Yesterday the Supreme Court heard oral argument in Noem v. Al Otro Lado, a case concerning the asylum eligibility provision of the Immigration and Nationality Act that begs for a textualist rescue. Under 8 U.S.C. § 1158, an alien who “arrives in the United States” may apply for asylum. The question presented is whether an alien who is stopped on the Mexican side of the U.S.-Mexico border “arrives in the United States” under the statute.
A divided panel of the Ninth Circuit had said yes. In dissent, Judge Ryan Nelson asserted that the majority “twists the statutory language, ignores history, flips multiple presumptions, and ignores common-sense English usage.” Al Otro Lado came to the Supreme Court after the Ninth Circuit denied rehearing en banc.
The case actually involves a policy that began nearly a decade ago. “Metering,” a practice by which Customs and Border Protection officers would stop aliens before they crossed into the United States, was adopted in November 2016 by the Obama administration when border ports were overwhelmed. The policy was formalized during President Trump’s first term, only to be rescinded by the Biden administration—with predictable results that included overcrowded facilities and nearly 85,000 sponsored migrant children who went missing in the system.
As might be expected, the current administration defends metering, and the arguments of Vivek Suri, an assistant to the solicitor general, before the Court met with repeated filibusters by skeptical Justices Sotomayor and Jackson. Ed Whelan recounts how the two justices repeatedly interrupted Suri, preventing him from answering their own questions while they spewed hundreds of words.
For all of their verbosity, the two liberal justices indulged in sloppy descriptions of the relevant statute’s language, repeatedly using the phrases “arriving at” or “arriving in.” Chief Justice Roberts called attention early to the actual phrase in the statute—“arrives in”—and other justices returned to the linguistic importance of this point when Kelsi Corkran was up to argue on behalf of Al Otro Lado, the group representing asylum seekers. “I feel like there’s some slippage between ‘arriving’ and ‘arrives,’” Justice Barrett told Corkran. The justice pressed the attorney to explain “what is the magic thing or the dispositive thing that we’re looking for where we say, ah, now that person we can say arrives in the United States?” Corkran explained that “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.” Justice Gorsuch soon followed with more questions that reduced her position to its logical absurdity: “So the whole debate boils down to the one person who’s at the port, the one person who’s at the front of the line?” The justice then pressed further, asking whether “everybody else in the line—everybody else who’s being metered” simply has no asylum claim at all.
As the linguistic “slippage” Barrett referred to continued in Corkran’s argument, Justice Alito quipped that “it’ll be interesting to read the actual transcript of the oral argument” to see the repeated lapses into the “arriving at” language. He asked, “[D]oes a person arrive in the house when the person is not in the house and is knocking at the door asking to be admitted to the house?”
Corkran gave a convoluted reply that began with how “here, the door is open” and how “[t]he officers and the asylum seekers . . . were toe to toe.” Soon Chief Justice Roberts and then Justice Kavanaugh interjected questions to probe her confusing imagery. Kavanaugh admitted that “the whole thing seems kind of artificial to me.”
During oral argument, a critical mass of the justices most committed to reading statutes as written methodically demonstrated how Al Otro Lado’s theory dissolves into incoherence. That is reason to be optimistic that the decision in this case will strike a blow for textualism and, in the process, teach recalcitrant Ninth Circuit judges a lesson.