In a ruling yesterday in Al Otro Lado v. Executive Office for Immigration Review, a divided Ninth Circuit panel broadly affirmed a district-court ruling that enjoins federal officials from enforcing the “Asylum Transit Rule” against a class of asylum seekers. Under the Asylum Transit Rule, persons traveling through a third country were required to apply for asylum in that third country before seeking asylum in the United States.
A threshold question on which the majority (Judge Michelle Friedland, joined by Judge John Owens) and the dissenter, Judge Ryan Nelson, divide is whether an alien “arrives in the United States” for purposes of 8 U.S.C. § 1158(a)(1) when the alien is stopped at the border between Mexico and the United States without having stepped across it. The majority concludes that an alien “arrives in the United States,” and is thus eligible to apply for asylum in the United States, “whichever side of the border [the alien is] standing on.”
The case presents an interesting question of statutory interpretation. Section 1158(a)(1) reads in full:
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. [Emphasis added.]
The majority is concerned that giving “arrives in” its ordinary meaning would render “who arrives in the United States” redundant of “who is physically present in the United States.” (Pp. 18-22.) It rejects the Biden administration’s position that the “arrives in the United States” phrase is made necessary by the “entry fiction,” a concept in immigration law that (as the majority puts it) “deems noncitizens physically within the United States, but not legally admitted, to be outside the United States for some legal purposes. (Pp. 22-24.)
Judge Nelson agrees with the Biden administration’s position:
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.” 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.” An alien who arrived at Ellis Island, for example, “was to be regarded as stopped at the boundary line and kept there unless and until her right to enter should be declared.” So it makes sense that in § 1158, Congress listed both those who “arrive in the United States” 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.” [Citations omitted]
On first read, I’m very much inclined to agree with Judge Nelson. But readers interested in statutory interpretation will want to explore the back and forth between the majority and the dissent, including on Nelson’s use of corpus linguistics.