Mullin, Secretary of Homeland Security v Al Otro Lado

The government's appeal turned on the question of when an asylum seeker who seeks to enter the US from Mexico “arrives in the United States” within the meaning of that phrase in the Immigration and Nationality Act of 1952 (which governs the process for making asylum applications): when the individual is at the border, or when they cross the border?

The Global Strategic Litigation Council (GSLC) filed an amicus brief in support of the respondents. GLSC argued that the principle of non-refoulement enshrined in Article 33(1) of the 1951 Refugee Convention (which is binding on the US, as a party to the 1967 Protocol) prohibited turnbacks that compel or induce individuals to return to territories where their life or freedom would be threatened, and required States to afford asylum seekers presenting at the border a fair and effective process for determining their entitlement to protection. The GSLC’s amicus brief was endorsed by 45 NGOs and 95 leading academics.

By a vote of 6-3, the Supreme Court reversed the judgment below. The majority declined to engage with the US’s international law obligations, on the basis that the Court's earlier decision in Sale v Haitian Centers Council, Inc (concerning the interception of refugees on the high seas) “forecloses this argument”. Writing for the minority, Sotomayor J (with whom Kagan and Jackson JJ joined) considered that the “plain text” of the Refugee Act of 1980 (giving effect to the 1967 Protocol in domestic law) permitted asylum applications by anyone at the US border “even if they had not stepped foot onto U.S. soil”, and that Congress did not intend to "depart from its international obligations" when introducing the “arrives in” language by amendment.

Will Bordell and Grant Kynaston assisted the Global Strategic Litigation Council as amici curiae (as part of the drafting team).

The Supreme Court’s opinion is available here. The GSLC’s amicus brief is available here.