The Supreme Court’s Thursday decision to restrict asylum applications, hailed by immigration hawks, could actually end up increasing illegal crossings, according to the three dissenting justices and immigration nonprofit involved in the case.
On Thursday, the Supreme Court held in Mullin v. Al Otro Lado that migrants must physically set foot in the United States in order to be eligible for asylum, reversing lower court rulings that had required the government to process certain asylum seekers turned away at ports of entry. While the decision is broadly viewed as making asylum claims more difficult to secure, an objective of the Trump administration, Justice Sonia Sotomayor and Al Otro Lado both argue that it may have unintended consequences.
“This Court has previously recognized that immigration statutes and procedures should not be construed to ‘create a perverse incentive to enter at an unlawful rather than a lawful location. Yet, the majority’s construction does exactly that,” Sotomayor wrote in her dissent. “It tells asylum seekers that they may apply for asylum if they can make it across the border illegally but that they cannot apply if they patiently wait at the edge of a port of entry.”
Al Otro Lado argued on similar lines, stating in a court filing that restricting asylum access to those who physically enter the United States would”create a perverse incentive to cross the border between ports of entry” as people who do so will receive greater rights than those stopped at ports.
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It is unclear if the Department of Homeland Security, which celebrated the decision, has prepared for the potential uptick in asylum seekers illegally crossing the border. DHS did not respond to a request for comment when reached by Fox News Digital on Thursday.
The conservative majority, led by Justice Samuel Alito, downplayed this possibility, calling the concern “overstated.”
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“Metering does not permanently bar any alien from arriving in the United States and then applying for asylum,” Alito wrote for the majority. “Illegal entry, on the other hand, may be expensive and dangerous, and it carries adverse legal effects. Entry at an improper location is a crime. An alien becomes ineligible for asylum if he unlawfully re-enters the country after having been removed.”
“An alien whose admission and inspection are delayed due to metering would need a powerful reason to apply for asylum immediately for it to be preferable to run all the risks of illegal entry,” he added.
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Metering refers to the practice of limiting how many asylum seekers can approach or enter a U.S. port of entry each day for processing. Under the policy, migrants were often told to wait in Mexico until U.S. officials determined the port had capacity.
Alito’s rationale was not enough to convince Sotomayor and the other dissenting justices.
“The point, however, is not that illegal entry always produces a net windfall for asylum seekers; it is that Congress was unlikely to devise a system in which asylum is available to those who unlawfully set foot over the border, but not to those who attempt to comply with the law and are physically blocked from entering at the threshold of a port of entry by an immigration officer,” she wrote. “It is also the unfortunate reality that, despite the adverse consequences the majority cites, many asylum seekers are desperate enough to flee the persecution they face in their home countries that they are willing to run significant risks to apply for asylum.”
Sotomayor went on to cite a 2018 DHS Office of the Inspector General report that found metering had “unintended consequences” which “le[d] some aliens who would otherwise seek legal entry into the United States to cross the border illegally.”
The report was published before lower courts held that migrants turned away at the border could apply for asylum, meaning that the conditions it covered are comparable to the new status quo set by the Supreme Court.
“This administration has demonstrated that the border can be secured against illegal entries. As border wall construction continues, the ability to deter illegal crossings will only improve,” Matt Crapo, the director of litigation at the right-wing Federation for American Immigration Reform, told Fox News Digital.
“So long as the federal government makes border security a priority, illegal crossings should not be a major concern,” he added.
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