US Supreme Court Grants Certiorari on "Metering" Policy for Asylum Seekers
On November 17-20, 2025, the U.S. Supreme Court agreed to hear Al Otro Lado v. Mayorkas (No. 25-5), challenging the Department of Homeland Security's (DHS) "metering" practice, which limits the number of asylum seekers processed at ports of entry along the U.S.-Mexico border.
The underlying dispute originated in the U.S. District Court
for the Southern District of California and was appealed to the U.S. Court of
Appeals for the Ninth Circuit (Case Nos. 22-55988 and 22-56036). Respondents,
including the nonprofit Al Otro Lado (a California corporation focused on
migrant rights), immigrant rights organizations, and individual asylum seekers,
challenged DHS's "metering" practice and related policies at ports of
entry along the U.S.-Mexico border. Metering involves limiting the number of
asylum seekers processed daily due to resource constraints, often resulting in
long queues in Mexico where individuals face risks of violence and extortion.
In 2017–2021, under prior administrations, DHS implemented
metering to manage surges, citing operational limits under 8 U.S.C. §
1225(b)(1) (requiring inspection of arriving aliens). Plaintiffs argued this
violated statutory rights to apply for asylum upon "arrival" in the
United States under 8 U.S.C. § 1158(a)(1), as well as due process under the
Fifth Amendment, by effectively turning away eligible applicants without
inspection. The district court issued a preliminary injunction in 2021, partially
blocking metering and requiring DHS to process asylum seekers "to the
extent practicable." The Ninth Circuit, in a 2-1 decision on May 14, 2025,
largely upheld the injunction, ruling that metering unlawfully restricts access
to the asylum process for those physically present at ports of entry, even if
queued outside U.S. territory.
Petitioners—DHS Secretary Kristi Noem (under the Trump administration), other DHS officials, and the United States—appealed to the Supreme Court, filing a petition for a writ of certiorari on July 1, 2025. Respondents waived an initial response but later filed an opposition brief on October 8, 2025 (after extensions), with petitioners replying on October 23, 2025. Amici curiae briefs supporting petitioners were submitted by U.S. Senator Ted Cruz et al. and America's Future on July 31, 2025, emphasizing border security needs. The case was distributed for Supreme Court conferences on September 29, October 7, and November 14, 2025.
Issues
The petition presents two principal questions for review, as
articulated in the filing (available on the docket):
- Whether
the Ninth Circuit erred in holding that federal immigration authorities
violate 8 U.S.C. § 1158(a)(1) and § 1225(b)(1) by exercising discretion to
limit the number of asylum seekers processed at land border ports of entry
due to operational constraints, thereby interpreting "arrival in the
United States" to include individuals queued in foreign territory.
- Whether
the Ninth Circuit's injunction exceeds equitable authority by mandating
that DHS process asylum claims "to the extent practicable"
without deference to executive resource management, potentially
conflicting with separation-of-powers principles.
These issues center on statutory interpretation of asylum eligibility and judicial oversight of executive border enforcement, with broader implications for due process claims.
Laws:
8 U.S.C. § 1158(a)(1) says that “In general Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.”
This single sentence is the key provision at the heart of the Al Otro Lado v. Mayorkas litigation: the phrase “arrives in the United States” is what the Ninth Circuit interpreted to include people who have reached a port of entry (even if they are still queued on the Mexican side of the line), while the government argues it only applies once a person has physically crossed onto U.S. soil.
Decision
On November 17, 2025, the Supreme Court issued a brief order
granting the petition for certiorari in full. The order, listed under the
docket's "Orders of the Court" section, states simply: "The
petition for a writ of certiorari is granted." No dissents or concurrences
were noted, indicating unanimous or unopposed acceptance for review. Oral
arguments are scheduled for early 2026 (exact date to be set), with a full
merits decision expected by June 2026. The case will be argued under the
current Trump administration's DHS leadership, with counsel for petitioners
including D. John Sauer of the U.S. Department of Justice. Respondents are
represented by Kelsi Brown Corkran of the Institute for Constitutional Advocacy
& Protection and attorneys from the Center for Gender & Refugee
Studies.
As this is a grant of certiorari (agreement to hear the case), there is no full merits opinion; the "decision" is the Court's order accepting review. This grant signals the Court's intent to address a circuit split (e.g., differing from the Fifth Circuit's deference to metering) and national policy questions amid ongoing border surges.
Analysis of the Decision
The certiorari grant represents a significant victory for
the executive branch, particularly the Trump administration's emphasis on
stringent border management, by elevating the metering dispute to the nation's
highest court. Legally, it invites scrutiny of whether "arrival"
under § 1158(a)(1) encompasses extraterritorial queues—a novel interpretation
that could redefine asylum access for tens of thousands annually. Petitioners
argue metering is a lawful exercise of prosecutorial discretion, essential for
resource allocation during crises (e.g., post-2021 migrant surges), and that
the Ninth Circuit's ruling undermines national security by mandating unlimited
processing. Reversal could validate similar policies, potentially curtailing
injunctions and restoring DHS flexibility, aligning with precedents like Trump
v. Hawaii (2018) on executive immigration authority.
Conversely, respondents and immigrant rights groups, such as the American Immigration Council (filing amicus briefs), view the grant warily, warning it risks rendering asylum protections "wholly inoperable" by endorsing de facto turnbacks. The Ninth Circuit's 2025 decision grounded its holding in plain statutory text—requiring "inspection" upon arrival—and evidence of harm to vulnerable migrants (e.g., cartel threats in Mexico), invoking due process. An affirmance would bolster judicial checks on administrative actions, echoing East Bay Sanctuary Covenant v. Trump (2019), but a reversal might exacerbate humanitarian concerns, prompting congressional fixes or international criticism under non-refoulement obligations.
Broader implications include potential ripple effects on Biden-era remnants (e.g., parole programs) and future administrations' enforcement. With a conservative Court majority, outcomes may favor deference to the executive, but the lack of noted dissents suggests consensus on the issue's importance rather than predetermination. This development underscores ongoing tensions between humanitarian mandates and security imperatives, likely influencing midterm immigration debates.
A
2024 Ninth Circuit ruling (2-1) held that metering violates federal law under 8
U.S.C. § 1158(a)(1), which entitles those who "arrive in the United
States" to apply for asylum, and § 1225(b)(1), requiring inspection of
arriving applicants. The Trump administration appealed, arguing the policy is
essential for border management amid surges, and that "arrival" does
not include those queued outside U.S. territory. Immigrant rights groups,
including the American Immigration Council, hailed the Ninth Circuit's decision
as upholding due process but urged the Supreme Court to affirm it, warning
reversal could render asylum laws "wholly inoperable." Oral arguments
are expected early 2026; the final decision by SCOTUS could reshape border
access for thousands annually.
Decision: https://www.supremecourt.gov/docket/docketfiles/html/public/25-5.html
Citation: Noem v. Al Otro Lado, No. 25-5 (U.S. Nov.
17, 2025)
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