WASHINGTON DC -- The Supreme Court spent more than an hour Tuesday debating what “arrives in” the US means, with justices on both sides of the ideological spectrum appearing torn over whether a cryptic provision of federal immigration law could thwart President Donald Trump’s desire to revive a controversial asylum policy.

Does an immigrant “arrive in” the US when standing in line at a port of entry, several justices asked. What if they’re the last person in line waiting to be processed – or the second person in line? What if they’re wading across the Rio Grande? Or standing atop a border wall?

In the end, several of the conservative justices appeared at least open to siding with the Trump administration, perhaps in a limited way.

The uncertainty underscored the unusual nature of the policy, which prevented migrants arriving at the southern border from starting the process of applying for asylum. It was started under President Barack Obama, championed by Trump during his first term and later rescinded under President Joe Biden. Trump’s ability to reinstate it has been hindered by several lower court rulings that said it was unlawful.

Under immigration law, the government must process a migrant who presents at a port of entry and is fleeing political, racial or religious persecution in their home country. A migrant covered under that requirement is defined as someone “who is physically present in the United States or who arrives in the United States.”

The so-called metering policy enabled federal agents stationed at the border to turn back such asylum seekers before they ever stepped foot on US soil. But what “arrives in” looks like on the ground mystified some of the justices on Tuesday, with several members of its conservative wing asking pointed questions about where the line-drawing is.

“’Arrives in’ sounds more like you’ve reached your destination. How do you know, under your theory, when the person is close enough that we could say they have ‘arrives in’ or ‘arrived in’ the destination?” Justice Amy Coney Barrett asked an attorney representing migrants challenging the policy. “I mean, what if there’s a queue and they’re far back, or what if they arrive not at a port of entry? How close do you have to be to the border?”

“If it’s not crossing the physical border, what is the magic thing or the dispositive thing that we’re looking for where we say, ‘Ah, now that person, we can say, arrives in the United States,’” she added.

The lawyer, Kelsi Corkran, said it was an easy formula: “A person arrives in the United States at a port of entry when they are at the threshold of the port’s entrance – about to step over.”

But if a migrant seeking asylum finds themself in a line, Chief Justice John Roberts wondered at one point, wouldn’t their exact position in that line matter for whether they fit the definition of “arrives in” the US?

“I mean, it depends, kind of, on how long the line is, right? he said. “You have to be there. If you’re at the end of a long line you’re not there.”

Jumping into the fray later, Justice Neil Gorsuch wondered how asylum seekers attempting to enter the US by crossing the Rio Grande are covered under the challengers’ reading of the law if they’re “at the water’s edge … on the Mexican side.”

When Corkran noted that the border is halfway through the water, Gorsuch went back to the drawing board: “Alright, so they’ve got one step short of halfway through – they’ve arrived. But somebody who’s on the water’s edge has not arrived.”

What about parts of the southern border that include tall fences intended to keep migrants out? Those sit entirely on US soil, but Gorsuch raised a hypothetical involving a migrant scaling a section of the wall that sits right on the border line.

“So at the top of the wall they’re in, but at the bottom of the wall they’re out?” he asked, drawing laughter from Corkran. “I’m just trying to understand what it means. We’re going to get these cases.”

A years-old policy

The policy, which aimed to help officials manage the number of migrants seeking safe haven in recent years, gave workers at ports the flexibility to let in migrants if they determined there was “sufficient space and resources to process them.”

Assistant Solicitor General Vivek Suri told the justices on Tuesday that the administration viewed the measure as an “important tool in the government’s toolbox for dealing with border surges when they occur.”

Whether the court even reaches the question of the policy’s legality remains to be seen. Justice Ketanji Brown Jackson, a Biden appointee, repeatedly suggested that because the administration didn’t have concrete plans to reinstate it, there was no live controversy for the justices to resolve.

“I don’t understand what we are doing other than advising the government in sort of the abstract as to whether or not this kind of thing is lawful,” she told Suri.

The case is one of several before the high court this session testing controversial immigration policies that Trump wants justices to approve. Next month, the nine will review an order he issued last year that sought to end birthright citizenship, as well as his efforts to end temporary deportation protections for Haitians and Syrians.

The Trump administration’s decision to continue backing the metering policy in court underscores its desire to keep the policy as a backup avenue to stem the flow of migrants at the border as other restrictive measures face challenges in court.

“The administration would like to be able to reinstate metering if and when border conditions justify,” Suri told the justices on Tuesday. “I cannot predict in advance what border conditions will look like or what specific policy responses the administration would take.”

