A Ninth Circuit panel came to a split decision in their review of an asylum processing law. Federal immigration law requires U.S. officials to consider asylum-seekers at the border. The heart of the debate is how the exact location of the individual affects their eligibility to claim asylum. Must individuals be standing on U.S. soil or can they be present at the U.S. border, but not yet on U.S. soil?

In their decision, the court found the federal government cannot turn back individuals who present themselves at the southern border without valid travel documents when the U.S. determines ports of entry are at capacity. The practice, known as metering, was first used in 2016 and formalized under the Trump administration. The Biden administration argues noncitizens must be standing on U.S. soil to be considered for asylum, not solely at the U.S. border.

Per the Immigration and Nationality Act Sections 1158 and 1225, asylum seekers are required to be processed at the border. Section 1158 states any noncitizen “who is physically present in the United States or who arrives in the United States” is eligible to apply for asylum. No specific language addresses their precise physical location.

At the core of the issue is the phrase “arrives in the United States”. The Biden administration argues that if the individual is not on U.S. soil, they have not arrived in the U.S. As such, they are not required to be considered for asylum. However, the court found that if the intention of the phrase was physical presence on U.S. soil, Congress effectively created an incentive for individuals to cross the border undetected, which is unlikely. In the dissenting opinion, the Judge found the phrase “arrives in the United States” to solely mean standing on U.S. soil.

As always, ILBSG actively monitors ongoing news that affects U.S. immigration policy. If you have questions about asylum or any other U.S. immigration issue, contact us. Our team of experienced attorneys work directly with their clients to ensure they get the right advice for their particular situations.

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