Does a person seeking asylum need to set foot on U.S. soil before the federal government is legally obligated to process them? In Mullin v. Al Otro Lado, the Supreme Court answered “yes.” In doing so, they’ve handed the federal government a major victory on border policy.
How We Got Here
It started at the San Ysidro port of entry in Southern California, one of the busiest land crossings in the world, capable of processing nearly 25,000 northbound pedestrians per day. In May 2016, a surge of Haitian asylum seekers had been arriving at the port in growing numbers.
CBP's initial response was textbook: open temporary holding rooms, increase staffing, and activate contingency plans. Then, the day after the San Diego Union-Tribune ran a story about the surge, CBP abruptly reversed course, ordering officers to "hold the line" and stop new arrivals from entering.
By the end of the month, CBP was turning back nearly all asylum seekers at that crossing. Within a year, the practice had expanded to every port of entry along the U.S.-Mexico border. Within a year, what started as one port's improvised crowd-control measure had become national policy. By 2017, CBP had expanded the practice to all ports of entry along the U.S.-Mexico border, and officers were routinely refusing to inspect or process asylum seekers. In some instances, plaintiffs alleged, this occurred even after individuals had physically crossed the border
DHS Doubles Down
In 2018, DHS formalized it with two memoranda (one distributed by a CBP official, a second issued by the Secretary of Homeland Security herself). The memos authorized officers to establish "physical access controls at the borderline, including as close to the U.S.-Mexico border as operationally feasible" and prohibited scheduling any person for entry. Both acknowledged that once a traveler was in the United States, they "must be fully processed." But this was actually a note that the entire point was to prevent people from reaching that threshold.
According to the record summarized by Justice Sotomayor, metering "created dire humanitarian conditions at the border," as makeshift camps on the Mexican side grew and tens of thousands of turned‑away asylum seekers waited days, weeks, and months for processing that never came. A 2020 DHS Office of Inspector General report notes that CBP frequently invoked "capacity" regardless of actual conditions, and detention facilities were "completely empty" up to 80% of the time even while metering was in effect. Some CBP officers were instructed to tell people the port was "at capacity" when facilities had meaningful remaining capacity, and detention facilities sat empty 80% of the time metering was in effect. Amnesty International and Human Rights First reported that those turned away were left without food or shelter: women were beaten, raped, and robbed; some were kidnapped or murdered in Mexico while waiting.
The Lawsuit
In 2017, immigrant rights organization Al Otro Lado, along with thirteen individual asylum seekers, filed a class action in the Southern District of California. They argued that the metering policy violated the Administrative Procedure Act (APA) by unlawfully withholding mandatory inspection and asylum processing. Their argument centered on two provisions of the Immigration and Nationality Act (INA): 8 U.S.C. §§ 1158(a)(1) and 1225(a)(1), which require the government to inspect and allow asylum applications from any alien who "arrives in the United States."
The district court sided with the plaintiffs, certified a border-wide class, and declared the metering policy unlawful. A divided Ninth Circuit panel affirmed, holding that an alien "arrives in the United States" the moment they encounter a U.S. official at the border — regardless of which side of the border line they’re standing on. The decision sparked sharp internal disagreement: twelve judges dissented from the denial of en banc rehearing, calling the panel's decision "gravely wrong."
SCOTUS Steps In with Textual Analysis
The majority opinion was authored by conservative Justice Alito, joined by the right-leaning justices Roberts, Thomas, Gorsuch, Kavanaugh, and Barrett. It began, as many opinions do, by looking up the word in the dictionary.
The respondents had argued that "arrives in" should mean something different when someone is actively preventing entry; that to be at the threshold and blocked is functionally the same as arriving. The Court rejected that reasoning entirely. They wrote that “to arrive" means "to reach a destination," and the preposition "in" means "within the limits, bounds, or area of" a place. Put those together, they reasoned, and a person arrives in a destination only when they enter within its area — not before. The majority illustrated the point with analogies: a running back doesn't arrive in the end zone when tackled at the one-yard line; a guest doesn't arrive in a house when the homeowner locks the door. And critically, the majority held, none of that changes because someone is blocking the way.
The majority also pointed to the INA's structure. Other provisions of the Act explicitly cover aliens who "enter or attempt to enter" the United States; therefore, they reasoned, Congress knows how to say "attempt" when it means to – but it didn't here. Additionally, a pre-1996 version of § 1158(a)(1) had explicitly covered aliens "at a land border or port of entry." Congress replaced that in IIRIRA with the narrower "arrives in the United States." That change, the majority said, should mean something.
Backup Arguments of Statutory Interpretation
The respondents' primary argument was surplusage: §1158(a)(1) covers both aliens who "arrive in" and those "physically present in" the United States, and if "arrives in" requires actually crossing the border, the first phrase is swallowed by the second. This is essentially invoking the canon against surplusage, a principle of statutory interpretation used by courts to ensure that every word and clause in a legal text is given effect.
The majority acknowledged this has "some force" but didn't find it controlling. The most plausible explanation for the redundancy, the Court concluded, is historical: in 1996, IIRIRA created the expedited removal process and inserted "arrives in" language into § 1158(a)(1) to track the same triggering event. The clauses weren't meant to cover different people; they were meant to clarify that even aliens subject to expedited removal could still apply for asylum.
As a final backstop, the majority invoked the presumption against extraterritoriality: the longstanding principle that courts don't apply U.S. statutes to conduct outside American territory unless Congress clearly says so. Nothing in §§ 1158(a)(1) or 1225(a)(1) unmistakably requires the government to inspect aliens and process asylum applications while those aliens are still standing on Mexican soil. The respondents' interpretation, the majority concluded, would give these provisions extraterritorial reach, and the Court refused to read them that way.
Dissents Push Back
Justice Sotomayor, joined by Kagan and Jackson, dissented with a blunt bottom line. They wrote that the majority's rule allows the Executive Branch to "circumvent all these mandatory procedures by having U.S. immigration officers stand at the border and physically block noncitizens from setting a foot onto U.S. soil" – even if the port has ample capacity and even if the asylum seeker will be persecuted if turned away.
On surplusage, Sotomayor argued the majority's reading doesn't just create partial redundancy; it renders "arrives in" entirely meaningless. The point of having two categories in the statute is to cover two different groups: those already inside the country and those in the process of arriving at its threshold. Reading "arrives in" to require actual crossing eliminates the second category entirely.
She also rejected the majority's dismissal of perverse incentives. The record showed metering had in fact pushed people to cross illegally between ports of entry. And she flagged the majority's most alarming implication: under this rule, the government has no duty to process asylum seekers – so long as it keeps them one inch from U.S. soil indefinitely.
Justice Jackson filed a separate dissent, arguing the majority's focus on a single preposition elevated cramped literalism over more than a century of immigration law that had always covered aliens "arriving at ports" regardless of where their feet were.
What Does the Ruling Mean?
The ruling clears the path for the Trump Administration to reinstate metering whenever it sees fit – and the government seems to be eager to use it. The Court reversed the Ninth Circuit and remanded, effectively dissolving the class-wide relief that had barred the metering policy.
Asylum seekers who show up at official ports of entry but are physically blocked from crossing do not trigger the INA’s mandatory inspection and asylum-processing provisions and have no ability to file a claim. Until they actually set foot on U.S. soil, the law simply doesn't reach them.
