Noem v. Al Otro Lado

    Issues

    Has a noncitizen who was stopped on the Mexican side of the U.S.–Mexico border “arrived in the United States” under the Immigration and Nationality Act, rendering them eligible to apply for asylum and be inspected by an immigration officer?

    Oral argument:
    March 24, 2026
    Court below:
    United States Court of Appeals for the Ninth Circuit

    This case asks the Supreme Court to decide whether a noncitizen stopped on the Mexican side of the U.S.–Mexico border “arrived in the United States” within the meaning of the Immigration and Nationality Act (“INA”). Petitioners Kristi Noem, et al., argue that the plain meaning and history of the statute, as well as the presumption against extraterritoriality, support the requirement of a physical presence in the United States. Respondents Al Otro Lado, et al., counter that the statute applies to people on both sides of the border. Respondents also maintain that the presumption against extraterritoriality does not apply because the INA regulates the domestic conduct of immigration officers. The outcome of this case will have significant ramifications for the administration of border security and separation of powers.

    Questions as Framed for the Court by the Parties

    Whether a noncitizen who is stopped on the Mexican side of the U.S.–Mexico border “arrives in the United States” within the meaning of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., which provides that a noncitizen who “arrives in the United States” may apply for asylum and must be inspected by an immigration officer.

    Facts

    Under the Immigration and Nationality Act (“INA”), noncitizens are eligible to apply for asylum in the United States if they are “physically present” or “arrive in” the United States and can demonstrate a credible fear of persecution in their home country. Immigration officials at the southern border are required to inspect all noncitizens seeking admission and to refer any asylum seekers for an eligibility interview.

    In 2016, U.S. Customs and Border Protection (“CBP”) instituted a metering policy at the U.S.–Mexico border, allowing officials at ports of entry that were “at capacity” to turn away asylum seekers without valid documents. CBP determined that, once noncitizens set foot on U.S. soil, CBP could not send them back to Mexico without conducting an inspection. To address this, CBP instructed its border officials to stop people just before the boundary line when enforcing the metering policy. Asylum seekers whom officials turned away would have to return later to seek entry, leading to many people being stranded in Mexico in hazardous conditions for weeks or months at a time.

    Al Otro Lado, an immigrant rights organization, and thirteen individual asylum seekers (collectively “Respondents”) brought a class action suit against the former Secretary of Homeland Security and other officials (collectively “Petitioners”) in the United States District Court for the Southern District of California, challenging the metering policy. Respondents alleged that the policy violated the INA, the Alien Tort Statute, the Fifth Amendment’s Due Process Clause, and sections 706(1) and 706(2) of the Administrative Procedure Act (“APA”). During the pendency of the suit, the Department of Homeland Security adopted the Asylum Transit Rule which disqualified asylum seekers who attempted to enter the United States across the southern border after traveling through a third country unless they were first denied asylum in that third country. Respondents moved to enjoin the enforcement of the rule against asylum seekers affected by the metering policy. Both parties filed motions for summary judgment, and the district court ruled in favor of Petitioners with respect to the INA and Alien Tort Statute claims and in favor of Respondents with respect to the due process and APA § 706(1) claim. The district court did not reach the APA § 706(2) claim and permanently enjoined Petitioners from enforcing the Asylum Transit Rule.

    The parties cross-appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the district court’s conclusion based on the APA § 706(1) claim, which permits courts to “compel agency action unlawfully withheld or unreasonably delayed.” The circuit court interpreted the INA, 8 U.S.C. § 1158(a)(1), to provide that noncitizens whom officials stop at a port of entry have the right to apply for asylum regardless of whether they physically crossed the border. The circuit court reasoned that the phrase “arrives in the United States” must include individuals not already “physically present” in the country, because the statute provides a right to asylum for individuals in either category. The circuit court similarly interpreted another provision of the INA, 8 U.S.C. § 1225, to impose a mandatory duty that border officials inspect all noncitizens stopped at a port of entry, as they have “arrive[d] in the United States.” Finally, the circuit court reasoned that the metering policy unlawfully withheld action in violation of the INA by turning away asylum seekers from ports of entry without inspecting them and processing their applications. The circuit court declined to rule on the merits of the due process, APA § 706(2), Alien Tort Statute, or independent INA claims and vacated the judgment in favor of Respondents on the due process claim.

    On July 1, 2025, Petitioners filed a petition for a writ of certiorari, which the Court granted on November 17, 2025. 

