Noem v. Al Otro Lado
On November 17, 2025, the Supreme Court granted certiorari on Noem v. Al Otro Lado, a case concerning the meaning of the Immigration and Nationality Act under 8 U.S.C. § 1101 et. seq. The question at hand is whether a non-citizen who is stopped on the Mexican side of the U.S.-Mexico border has “arrive[d] in the United States” under 8 U.S.C. § 1158(a)(1), provided that the non-citizen is eligible to apply for asylum upon inspection by an immigration officer under 8 U.S.C. § 1158(b)(1)(A), §1225(a)(1) and (3). Noem v. Al Otro Lado is being heard on appeal by the Department of Homeland Security, after the U.S. Court of Appeals for the Ninth Circuit ruled 2-1 that non-citizens coming to the United States for the purpose of presenting themselves to an official for 8 U.S.C. § 1101 asylum applications are considered to have “arrive[d] in the United States,” even if such a meeting is in Mexico.
The procedural history of Noem v. Al Otro Lado began in 2017 when Al Otro Lado, a nonprofit legal organization focused on immigration rights, sued the federal government with thirteen individuals harmed by a policy known as “metering” in which the Department of Homeland Security (DHS) and Customs and Border Protection (CBP) unlawfully and systematically turn away noncitizens at Ports of Entry to the United States without hearing their asylum claims. In their suit, Al Otro Lado claimed since at least 2016 CBP used metering and tactics such as intimidation, coercion, deception, verbal abuse, physical force, family separations, and processing delays to deny individuals their access to asylum procedures, leading thousands to be trapped in Mexican holding facilities. Al Otro Lado claims metering is unlawful under the definition of “arriv[ing] in the United States” by the Immigration and Nationality Act, the Administrative Procedure Act which governs federal agencies rulemaking and regulations, the due process clause of the Fifth Amendment, and non-refoulement, a principle in international law in which an individual cannot be returned to a country where they face harm, persecution or other cruel treatment.
On July 1st, 2025, Solicitor General John Sauer submitted a petition for writ of certiorari on behalf of Kristi Noem, the Secretary of Homeland Security, asking the Supreme Court to review the Ninth Circuit’s decision, particularly on the meaning of “arrives in the United States” under 8 USC. § 1101 et. seq. Sauer claims the understanding of the Ninth Circuit that “arrives in the United States” would be satisfied when an individual presents themselves to an official on the Mexican side of the border violates “plain English.” Sauer also contends that this “erroneous decision … has created—and will continue to create—untold interference with the Executive Branch’s ability to manage the southern border,” citing Judge Bress’s dissent from the initial Ninth Circuit iteration, Al Otro Lado v. Noem. On October 8th, 2025, Al Otro Lado submitted a reply brief urging the Supreme Court to deny a writ of certiorari on the grounds that their claim has no present nor future implications as, since June 2024, the Trump Administration has restricted the processing of asylum applications under 8 U.S.C. § 1182(f) and 8 U.S.C. §1185(a) which authorize the Executive to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” whose entry “would be detrimental to the interests of the United States.”
With cert. having been granted this November, full briefs from the respondent and petitioner should be expected by early spring of 2026. Arguments and a decision are expected by the summer of 2026.