The 9th Circuit Court of Appeals last week issued a two-to-one decision in Al Otro Lado vs. Mayorkas that is wrong, troubling, and breathtaking. The court imposes on the federal government — for the first time — an obligation to interview asylum seekers who are still in Mexico. It skips over the statute’s plain meaning, ignores a common-sense understanding of the English language, misapplies a semantic canon, disregards the typical presumption against extraterritoriality, and usurps Congress’s authority to make law. Only the 9th Circuit — which is not a sovereign nation — seems to reject the nearly universal goal of national border security.
Harsh language, to be sure — but not my language. These are the words of the dissenting judge in the case, Ryan Nelson. And Judge Nelson is spot on. For the 9th Circuit has reached the incredible conclusion that an alien “stopped by U.S. officials at the border [on the Mexican side, without even entering U.S. territory] is eligible to apply for asylum [in the United States]”! This decision threatens to send our border/asylum crisis down to a whole new level of the inferno.
The 9th Circuit is seemingly writing an insurance policy against Donald Trump’s election. What its decision means is that even if a new Trump administration is able to restore sanity to our border and prevent mass influxes of migrants from illegally crossing, it doesn’t matter. As long as the migrants reach the Mexican side of the border, they have won. For once the migrants encounter U.S. officials, they can demand to apply for asylum in the U.S. And that means they can enter and remain here — since the 9th Circuit has already concluded in Innovation Law Lab v. Wolf that the Trump administration’s Return to Mexico initiative, returning aliens apprehended along the border back to Mexico to reside during the pendency of their removal/asylum proceedings, is likely “inconsistent” with and “does not comply” with the Immigration and Nationality Act (INA). And that means that if they are not continuously detained, they aren’t going to leave the U.S., ever, despite having meritless or fraudulent asylum claims.
As I have previously reported, and the House Committee on Homeland Security’s report on the articles of impeachment against Secretary of Homeland Security Alejandro Mayorkas later stated in agreement:
DHS[’s] … FY 2021 Enforcement Lifecycle Report … amply demonstrated that (regarding aliens encountered at the Southwest border) continuously detained aliens have historically almost always been repatriated, while nondetained aliens have rarely been:
- Of aliens encountered at the Southwest border in fiscal year 2013, DHS returned or removed 98.4 percent of those who were continuously detained as of December 31, 2021, but only 6.9 percent of those who were sometimes detained, and 15.1 percent of those who were never detained.
Am I overreacting? Couldn’t DHS just place these migrants in expedited removal proceedings? As the Departments of Homeland Security and Justice have explained:
When the expedited [removal] procedures [created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996] were first implemented ... relatively few aliens [apprehended at the border] ... asserted an intent to apply for asylum or a fear of persecution ... . [A]liens could be processed and removed more quickly, without requiring detention or lengthy court proceedings.
In recent years, the [U.S.] has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution ... and are subsequently placed into removal proceedings in immigration court … . Over the past decade, the overall percentage of aliens subject to expedited removal and [who assert a fear and receive a] credible-fear interview jumped from approximately 5% to above 40%, and the total number of credible-fear referrals for interviews increased from about 5,000 a year in ... 2008 to about 97,000 in ... 2018. ... In FY 2018 ... positive credible-fear determinations [by asylum officers, preventing the expedited removal of the aliens and sending them to immigration court] climbed to about 89% of all cases. … [S]ignificant proportions of aliens who receive a positive credible fear determination never file an application for asylum or [abscond and must be] ordered removed in absentia. In FY 2018, a total of [only] about 6,000 aliens who passed through credible-fear screening ([only] 17% of all completed cases ...) established that they should be granted asylum.
Even Secretary Mayorkas and Attorney General Merrick Garland admitted this June that:
At increased levels of encounters and without a change in policy, most non-Mexicans processed for expedited removal … would likely establish a credible fear and remain in the [U.S.] for the foreseeable future despite the fact that most of them will not ultimately be granted asylum. … [This] scenario … would likely continue to incentivize an increasing number of migrants to journey to the [U.S.] and further increase the likelihood of sustained high encounter rates.
