An immigration law error in the court’s asylum decision threatens immigration courts

The Supreme Court's recent decision in *Mullin v. Al Otro Lado*, issued on June 25, 2026, significantly redefines when an alien "arrives in the United States" under the Immigration and Nationality Act. The 6-3 ruling held that an individual physically present at a U.S. land border crossing, but still on foreign soil, has not "arrived in the United States" for the purpose of applying for asylum or demanding inspection. This textualist interpretation reverses a Ninth Circuit decision and grants border officers expansive power to deny access to the asylum process, effectively upholding the government's ability to turn back asylum seekers at ports of entry. The decision has profound implications for asylum law, potentially increasing irregular border crossings and raising concerns about the Court's understanding of practical border processing mechanisms, such as parole and transfer to immigration custody.

The landscape of U.S. immigration law, particularly concerning asylum, underwent a significant shift with the Supreme Court's decision in *Mullin v. Al Otro Lado*, 609 U.S. ___ (2026), handed down on June 25, 2026. This landmark ruling addresses a critical question: when does an individual seeking entry at a U.S. land border crossing legally "arriv[e] in the United States" under the Immigration and Nationality Act (INA)? The Court's narrow, textualist interpretation has far-reaching consequences, fundamentally altering the rights of asylum seekers presenting themselves at ports of entry and granting border officers unprecedented discretion to deny access to the asylum process.

The decision, which reversed a Ninth Circuit ruling, has been met with considerable concern among immigration advocates and legal practitioners. Critics argue that the majority opinion demonstrates a fundamental misunderstanding of the practical realities of border processing and the mechanisms Congress established for managing arrivals, including the use of parole and transfers to Immigration and Customs Enforcement (ICE) custody. This article will delve into the Court's reasoning, the statutory framework at play, and the profound implications of *Mullin v. Al Otro Lado* for asylum law and the operational dynamics of immigration courts.

The legal framework governing asylum applications in the United States is primarily found within the Immigration and Nationality Act of 1952 (INA), 66 Stat. 163, codified at 8 U.S.C. § 1101 et seq.. Specifically, 8 U.S.C. § 1158(a)(1) states that "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.". Complementing this, 8 U.S.C. § 1225(a)(1) mandates that "An alien arriving in the United States and an alien described in subparagraph (A)(iii) or (B) of subsection (b)(1) of this section shall be inspected by an immigration officer.".

Prior to *Mullin*, the interpretation of "arrives in the United States" was a point of contention, particularly concerning individuals presenting themselves at official ports of entry while still on foreign soil. U.S. Customs and Border Protection (CBP) had implemented a "metering" policy, limiting the number of asylum seekers allowed to approach ports of entry daily, often directing them to wait in Mexico.. This policy led to a class action lawsuit, *Al Otro Lado v. Mullin*, arguing that such turnbacks unlawfully withheld inspection and asylum processing from aliens who were, in effect, "arriving" at the border.. The Ninth Circuit had affirmed a lower court's ruling that individuals presenting themselves at the threshold of a U.S. port of entry, even if physically in Mexico, had "arrived in the United States" and were entitled to inspection and asylum processing.. The Supreme Court granted certiorari to resolve this interpretive dispute..

The Supreme Court, in a 6-3 decision authored by Justice Alito, reversed the Ninth Circuit, holding that an alien "arrives in the United States" only when they physically cross the border and enter the country.. This textualist reading of 8 U.S.C. §§ 1158(a)(1) and 1225(a)(1) means that an individual standing on foreign soil, even at an official port of entry, is not considered to have "arrived" and, therefore, is not entitled to apply for asylum or to be inspected by an immigration officer.. The majority reasoned that the absence of "attempt" language in these specific INA provisions, despite its presence elsewhere in the Act, indicated Congress's intent to require actual physical entry..

This narrow interpretation significantly curtails access to asylum, effectively legitimizing the government's ability to turn back asylum seekers at ports of entry.. The decision grants border officers substantial power to seal off access to asylum, as individuals who have not physically crossed the border are now deemed outside the scope of statutory protections for asylum applicants. This contrasts sharply with the understanding that presenting oneself at an official port of entry has historically been considered the lawful way to seek asylum.. The Court's ruling effectively creates a legal loophole, allowing the government to externalize border control and shift responsibilities onto neighboring countries.

The excerpt highlights a critical concern: the majority opinion's potential lack of understanding regarding the practical border-crossing process. When border officers encounter individuals lacking a legal basis for staying, they have several options, including detaining and releasing migrants into the U.S. using "parole" authority under 8 U.S.C. § 1182(d)(5)(A), or transferring them to ICE custody.. These mechanisms ensure that migrants are physically present in the United States while their immigration legal process, including opportunities for hearings, unfolds. The Court's decision, by focusing solely on physical entry across the border, appears to overlook these established procedures that historically allowed individuals to access the asylum system even if their initial entry status was irregular.

Justice Sotomayor, in her dissenting opinion, argued that the majority's interpretation subverts statutory intent and treaty obligations, warning of predictable consequences such as increased deaths and more attempts at illegal border crossings.. The decision also sidestepped arguments concerning the principle of non-refoulement enshrined in Article 33(1) of the 1951 Refugee Convention, which is binding on the U.S. via the 1967 Protocol.. By strictly adhering to a textualist reading of "arrives in the United States," the Court has significantly altered the procedural landscape for asylum seekers, placing greater emphasis on the physical act of crossing the border rather than the intent to seek protection at a designated entry point. This will inevitably lead to more individuals attempting to cross between ports of entry, where they are more likely to be subjected to expedited removal proceedings under 8 U.S.C. § 1225(b)(1), which include a credible fear interview as a gateway to asylum..

The Supreme Court's decision in *Mullin v. Al Otro Lado* represents a significant setback for asylum seekers and a substantial expansion of executive power at the U.S. border. For practitioners, this ruling necessitates a re-evaluation of strategies for clients seeking asylum at land ports of entry. The clear message is that physical presence on U.S. soil is now a prerequisite for triggering statutory rights to apply for asylum and receive inspection, effectively closing a previously understood avenue for legal entry and protection.

Attorneys must advise clients that presenting at a port of entry from foreign territory may no longer guarantee access to the asylum process. This may lead to an increase in desperate attempts to cross between ports of entry, potentially exposing individuals to greater dangers and more immediate expedited removal proceedings.. Future litigation may focus on challenging the implementation of this decision, particularly concerning due process rights and the practical application of expedited removal and credible fear interviews for those who manage to physically enter the U.S. Practitioners should closely monitor any new regulations or policy directives from the Department of Homeland Security that emerge in response to this ruling, as well as potential legislative efforts to clarify or amend the INA's provisions on asylum access.