Portrait of a smiling U.S. Supreme Court Justice in judicial robes against a wooden backdrop.

Portrait of a smiling U.S. Supreme Court Justice in judicial robes against a wooden backdrop.
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Justice Samuel Alito dismantled a key argument pushed by a left-wing immigration attorney, while directly calling out Justices Sonia Sotomayor and Ketanji Brown Jackson for repeatedly mischaracterizing the plain language of federal asylum law.

At issue is a high-stakes case, Noem v. Al Otro Lado, centered on whether migrants who never actually enter the United States, but instead present themselves at the border, can claim they have legally “arrived in” the country for purposes of asylum eligibility.

The case stems from a Trump-era policy that allowed federal authorities to turn back migrants before they crossed into U.S. territory, a policy the administration defended as a “critical tool” to manage overwhelming surges at the southern border.

Activist groups, including Al Otro Lado, claim the policy violated federal law and created what they describe as a “humanitarian crisis” in Mexico, according to SCOTUS Blog.

But during Tuesday’s arguments, the debate took a sharp turn when Justice Alito zeroed in on what he suggested was a deliberate distortion of statutory language.

The statute in question hinges on a deceptively simple phrase: whether an asylum seeker must be “in” the United States or whether merely arriving “at” the border is enough.

8 U.S.C. § 1158 explicitly states that an “alien who is physically present in the United States or who arrives in the United States” can apply for asylum.

“Arrives in the United States” implies the person has entered U.S. territory, while “arrives at the United States” implies the person is at the threshold of entry and not necessarily inside.

Alito made it clear he believes the left is trying to blur that distinction.

Justice Alito:
It will be interesting to read the actual transcript of the oral argument, because I believe that both you and Justice Sotomayor and Justice Jackson, on several occasions, have used the phrase “arriving at.” I think you said you arrived at your house, but that’s not the term that is in the statute. Do you think there is no difference between arriving at a location and arriving in the location?

Kelsi Corkran:
Yes, thank you for the opportunity to clarify. So, we have “in the United States” and “at a port of entry.” I can explain the amendment history on how we ended up with the prepositional phrases in that order, but I think that my first-order answer is that “in” is just how you describe being in a region.

You wouldn’t say “at the United States”; you would say “in the United States.” I am arriving in Baltimore when I’m on the train as it’s coming in. I am at Penn Station when I’m in New York.

So that’s the difference in prepositional phrases, which—even if it doesn’t completely answer the question—does give you some pause to say, well, maybe “in” isn’t doing the work that the government is suggesting here, because it has to do with kind of the natural way that we talk. But the way we ended up with that order of the prepositional phrases is that the—

Justice Alito:
Well, I’m not quite sure I understand that. So, there’s been talk about knocking at the door. Do you think someone who comes to the front door of a house and knocks at the door has arrived in the house? The person may have arrived at the house.

Kelsi Corkran:
No, but that’s past tense. Are they arriving in the house?

Justice Alito:
Does a person arrive in the house when the person is not in the house and is knocking at the door, asking to be admitted to the house?

Kelsi Corkran:
Yes, I think here the door is open, the officer is standing on the other side of the threshold, and the person gets there and is ready to take the step over, right? The officers and the asylum seekers here were toe-to-toe. This was happening right at the line, and they’re about to step over. They are arriving—present tense. Once they’re inside, they’ve arrived—past tense. But we know that Congress used the present tense here.

LISTEN:

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