The Supreme Court’s Latest Immigration Decisions Will Be Deadly

From the moment President Donald Trump began his second term, he was determined to upend America’s immigration system. Over the past year, instead of being a check on the executive branch, the U.S. Supreme Court has happily helped the president get his way. First came the high court’s decision to allow Trump to invoke the centuries-old Alien Enemies Act, then the justices agreed to take on the question of birthright citizenship. This week, the high court delivered two back-to-back opinions that will immediately allow the Trump administration to deport hundreds of thousands of Haitian and Syrian nationals, while also allowing immigration officers to reject any asylum-seeking migrant who approaches the U.S.–Mexico border. These decisions will have immediate and devastating consequences that won’t only help the Trump administration’s punitive immigration agenda today, but stand to fundamentally change U.S. immigration law for years to come.

In Mullin v. Doe, the Supreme Court’s conservative supermajority that former Homeland Security Secretary Kristi Noem’s decision to revoke temporary protected status, a humanitarian relief program that grants temporary legal status to foreign nationals, from Haitian and Syrian nationals was not reviewable. The court also ruled that the president’s numerous racist comments toward Haitians and other African countries weren’t necessarily motivated by race, and therefore could not have unlawfully influenced Noem’s decision to revoke TPS from Haiti in contravention of the 14^th Amendment’s protections against racial animus. Despite lower courts coming to the exact opposite conclusion, the Supreme Court effectively green-lit the immediate deportations of over 300,000 Haitian nationals currently in the U.S. and about 3,900 Syrian nationals.

Then came the in Mullin v. Al Otro Lado, which concluded that migrants seeking asylum in the U.S. at the U.S.–Mexico border must physically set foot on American soil before U.S. officials are forced to initiate asylum screening procedures. It creates a legal pathway for the Trump administration to continue the controversial metering policy, where border officials can force migrants to wait in Mexico along the U.S. border until they are called to file an asylum application.

Both opinions garnered scathing dissents by the Supreme Court’s three liberal justices, and for good reason. Elora Mukherjee, director of Columbia’s Immigrants’ Rights Clinic, told me that she believes thousands of bona fide asylum-seekers will be turned away from the U.S. border “in a way that violates the promise that this country made in the wake of the horrors of World War II and the Holocaust.”

Mukherjee has been working with immigrant families detained at Texas’ Dilley Immigration Processing Center to file habeas petitions and has also contributed to cases for pro-Palestine activists and students targeted for deportation. I spoke with her to understand what happens next, as the Supreme Court’s latest decisions shake up U.S. immigration law once again.

Here’s our conversation, edited and condensed for clarity:

Shirin Ali: Let’s start with Mullin v. Al Otro Lado. Can you explain the metering policy at the heart of this case and how you expect this to change how people apply for asylum at the U.S.–Mexico land border?

Elora Mukherjee: The metering policy was first implemented by DHS in 2016 and then it was formalized into written guidance in 2018. Before the metering policy was in place, a noncitizen who was seeking asylum could approach a port of entry, that means an official border crossing into the United States, and explain to a border official why they were entering the United States and whether they needed to seek asylum because they feared returning to their home country, or had suffered persecution in their home country. After the metering policy was used for a number of years, it was rescinded under the Biden administration. It is currently no longer in place, but the Trump administration argued before the Supreme Court that it needs the authority to conduct metering at the border and that it should rule on the legality of the metering policy and whether border officials can turn people away from the U.S. border without offering them a basic credible fear screening interview to determine whether or not they have a significant possibility of having a valid asylum claim in the United States.

As a result of this opinion, asylum-seekers will no longer be able to approach ports of entry and explain why they need to seek asylum in the United States. That’s because at a port of entry asylum-seekers can’t physically get into the United States, as Justice Alito’s majority opinion insists that they need to be in order to be inspected. You can’t do that at a port of entry, because there are armed federal agents blocking asylum-seekers from doing exactly that. The Supreme Court’s majority opinion is a complete abdication of U.S. responsibilities under the United Nations Refugee Convention, and it also completely eviscerates the protections that were put into place in 1980 with the passage of the Refugee Act. In terms of the effects on the ground, as Justice Sotomayor’s dissent explains, this will result in more people dying. This will result in more people being turned away to face persecution and death on account of the ground set forth in the Refugee Convention—race, religion, nationality, membership in a particular social group, or political opinion—it will cause untold human suffering.

