Justice Samuel Alito’s majority opinion rests on an isolated reading of the word “in.” The dissenters say this reading ignores decades of asylum law and the realities of people fleeing persecution.
Editor’s note: This article focuses on one of two major immigration decisions the Supreme Court issued on June 26. It is adapted from a broader analysis examining both rulings.
Just days after World Refugee Day, the Supreme Court handed the Trump administration a significant victory on immigration, allowing it to revive a policy that turns away asylum seekers at the U.S.-Mexico border before they have an opportunity to present their claims.
In a 6-3 decision in Mullin v. Al Otro Lado, Justice Samuel Alito’s majority opinion concludes that migrants stopped at the border are not entitled to seek asylum because they are not yet “in” the United States. The decision rests on a narrow reading of a single word—one that the Court’s liberal justices argue ignores the broader statutory framework Congress created to protect people fleeing persecution.
For Justice Sonia Sotomayor, the majority’s approach divorces the asylum statute from the larger body of immigration law governing inspection, admission and humanitarian protection. Justice Ketanji Brown Jackson goes further, arguing that the Court issued an opinion based on hypothetical scenarios and metaphors rather than the documented realities facing asylum seekers at the border.
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 history, nor does it grapple with the reality that people fleeing persecution will continue trying to reach safety—even if being turned away at ports of entry forces them onto more dangerous routes.
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.
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.
Even accepting Alito’s analogy, Sotomayor argues it ultimately breaks down. Border inspection is not a football game in which the objective is to stop everyone from crossing the goal line. 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.
Related reading: This analysis focuses on Mullin v. Al Otro Lado. Read Giovagnoli’s broader analysis of both Supreme Court immigration decisions, including Mullin v. Doe, here.