The core legal question before the justices on Tuesday is relatively straightforward: Is a migrant who is stopped by federal agents on the Mexican side of the border covered under the law that requires officials to begin passing them through the asylum process?

The administration contends the answer is “no.”

“You can’t arrive in the United States while you’re still standing in Mexico. That should be the end of this case,” Suri said, arguing that a 1990s case that backed the government’s decision to send back some Haitian asylum seekers who were intercepted at sea supported the metering policy.

But an immigrant rights group and more than a dozen individuals who represent a class of migrants that challenged the policy have countered that the answer is an unequivocal “yes.”

In the government’s view, Corkran told the court, “the phrase ‘arrives in the United States’ has no meaning.”

“Congress carefully crafted our asylum system to ensure that the United States lives up to its ideals and its treaty obligations towards non-citizens fleeing persecution,” she said. “The turn back policy flouted both.”

Lower courts sided against the policy

When Obama rolled out the first iteration of the policy in 2016, officials at the border were reeling from a surge of Haitian asylum seekers, which had overwhelmed their ability to manage the situation.

But after Trump took office and formalized a more robust version of the policy, the government was taken to court by Al Otro Lado, a nonprofit legal services organization for asylum seekers, and the 13 individual challengers.

A federal judge in California ruled the policy was unlawful and certified a class of individuals to be shielded from it.

In a divided decision in 2024, the 9th US Circuit Court of Appeals affirmed that ruling, concluding the policy ran afoul of the federal law.

“The phrase ‘physically present in the United States’ encompasses noncitizens within our borders, and the phrase ‘arrives in the United States’ encompasses those who encounter officials at the border, whichever side of the border they are standing on,” Judge Michelle Friedland wrote in the majority decision.

Notably, Friedland, who was joined by fellow Obama appointee John Owens, stressed that the ruling left the government “with wide latitude and flexibility to carry out its duties at the border.”

Federal laws, Friedland said, “require border officials to inspect noncitizens seeking asylum at the border, and the metering policy withheld that duty.”

A connection to the past

Policy decisions on managing asylum seekers at the southern border have changed frequently in recent years.

Biden’s solution was to have migrants use a phone app to schedule appointments with federal agents at a legal port of entry. They then waited outside the US until they could be inspected by an immigration officer and begin the asylum process.

When the metering policy was in place, it frustrated the ability of tens of thousands of migrants to move forward in seeking asylum, according to the Strauss Center at the University of Texas at Austin.

Turning those people back, the policy’s challengers told the high court, “quickly created a humanitarian crisis in Mexico.”

“As CBP continued to refuse to inspect or process asylum seekers, many of those turned away found themselves living in makeshift camps on the Mexican side of the border,” they told the justices in court papers. “The growing bottleneck of asylum seekers turned back by (Customs and Border Protection) waited near the ports for weeks and then months without reliable food sources, shelter, or safety.”

Some, they said, “attempted instead to enter the United States between ports and died while crossing the Rio Grande or the Sonoran Desert.”

Comparisons to St. Louis episode

That reality has drawn comparisons to a World War II-era episode during which the US turned away the MS St. Louis, a ship ferrying nearly 1,000 Jewish refugees fleeing Europe in 1939.

HIAS, formerly known as the Hebrew Immigrant Aid Society, told the justices in court papers that the metering policy “creates a legal no man’s land” that puts the safety of asylum seekers at risk.

“People are left in limbo in dangerous border towns, unable to access the process our laws guarantee to those who arrive at a port of entry and present themselves to US officials standing on US soil,” the group said in its friend-of-the-court brief. “It is the kind of purgatory experienced by the St. Louis passengers and that Congress eradicated for those who reach a port of entry: safety visible but unreachable.”

Justice Sonia Sotomayor, an Obama appointee, picked up on that point as she skewered Suri over the metering policy,

“We didn’t let them dock and interview them at all?” Sotomayor said. “We didn’t consider whether they were being persecuted. And the majority of those people were shipped back or had to go back from where they came and were killed. That’s what we’re doing here, isn’t it?”

Suri said in response that he did not “deny the moral weight of claims” made by people seeking safe harbor in the US, noting that those claims were not at issue in the case at hand.

“The question before the court is what obligations did Congress impose in the asylum and inspection statutes, and those refer only to aliens who arrive in the United States,” Suri said.

This story has been updated following oral arguments.

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