    Analysis

    TEXTUAL AND HISTORICAL ANALYSIS OF INA SECTIONS 1158 AND 1225 

    Petitioners Secretary of Homeland Security Kristi Noem, et al., (collectively “Noem”) argue that §§ 1158 and 1225 of the INA only allow noncitizens physically present in the United States to apply for asylum and undergo inspection by an immigration officer. Noem explains that according to the INA’s general definitions, except where otherwise stated, the term “United States” only encompasses the continental United States, Alaska, Hawaii, and U.S. territories. Noem adds that the plain English meaning of the word “arrives” indicates the end of a journey, and “in” connotes being within bounds of something. Consequently, Noem argues that the plain reading of “arrives in the United States” is to physically enter the borders of the United States. Moreover, Noem asserts that the Ninth Circuit deviated from the text of the statute by characterizing arrival in the United States as the ability to speak to a border official. Instead, Noem claims that there is a longstanding distinction in immigration law between arrival at a port of entry and effecting an entry into the United States, and the latter definition controls the relevant sections of the INA. Noem adds that the parenthetical reference to arrival at ports of entry in §§ 1158 and 1225 clarifies that noncitizens eligible for asylum do not have to arrive via a port of entry, which does not change the INA’s requirement that asylum seekers be physically present in the United States. Finally, Noem contends that the history of § 1158 supports a narrower reading of the INA, as the 1980 version and predecessors of the statute only applied to noncitizens already in the United States.

    Additionally, Noem argues that the distinction between asylum and refugee admission supports the physical presence requirement for the former. Noem elaborates that 8 U.S.C. § 1157 governs admission for refugees outside the United States, while § 1158 governs asylum for individuals already present. Noem emphasizes that Congress added § 1158 to the INA so that individuals already in the United States would have a statutory basis for asylum. Furthermore, Noem maintains that § 1225’s inspection requirement only applies to noncitizens physically present in the United States. Noem stresses that the inspection process of interviewing applicants under oath, subject to judicial review, cannot plausibly happen for noncitizens who are not in the United States. Noem concludes that other parts of § 1225, such as removing applicants who fail inspection from the United States, only logically make sense if the applicant is already in the United States.

    Respondents Al Otro Lado, et al., (collectively “Al Otro Lado”) counter that the INA requires the government to inspect any noncitizen applying for admission, whether they are in the United States or at a port of entry. Al Otro Lado explains that Congress’s choice of present tense with the word “arrives” conveys a person who approaches and attempts to enter, as opposed to someone who already arrived in the United States. Al Otro Lado emphasizes that “present in the United States or” and “at a designated port of arrival” distinguishes physical presence in the United States from arriving at a port of entry on the Mexican side of the border. Because of the judiciary’s obligation to give effect to every part of Congress’s statutory language, Al Otro Lado contends that the judiciary must construe the statute as including people at ports of entry but not yet admitted to the United States. Al Otro Lado maintains that Noem’s interpretation creates a surplusage problem by rendering “arrives in” superfluous to “present in the United States,” which constitutes a statutory interpretation scheme the Supreme Court has taken issue with in the past. In addition, Al Otro Lado asserts that Noem’s interpretation misrepresents the “at a designated port of arrival” parenthetical, which expands the INA to include individuals who did not enter through a port of entry as eligible for asylum and inspection. Al Otro Lado adds that the parenthetical’s language supports an interpretation that those at a port of arrival are “arriving” in the United States. Finally, Al Otro Lado asserts that Noem’s interpretation contradicts the United States’ binding treaty obligations under the 1967 Protocol to not turn away noncitizens on the precipice of entering the United States.

    Moreover, Al Otro Lado argues that Noem’s interpretation of §§ 1157 and 1158 mischaracterizes the differences between asylum and refugee admission. Al Otro Lado clarifies that § 1157 governs the admission of refugees who are still physically in other countries, whereas § 1158 provides an additional avenue for people at ports of entry without recognized refugee status to gain humanitarian relief. Additionally, Al Otro Lado contests Noem’s § 1225 interpretation because it implies that law enforcement can block those attempting to enter from inspection, which contradicts both §§ 1158 and 1225. Al Otro Lado stresses that the INA mandates the government to inspect all noncitizen arrivals and allow them to apply for asylum. Al Otro Lado concludes that the fact that arrival at a port of entry triggers processing duties on U.S. soil further evinces that §§ 1158 and 1225 do not require physical presence in the United States for asylum and inspection.

    PRESUMPTION AGAINST EXTRATERRITORIALITY

    Noem next argues that applying §§ 1158 and 1225 of the INA to people physically outside the United States violates the presumption against extraterritoriality, which is the presumption that, unless otherwise stated, federal statutes only apply within the United States’ territorial jurisdiction. Noem explains that a two-step framework determines the statute’s territorial reach by first asking if it clearly applies outside the United States, and if not, whether the relevant lawsuit seeks a permissible domestic application or a forbidden foreign application of the statute. To apply this framework to §§ 1158 and 1225, Noem asserts that neither section includes a clear indication that Congress intended it to apply outside the United States, and the instant case seeks an extraterritorial application in Mexico. Noem emphasizes that the language “in the United States” clearly indicates Congressional intent to apply the statute only on U.S. soil. Noem elaborates that noncitizens in Mexico arriving at the border are the relevant actors in the statute, and since they are not physically in the United States, Al Otro Lado’s application of the statute is extraterritorial. To conclude, Noem claims that the presumption against extraterritoriality helps resolve whether a noncitizen at the border on the Mexican side has arrived in the United States because it is a tool for determining a statute’s scope.