Thus, if migrants can demand to apply for asylum once they reach the Mexican side of the border, the fate of our border is placed entirely in Mexico’s hands. If Mexico allows migrants intending to illegally enter the U.S. to reach its side of the border, the migrants can demand to apply for asylum and demand to be let in. If Mexico prevents the migrants’ entry into Mexico in the first place, or prevents them from reaching the U.S. border, the migrants cannot demand asylum. The fate of our border will be left to the vagaries of Mexican politics.
Further, the 9th Circuit could, and very likely would if former president Trump is again elected to the office, easily take its ruling to the next logical step and rule that an alien “stopped by wall or barrier or fence at the border is eligible to apply for asylum”. If an alien can demand to apply for asylum simply by reaching the Mexican side of America’s border wall, then the wall becomes essentially a pointless feature of the border geography. We might as well place billboards on it saying “Welcome to America. Enjoy Your Stay.”
So, how did the 9th Circuit arrive at its “indefensible”, in the words of Judge Nelson, ruling? It did so by reaching the curious conclusion that “aliens currently in Mexico have ‘arrive[d] in the [U.S.]’”, in the words of Judge Nelson.
Keep in mind that § 208 of the INA provides that “[a]ny alien who is physically present in the [U.S.] or who arrives in the [U.S.] (whether or not at a designated port of arrival … irrespective of such alien’s status, may apply for asylum. (Emphasis added.) The 9th Circuit’s majority writes that:
The parties agree that a noncitizen stopped by [U.S.] officials right at the border is not yet “physically present in the [U.S.].” They disagree about whether such a person is covered by the language “arrives in the [U.S.]”
In the Government’s view, a noncitizen stopped on the [U.S.]’s doorstep is not eligible to apply for asylum because she is not covered by the phrase “arrives in the [U.S.]” The Government’s position is that one only “arrives in the [U.S.]” upon stepping across the border.
I know, quite a crazy position by the government. But to the 9th Circuit, the government’s reading is “improper[]”. The majority explains:
We ... must endeavor to give the phrase “arrives in the [U.S.]” a meaning that is not completely subsumed within the phrase “physically present in the [U.S.]” … The Government’s interpretation fails to do so because it reads the phrase “arrives in the [U.S.]” to apply only to those who are also “physically present in the [U.S.]”
The phrase “physically present in the [U.S.]” encompasses noncitizens within our borders, and the phrase “arrives in the [U.S.]” encompasses those who encounter officials at the border, whichever side of the border they are standing on … . The two categories overlap … [b]ut each … includes people not included in the other.
Although the [INA] does not define what it means to “arrive[] in the [U.S.],” that phrase plainly pertains to the border. To “arrive” means “to reach a destination.” … For a person coming to the [U.S.] to seek asylum, the relevant destination is the U.S. border, where she can speak with a border official. A person who presents herself to an official at the border has therefore reached her destination — she has “arrive[d].”
But the 9th Circuit does not have the right to invent a destination of its choosing. The INA provides that the only relevant destination is “arriving in the U.S.” As Judge Nelson states: “The statute does not say ‘encounter officials at the border.’ It does not say ‘on the [U.S.]’ doorstep.’ Nor does it say ‘in the process of arriving.’ It says ‘arrives in.’” And he points out that “The majority assures the public that the statutes reach only those noncitizens that are “on [the U.S.’s] doorstep.” … This line drawing finds no harbor in any interpretive tool, let alone the statute’s text. The majority just makes it up.”
Under the court’s logic — that the destination is where a migrant “can speak with a border official” — there is no necessity that migrants get anywhere near the border. As my colleague Andrew Arthur has written, “the White House announced in January 2023 that it would begin allowing illegal migrants in central and northern Mexico [now anywhere in Mexico] to schedule interviews at the Southwest border ports — despite the fact that they had no admission documents and thus no right to come to the [U.S.] — using the CBP One app.” Under the 9th Circuit’s logic, any migrant anywhere in Mexico can now demand to apply for asylum.
