WASHINGTON — A critical Supreme Court decision on whether the Trump administration can turn away asylum seekers at the border could come down to a very niche grammatical spat.
The dispute is over “metering,” a policy in which Border Patrol can indefinitely stop asylum seekers at the US-Mexico border and refrain from adjudicating their claims, something used during the first Trump administration.
President Trump doesn’t have the policy in place at the moment, and a lower court blocked him from implementing it, but his legal team argued that it’s a critical tool to have if the border gets overloaded again.
Under the Immigration and Nationality Act, foreign nationals who are “physically present in the US” or who “arrive in the US … at a designated port of arrival” must be allowed to furnish their asylum applications.
But the two sides were at odds over what “arrive in” actually means.
The Trump administration contends that an individual does not “arrive in” the US if blocked in Mexico. Immigration advocacy groups countered 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.”
“You can’t arrive in the United States while you’re still standing in Mexico. That should be the end of this case,” Vivek Suri, assistant to the US Solicitor General, argued.
Most of the Republican-appointed justices, and at times, Democrat appointed Justice Elena Kagan, a self-described textualist, appeared sympathetic to the Trump administration’s interpretation.
“I think that’s consistent with ordinary meaning,” Kelsi Corkran, an attorney representing immigrant rights organizations, argued. “I arrive at my house, or I arrive in my yard when I’m going through the gate.”
“Now that process of arriving is interrupted by the border officer physically blocking them from completing the arrival,” she added. “But the process of arriving is beginning at that moment.”
Corkran stressed that “Congress used the present tense” in that statute intentionally to convey that it was referring to people in the process of arriving in the US. She also argued that because “the border wall is entirely on the interior” of the US, “anyone who gets to the border wall” is physically in the country.
Republican-appointed Justice Samuel Alito zeroes in on whether there is a difference between “arrive at” and “arrive in” a location.
“Do you think someone who comes to the front door of a house and knocks at the door has arrived in the house? The person may have arrived at the house,” he asked.
Corkran argued there wasn’t much of a distinction, brushing it off as basic rules for prepositional phrases and “the way we talk.”
Tedious grammar questions dominated Tuesday’s oral arguments. At one point, Republican-appointed Justice Brett Kavanaugh ripped into the Trump administration.
“This is a relatively minor point,” he said. “You say that because it’s in a parenthetical, it’s different than if it had been separated by commas or dashes. Do you really mean that?”
Suri stood by that, but said the Supreme Court doesn’t need to rely on that argument.
Democrat-appointed Justice Ketanji Brown Jackson repeatedly pushed for the Supreme Court to simply vacate or scrap the lower court ruling blocking the metering policy and refrain from ruling on the merits of the challenge.
She argued that the Supreme Court isn’t supposed to delve into the merits of hypothetical cases and should hold off on the merits until an actual metering policy is in place.
A decision in Noem, Sec. of Homeland v. Al Otro Lado is expected by the end of June.