    Al Otro Lado counters that applying §§ 1158 and 1225 to the inspection and processing of noncitizens at ports of entry is a domestic application of the INA. Al Otro Lado contends that the inspection and processing obligations attach to U.S. immigration officers, not noncitizens, and these obligations all occur on U.S. soil. Al Otro Lado explains that foreign consequences to government actions do not suffice to make a statute extraterritorial in nature. Rather, Al Otro Lado posits that the INA regulates officers’ domestic conduct, and the party the statute regulates is critical to extraterritoriality analysis. To solidify that the relevant actor in the statute is immigration officers, Al Otro Lado points out that the statute’s usage of the passive voice mirrors the language in other federal statutes that impose an affirmative obligation on the relevant actor. Al Otro Lado asserts that even if application of §§ 1225 and 1158 to noncitizens had some extraterritorial effect, Congress demonstrated clear extraterritorial intent by codifying the United States’ non-refoulement obligation under the Refugee Protocol. Al Otro Lado highlights that the Supreme Court unanimous recognition of non-refoulement, or the practice of not turning away people who would face harm if returned to their countries of origin, includes noncitizens at the border. 

    Discussion

    CONTROL OF U.S. BORDERS

    In support of Noem, Senator Ted Cruz and other elected officials (collectively “Cruz”) caution that affirming the decision below would harm border management and security. Cruz observes that the Ninth Circuit’s broad interpretation creates an immediate right to apply for asylum for vastly more people while also eliminating metering as a policy lever. Cruz argues that metering is necessary to properly manage ports of entry, which have limited capacity, when there are spikes in noncitizens attempting to enter the United States. Cruz warns that overcrowding can lead to inhumane conditions and lax vetting. Further, Cruz contends that metering also allows CBP officials to allocate resources to other missions, such as searches for illicit substances, instead of diverting all personnel to processing asylum and entry claims. These issues, Cruz asserts, could be exacerbated by the lack of clarity on how close a noncitizen must be to the border to gain a right to inspection at a port of entry. America’s Future and two other nonprofits (collectively “America’s Future”) emphasizes that CBP officials are already struggling to manage the volume of people seeking entry at the southern border, and any increase in the volume of entrants could cause a crisis. 

    In support of Al Otro Lado, Bipartisan Former Officials of the Department of Homeland Security and other U.S. Departments (collectively “Former Officials”) argue that, rather than making order and control more feasible, a strict metering policy undermines effective border management. Former Officials argue that cutting off asylum eligibility for applicants not physically present in the United States will only incentivize dangerous behavior to avoid official ports of entry. Former Officials point to examples from when the metering policy was in place: desperate individuals running down highways, drowning at water borders, and hitching rides with cartels. Amnesty International and other human rights organizations (collectively “Amnesty International”), in support of Al Otro Lado, elaborate that inhumane conditions on the Mexico side of the border increase the urgency that asylum seekers feel to cross into the United States by any means. In turn, Former Officials contend that an increase in desperate, clandestine border crossings will pull resources and personnel away from ports of entry as officers are moved to patrol areas between ports of entry. Former Officials point out that there are several strategies—including expanded usage of expedited removal, temporary holding areas, and mobile applications—to deal with the ebbs and flows of border activity without depriving noncitizens of their right to seek asylum.  

    BALANCING SEPARATION OF POWERS

    In support of Noem, the Federation for American Immigration Reform (“FAIR”) argues that courts should not be permitted to overrule the political discretion of Congress.   FAIR contends that allowing the political branches the discretion necessary to direct immigration policy is “imbedded” in the structure of our government to ensure democratic accountability. Senator Ted Cruz agrees that judicial aggrandizement into policymaking areas is inappropriate. Cruz argues that Congressional exclusivity over immigration policy is necessary because questions of immigration inherently involve foreign policy and national security, which are areas where the political branches have the most authority and expertise. Cruz expresses concern that judicial decisions like the one at issue here undermine the power of the political branches to make decisions about immigration policy. America’s Future adds that allowing substantial judicial reinterpretation of statutes creates confusion about what the law means and erodes democratic norms by allowing unelected judges to make the law.

    In support of Al Otro Lado, Members of Congress respond that ruling for Noem would allow the executive and judiciary branches to commandeer congressional policy directives. Members of Congress assert that the role of the courts in immigration policy is to constrain the executive branch and ensure it executes the laws as Congress intended. Members of Congress argue that the executive and judicial branches lack the competency, democratic legitimacy, and authority to change the meaning of statutes based on novel policy concerns. Relatedly, Members of Congress point out that Congress has repeatedly refused to enact the same restrictions on asylum eligibility Noem asks the Court to endorse. Members of Congress characterize CBP’s policies as deliberate attempts to get rid of the statutory right to asylum by making operational decisions that impose conflicting mandates on asylum seekers at the border. Restrictions on asylum eligibility, Members of Congress contend, should not be made unilaterally by the executive, ignoring the process of “deliberation, compromise, [and] democratic accountability” inherent in the legislative process.

    Conclusion


    Written by:    V. Carter and Olivia Hussey

    Edited by:      Kehan Rattani

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