And the Biden administration is now setting up regional processing centers “at key locations in the Western Hemisphere” to “direct migrants to lawful pathways early in their journey and well before reaching the southwest border” and to “screen individuals for eligibility for U.S. refugee resettlement or other lawful pathways to the [U.S.]”. Under the 9th Circuit’s logic, any migrant who reaches one of these centers anywhere in the Western Hemisphere can now demand to apply for asylum.
What is the plain meaning of “arrives in”? As Judge Nelson says in exasperation, “[t]his statutory language is as unambiguous as it gets.” He goes on to explain that:
In 1996, Congress provided that an alien may apply for asylum when she “arrives in the [U.S.]”… That can mean only one thing: the alien must be physically present in the [U.S.]. 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. … [N]o English speaker uses the term “arrives in” to mean anything but being physically present in a location.
Since at least the 14th Century, the word “arrive” has meant to “reach[] a destination.”… Then, as now, “arrive” meant to “reach a destination” or “come to a particular place.”
“Arrive in,” the term Congress used, has a[n even] clearer meaning — it is used “[w]hen the place of arrival is the object.”… Consider the preposition “in.” “In has remained in use with verbs of motion” for hundreds of years … . It describes being “[w]ithin the limits or bounds of” a place with “material extension.”
English speakers use “arrives in” to mean standing within a destination, not outside. The majority does not identity a counterexample. Nor does it deny [that] … its interpretation of “arrives in” is not only unnatural, but unheard of.
The majority alleges that Nelson “all but concedes that the Government’s reading renders the phrase ‘arrives in the [U.S.]’ redundant with the phrase ‘physically present in the [U.S.]’, calling that redundancy a ‘belt and suspenders approach’”. Excuse me, but he nowhere concedes such a point. In fact, what he actually says is that:
We have long treated aliens who arrive at a port of entry “as if stopped at the border” even if they are “on U.S. soil.” [quoting the Supreme Court’s 2020 decision in DHS vs. Thuraissigiam]. This is called the “entry fiction.”… For at least a century, our immigration laws have treated those at ports of entry as though they have not “entered the country.” [Thuraissigiam] So it makes sense that in § [208], Congress listed both those who “arrive in the [U.S.]” and those already “physically present.” By so doing, Congress clarified that, despite the entry fiction, those who just crossed the border can apply for asylum on the same terms as someone who is otherwise “physically present.”
The majority … notes that the entry fiction is just that — a fiction. Whether or not aliens in ports of entry are legally deemed to be outside the country, they are nonetheless physically present. That is true. But that is hardly a reason to set aside the statute’s plain meaning. And, given the entry fiction’s long history, Congress can hardly be faulted for going out of its way to respond to it … . This belt-and-suspenders approach makes sense, and it cleanly supports the statute’s plain meaning.
What Judge Nelson does do is state that “Even if the majority were right that ‘arrives in’ and ‘physically present’ totally overlap … that would not justify disregarding the statute’s plain meaning.” He goes on to say that, “True, courts often presume that ordinary speakers of English avoid surplusage. But the presumption is just that — a presumption. As anyone who has read a contract or deed knows, surplusage is common. … Courts should ‘tolerate a degree of surplusage rather than adopt a textually dubious construction’. [quoting the Supreme Court’s 2007 decision in United States v. Atl. Rsch. Corp.].”
The 9th Circuit contends that “our interpretation of § [208] is not breaking new ground”. It argues that:
A prior version of § [208] provided, “The Attorney General shall establish a procedure for an alien physically present in the [U.S.] or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum.”… It is indisputable that a noncitizen stopped at a border is “at a land border” whether or not they have stepped across. So our interpretation of the current “arrives in” category does not radically expand the right to apply for asylum — it gives that category essentially the same scope as the previous “at a land border” category.
And the majority notes that “at least one part of the legislative history indicates that the revisions to § [208] were not understood to substantively change the scope of the right to apply for asylum”. A committee report described the new language as “provid[ing] that any alien who is physically present in the [U.S.] or at the border of the [U.S.], regardless of status, is eligible to apply for asylum”.
But, as Judge Nelson retorts, “No court, however, interpreted the 1980 statute like the majority does now.” He cites Judge Bress’s dissenting opinion in a prior stage of the litigation (Lado v. Wolf) stating that “The majority suggests without citation that this earlier language covered ‘[a] person standing at the border,’ but who was ‘not necessarily across it.’ … The majority identifies no court that has accepted this interpretation of the 1980 Act.”
