be able to apply for asylum if they fear persecution in their home countries. The outcome will determine whether “arrival” means physical presence on U.S. soil or merely presenting at a port of entry.
Way forward
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Monitor the docket. A decision is expected by late June or early July. Bookmark SCOTUS Blog and the Supreme Court’s opinions page for immediate notice.
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Reassess port-of-entry strategy. Until the decision, continue advising clients that presenting at a port of entry is the safest asylum path. If metering is revived, your advice may shift based on border conditions and CBP enforcement patterns.
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Brief clients on timing uncertainty. If a client is turned away at a port, advise them on appeal rights and reapplication options, pending the outcome.
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Consult the Ninth Circuit precedent now. Familiarize yourself with Al Otro Lado v. U.S. Department of Homeland Security (9th Cir. 2024) while it remains binding law in Western states.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Fola is software, not a law firm. Consult a licensed immigration attorney to discuss how a Supreme Court ruling on metering may affect your specific situation or case strategy. This summary reflects the oral arguments and publicly available reporting; it is not a substitute for reading the full Supreme Court decision when it is released. Immigration policy can change without notice; verify all information against the official source linked above.