Justices to Review Immigrant Rights to Seek Asylum at Border (1)

The Supreme Court has agreed to review a Department of Homeland Security policy that allowed the government to turn back noncitizens at the border without hearing their asylum claims.

The US Court of Appeals for the Ninth Circuit ruled 2-1 last year the policy, known as “metering,” violated the Constitution. The policy was used under both Barack Obama and Donald Trump during his first term, but was rescinded by President Joe Biden.

It’s the latest chance for the Supreme Court to weigh in on the scope of restrictions the executive branch can place on immigration.

The metering policy allowed immigration officials to turn back noncitizens without valid travel documents at the border when ports of entry were at capacity. The immigration advocacy organization Al Otro Lado sued, saying the policy violated federal law.

The Immigration and Nationality Act requires the government to “inspect and refer for processing” any asylum seeker who is present in the US or reaches a designated port of arrival.

In the Ninth Circuit’s opinion last October, Judge Michelle T. Friedland said metering amounted to a “wholesale refusal” by the government to carry out its legal duties.

Judge Daniel Bress, writing earlier this year for more than a dozen judges who dissented from the circuit’s refusal to rehear the case en banc, said the decision would cause “untold interference” with the executive branch’s ability to manage the southern border.

Solicitor General D. John Sauer cited Bress in his petition in July asking the high court to review the case, saying the Ninth Circuit’s decision “deprives the Executive Branch of a critical tool for addressing border surges” and preventing overcrowding at ports of entry.

Al Otro Lado urged the justices not to grant review, saying any ruling would amount to “little more than an advisory opinion.” In a statement Monday, the nonprofit vowed to continue fighting metering, which it called an “illegal scheme.”

Border encounters have fallen to record lows since Trump retook office in January. Customs and Border Protection reported about 11,700 migrant encounters at the southern border in October, down from more than 100,000 the same month last year. The totals include arrivals at ports of entry and illegal crossings between ports.

The case is Noem v. Al Otro Lado, U.S., No. 25-5, cert. granted 11/17/25.