THE SAN DIEGO UNION-TRIBUNE: Illegal turnbacks or lawful ‘metering’? Supreme Court poised to hear San Diego border-policy case.

The M.S. St. Louis set sail in 1939 from Germany carrying more than 900 Jewish refugees fleeing Nazi persecution. The plan was for the ship’s passengers to disembark in Cuba and then await entry into the United States, but the Cuban government revoked the passengers’ landing permits. Even as the ship sailed just off the coast of Miami, the U.S. also refused to accept the refugees. The St. Louis eventually returned to Europe, where four nations accepted its passengers following desperate negotiations.

But Nazi forces soon overran much of the continent, and by the end of World War II, at least 254 of the ship’s passengers had died in the Holocaust.

In the years that followed, the U.S. and other nations around the world agreed to international treaties and passed domestic laws aimed at ensuring they would never again turn away vulnerable people nor return them to the countries where they faced persecution.

On Tuesday, the U.S. Supreme Court will hear a San Diego case that deals with whether the U.S. government violated the very asylum and immigration laws adopted in the wake of World War II and the St. Louis tragedy.

The case is centered on a policy in which immigration officers systematically blocked and turned away asylum seekers beginning in 2016 at ports of entry in San Diego and elsewhere along the U.S.-Mexico border. The government describes it as “metering,” but the group that sued calls it an illegal turnback policy.

A San Diego federal judge and the 9th U.S. Circuit Court of Appeals have ruled the policy violated federal laws, but the Trump administration is asking the Supreme Court to overturn the 9th Circuit’s ruling. While the legal question of the case deals narrowly with what it means to “arrive in” the U.S. and thus be eligible to seek asylum, those on both sides of the issue agree the case has broader implications for immigration and asylum law and the nation’s moral duty to take in those who are fleeing persecution.

On one side of the case is Al Otro Lado, a San Diego- and Tijuana-based immigrant-assistance organization that filed the original lawsuit. Those who have filed amicus curiae, or “friend of the court,” briefs in support of Al Otro Lado’s positions include Democratic members of Congress, human rights organizations such as Amnesty International USA and religious groups such as the United States Conference of Catholic Bishops.

“If the Supreme Court rules that these turnback policies are acceptable … what it’s basically saying is we can ignore our legal obligations, and that should send a chill down all of our spines,” Naomi Steinberg, the vice president of U.S. policy and advocacy for HIAS, a global Jewish humanitarian organization that supports refugees and submitted an amicus curiae brief, said in an interview. “It would be another layer to making it very, very difficult — if not impossible — for people to be able to exercise what was once their legal right to seek protection in this country.”

On the other side is the Trump administration, which was supported with amicus briefs from a group of Republican members of Congress, including San Diego-area Rep. Darrell Issa, as well as several conservative groups, such as Citizens United, the Federation for American Immigration Reform and the Conservative Legal Defense and Education Fund.

Those groups view the case as a misguided attempt by unelected judges to harness Trump’s executive powers along the border.

“There’s been a pattern of judges trying to enjoin the Trump administration from implementing its immigration policies,” Michael Boos, the executive vice president and general counsel for Citizens United, said in an interview. “This is just one aspect of that campaign where judges are seeking to substitute their policy judgments for those of the president, and of course, that’s not the proper role of the judiciary.”

Tuesday’s hearing comes at a time when the situation at the border looks vastly different than 10 years ago, when the “metering” or turnback policy at the heart of the case was first enacted. Since then, immigrant arrivals at the U.S.-Mexico border fell sharply, beginning at the end of the Biden administration and continuing through the first year of President Donald Trump’s second term, due to stricter policies. But the case deals with issues that remain relevant — Al Otro Lado filed a new lawsuit last year alleging that even without “metering,” Trump’s anti-immigration policies have made it nearly impossible for individuals to seek asylum.

A disputed policy

The policy at the center of the case began as an informal practice at the tail end of the Obama administration, when immigration officers at the San Ysidro Port of Entry dealt with a large influx of Haitian asylum seekers by turning them away when the officers deemed the port to be at capacity. The practice later spread to other U.S.-Mexico ports and was made official policy by the first Trump administration.

The Biden administration eventually ended the policy, but not before Al Otro Lado and several individual asylum seekers had challenged it in court. The federal laws in question state, in relevant part, that any immigrant “who is physically present in the United States or who arrives in the United States … at a designated port of arrival … may apply for asylum.”

The Trump administration argues that arriving in the U.S. should be defined literally as stepping foot on U.S. soil, while Al Otro Lado argues that an immigrant who arrives at a port of entry has met the legal standard even if he or she hasn’t technically stepped across the international boundary.

In a 2-1 opinion, the 9th Circuit ruled in favor of Al Otro Lado, finding that the relevant destination is the border where an asylum seeker can speak with a government official. “A person who presents herself to an official at the border has therefore reached her destination — she has ‘arrive[d],’” the 9th Circuit ruled.

