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“In common parlance, no one can say that one ‘arrives’ at a place … before one enters that place.”
Those words may seem taken from the pages of Dr. Seuss, but taken from Justice Samuel Alito’s 6-3 majority opinion in Mullin v. Al Otro Lado. They captured the missing letter in the interpretation of the Court’s battle over whether undocumented individuals must be physically present in the United States to make a claim for asylum.
In one of the biggest immigration awards Trump has presided over, the Court has ruled that asylum seekers stopped across the Southern border are not in America. If they are treated as inside the country despite being outside it, these people will be allowed to enter and stay while their asylum applications are pending.
The case highlights the lengths to which the Biden administration went to help undocumented immigrants enter the country. It repealed the “metering” policy put in place by the Obama administration (and later reinstated and expanded by the Trump administration).
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In seeking to prevent Trump from implementing the same policy as the Obama administration, three liberal justices heard Clinton in a debate about what the meaning of the word “in” is. Justice Sonia Sotomayor criticized the majority’s “unreasonable interpretation driven almost entirely by the inclusion of a single word: ‘within.’ However, the words must be read in context and how they fit into the overall scheme.”
In their view, “contextual” learning means that you can be “in” the United States without being “in” the United States.
Sharp differences of opinion spread to the point where opinions were issued. Justice Alito read a summary of his opinion, which was followed by Justice Sotomayor’s lengthy reading of her dissent. The heated argument drew a rare rebuttal from the bench by Alito, who was surprised by the extended comments and said, had he not been arrested, he would have said more, including how “the policy in question was adopted by two very different administrations.”
The court also handed down a major victory in Mullin v. Doe, to support the administration’s right to strip more than 356,000 Syrian and Haitian immigrants of temporary protection status. Also, lower courts gave the Obama and Biden administrations more leeway in granting such a position than Trump in revoking.
The integration of these two ideas provides significant progress for the administration in addressing the millions of undocumented people in this country.
In his objection to Mullin, Sotomayor asked for a photo of the MS St. Louis, where Jews fleeing Nazi Germany were denied entry to various countries only to be sent back to Germany, where many died in the Holocaust.
The problem with the analogy is that all those in St. Louis were apparently fleeing deadly persecution. Almost all asylum claims made at our borders are rejected as unsupported or invalid. Immigration groups supply goods across the border, training immigrants to seek asylum status to ensure they can remain in the country for years before any final decision is made. The acceptance rate of these claims is currently less than 5 percent.
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The question is how to limit constructive inclusion if being “in” the United States does not require being in the United States. More importantly, in the absence of a clear legal basis for what constitutes constructive inclusion, it is not clear why the courts should be able to enunciate such policies. Controlling our borders has long been an area marked by major cuts by the Executive Branch. During the Biden administration, courts often accepted that understanding as the administration allowed more than 10 million unscreened immigrants to enter.
Trump was elected on a promise to roll back these policies by using the same wisdom his predecessor used to open the border.
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The distinction shows how unbound these views are not from “common discourse,” but from principles of judicial restraint. Putting these arguments in “context” is a liberating structure that allows the court to read the words “come to the United States” to include those outside the United States. It also provides a glimpse into the likely path of a newly expanded Supreme Court that Democrats are committed to if they regain power.
The decisions in the case of Mullin v. Doe and Mullin v. Al Otro Lado will not erase the backlog of immigration cases or remove millions of undocumented immigrants. That will require both an expansion of our immigration courts and real reforms to improve the removal process. However, in two 6-3 opinions, the administration regained greater authority over the management of our borders.
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