For generations, the United States has offered protection to people fleeing persecution, including people who arrive at our ports of entry seeking asylum. While most of those who have sought asylum did not meet the high legal standards necessary to establish eligibility, those who claim a fear of return have always had the opportunity to be heard. The Trump administration wants to take that opportunity away.
We are among a bipartisan group of 13 former U.S. government officials – some political appointees, others career civil servants – who have spent many years inside the U.S. Departments of Homeland Security, State, Justice and the Immigration and Naturalization Service — interviewing asylum seekers, shaping refugee and human rights policy, and implementing the laws that govern whom America protects and whom it turns away. We know this system from the inside. And we are writing now because the Trump administration is asking the Supreme Court to approve something never before sanctioned in U.S. law: the categorical exclusion, without so much as a hearing, of people who have made it to our door seeking asylum.
The case, Noem v. Al Otro Lado, which will be heard by the Supreme Court on March 24, involves the administration’s “turnback” policy — physically blocking asylum seekers from entering a port of entry, then arguing they have no right even to apply for asylum because they haven’t technically crossed the border. That argument is not just morally troubling; it is legally wrong — and the evidence shows it produces exactly the kind of chaos and harm it claims to prevent.
Dual Responsibilities at the Border
Managing the Southern border’s numerous official ports of entry has always been a balancing act, in which inspecting officials must determine not only legal eligibility to enter the U.S., but equally important, recognize the possibility that people without proper documentation may be seeking asylum or are otherwise in danger (such as potential victims of torture or trafficking in persons). During our many years in government, we have sought to implement laws, regulations, and policies that address these obligations. This was particularly difficult when the capacity to process people at the border was challenged by lack of resources, outdated facilities, or the increased migration caused by political unrest, climate disasters, worsening economic conditions, or violence in other countries. In fact, the practice of limiting asylum seekers’ access to ports of entry — colloquially termed “metering” — originated in 2016 as an ad hoc measure at the San Ysidro port of entry during an uptick in Haitian arrivals. Local officials developed it as a temporary workaround, but the first Trump administration expanded the practice to all Southern border ports of entry. By April 2018, DHS formally instructed employees to physically prevent asylum seekers from crossing the border.
The respondents in Noem v. Al Otro Lado filed their original challenge to these turnback policies at the time, describing a variety of means of denying access to asylum. In some cases, CBP requested that Mexican officials physically prevent asylum seekers from crossing the border to prevent them from reaching the nearby designated port of entry. In other cases, CBP officials stood in the middle of bridges, refusing to allow asylum seekers to approach the port of entry located at the other end of the bridge. Other asylum seekers may have crossed the border into the United States only to be told that they could not be processed for entry because there was no room to process asylum seekers or that asylum was no longer available.
Whatever the means or the excuses used, these practices far exceeded the requirements of border management, as the lower courts recognized, and reflected deliberate efforts to prevent people from initiating the asylum process.
The Biden administration retracted this guidance and declined to pursue the case further. It continued to regulate entry through its CBPone app, which allowed asylum seekers to register their intention before reaching the United States and allocated a limited number of slots for entry each day.
But regulating entry is not the same as denying it altogether. The second Trump administration not only wants to return to physically blocking asylum seekers from reaching a port of entry, but is now asking the Supreme Court to empower it simply to ignore the international treaties and domestic statutes that require the government to give asylum seekers the opportunity to make their case.
A Promise Written into Law
Providing refuge to those fleeing human rights abuses has been integral to our country’s history – from the many early immigrants seeking freedom from religious persecution in Europe, to those escaping antisemitic pogroms in Eastern Europe in the early twentieth century, to those seeking protection from the depredations of World War II. Some of our greatest Americans—like Albert Einstein, Madeleine Albright, and Henry Kissinger—first came here because they were offered asylum. In 1968, the U.S. formalized this commitment by acceding to the 1967 Refugee Protocol (which incorporates the relevant provisions of the 1951 Convention Relating to the Status of Refugees), thereby agreeing to be bound by the international principle of non-refoulement — that is, that we will not return people to places where they would face a threat to their life or freedom. Crucially, that obligation applies not only to those already within our territory, but to those at our borders. In 1980, Congress codified this obligation in the Refugee Act and simultaneously established a right to asylum for those meeting the international refugee definition in the Refugee Convention and Protocol – namely, those with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
The governing statute, 8 U.S.C. § 1158, reflects this history directly. It provides that any person who is “physically present in the United States or who arrives in the United States” may apply for asylum (emphasis added). That disjunctive “or” is not an accident. If physical presence were required in all cases, Congress would have had no reason to write “or arrives.”