The Trump administration is asking the Supreme Court to overturn that ruling. “In ordinary English, a person ‘arrives in’ a country only when he comes within its borders,” attorneys for the government wrote in their brief to the Supreme Court. “A person does not ‘arrive in the United States’ if he is stopped in Mexico.”

Government attorneys cited a 1993 Supreme Court case that held that U.S. immigration laws do not extend to refugees detained at sea attempting to reach the U.S. “The immigration laws at issue here likewise do not protect aliens who are stopped on land before reaching U.S. soil,” the government attorneys argued.

Two key legal principles

Based on the briefs submitted to the court, it appears likely the case could largely hinge on two legal principles: surplusage and extraterritoriality. Surplusage refers to language in a law that is unnecessary, irrelevant or redundant, while extraterritoriality refers to U.S. federal law applying only within the U.S. and not outside its borders, unless specified.

Al Otro Lado’s legal team and its supporters argue that the statute in question already allows a noncitizen to seek asylum if they are “present in the United States.” So they argue the phrase “arrives in” the U.S. must have a different meaning, or else it would be redundant.

“During 9th Circuit argument, we kept coming back to the surplusage argument, which the 9th Circuit ended up relying on,” Melissa Crow, director of litigation at the Center for Gender and Refugee Studies and co-counsel in the Supreme Court case, said in an interview. “If people have to step foot onto U.S. territory … they become physically present in the United States, and so the ‘arriving in’ language would be redundant. So, ‘arrives in’ has to mean something other than physically ‘present in,’ and we think the 9th Circuit is right that it refers to people who are at the border, whether they’re a little bit over on the Mexican side or a little bit over on the U.S. side.”

In an amicus brief, Republican lawmakers argued that the 9th Circuit’s interpretation “defies logic,” and that Congress was reiterating rather than being redundant when it passed the laws in question.

“Congress said not once — but twice — that to seek asylum, the alien must be ‘in the United States,’” argued Issa and the other Republicans. “If there is one takeaway from that text, it is that Congress was excluding those who are not ‘in’ the United States … The (9th Circuit) employed the presumption against redundancy to make the most important word in the statute say the opposite of what it always means.”

Democratic lawmakers, including California Sen. Alex Padilla, submitted their own amicus brief in support of Al Otro Lado, arguing it was Congress’ intent for the two phrases to refer to two different classes of people. Their brief argued the government’s preferred interpretation would “strip an entire statutory phrase of any independent meaning.”

Then there is the issue of extraterritoriality. The government and its supporters argue that because the laws in question only apply within U.S. borders, they therefore cannot apply to someone still in Mexico who has not set foot on U.S. soil.

“The Ninth Circuit … forces the United States to accept asylum applications from aliens located in foreign sovereign territory,” Issa and the other Republican lawmakers argued in their amicus brief. “Not only has Congress expressly declined to create that very right … but doing so would risk interference with Mexico’s own asylum system for aliens present within its borders.”

Al Otro Lado argues that the turnback policy involves U.S. immigration officers operating on U.S. soil, not in foreign territory. “Because that is a domestic application of the provisions, the Ninth Circuit correctly held that the presumption (against extraterritoriality) ‘has no role to play’ in this case,” the attorneys for Al Otro Lado argued in their brief.

Practical and moral arguments

Beyond the relevant legal arguments in the case, both sides and their supporters presented the Supreme Court with practical and moral arguments for ruling in their favor.

The Republican lawmakers argued that not allowing metering “invites chaos” the next time large groups of asylum seekers begin arriving at the border. Citizens United, which filed its amicus brief in conjunction with fellow conservative groups America’s Future and the Conservative Legal Defense and Education Fund, argued that Trump has broad power to secure the border how he sees fit.

“The lower federal courts cannot be allowed to continue to place impediments in the way of a President who seeks to enforce our Nation’s borders,” the groups argued.

Al Otro Lado, HIAS and other groups who provided assistance to the asylum seekers who were turned back at the border argued this case is about much more than the narrow legal definition of a few words. They say they worked with immigrants who were sexually abused, kidnapped and held for ransom after being turned away.

“The irony is that the government claims over and over that what they want is an organized process, and to alleviate the chaos at the border, but what they’re doing through the turnback policy … is they’re creating more chaos at the border,” Crow said. “Because people end up having to navigate in other ways, and they end up crossing between ports of entry, because they simply can’t wait any longer.”

Steinberg said HIAS, which was founded in the late 1800s as the Hebrew Immigrant Aid Society, was involved in those desperate negotiations to find the St. Louis passengers a safe refuge. She said the tragedy of so many of the ship’s passengers dying in the Holocaust is a “clear and undeniable and deeply painful reminder of what it looks like and what the real human costs can be when a country turns its back on people seeking safety and protection.”

Oral arguments can be heard live on the Supreme Court’s website and are expected to begin around 8 a.m. Tuesday.