What the U.S. Supreme Court Must Not Ignore About Turning Back Asylum Seekers

Guest blogger: Cristian E. Urzola Arrieta, law student, University of San Francisco

As the U.S. Supreme Court considers whether the federal government may legally turn away asylum seekers at ports of entry, it confronts a decision that reaches far beyond immigration policy. It goes to the core question of whether federal law still carries meaning at the border. Consider the case of a Nicaraguan student fleeing persecution for participating in pro-democracy protests in her home country. After receiving death threats, enduring torture, and being pursued by security forces, she finally reaches the U.S.–Mexico border to request protection. Under federal law, officers are required to inspect and process her. Instead, she is told to wait in Mexico, where migrants like her face extortion, kidnappings, and violence within hours of arrival. This is not an anomaly, it is the foreseeable consequence of systematic turnbacks[1], a practice that endangers not only vulnerable migrants but the rule of law itself.

In a decision issued on October 23, 2024, the U.S. Court of Appeals for the Ninth Circuit affirmed[2] a lower court ruling declaring these systematic turnbacks, also known as “metering”, unlawful. Federal law is unequivocal: asylum protects individuals who face persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A). Any noncitizen may apply for asylum if they are physically present in the United States, or if they arrive at its borders. Id. § 1158(a)(1).

Regulations further require that individuals seeking lawful entry through the southern border present themselves at a designated port of entry. 8 C.F.R. § 235.1(a). And the government’s obligation is clear: officers must inspect all noncitizens “present in the United States who have not been admitted,” those “arriving in the United States,” and those who “seek admission.” 8 U.S.C. § 1225(a)(1), (3). If, during inspection, a noncitizen expresses fear of persecution or a desire to seek asylum, the officer must refer them to an asylum officer to determine whether they have a credible fear. Id. § 1225(b)(1)(A)(ii), (B). Only if the individual is inadmissible and does not express such fear may expedited removal occur. Id. § 1225(b)(1)(A)(i).

The Ninth Circuit’s decision underscores the government’s obligation to ensure meaningful due process for all individuals seeking protection at the border[3]. It makes clear that border officers cannot arbitrarily turn people back to Mexico. Such conduct violates federal law, exacerbates disorder at the border[4], and exposes refugees to immediate danger. The ruling does not “open” the border; it merely reinforces the statutory framework Congress already enacted.

The government’s petition to the Supreme Court in Al Otro Lado v. Noem, is, at its core, an attempt to weaken this legal framework through anti-immigrant operational policies. As noted, the Immigration and Nationality Act (INA) establishes the right to request asylum upon arrival. Systematic turnbacks function, in effect, as an executive veto of Congress’s mandate. If the Supreme Court overturns the Ninth Circuit’s decision, the Executive Branch would gain the power to rewrite asylum law simply by refusing to enforce it—an alarming prospect in a constitutional democracy. No administration, regardless of ideology, should be permitted to suspend federal statutes through discretionary operational tactics.

Reversing the decision would also have devastating human consequences. Forcing asylum seekers back into Mexico exposes them to kidnapping, extortion, sexual assault, torture, and recruitment by criminal organizations, in addition to profound physical and psychological trauma. Denied lawful processing, many turn to smugglers or dangerous irregular crossings, increasing both risk and harm. This dynamic does not reduce border disorder—it intensifies it, especially for families with young children who require special protection.

This case matters to all Americans, not just asylum seekers. If the Supreme Court authorizes systematic turnbacks, it will establish a dangerous precedent: allowing the President to ignore statutory mandates. Such authority would grant excessive power to the Executive, with implications extending far beyond immigration law. In the future, environmental protections, civil rights statutes, and public health laws could likewise be rendered discretionary through similar operational maneuvers.

This case marks a defining moment for American democracy. If the Supreme Court permits the Executive Branch to override Congress’s clear intent through policies such as turnbacks, it will create a legal gray zone at the border—an exception where the law can be suspended according to the political priorities of the moment. That path weakens the separation of powers and erodes public confidence in democratic institutions. The Court now has both the opportunity and the constitutional obligation to prevent such institutional decay. Upholding the nation’s asylum laws is not an act of leniency; it is an affirmation of the rule of law on which this nation rests.

[1] See Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33829 (July 16, 2019), Proclamation No. 10656, 89 Fed. Reg. 48715 (June 4, 2024),

[2] Al Otro Lado v. Noem, No. 22-55988 (9th Cir. Oct. 23, 2024)

[3] Al Otro Lado v. Noem, No. 22-55988 (9th Cir. Oct. 23, 2024), “The Government acknowledges that border officials have a mandatory duty to process noncitizens, including allowing them to apply for asylum.”

[4] Al Otro Lado v. Noem, No. 22-55988 (9th Cir. Oct. 23, 2024), “Asylum seekers waited in Mexico… Many were subject to persecution and crime, lacked food and shelter. Some were murdered in Mexico while waiting… others drowned attempting to cross.”

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