Supreme Court Considers Revival of Controversial Immigration Policy
The United States Supreme Court is currently deliberating on the possibility of reinstating a contentious immigration policy, previously utilized by the Trump administration, which allowed for turning away asylum seekers at the U.S.-Mexico border. This policy, known as “metering,” restricted the number of individuals permitted to apply for asylum, ostensibly to manage a surge in arrivals.
During Tuesday’s session, several conservative justices appeared open to the Justice Department’s appeal to overturn a lower-court’s decision against metering. They argued that the policy was crucial in managing border security challenges. However, critics argue that the policy exacerbated humanitarian issues, forcing many migrants into precarious conditions in improvised camps on the Mexican side of the border.
Although metering is not currently in effect, the Trump administration contends that it is a “critical tool” that has been implemented by both Democratic and Republican administrations in the past, and should be available for future use if necessary. The policy was suspended as part of broader asylum system restrictions at the beginning of Trump’s second term.
Some justices raised concerns about the implications of the policy, questioning whether it unfairly privileges illegal entrants over those seeking legal entry. “Why would Congress privilege someone who illegally enters the United States?” questioned Justice Brett Kavanaugh.
Vivek Suri, an assistant to the solicitor general, defended the policy, explaining, “It’s saying our port is at capacity today, try again some other day.” This stance suggests that those turned away could have future opportunities to apply for asylum.
According to an investigation by the Associated Press, thousands of immigrants were placed on waiting lists under the metering policy in 2019. The legal debate centers on the interpretation of the term “arrive in” as stipulated in the Immigration and Nationality Act, which mandates that migrants fearing persecution must be able to apply for asylum.
While the Justice Department argues this applies only to those already in the U.S., immigration lawyers contend that it should include anyone at a port of entry. Rebecca Cassler, representing the American Immigration Council, emphasized, “This life saving protection and more importantly, access to it is enshrined in our laws and has been for decades now.”
Chief Justice John Roberts questioned the specifics of where one must be to claim asylum, while Justice Ketanji Brown Jackson noted the difficulty in addressing these queries without an active policy in effect. “It just seems to me that we have a lot of hypotheticals regarding how this policy may have worked in the past, how it’s possibly going to work in the future, but we don’t have a policy in effect right now that we can actually rule on,” she stated.
Initially implemented during President Barack Obama’s tenure to address a surge of Haitian migrants, the metering practice was expanded under Trump to cover all crossings from Mexico. It was discontinued in 2020 amidst the COVID-19 pandemic and was formally rescinded by President Joe Biden in 2021.
In 2021, U.S. District Judge Cynthia Bashant ruled against metering, citing constitutional rights and federal law violations. The 9th U.S. Circuit Court of Appeals upheld her decision, although a significant number of judges expressed interest in revisiting the case.
Asylum seekers in the U.S. can apply once on American soil, regardless of their entry method, provided they demonstrate a credible fear of persecution due to factors such as race, religion, nationality, social group membership, or political views.
Granting asylum allows individuals to remain in the U.S., work legally, reunite with immediate family, and potentially attain citizenship. The metering case is one of several immigration issues before the court, including challenges to birthright citizenship and legal protections for migrants from conflict zones.
