WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Noem v. Al Otro Lado, a case in which the Court is considering whether the government can ignore certain legal protections for people seeking asylum at ports of entry, Constitutional Accountability Center Senior Appellate Counsel Smita Ghosh issued the following reaction:

The Supreme Court heard argument today in a case concerning an important question about the government’s obligations toward asylum seekers. Immigration law requires immigration officers to inspect a noncitizen who is “present in the United States . . . or who arrives in the United States . . . at a designated port of arrival.” But the government makes the novel argument that this statute does not prohibit officers from instituting a “turnback policy” in which officers physically block noncitizens from presenting themselves at ports of entry to seek asylum because, in the government’s view, those asylum-seekers have not “arrived in” the United States.

This is clearly wrong. As the counsel for Al Otro Lado explained, individuals who have reached a port of entry—who are at a “turnstile” or, in Justice Sotomayor’s words, “knocking on the door”—have “arrive[d] in” the United States within the meaning of the statute. As our brief explained, the statute has long been understood in exactly that way—even by the executive branch itself.

Moreover, the justices’ questions at oral argument indicated that the justices had little appetite for engaging with the government’s invocation of the presumption against extraterritoriality, which provides that laws generally be construed to only apply within the borders of the United States. That presumption has no role to play in areas where the government exercises authority and control, as CAC explained in our amicus brief in this case. Furthermore, as our brief added, early Supreme Court cases involving the extraterritorial application of statutes make clear that when Congress is implementing international law provisions, its laws should be read to extend to areas where international law gives the country jurisdiction.

It was significant, then, that Justices Thomas and Sotomayor immediately asked about “treaty obligations” baked into the statute at issue in the case.  As our brief explained, the treaty at issue here—the 1967 Protocol Relating to the Status of Refugees—has long been understood to require the government to consider asylum applications from individuals at the border.