The Supreme Court heard oral arguments Tuesday in Noem v. Al Otro Lado, and within the first thirty minutes, the outcome was visible. The conservative majority is prepared to rule that the phrase "arrives in the United States" in federal immigration law requires physical presence on American soil — a reading that would effectively eliminate asylum claims for anyone stopped at or before the border. [1]

The case turns on a single statutory phrase. Under current law, any person who "arrives in the United States" may apply for asylum regardless of manner of entry. The question is whether someone physically present at a port of entry — standing on the Mexican side while speaking to a US Customs and Border Protection officer — has "arrived." The Trump administration says no. The asylum seekers, represented by Al Otro Lado, say the statute's plain language says yes. [2]

Justice Brett Kavanaugh framed the administration's position with characteristic directness: "The only issue is what 'arrives in' means." His tone suggested the answer was self-evident. An arrival requires being inside. If you are outside, you have not arrived.

Justice Elena Kagan offered the sharpest rebuttal. If "arrives in" requires physical presence, she argued, then multiple other provisions of the Immigration and Nationality Act that distinguish between aliens who have "arrived" and those who are "present" become "massive superfluity." The statute already has a category for people physically inside the country. If "arrives in" means the same thing, Congress wrote a redundant law. Kagan has made this kind of structural argument before. It has not, in recent terms, carried a majority.

Justices Ketanji Brown Jackson and Sonia Sotomayor dissented from the majority's apparent direction during questioning, pressing the government's lawyer on whether the ruling would apply to people mid-inspection — someone who has handed their passport to a CBP officer but has not yet stepped onto US soil. The solicitor general's answer was careful and ultimately nonresponsive.

The practical consequences are large. Tens of thousands of asylum seekers currently waiting at ports of entry under the "metering" system — in which CBP controls the pace of processing — would lose their statutory right to apply if the court adopts the physical-presence standard. The administration could simply refuse to admit anyone for inspection, and no asylum claim would attach.

A decision is expected by June or July. The legal question is narrow. The human consequences are not.

-- Samuel Crane, Washington