SouthernWorldwide.com – The Supreme Court’s recent decision to restrict asylum applications, a move welcomed by immigration hardliners, may paradoxically lead to an increase in illegal border crossings, according to three dissenting justices and an immigration nonprofit involved in the case.
On Thursday, in the case of Mullin v. Al Otro Lado, the Supreme Court ruled that migrants must physically enter the United States to be eligible for asylum. This decision overturns previous rulings by lower courts that mandated the government to process certain asylum seekers who were turned away at ports of entry. While the ruling is widely seen as a step towards making asylum claims more difficult, a stated objective of the Trump administration, Justice Sonia Sotomayor and the nonprofit Al Otro Lado contend that it could have unforeseen repercussions.
Justice Sotomayor, in her dissent, argued that the Court’s interpretation of immigration statutes creates a “perverse incentive” to enter the country unlawfully rather than through legal channels. She stated that the majority’s construction effectively tells asylum seekers they can apply if they manage to cross the border illegally, but not if they patiently wait at a port of entry.
Al Otro Lado echoed this sentiment in a court filing, asserting that limiting asylum access to those who physically enter the U.S. would indeed “create a perverse incentive to cross the border between ports of entry.” The organization pointed out that individuals crossing illegally would gain greater rights than those stopped at official ports.
The conservative majority, with Justice Samuel Alito writing for them, dismissed these concerns as “overstated.” Justice Alito suggested that the practice of “metering,” which limits the number of asylum seekers processed daily at ports of entry, does not permanently bar anyone from applying for asylum upon arrival.
Alito further elaborated that illegal entry, conversely, is fraught with risks and legal consequences. He highlighted that entering at an improper location is a crime, and aliens who re-enter the country unlawfully after being removed become ineligible for asylum.
He argued that an alien experiencing delays at a port of entry due to metering would need a compelling reason for asylum to be preferable to the substantial risks associated with illegal entry.
The concept of “metering” refers to the government’s practice of capping the number of asylum seekers allowed to approach or enter a U.S. port of entry for processing each day. Under this policy, migrants were often instructed to wait in Mexico until U.S. officials deemed the port had available capacity.
However, Justice Alito’s reasoning failed to persuade Justice Sotomayor and the other dissenting justices. Sotomayor emphasized that the core issue is not necessarily that illegal entry always results in a net benefit for asylum seekers, but rather that Congress is unlikely to have intended a system where asylum is accessible to those who cross the border unlawfully, yet not to those who attempt to abide by the law and are physically prevented from entering at a port of entry by immigration officers.
She also pointed to the “unfortunate reality” that many asylum seekers, driven by desperation to escape persecution in their home countries, are willing to undertake significant risks to apply for asylum.
Justice Sotomayor referenced a 2018 report from the Department of Homeland Security’s Office of the Inspector General. This report found that metering had “unintended consequences,” leading some individuals who would have otherwise sought legal entry into the United States to cross the border illegally.
It is noteworthy that this report was published prior to the lower court rulings that allowed migrants turned away at the border to apply for asylum. Therefore, the conditions described in the report are comparable to the new status quo established by the Supreme Court’s decision.
The dissenting justices believe that as long as the federal government prioritizes border security, illegal crossings should not be a significant concern.
