SCOTUS Likely To Revive Obama-Era Practice Of Turning Away Asylum-Seekers
The U.S. Supreme Court has agreed to revisit a controversial border policy that restricted asylum seekers from entering the United States at ports of entry along the southern border—a move sought by President Donald Trump as his administration continues to reassert executive authority over immigration enforcement.
President Trump asked the justices to review a ruling from the Ninth Circuit Court of Appeals that struck down the policy, commonly known as “metering,” which limited the number of migrants allowed to present asylum claims at ports of entry. The appeals court concluded the practice was unlawful, a decision the Trump administration argues represents judicial overreach into powers constitutionally reserved for the political branches.
Although the Biden administration formally ended the metering policy, President Trump has signaled that his administration intends to preserve all lawful tools necessary to secure the border amid continued illegal immigration pressures.
“The Constitution entrusts the power to manage the border to the political branches, not the judiciary,” U.S. Solicitor General John Sauer wrote in November. He argued that the Ninth Circuit’s ruling was deeply flawed, stating that “the decision below improperly ‘undercuts Congress’ authority’ to set asylum policy. It also ‘severely intrude[s] on the executive branch’s prerogative to manage our country’s borders.’”
Immigrant advocacy group Al Otro Lado, joined by 13 asylum-seekers who originally filed the lawsuit in 2017, has vowed to defend the Ninth Circuit’s ruling before the Supreme Court. The plaintiffs maintain that the ruling applies only to a narrow group of migrants and should not be revisited.
Opposing the government’s appeal, the asylum-seekers argued that the case no longer presents a live controversy. “Although the current administration’s border policies face pending legal challenges, none of the plaintiffs’ claims in those cases turn on the question presented by the petition here,” wrote Kelsi Brown Corkran, an attorney with the Institute for Constitutional Advocacy and Protection at Georgetown Law. “The court’s resolution of the question presented would thus amount to little more than an advisory opinion.”
The Justice Department declined to comment on the Supreme Court’s decision to hear the case. The White House referred questions regarding the possible revival of metering to the Department of Homeland Security, which did not clarify whether the Trump administration intends to reinstate the policy.
Still, administration officials made clear they are confident in their legal position. “As our attorneys have already made abundantly clear, the Trump administration has advanced the clear meaning of federal law and basic common sense in this case since day one,” Assistant Secretary Tricia McLaughlin said in an email that included a link to the government’s petition. “We look forward to presenting our case to the Supreme Court.”
Under the Immigration and Nationality Act, individuals physically present in the United States may seek asylum if they demonstrate a well-founded fear of persecution. The legal dispute centers on whether migrants who are stopped at ports of entry—but never permitted to enter U.S. territory—are entitled to those protections.
The roots of the metering policy trace back to 2016, when the Obama administration responded to a surge of Haitian migrants at California’s San Ysidro port of entry by instructing border agents to turn away new arrivals. In 2018, the Department of Homeland Security formalized the approach, issuing guidance to all southern border ports.
That guidance directed border agents to identify potential asylum-seekers and prevent them from entering the country when capacity limits were reached. In 2019, the Trump administration expanded enforcement by implementing a transit rule barring asylum eligibility for migrants who passed through other countries without first seeking protection there.
A lower court later certified a class of asylum-seekers who arrived before the transit rule took effect, allowing their claims to proceed even after the Biden administration repealed metering in 2021. The transit rule itself was repealed in 2023.
In 2022, the lower court issued a permanent injunction barring enforcement of asylum restrictions against that specific class, holding that those individuals retained the right to seek asylum under prior policy standards. The Ninth Circuit subsequently reviewed the metering policy to determine whether the injunction should stand.
The appellate panel sided with the asylum-seekers, rejecting the government’s argument that migrants denied entry were not unlawfully blocked from asylum because they were not physically present in the United States.
President Trump’s administration has urged the Supreme Court to overturn that decision, warning that it could undermine other border management tools—including alternative systems such as the Biden-era CBP One app—by stripping the executive branch of flexibility to control entry at the border.
The high court’s review now sets the stage for a major ruling on executive power, border security, and whether unelected judges can dictate how the United States enforces its immigration laws.