Mullin v. Al Otro Lado: SCOTUS Closes the Door to Asylum Seekers at the Southern Border
Rounding out a historically contentious October Term, the Supreme Court recently handed the federal government a significant victory in its ongoing effort to control access to asylum before asylum law can formally attach. In a 6-3 decision issued on June 25, 2026, the Court held in Mullin v. Al Otro Lado that noncitizens stopped on the Mexican side of the U.S.-Mexico border have not “arrive[d] in the United States” under the Immigration and Nationality Act (INA), even when they present themselves to American officials at a port of entry for the express purpose of seeking asylum protections. The decision reverses the Ninth Circuit and effectively validates the federal practice of “metering,” a since-retired border-management policy through which Customs and Border Protection (CBP) officers limited how many asylum seekers could enter ports of entry each day for processing.
Al Otro Lado, a California immigrant rights group, and several asylum seekers began litigation in 2017 by filing a putative class action lawsuit in Southern California against then-Secretary of State Mayorkas which alleged that the CBP’s metering practice unlawfully withheld asylum processing expectations required by the INA. The district court granted summary judgment to the plaintiffs and ruled against the government’s metering policy, certifying migrants at the U.S.-Mexico border as a class. Although the Department of Homeland Security formally rescinded metering in November 2021, just months after the initial district court ruling, a divided Ninth Circuit still upheld the declaratory and injunctive relief entered by the district court. Having been denied a rehearing en banc, the government proceeded to bring the case to the Supreme Court with a petition for certiorari which stated that metering remained a “critical tool” that the CBP “would likely resume” when border conditions warranted, thus signaling a strong federal interest in overriding the Ninth Circuit’s effective ban on metering. The Supreme Court granted review of the case, then entitled Noem v. Al Otro Lado, on November 17, 2025 and heard argument on March 24, 2026. Because the government’s stated intention to revive the policy kept controversy surrounding metering alive in spite of its rescission, Mullin arrived at the Court with an unusually prospective cast.
At issue in Mullin are three subsections of the INA: 8 U.S.C. § 1225(a)(1), § 1225(a)(3), and § 1158(a)(1). Section 1225(a)(1) defines “applicants for admission” to the United States as any alien who “arrives in the United States” and has not already been admitted or paroled; Section 1225(a)(3) permits the Attorney General and immigration officers to inspect alien individuals to determine their admissibility; and Section 1158(a)(1) outlines the qualifications for legal asylee status in the United States. Together, these provisions of the INA comprise the front end of the United States affirmative asylum process. The question at issue is thus whether asylum seekers who reached a port of entry but are stopped before physically crossing the territorial line have “arrived” in the United States for the purpose of said provisions. The Supreme Court ruled against the Ninth Circuit’s flexible impression of the border, a grim portent for the future of United States immigrant rights with human rights implications spanning far beyond statutory interpretation.
Justice Samuel Alito wrote for the majority, lauding the case’s central question as “straightforward” on linguistic grounds. Citing the American Heritage Dictionary, the jurist, who has grown infamous for his use of dictionary-driven textualism, maintained that the word “arrive” carries its ordinary meaning of “to reach a destination” in §§ 1158(a)(1) and 1225(a)(1), irrespective of potential barriers to entry. “In ordinary speech, no one would say that a person ‘arrives in’ a place—for example, a house, a city, or a country—before the person enters that place,” Alito explained, proceeding to bolster his claim through classic American visuals of delineated boundaries, from football fields and front doors to the the postal service.
Alito’s linguistic assertions, while simple at face, lead to discrepancies which the justice briefly acknowledged in his opinion but failed to fully patch up. For example, his parsing of the phrasing at issue notably appears to overlap with the separate protections for migrants who “arrive[] in” and are “physically present” in the United States found in § 1158(a)(1). Such redundancies are generally dissuaded by the canon against surplusage, a central feature of the textualist method championed by the late Justice Scalia, which instructs courts to presume that each statutory phrase performs an independent role in the interpretation of text, provided another part of the same status already covers the same ground. Justice Alito conceded that the aforementioned surplusage argument had “some force,” but dismissed it with the justification that “excellent writers do not always trim every unnecessary word,” and that even Congress sometimes speaks redundantly. Mullin, yet another case in which the Court has chosen to selectively adhere to the principle of ordinary meaning interpretation, thereby illustrates the Roberts Court’s increasingly elastic approach to evenly applying textualist canon.
