At stake in Noem v. Al Otro Lado is whether the U.S. can shut asylum seekers out at the border and evade both domestic and international law.
On Tuesday, March 24, the government will ask the Supreme Court to declare that asylum law does not apply at the border. There’s no legal basis for such a request, but this didn’t stop the first Trump administration from turning away thousands of asylum seekers—like Beatrice Doe (a pseudonym used to protect her safety).
In 2017, Beatrice and her children fled her abusive spouse and death threats from criminal gangs in her hometown in Mexico, hoping for refuge in the United States. Each time she approached the border, immigration officials stopped her from walking into the port of entry, even though she told them she was afraid to remain in her country. They lied to her about the law, telling her she couldn’t enter because she wasn’t born in the United States, or there was no room for her, or she would be put in jail and separated from her children if she came back ever again. Without the opportunity to even share her story, Beatrice and her family regrouped in a shelter in Tijuana, where her abusive spouse found her and convinced her to return with him.
The case, Noem v. Al Otro Lado, was brought by Beatrice and other asylum seekers to challenge this dangerous practice, known as the turnback policy.
The turnback policy is no longer in place, as it was rescinded by the Biden administration and then found illegal in the lower courts. However, upon his return to the White House, Trump revived the case, hoping that the Supreme Court would bless the untenable argument that requesting asylum applies only to people already in the United States, not those who are knocking at the door.
“The Trump administration’s crusade to slam the door on people seeking asylum has had deadly consequences,” says Melissa Crow, director of litigation at the Center for Gender and Refugee Studies and one of the lead attorneys in the Al Otro Lado case. “Any policy that pushes asylum seekers back to northern Mexico, where cartels routinely prey on migrants, violates the promises we made in response to the horrors of the Holocaust.”
As many human rights and religious organizations have pointed out in amicus briefs, the right to apply for asylum within a country or at its borders is a fundamental tenet of the 1951 United Nations Refugee Convention and its 1967 Protocol, which the U.S. ratified in 1968. It is also fundamental to the U.S. Refugee Act of 1980, which codified the government’s commitments under these treaties. The Refugee Act established separate refugee and asylum programs that are governed by the same definition of a refugee: a person fleeing persecution on the basis of race, nationality, religion, political opinion or membership in a social group.
The current refugee program is jointly administered by the Departments of State, Homeland Security and Health and Human Services; it focuses on individuals already identified as refugees by the United Nations and selects individuals from this group that meet the humanitarian or diplomatic objectives of the United States.
In contrast, asylum is administered by the Departments of Homeland Security and Justice (DHS and DOJ), as asylum seekers may apply for protection directly with DHS but also during deportation proceedings in front of DOJ’s immigration courts. Asylum applicants self-select and may have come into the country in a variety of ways, including at ports of entry.
Asylum is neither an obstacle to border enforcement nor a luxury to be doled out only when the government deems it convenient. It is a central pillar of United States immigration law …
An amicus brief filed by a bipartisan group of former government officials
Regardless of how they arrived, anyone who is physically present in the United States or who arrives at a port is entitled to apply for asylum. They still must prove their case, and many are screened out of the process before they reach an immigration judge, but they are entitled, at a bare minimum, to have a qualified official listen to their claim.
The Trump administration wants to treat people who arrive at a port of entry but are not allowed to set foot inside the door as ineligible for asylum. This ignores not only the statutory language but also another critical element of the Refugee Act—that the United States may not return people who will be persecuted in their country to danger. This tracks the principle of “non-refoulement” in the Refugee Convention, which guards against turning away people who will be persecuted, facing imprisonment, harm or death. An assessment of this risk is absolutely required as part of the asylum process.
The poignancy of non-refoulement is described in a brief filed by the Hebrew Immigrant Aid Society (HIAS), recounting the tragedy of the M.S. St. Louis, a German ship that sailed to Cuba in 1939 filled with 937 German Jews, many of whom had been released from concentration camps on the condition that they leave Germany and never return. Cuba reneged on its promise to admit the passengers and the U.S. refused to allow the St. Louis to dock. With nowhere to go, the ship returned to Europe; after frenzied negotiations, some countries took in passengers for a price, but most of those countries would soon fall to the Nazis. Ultimately, the Nazis imprisoned many of the St. Louis passengers and murdered 254 in the death camps.
In the aftermath of the Holocaust, the story of the St. Louis became a touchstone for developing international agreements to protect people fleeing persecution, including ensuring that governments don’t close their eyes and turn their backs on the persecuted.
But the Trump administration does not want to be bound by those agreements nor by decades of U.S. law and regulations. By narrowing eligibility for asylum to those already inside the borders of the United States, the administration wants the Supreme Court to bless its plans to keep people it considers undesirable from coming into the U.S. Right now, it is relying on an executive order declaring a state of emergency at the border to keep the doors closed, but emergencies are temporary.
If the Supreme Court succumbs to Trump’s twisted logic, he will likely consider it carte blanche to keep the border closed permanently to asylum seekers and other people in need of protection. In other words, only people who already have permission to enter the United States could ask for protection.
As the Trump administration has shuttered virtually all other avenues to obtain protection in the United States, this effectively would violate non-refoulement and expose people seeking asylum at the southern border to danger and death.
Not only would this be devastating for people like Beatrice Doe, but it also would fundamentally undermine the immigration system—a bipartisan group of former government officials argues in their amicus brief. The group writes that the Trump administration is attempting to pick and choose what laws and rights to enforce.
As the group notes:
“Asylum is neither an obstacle to border enforcement nor a luxury to be doled out only when the government deems it convenient. It is a central pillar of United States immigration law—one that reflects our country’s enduring commitment to help form a more perfect union by protecting and welcoming vulnerable people who arrive at our Nation’s doorstep, fleeing from persecution.”
In times of emergency or unexpected increases in arrivals at the border, balancing the responsibility to manage border traffic and protect asylum seekers can be difficult. Sometimes, as the brief argues, temporary measures to regulate the flow of people may be needed, and the government currently has a wide array of tools to manage such circumstances. Sometimes people may unintentionally fall through the cracks. In those cases, the response is to do better, to fix the problems and ensure that the resources needed to enforce all aspects of the law—including proper attention to asylum seekers—are available.
The response is not to permanently bar asylum seekers from entering the U.S.
Jamillah Nabunjo was one of far too many women for whom the turnback policy was a death sentence. After fleeing political persecution in her home country of Uganda and making it all the way to the U.S.-Mexico border, Jamillah was turned away by CBP officials.
She then spent five months languishing in a migrant shelter in northern Mexico, desperately awaiting an opportunity to seek protection in the United States. There she became severely ill. Immigrant advocates’ pleas for CBP to let her in to seek medical care were met with indifference, and Jamillah died before she had the opportunity to pursue her asylum case.
The Noem v. Al Otro Lado case is both an effort to preserve the right to asylum and a step towards holding the administration accountable for ignoring the human cost of its border policies.
“We’re headed to the Supreme Court next week to pursue justice for Jamillah, for Beatrice, and for all people who were gravely harmed by the turnback policy,” says Crow.
Brianna Krong, communications and advocacy manager at the Center for Gender & Refugee Studies, contributed to this article.
