US Supreme Court Upholds “Metering” Policy for Asylum Seekers

In Mullin v. Al Otro Lado, 609 U.S. ___ (2026), the U.S. Supreme Court held that an alien standing in Mexico does not “arriv[e] in the United States” by attempting, and failing, to set foot in this country. Rather, an alien “arrives in the United States” only when he crosses the border. Accordingly, the Immigration and Nationality Act of 1952 (INA) neither entitles an alien standing in Mexico to apply for asylum nor requires an immigration officer to inspect him.

Facts of the Case

The Immigration and Nationality Act governs the process by which an alien who “arrives in the United States” is inspected by border officials, is deemed an applicant for admission, and may apply for asylum. The dispute centers on when an alien who seeks to enter the United States from Mexico “arrives in the United States” within the meaning of that phrase in two key INA provisions—8 U.S.C. §§1158(a)(1) and 1225(a)(1): when the alien is standing in Mexico at the border, or only when the alien crosses the border and enters the country?

In the spring of 2016, U. S. Customs and Border Protection (CBP) began experiencing a surge of aliens seeking admission at ports of entry along the U. S.-Mexico border, with numbers sometimes far exceeding safe and secure processing capacity. In November 2016, the Department of Homeland Security responded by adopting a policy of “metering” the number of arriving aliens whom CBP would inspect each day and allow to apply for asylum. To enforce the policy, officials stood on the U.S. side of the border and prevented aliens from entering the United States beyond the number the port could adequately process. The metering policy continued through the change in Presidential administrations.

In 2017, asylum seekers and the immigration-advocacy organization Al Otro Lado brought a putative class action against the Government in the United States District Court for the Southern District of California, arguing that CBP’s enforcement of the metering policy unlawfully withheld inspection and asylum processing from aliens who arrive at the border and seek to enter the United States. The District Court certified a class of all noncitizens who seek or will seek to access the asylum process by presenting themselves at certain ports on the U. S.-Mexico border and were or will be denied access to that process by CBP officials.

The court subsequently granted summary judgment for the class and declared that the Government’s denial of inspection and asylum processing to class members who are in the process of arriving in the United States is unlawful regardless of the purported justification for doing so. The Government rescinded the metering policy in November 2021, shortly after the District Court entered summary judgment. A divided panel of the Ninth Circuit then affirmed in relevant part, holding that an alien “arrives in the United States”—and thus must be inspected and may apply for asylum—when the alien, while standing on the Mexico side of the border, encounters a United States official at the border.

Supreme Court’s Decision

By a vote of 6-3, the Supreme Court reversed. Justice Samuel Alito wrote on behalf of the majority.

In support of its decision, the majority cited the ordinary meaning of the phrase “arrive in.” As Justice Alito explained, “In ordinary speech, no one would say that a person ‘arrivesin’ a place—for example, a house, a city, or a country—before the person enters that place. The context in which the phrase ‘arrives in the United States’ is used in the immigration statutes at issue here supports an ordinary meaning.’”

The Court also noted that several features of statutory context support the ordinary-meaning reading. For instance, while other provisions of the INA refer to both actual entrance and attempted entrance into the United States, §§1158(a)(1) and 1225(a)(1) contain no reference to attempted entry. As Justice Alito highlighted, this fact signals that Congress enacted the disparate language “‘intentionally and purposefully.’”

The Court addressed the plaintiffs’ contention that construing the phrase “arrives in the United States” to mean physical entry would make that phrase redundant because, for purposes of determining an alien’s ability to seek asylum, § 1158(a)(1) refers to an alien “who is physically present in the United Statesorwho arrives in the United States.” According to the majority, while therule against surplusagegenerally cautions against interpreting a statutory provision in a manner that makes part of it inoperative or redundant, it “is not an iron rule.” Moreover, itdoes not supersedethe general principle that courts should look to theordinary meaningof statutory text.

Among other arguments, the majority also rejected the plaintiffs’ contention that “when someone ‘block[s]’ the way of the person seeking to arrive,” “to arrive in a place is merely to ‘be at its threshold’” – so that, for example, asylum seekers “arrive in the United States” when they try to enter the country. “A running back does not arrive in the end zone when he reaches the 1-yard line,” Justice Alito wrote, nor does a letter “arrive in the mailbox when a dog assaults the carrier a step away from the mailbox. A person arrives in a destination only when he enters it, and that conclusion does not change because someone or something blocks entry.”

Dissent

Justice Sonia Sotomayor wrote a dissenting opinion, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. Justice Jackson also wrote a dissenting opinion.

Justice Sotomayor argued that at the plain text, overall statutory scheme, implementing regulations, and legislative history all suggest that Congress intended for the asylum proceduresat issue to apply to “all noncitizens in the process of arriving, even if they have not yet stepped foot into U.S. territory.”

“The consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not. More people will be forced to walk along the U. S.-Mexico border in dangerous conditions, trying to find a port that will inspect them,” she wrote. “More people will turn back and be subjected to violence because of something they cannot or should not have to change about themselves, such as their race, religion, nationality, or political opinion. Because this is neither what Congress said nor what its words permit, I respectfully dissent.”