In a separate concurrence, Justice Clarence Thomas argued that the lower court’s declaratory relief likely violated 8 U.S.C. § 1252(f)(1), which restricts lower courts from “enjoin[ing] or restrain[ing]” the operation of certain immigration laws. He then turned to the role of the executive and “the President’s inherent authority to exclude aliens from the country,”invoking Blackstone’s account of the King’s power to “send alien friends home” as he sees fit. Only months earlier, in his Learning Resources, Inc. v. Trump dissent, Thomas similarly relied on Blackstone’s description of monarchical powers in order to trace the authority to impose import duties to a “prerogative right” of the Crown. Although Thomas’s concurrence in Mullin does not bind the Court, his pattern of invoking the powers of the King to support an expanded vision of executive power is unsettling in its own right and sits uneasily in an opinion issued by the nation’s highest Court.
Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, dissented at length to the majority’s armchair linguistics, claiming that the Court’s interpretation pedestalled a “fixation” on the word “in” at the expense of the statutory dynamics of the border. “Words,” Sotomayor continued, “must be read in context and with attention to how they fit into the statute as a whole.” That context, according to the dissent, includes § 1225’s inspection framework and federal regulations defining “arriving alien” to pertain to those “coming or attempting to come into the United States at a port-of-entry.” Under Sotomayor’s reasoning, the majority’s interpretation creates two related problems. First, if “arrives in the United States” already requires physical presence in the United States, then § 1158(a)(1)’s separate reference to individuals who are “physically present” in the country appears to do less independent work than Scalia’s canons of construction would advise. Second, the majority’s reading creates a troubling disparity between lawful presentation at a port of entry and unlawful crossing between ports. Based on the majority’s logic, an asylum seeker who approaches a designated port may be metered just outside the territorial boundary and denied access to § 1225’s inspection process, whereas a person who crosses unlawfully, by contrast, becomes physically present in the United States and can enter the inspection process immediately following being apprehended. The surplusage problem latent in the majority’s interpretation thus incentivizes unlawful entry as a more reliable route into the asylum system.
Sotomayor also challenged the majority’s effort to recast the issue of metering as a simple matter of ordinary speech, arguing that the majority’s rule permits officers to block asylum seekers from stepping onto U.S. soil “even if the refugees complied with all applicable laws and regulations, even if the port had ample capacity to inspect them, and even if turning them back would result in the very persecution from which they narrowly escaped.” The predictable result, she warned, is that “[m]ore people will die. More people will attempt to cross the border illegally, and some will make it while others will not.”
Reflecting the intensity of the Court’s internal disagreement, Sotomayor read portions of her dissent from the bench, an uncommon practice generally understood to signal a Justice’s especially strong disapproval of the Court’s decision. In a nearly-unprecedented fashion, Alito subsequently remarked that there was “much that [he] would have added” to his own summary had he known Sotomayor would read so extensively from hers, before reiterating the majority’s view of metering as an “orderly and humane” response to border surges. The exchange was a rare moment of visible friction inside the Court, bringing to the surface the political strain that the majority’s textualist framing had worked hard to contain.
In addition to joining on the principal dissent, Justice Ketanji Brown Jackson also dissented separately on mootness grounds, arguing that the Court should not have reached the merits in Mullin at all. Because the metering policy at issue had been rescinded years earlier, Jackson maintained that the Court lacked a concrete factual record against which to evaluate the policy’s operation or any future replacement. Coloring the majority as knowingly facile, she claimed that the Court “grounds its reasoning in metaphors about a linebacker and a houseguest and a piece of mail” because “it has no actual facts to grapple with.” Like Sotomayor, Justice Jackson concluded her opinion with a chilling message directed toward her colleagues on the bench: “The Court is not a law student puzzling through a difficult cold call. When we issue opinions, we create legal rules with real-world impact.”
While the White House has already heralded the decision as a “tremendous win,” Mullin is unquestionably a defeat for those concerned with asylum access. While the ruling neither impacts asylum cases currently pending with U.S. Citizenship and Immigration Services nor disrupts access to legal channels for asylum seekers already in the United States, the Court’s authorization of future metering policies is highly likely to instigate serious consequences. As access to inspection and parole at ports of entry becomes increasingly uncertain, asylum seekers will have stronger incentives to pursue irregular and often dangerous routes into the United States, whether by crossing through remote terrain, attempting to swim across hazardous waters, or becoming dependent on smuggling networks that expose migrants to extortion, abandonment, trafficking, and death. The Supreme Court has either inadvertently or, as Justice Sotomayor suggests in her dissent, knowingly encouraged a new wave of desperation at the border.
Alongside the Court’s similarly restrictive immigration decision issued on the same day, Mullin v. Doe, Mullin v. Al Otro Lado signals a more pronounced judicial willingness to enlarge executive discretion in the immigration context. The ruling now stands almost as an invitation for future administrations to test the outer bounds of border management under the Court’s newly sanctioned interpretation of “arrivals,” a dire omen for immigration attorneys already struggling to keep up with the rapidly-changing United States immigration landscape. For now, the door to asylum at the southern border remains open, at least formally; the harder question, after Mullin v. Al Otro Lado, is for how long future presidential administrations will choose to hold it.