Congress thus deliberately created two categories of eligible applicants: those already inside the country, and those in the process of arriving at a port of entry. The administration’s reading — that only those who have already crossed the border are eligible to apply for asylum — renders the second category meaningless. On that reading, a person literally standing inches from a port of entry, affirmatively seeking to present herself to immigration officers, is entitled to nothing.
Section 1225 of the Immigration and Nationality Act reinforces the contrary reading — the one Congress actually enacted. It requires immigration officers to inspect noncitizens “arriving in the United States” at ports of entry, and to refer for asylum interviews those who express a fear of persecution — regardless of whether they have crossed the border. A 1997 federal regulation, implementing the 1996 immigration reform law, defined “arriving alien” to include any noncitizen “coming or attempting to come into the United States at a port of entry (emphasis added).” Attempting. Not having crossed. This is the law as those of us who enforced it understood it for thirty years, across six administrations.
Since the Refugee Act was adopted in 1980, no prior administration — Republican or Democrat — has ever claimed the authority to categorically block access to asylum based on a few inches of territory. That the current administration is asking the Supreme Court to do so now is not a reinterpretation of the law. It is an attempt to rewrite it and wipe out rights and hope for those who see America as a beacon.
The Human Cost Is Not Abstract
The negative consequences of this turnback policy extend to the border itself. When asylum seekers are barred from a port of entry, they typically do not simply go home. They often have no safe home to return to. Instead, they are preyed upon by cartels and smugglers. They cross rivers and deserts. Some drown.
Moreover, the criminal organizations that prey on stranded asylum seekers — cartels and smuggling networks — are not contained to the Mexican side of the border. Concentrating vulnerable populations in lawless encampments strengthens these groups operationally and financially, with negative consequences that extend into U.S. border communities.
The policy doesn’t reduce pressure on the border. It disperses it into more dangerous and less manageable corridors. Redirecting asylum seekers away from ports of entry pushes unauthorized crossings into unmonitored terrain, forcing Border Patrol officers to redeploy away from ports — which in 2019 alone produced a fivefold increase in commercial wait times and disrupted the $1.7 billion in daily trade that crosses the U.S.-Mexico border.
We have all sat across from people at their most desperate — fleeing political persecution or human rights abuses based on who they are, what they believe, or who they love. When we look at what this policy produces in practice, we see not an orderly border, but a humanitarian crisis pushed a few feet south of the line and beyond legal redress.
What America Signals to the World
According to the UN High Commissioner for Refugees, there are 42.5 million refugees and more than 8.4 million asylum seekers worldwide. The international system aimed at protecting them — built on the 1951 Refugee Convention and its 1967 Protocol — functions because nations are expected to honor the fundamental principles they embody. When the United States, historically the most significant leader in refugee protection globally, signals that it has completely turned its back on asylum, other countries take note. They will use our own abandonment of fundamental principles as permission to disregard them as well.
America has long asked other nations to uphold international human rights obligations — conditioning aid, imposing sanctions, making formal protests when governments mistreat victims of human rights abuse. Our moral authority depends on our own conduct. Locking the door on people fleeing for their lives, with no process and no exception, undermines our standing to lead on human rights generally.
There Is a Better Way
We recognize the importance of border security and have worked in administrations that addressed the legitimate pressures on our southern border. We have all worked through surges, resource shortages, and genuine humanitarian emergencies. We have offered legal advice and made determinations that sometimes led to denial of asylum claims. We understand that temporary measures to manage the pace of arrivals — done transparently, tied to real capacity constraints, but still ensuring access to asylum — are a legitimate part of border administration, and U.S. courts have recognized as much.
But the Trump administration’s turnback policy is not a temporary measure. It is a categorical legal claim that the government can refuse entry at the threshold and thereby extinguish all rights to seek protection. That is not what the statute provides. Nor is it what the regulations have ever reflected. And it is not what any prior administration — including the first Trump administration, under whose watch “metering” first spread — ever argued it had the authority to do.
The government has real tools available: increased staffing of asylum officers and immigration judges, targeted use of expedited removal, technology-based appointment systems, and improved port-adjacent processing infrastructure. Administrations of both parties have deployed these tools effectively. None of them require abandoning the fundamental right to claim asylum that has honored our heritage and governed U.S. immigration practices for nearly half a century.
The Ninth Circuit correctly held that asylum seekers who present themselves at a U.S. port of entry — even before crossing the border line — are entitled to the process that Congress prescribed. The Supreme Court should affirm this decision. And Congress should respond not by narrowing the law further, but by investing in the personnel, technology, and infrastructure that would allow the asylum system to function as it was designed.
– Scott Busby, Mary Giovagnoli, Harold Hongju Koh and Michael Posner, Published courtesy of Just Security.
