Dark chapter of US refugee policy rears its head as SCOTUS ponders border 'turnback' practice 

WASHINGTON (CN) — President Donald Trump heads to the Supreme Court next week to revive an abandoned immigration policy that human rights advocates worry mirrors a dark chapter of U.S. history.

In 1939, the U.S. government turned away a ship of Jewish refugees fleeing Nazi Germany, forcing the MS St. Louis ocean liner to return to Europe, where over a third of the passengers died in the Holocaust. Nearly a century later, immigration rights groups warn that the White House’s push to reinstate a “metering” practice along the southern border turns a blind eye toward the past.

“Described as ‘the saddest ship afloat’ and remembered as ‘the voyage of the damned,’ the St. Louis stands as a stark reminder of the consequences when a nation closes its borders to people fleeing persecution without any assessment of the dangers they face,” Hebrew Immigrants Aid Society told the Supreme Court.

The Obama-era metering practice — also known as the turnback policy — allowed border agents to physically block migrants arriving at U.S. ports of entry from setting foot in the country if they were identified as likely asylum-seekers.

Advocates say instead of learning from its own spotted history, the government turned back the clock to a dark time of arbitrary results, chaotic processes and legal limbo where migrants along the U.S.-Mexico border were stuck in the same purgatory experienced by the St. Louis passengers: safety visible but unreachable.

“Informed by the suffering of the St. Louis passengers, Congress codified asylum protections at U.S. borders and created orderly procedures to assess asylum claims from people who reach a port of entry and to grant refuge to those who risk persecution if turned away,” HIAS wrote. “The policy here flouts the law Congress enacted and wrongly turns back the clock to a period when people fleeing persecution were forced to face arbitrary procedures, crushing uncertainty, and prolonged sojourns in dangerous conditions in a legal no man’s land.”

A decade in the making

Under the Immigration and Nationality Act, anyone who is physically present in the United States — whether or not at a designated port of entry — can seek asylum if they have a well-founded fear of persecution in their home country.

During an influx of Haitian asylum-seekers at Southern California’s San Ysidro port of entry in 2016, the Obama administration began ordering border agents to turn away newly arriving migrants. Two years later, the Department of Homeland Security formalized the policy, giving all southern border ports “metering guidance.”

Under the 2018 policy, border agents identified likely asylum-seekers and physically prevented them from stepping onto U.S. soil. The first Trump administration implemented an additional roadblock in 2019, making migrants who traveled through one or more countries on their way to the U.S. ineligible for asylum if they did not previously seek protection in at least one transit country.

A lower court certified a class for the asylum-seekers who had arrived prior to Trump’s transit rule and issued an injunction reopening claims that had been denied based on the 2019 policy. That class allowed the case to continue after the Biden administration rescinded the metering policy in 2021. The transit rule was later rescinded in 2023.

In 2022, the lower court issued a permanent injunction barring the government from applying the asylum prohibitions to that class, and said its members were entitled to seek asylum under prior policy guidance.

To decide whether the remedy should be upheld, the Ninth Circuit reviewed the lawfulness of the metering policy. The panel sided with the asylum-seekers, rejecting the government’s arguments that migrants who were turned away from ports of entry were not unlawfully denied asylum under the metering policy because they were not physically present in the U.S.

The White House and DHS did not respond to inquiries about whether the administration intends to reinstate the policy.

In or out?

At the Supreme Court next Tuesday, the justices will review whether migrants stopped on the Mexican side of the U.S.-Mexico border “arrive in the United States” according to the nation’s immigration laws.

The Trump administration says they do not.

“The ordinary meaning of ‘arrives in’ refers to entering a specified place, not just coming close to it,” U.S. Solicitor General John Sauer wrote. “An alien who is stopped in Mexico does not arrive in the United States.”

Under a judicial principle known as the presumption against extraterritoriality, courts are supposed to presume that federal statutes apply only within the territorial jurisdiction of the United States. The government said that principle must be applied here, where the migrants haven’t crossed the border.

Precedent also supports its position, the government argued, citing Sale v. Haitian Centers Council. The Supreme Court’s 1993 ruling held that prohibitions against the forced return of refugees did not apply outside the U.S.

Sale involved Haitian migrants stopped while attempting to reach the U.S. by boat. The Trump administration says if the government could use a naval blockade to prevent migrants from reaching the country, then it could also use the metering policy.

“It is plainly lawful for the government to erect physical barriers along the southern border to prevent aliens from arriving in the United States,” Sauer wrote. “Just as the government may use blockades, interdiction or physical barriers to prevent aliens from entering the United States, it may use metering to the same end.”

Grammar games

A nonprofit immigrant rights organization, Al Otro Lado, and 13 asylum-seekers who filed the lawsuit at the center of the dispute in 2017 said they stand behind the Ninth Circuit’s ruling. They argued that Congress intentionally used the present tense of “arrives” to indicate anyone who approaches a port and then attempts to step over the border.

“Congress’ choice of the present progressive tense further supports the view that the statute applies to those attempting to come into the United States, as well as those who are still being processed: As the government conceded below, the word ‘arriving’ ‘plausibly denotes a process of arrival,’” the asylum-seekers wrote.

Any other reading, the asylum-seekers argued, would create a perverse incentive to cross the border between ports of entry. They also noted that Congress mandated immigration officers to inspect all noncitizens arriving at ports of entry where they can apply for asylum.

“It would be illogical for Congress to mandate inspection and go to such great lengths to specify the minimum required asylum-processing procedures while at the same time empowering immigration officers to evade them so easily — especially because these statutes implement the United States’ treaty obligations,” the asylum-seekers wrote.

Al Otro Lado said Sale cuts in the asylum-seekers’ favor, not the government’s. While not prohibiting forced repatriation of refugees on the high seas, the group claimed that Sale said the U.S. was barred from turning away migrants on the threshold of initial entry under Article 33 of the 1951 Refugee Convention.

The asylum-seekers refuted the government’s extraterritoriality arguments, noting that the question is whether immigration officers on U.S. soil are allowed to turn away migrants at the border.

Executive overreach 

Trump is pushing the justices to accept an expansive view of presidential authority over immigration. According to the administration, such authority is inherent in the executive department under Article II as part of the president’s power to control foreign affairs.

“The court of appeals’ decision ‘will seriously harm our country’s ability to manage its borders’ and ‘has already resulted in years of unwarranted disruption of executive branch border operations,’” Sauer wrote. “For example, the decision prevents CBP from using metering, a policy that administrations of both parties have used and defended.”

Congressional Democrats, however, said Trump’s interpretation of the law would effectively transfer immigration lawmaking authority to the executive branch and away from Congress.

Leading the group, Maryland Representative Jamie Raskin argued the Trump administration should ask Congress to make changes to asylum law, branding the Supreme Court petition an “executive end-run” and a threat to separation of powers.

“Congress decided who may apply for asylum and how the process works because we have power over immigration,” said the top Democrat on the House Judiciary Committee. “The president cannot erase and overthrow those decisions by physically blocking access to the legal process.”

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