It sounds like Justice Alito’s opinion contradicts the reality on the ground. U.S. border officials won’t allow asylum-seekers to step foot on American soil, so nobody will ever be able to actually apply for asylum, right?

I’ve been to multiple ports of entry from Tijuana into the United States, and also in Ciudad Juárez, and in the years that I’ve gone there, which was when the metering policy was in place, it was just not possible for a noncitizen to cross a port of entry and be in the United States in the way that the majority opinion here is requiring. The practical effect is that noncitizens, asylum-seekers, will not be able to meet the threshold set by this majority opinion and get a basic fear screening that is required under both domestic and international law. The number of asylum-seekers entering the United States has plummeted under the Trump administration, but over the past year I’ve represented asylum-seekers who have managed to enter the United States through ports of entry, and they are bona fide asylum-seekers. They have suffered serious political persecution in their home countries, and I worry that with this decision, if metering is reinstated, families like them with children will not be able to enter the United States any longer.

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Justice Sotomayor is exactly right that the majority’s purported confidence, that if the government ever adopts the sort of policy that prevents all potential arriving asylum applicants from ever reaching the point where an application could be filed it would be quickly challenged, is meaningless. The majority foreclose any chance of success for such a challenge, and as long as noncitizens are kept even one inch away from U.S. soil, the U.S. government has no duty to inspect them.

With the Mullin v. Doe opinion, what does this mean for Haitian and Syrian nationals who currently have TPS? 

With this opinion, the Supreme Court has rubber-stamped the Trump administration’s mass deportation agenda and has taken hundreds of thousands of people who were in the United States lawfully and made them undocumented. These individuals are now at risk of losing their work authorization, and they are at risk of being arrested, detained, and deported. It is heartbreaking for their families, children, our communities, and workplaces. TPS holders contribute billions of dollars to the economy each year and pay billions of dollars in taxes and now they are wrestling with extraordinarily difficult decisions. How do they plan for their children’s futures, especially if their children are U.S citizens? What will happen if a parent is arrested, detained, and deported? Many TPS holders work in the healthcare sector, about 20 percent of Haitians in the United States work as health professionals. Many of them are frontline personnel in nursing homes. The devastating effects will extend of course to TPS holders and their families, but also to American communities across the country.

How exactly does the Supreme Court’s majority justify revoking TPS?

The majority’s opinion proceeds in two parts. First, the court explained that any decision made by the DHS secretary is unreviewable by courts, unless the challengers bring a claim under the U.S. Constitution, such as arguing that the termination decision was motivated by racial animus. Second, the majority found no evidence here that race motivated the termination decisions for Haiti or Syria. The Supreme Court effectively forecloses challenges to the termination of TPS designations, so this puts not just Haitians and Syrians at risk, but TPS holders from other countries as well.

Justice Kagan’s dissent documents the extensive evidence of Donald Trump using racist statements regarding immigrants, especially Haitians. While the majority opinion did not print any of the president’s or Secretary Noem’s derogatory comments, instead they just say that those derogatory statements of the administration “could rest on race-neutral justifications.” But if this evidence is not sufficient to prove racial animus against Haitians in particular, it leaves one wondering what could be sufficient evidence to convince this Supreme Court? The majority’s opinion extends the blind eye that the Supreme Court turned in the Muslim ban case from Trump’s first term, where there too the majority of the court refused to look at what the president had actually said.

How significant are both of these SCOTUS decisions in helping the White House accomplish its mass deportation agenda, but also more broadly in giving the executive branch more unilateral authority?

The court’s opinions are consequential. Read together, they give the Trump administration a green light to continue pursuing their mass deportation agenda aggressively. The Supreme Court is supposed to be a check on executive branch power, and these decisions are a rubber stamp. These also certainly may embolden the administration, especially because in both the context of the Refugee Act of 1980 and the 1990 TPS statute, Congress is extremely clear about the procedures that need to take place at the border in the context of metering and with regard to TPS terminations. The Trump administration wants unfettered authority to ignore those statutory dictates and that’s what the Supreme Court has given the administration today.

Do you think these two Supreme Court decisions will stick beyond the current Trump administration in a way that will fundamentally change U.S. immigration policy?

Both of these decisions from the Supreme Court are devastating setbacks for TPS holders and asylum-seekers. That said, Congress still has the power to act in this space and has the authority to pass legislation that’s even more clear about TPS, including repealing the provision of the statute that the court’s majority relied on to prohibit judicial review here. Congress can also create a path to citizenship for those who have been in the United States lawfully, for a period of time, have been contributing to our communities, and are law-abiding.

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