The Court’s latest immigration opinions prioritize semantics over statutory context, with life-altering consequences for people seeking protection in the United States.
Just five days after the commemoration of World Refugee Day, the Supreme Court released two immigration opinions that profoundly weaken protections available to asylum seekers at the border and people granted Temporary Protected Status within the U.S.
Both cases—Mullin v. Al Otro Lado and Mullin v. Doe—are 6-3 decisions written by Justice Samuel J. Alito, with powerful dissents from the three liberal justices.
Both cases raise disturbing questions about the conservative majority’s political agenda, and both are likely to inflict fear, suffering and harm on people fleeing to the United States for protection and those who have temporarily found a haven here.
And both lay bare how dismissive the majority has become about protecting refugees and others in need of temporary or permanent protection.
Mullin v. Al Otro Lado Rewrites Asylum Law By Taking it Out of Context
In the first case, Mullin v. Al Otro Lado, the Court permits the president to resume a policy from his first administration that allows agents at the U.S.-Mexico border to turn away people seeking asylum without an opportunity to raise their claim.
Hundreds of thousands of asylum seekers were turned away during the first Trump administration with disastrous results, included well-documented incidents of death, sexual assault, murders, kidnapping, extortion, illness and family separation.
The majority barely acknowledges this information, nor does it seem to understand that desperate people will keep trying to enter the U.S. and will take the more dangerous path between ports of entry if that is their only option.
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.
Justice Sonia Sotomayor
Neither the impact of the turnback policy nor the administration’s choices about border management matter much to the majority. Alito dismisses such concerns as policy matters outside the Court’s authority.
Instead, the task at hand is to determine when access to asylum kicks in, which requires a close reading of the statute.
Unfortunately, Alito focuses only on the words “arriving in” the United States, arguing that “in” is the crux of the matter. Congress chose to use the word “in,” rather than “at” or “next to” or “near,” and as such, must mean that people who arrive at the border without proper authorization are ineligible to seek asylum unless they step across the border—only then are they “in” the U.S.
He compared the border crosser to the guest who arrives at your front door but isn’t in the house until she steps across your threshold, or the linebacker who is at the one-yard line but hasn’t scored by crossing into the end-zone.
Alito made similar observations during oral argument, but he extended them further in the opinion to illustrate how the commonly understood act of being at a place is different than being inside it. He argues that whether you just never reach the door or are tackled by a lineman, no matter how hard you try, you haven’t scored the goal.
… The goal is not to keep everyone out, but to ensure that people who have a good reason—like a lawful visa or a desire to apply for asylum—are able to come in and make their case for admission.
In her dissent, Justice Sonia Sotomayor calls Alito out on this wordplay, accusing the majority of doing statutory interpretation in a vacuum. She points out that this airy reading evaporates when all the relevant statutes are read together. Context breaks the vacuum seal, demonstrating the numerous ways the asylum statute and the inspection and admission statutes reinforce the right to seek asylum at the border.
To follow Alito’s analogy, the relationship between admission, inspection and the asylum process is not like a football game. In football, it’s lawful to tackle the guy with the ball at the one-yard line because your goal is to prevent him from reaching the end zone. For border management, the goal is not to keep everyone out, but to ensure that people who have a good reason—like a lawful visa or a desire to apply for asylum—are able to come in and make their case for admission. The turnback policy is more like pass interference in the end zone—illegally keeping the receiver from completing the pass in motion.
Sotomayor lays this out far more elegantly, minus the football references, carefully looking at the legal framework and the administration’s deviation from more than 50 years of practice. She outlines the evidence that reveals border agents frequently blocked entry even when ports had capacity to process asylum-seekers and discusses the misery the policy inflicted on others. She is incredulous that the majority imagines there might come a time when a new turnback policy is so severe that it could be challenged, because she finds that the majority has removed any obligation to follow the existing asylum obligations:
“The majority’s interpretation permits the Government to [turn people back] even if the refugees complied with all applicable laws and regulations, even if the port had ample capacity to inspect them, and even if turning them back would result in the very persecution from which they narrowly escaped.
“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. 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.”
Justice Ketanji Brown Jackson joined in the dissent, writing separately to emphasize her belief that the case would never have come before the Supreme Court because the policy itself is defunct—the Trump administration sought an advisory opinion on whether it could resume. She cannot understand why her colleagues are willing to review an idea that cannot be evaluated in practice.
