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Ninth Circuit Extends Right to Seek Asylum to Those Barred From Entry in U.S. at Border
Dissenting, Judge Ryan D. Nelson Says Majority Strains to Conclude That Noncitizens Barred Based on Overcrowding at Port Have ‘Arrived in’ U.S.
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals yesterday held, in a 2-1 decision, that language in an immigration statute providing that a noncitizen “who arrives in” the U.S. may apply for asylum applies to those who were turned away at the border because the port of entry is deemed to be at capacity, drawing a dissent alleging a “strained” interpretation of the term to include those who never stepped foot in the nation.
At issue is the interplay between 8 U.S.C. §1158(a)(1)—which provides that “[a]ny 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…)…may apply for asylum”—and a “metering” policy adopted in 2016 under which noncitizens arriving at the border to seek asylum may be turned away based on overcrowding of the port.
Al Otro Lado Inc., an immigrant rights group, and 13 individual asylum seekers challenged the lawfulness of the metering policy, filing a complaint in July 2017 against the Executive Office for Immigration Review, as well as Secretary of Homeland Security Alejandro N. Mayorkas and other immigration officials, for declaratory and injunctive relief.
Relief was sought under 5 U.S.C. §706(1) which provides that a reviewing court shall “compel agency action unlawfully withheld or unreasonably delayed,” asserting that the denial of entry caused the withholding of the ability to seek asylum.
During the pendency of the litigation, immigration officials rescinded the metering policy and adopted the Asylum Transit Rule which renders ineligible for asylum anyone “who enter[ed], attempt[ed] to enter, or arrive[d] in the United States…on or after July 16, 2019, after transiting through at least one country” unless the party first unsuccessfully applied for protection in that other nation.
Responding, the plaintiffs also filed for a preliminary injunction blocking the application of the new rule.
Preliminary Relief
District Court Judge Cynthia A. Bashant of the Southern District of California provisionally certified a class, represented by named plaintiff Roberto Doe and consisting of “all non-Mexican asylum-seekers who were unable to make a direct asylum claim at a U.S.” port of entry] “before July 16, 2019 because of the U.S. Government’s metering policy, and who continue to seek access to the U.S. asylum process.”
On Aug. 23, 2022, judgment was entered in favor of the plaintiffs on the §706(1) claim. Bashant ordered permanent injunctive relief prohibiting the application of the Asylum Transit Rule to members of the class.
Appealing, the defendants argue that relief under §706(1) was improperly granted because border officials do not owe a duty to noncitizens who have not stepped across the border.
Friedland’s Opinion
Circuit Judge Michelle T. Friedland authored the opinion largely affirming the judgment in favor of the plaintiffs on the §706(1) claim. Circuit Judge John B. Owens joined in the opinion.
Friedland wrote that “[w]e conclude that a noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under § 1158(a)(1),” saying the court must endeavor to give the phrase “arrives in” a meaning that is not subsumed by the term “physically present.”
She concluded that:
“Considering the provision’s ‘text and context,’…we conclude that it is possible to give nonredundant meaning to those two categories. The phrase ‘physically present…’ encompasses noncitizens within our borders, and the phrase ‘arrives in…’ encompasses those who encounter officials at the border, whichever side of the border they are standing on.”
Nelson’s View
Dissenting, Circuit Judge Ryan D. Nelson noted that “[n]o circuit court has ever reached such a strained conclusion” as the majority’s interpretation, saying:
“In 1996, Congress provided that an alien may apply for asylum when she ‘arrives in the United States.’….That can mean only one thing: the alien must be physically present in the United States. After years of litigation, plaintiffs have not identified a single example of when ‘arrives in’ means anything besides physically reaching a destination. The majority does not provide an example, either. For good reason. A basic corpus linguistic analysis shows that no English speaker uses the term ‘arrives in’ to mean anything but being physically present in a location. This statutory language is as unambiguous as it gets.”
He pointed out that “[w]hen, as here, ‘a statute does not define a term, we typically give the phrase its ordinary meaning.’ ” and argued that “[t]he majority skips this important and basic first step—which is dispositive here.” Saying that “[r]eal-life experience bears” out the ordinary meaning of the phrase, he commented:
“The Corpus of Contemporary American English is a database of over one billion words spoken in everyday contexts between 1990 and 2010. Within that database, ‘arrives in’ was used to describe a destination 161 times….Of those, 160—the overwhelming majority—referenced someone or something physically within the destination. And not once was the phrase clearly used to mean standing at the destination’s border.”
The jurist continued:
“[C]onsider an example from the great American sport: ‘As the pitch arrives in the catcher’s hands, the catcher digs in to take on [the runner].’ A pitch ‘arrives in’ the catcher’s hands when it physically lands in the mitt. Not when leaving the pitcher’s hand, flying through the air, or even spinning inches from the catcher’s outstretched mitt.
“We could go on and discuss all 161 usages. But the underlying point is clear. English speakers use ‘arrives in’ to mean standing within a destination, not outside. The majority does not identity a counterexample. Nor does it deny what this linguistic data suggests: its interpretation of ‘arrives in’ is not only unnatural, but unheard of.”
Contextual Support
Nelson said that the majority “emphasizes that statutory language must be understood in context” but that “the context supports the plain meaning.” He wrote:
“[T]wo points are worth emphasis here. First, contrary to the majority’s suggestion, the fact that the statute covers an alien ‘who arrives in the United States (whether or not at a designated port of arrival)’ does not alter the plain meaning of ‘arrives in.’….The parenthetical clarifies that the statute applies to immigrants who arrived through designated entry ports and those who crossed the border elsewhere. It does not mean that immigrants who have yet to enter an arrival port have somehow arrived in the United States….Because entry ports are part of the United States, an immigrant ‘arrives in the United States’ whether she stands on Ellis Island or in rural Texas. But either way, the immigrant does not ‘arrive in’ until she steps onto United States soil.”
He added:
“Second, the majority suggests that because ‘arrives in’ appears in the context of a statute, the only relevant linguistic evidence is other statutory language….Why would that be? Congress presumably uses words ‘in their natural sense.’ ”
Erodes Democracy
Remarking that “[m]ore than being wrong, the majority’s conclusion is harmful,” he opined that “[j]udicial redlining of statutes, as the majority does here, undercuts Congress’s authority, eliminates citizens’ ability to rely on the law, and erodes democracy, allowing unelected judges to revise the decisions of the People’s representatives.”
He continued:
“There is more. Borders define the very bounds of a nation’s sovereign power….They also protect a country from those outside it and are, by their nature, exclusionary….So strong is that interest that even constitutional rights yield when ‘[b]alanced against the sovereign’s interests at the border.’….The majority subverts these interests. It treats those in Mexico—but ambiguously close to the border—as if they were ‘in’ the United States. And it assumes that Congress implicitly set aside constitutional principles that, for centuries, have uniformly been applied to protect our border.”
Also taking issue with the majority’s interpretation of §706(1), he concluded:
“The weight of authority…provides that agency action is withheld only when an agency fails to act by a statutory deadline. Rather than create a circuit split, we should follow this clear consensus. Applying that standard here, the government did not withhold one of its duties. The statute does not impose any deadline on the government’s obligation to process asylum seekers (assuming an obligation exists). So not even the majority argues that the government ‘withheld’ agency action under this standard.”
The case is Al Otro Lado v. Mayorkas, 22-55988.
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