Words matter, sometimes, a single word. That point was front and center on Tuesday, March 24 at the United States Supreme Court when it conducted oral argument in Noem v. Al Otro Lado. The issue before the Court was whether the federal government’s policy of turning people away before they reached the border violated a federal law that allows noncitizens to apply for asylum when they “arrive” in the United States.
By way of background, federal law allows people seeking asylum to make that application when they are “physically present in the United States” or when they “arrive in the United States.”
Asylum is legal protection for people who flee from their native country because of persecution or a well-founded fear of persecution based on at least one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Asylum seekers are different from refugees because the former are granted status while still outside of the United States whereas the latter apply for protection when arriving at a port of entry or while already inside the country.
The case involved 13 people seeking asylum who were turned away before they were physically in the United States. Before the Supreme Court was the question of whether a federal appeals court had properly ruled that noncitizens who were turned away from ports of entry before they could cross the border had “arrived in” the United States.
The Department of Justice, seeking to enforce the policy, argued that under the Court of Appeals ruling, “arrives in the United States” would mean “stopped outside the United States.” Such an interpretation, it argued, would change the reasonable interpretation of the phrase “arrives in the United States” to mean “stopped outside the United States.”
The Justices’ questioning during oral argument demonstrated the difficulty in construing the meaning of “arrived in.” For instance, Justice Gorsuch asked whether “somebody who's at the [border] fence has ‘arrived in,’ but somebody a step away from the fence has not ‘arrived in'?” Justice Gorsuch also asked, “How come somebody who's in the [border] line isn't in? I mean, if the whole point is to make sure that people who are attempting to get into the country have the opportunity to file asylum claims and they've made it all the way, why does it matter he's second in line?”
Similarly, Justice Barrett asked, “How do you know under your theory when the person is close enough [to the border] that we could say they have ‘arrives in’ or ‘arrived’ in the destination?.... Could you say that someone arrives in the United States if they're at a portion of the border that does not have a port of entry?” Finally, Justice Alito questioned whether there is a difference between arriving “at” a location, and arriving “in” a location, comparing a person who knocks on a door, to the person who has been admitted inside.
Oftentimes, the public views the Supreme Court as politicians in judicial robes, who are governed by their personal politics. The transcript of yesterday’s oral argument, attached hereto, illustrates that the Supreme Court is engaged in difficult intellectual exercises, not simply conclusion-based favoritism.
As I started, words matter, and sometimes words we think have obvious meanings are less so when we attempt to discern their meanings in specific contexts. The Court’s effort to clarify what our laws mean is a challenging task, one we should all respect.