The 9th Circuit also glosses over the presumption against extraterritoriality. As the majority states, “[a]lthough “Congress has the authority to enforce its laws beyond the territorial boundaries of the [U.S.]”, we presume that “‘legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the [U.S.].’” (Quoting the Supreme Court’s 1991 decision in EEOC v. Arabian Am. Oil Co..)
The majority contends that “§ [208] … contain[s] a ‘clear, affirmative indication’ of extraterritorial reach. [Citing the Supreme Court’s 2016 decision in RJR Nabisco, Inc. v. European Cmty.]. A ‘dispositive’ indication of extraterritorial reach may come from context [citing Nabisco]. No magic words are required [citing the Supreme Court’s 2010 decision in Morrison v. Nat’l Austl. Bank Ltd.].” But, as Judge Nelson points out, the Supreme Court concluded in Nabisco that it is “the rare statute that clearly evidences extraterritorial effect despite lacking an express statement of extraterritoriality”.
The majority notes that “The dissent suggests that our decision conflicts with the Supreme Court’s [1993] decision in Sale v. Haitian Centers Council, Inc.”. But it argues that “[i]n Sale, the Coast Guard was going ‘beyond the territorial sea of the [U.S.]’ to intercept vessels on the high seas. … By contrast, here, noncitizens were stopped on the [U.S.]’s doorstep. There are significant differences between those two scenarios.”
What Judge Nelson actually says is that:
[In Sale,] the Court explained that the presumption against extraterritoriality applies with “special force when ... construing ... statutory provisions that may involve foreign and military affairs for which the President has unique responsibility.”… As Sale makes clear, the INA — which sets our Nation’s immigration’s policies — is one such statute. Later cases make this point more forcefully. In [2018 in] Trump v. Hawaii, the Supreme Court reversed [the 9th Circuit] after we failed to recognize that “the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” … That fundamental sovereign attribute applies here with just as much “special force” as in Sale given the executive’s “unique responsibility” to govern immigration. The majority provides no reason to the contrary — it just says that there are “significant differences” between the high seas and the border. … But the majority takes no pains to explain why those differences affect the presumption against extraterritoriality. Nor could it. Despite those differences, the Supreme Court “has generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application.” [quoting the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petrol Co.]
Finally, the 9th Circuit’s decision leads to a number of absurdities. Section 235(a)(1) of the INA provides that “An alien present in the [U.S.] who has not been admitted or who arrives in the [U.S.] (whether or not at a designated port of arrival …) shall be deemed for purposes of this chapter an applicant for admission.” (Emphasis added.) The majority concludes that “for the same reasons we just articulated regarding § [208](a)(1), we conclude that a noncitizen stopped by officials at the border is an “applicant for admission” under § [235](a)(1) because she “arrives in the [U.S.]” Further, “[b]ecause noncitizens stopped right before the border are ‘applicant[s] for admission’ … border officials have a mandatory duty to inspect them”.
Well, § 235 also provides that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that [the] alien … is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding under section [240 of the INA].” So, is the Ninth Circuit saying that DHS has the right to detain such aliens while they are in Mexico?
In addition, § 235 provides that “[a]n alien applying for admission may, at the discretion of the Attorney General, be permitted to withdraw the application for admission and depart immediately from the [U.S.].” Of course, this presumes that the alien is within the U.S. if it is giving him or her permission to depart the U.S.
Judge Nelson confronts power with truth:
More than being wrong, the majority’s conclusion is harmful. … 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. Thus, the Supreme Court has recognized a “longstanding concern for the protection of the integrity of the border.” [citing the Supreme Court’s 1985 decision in U.S. v. Montoya de Hernandez]… The majority subverts these interests. It treats those in Mexico — but ambiguously close to the border — as if they were “in” the [U.S.]
If Kamala Harris has any concern — either longstanding or conveniently acquired just recently — in the protection of the integrity of the border, she will ask President Biden to seek an immediate stay of the 9th Circuit’s decision from the Supreme Court. We shall see.