She, too is put off by the majority’s reliance on arrival metaphors rather than hard facts:
“The absence of a current metering policy has plainly infected the Court’s ultimate analysis, too. The majority grounds its reasoning in metaphors about a linebacker and a houseguest and a piece of mail. (It must do this, of course, because it has no actual facts to grapple with.) No one knows how, if at all, the reasoning drawn from these metaphors will map on to the realities of a future metering policy. All we can do now is guess.”
Finally, she reminds us that “the Court is not a law student puzzling through a difficult cold call. When we issue opinions, we create legal rules with real-world impact.”
For that reason, she explains, the Court must base its decision on hard facts that allow for a genuine appreciation of the consequences of a decision. Without context, there is no case to decide.
Justice Kagan Tells It Like It Is in Mullin v. Doe
In Mullin v. Doe, the majority held that Syrian and Haitian plaintiffs are not entitled to judicial protection from removal while their lawsuits challenging TPS terminations are pending. The respondents alleged that former DHS Secretary Kristi Noem did not follow statutory procedures for determining whether termination was appropriate.
Additionally, the Haitian plaintiffs alleged that the termination of TPS for Haiti was racially motivated, citing the numerous derogatory remarks President Trump has made about Haitians.
Lower courts enjoined the terminations pending resolution of the cases and found that the parties had a good chance of demonstrating violations of the Administrative Protection Act and, for the Haitian case, violations of the Equal Protection clause.
Six thousand Syrians and more than 350,000 Haitians are affected by this decision.
The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.
Justice Elena Kagan
The majority based its analysis almost exclusively on whether courts have jurisdiction to review the discretionary determination to terminate TPS, even if the challenge is to the underlying process rather than the decision.
The distinction matters, as the TPS statute contains a provision that excludes TPS classification or terminations from judicial review, which means that challenges must arise from some other violation of the law, such as a constitutional challenge or administrative process violations.
In this case, in contrast to Al Otro Lado, the majority adopted a broad definition of “determination” to include any aspect of the decision-making process, thus completely insulating a TPS determination from review.
The more stunning conclusion, however, is that the Haitian plaintiffs have not demonstrated a case for racial discrimination. Alito concludes that the president’s attacks on Haitians are likely race-neutral because he hates TPS altogether and the nationals receiving TPS are a very diverse group.
Justice Elena Kagan, writing for the dissenters, is having none of this.
She first rebuts the majority’s decision to bar judicial review, noting that wrapping everything about the TPS process into the concept of a determination is contrary to the plain meaning of the word and to the Court’s past opinions involving the term. (It is also contrary to the majority’s approach in Al Otro Lado.)
But Kagan saves her most scathing criticism for the majority’s casual rejection of the idea that President Trump’s attacks on Haitians are racist:
“The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. (Indeed, one measure of the President’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.) So here are some of those statements …”
Kagan includes a long list of the president’s derogatory comments about Haitians, including the time he infamously wondered why America only takes people from places like Somalia and Haiti, rather than Norway and Sweden.
She continues,
“The majority briefly replies that those remarks are not ‘overtly racial,’ but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community. No very ‘sensitive inquiry,’ is needed to see them for what they are; judges, as we often say, are ‘not required to exhibit a naiveté from which ordinary citizens are free.’ The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.”
Such statements, she concludes, are more than enough for the Haitian plaintiffs to bring their constitutional claim and to have a good chance to win on the merits. That is enough to keep the injunction against deportation in place.
Moreover, the majority’s failure to examine or acknowledge the impact of rapid deportation of 350,000 Haitians and 6,000 Syrians would have on individual lives and across communities demonstrates a lack of reflection regarding the true cost of insulating government action from judicial review
Rewriting Immigration Law
The irony of both decisions is that the majority engages in judicial activism clothed in statutory interpretation. By isolating words and phrases, the majority can construct a statutory framework for immigration that gives the president ever greater authority to shape who is allowed to enter or remain in the United States.
The majority has rejected context, as Jackson notes in her Al Otro Lado dissent, effectively reading out not only laws that benefit vulnerable people but racial challenges. It is willfully encouraging immigration officials to flaunt the law, to be openly racist, and to ignore standards of decency and welcome that once invited the “huddled masses yearning to breathe free.”
These decisions are terrible, but we can find in them a roadmap for reinforcing the commitment to asylum, creating more pathways for legal status so that people don’t have to rely on temporary measures, and more measures to limit executive authority. We must fight for context because without it, statutes are merely words.
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