Mass De-Legalization

Supreme Court lets Trump take aim at humanitarian immigration law

Humanitarian immigration law was dealt a mortal blow today, and with it, humans will die too. Today, the Supreme Court allowed federal immigration officials to block access to the United States to people seeking safety and, in a separate case, let officials strip humanitarian legal protection from migrants who are already here.

Federal law guarantees that anyone who is “physically present in” or “arrives in” the United States can apply for asylum. No one who is outside the United States can request asylum. For that reason, location is a key starting point in the asylum process. Traditionally, migrants could request asylum by speaking with an officer staffing an immigration checkpoint at a border crossing. Because checkpoints are always located at a short distance from the actual international boundary, even if by just a few feet, there was never any question that migrants could request asylum.

Photo by Maria Oswalt on Unsplash

But beginning in 2016, while Barack Obama was president, Customs and Border Protection – the DHS unit that polices the nation’s external borders – sent officers to the physical boundary between the United States and Mexico. There they would prevent most migrants hoping to request asylum from stepping foot in the United States, allowing only a small number to cross each day, through a process called “metering.” Everyone who was blocked had to wait, sometimes for months, in dangerous border cities that the U.S. government warns people from visiting. With little money and nowhere to go, migrants became easy prey. Robberies were common. Rape and murder weren’t unusual.

In a lawsuit filed by Al Otro Lado, an immigration legal advocacy group, the Supreme Court blessed the government’s metering practice. Even though courts typically interpret different words to mean different things, the six members of the court’s rightwing majority decided that “arrives in” means “physically present in.” Congress may simply have wanted “to make an important point as clear as possible,” Justice Samuel Alito wrote for the majority in Mullin v. Al Otro Lado. “A person arrives in the United States, then, only when he enters it,” he added. Stopped from entering the United States, migrants lack a legal right to request asylum.

The court also put at risk migrants who have undisputably entered the United States and obtained Temporary Protected Status, a type of humanitarian legal protection created in 1990 that permits citizens of unsafe countries to live and work in the United States. Citizens of seventeen countries were eligible for TPS when Trump returned to the White House in January 2025. Since then, his former secretary of Homeland Security, Kristi Noem, sought to terminate TPS for citizens of thirteen of those countries.

In Mullin v. Doe, the court’s rightwing majority sided with the administration in challenges to Noem’s termination of TPS for Syrian and Haitian citizens. The law creating TPS bars courts from reviewing both the decision to grant or terminate TPS as well as the process by which the secretary of Homeland Security reaches that decision, the majority announced. The law’s “text is clear, and its plain meaning is very broad,” the majority concluded in another opinion written by Alito. “The TPS statute plainly bars consideration of respondents’ non-constitutional claims,” referring to the Syrian and Haitian citizens challenging Noem’s decision to end TPS.

By concluding that Congress barred courts from second-guessing anything related to TPS, the majority was able to avoid grappling with the Syrian and Haitian challengers’ arguments that Noem didn’t follow the process that Congress requires. That law instructs the secretary of Homeland Security to consult with other government agencies about conditions in a given country. The Syrians claimed that Noem didn’t meet the consultation requirement because, through an aide, she merely asked the State Department whether it had any foreign policy concerns about terminating TPS. For their part, the Haitians claimed that Noem didn’t meet this requirement because she never heard anything from the State Department prior to terminating TPS for Haiti.

The majority also rejected the Haitians’ claim that Noem’s decision to end TPS for Haiti was motivated, in part at least, by anti-Black racism. Quoting some of Trump’s many offensive comments about Haitians – including, for example, his claim that they are “poisoning the blood” of the United States, “probably have AIDS,” “eating the cats” and “eating the pets”, and his description of Haiti as a “shithole country” – they argued that Noem violated the Fifth Amendment’s guarantee of equal treatment by the federal government. According to the court’s leading equal-protection case, the 1977 decision Arlington Heights v. Metropolitan Housing Development Corporation, a government policy is unconstitutional if racial discrimination “has been a motivating factor.” Applying that standard, the majority concluded, “None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” In particular, the majority noted that “one may oppose TPS” out of concerns about migrants’ economic impact.

What the majority didn’t do, however, was grapple with the specific comments Trump made. Indeed, it refused even to quote those comments, instead referring to them, three times, solely as the “cited statements.” Writing in dissent, Justice Elena Kagan called out the majority for this sleight of hand. Racism was so obvious in the president’s comments that “the majority (and for that matter, his own lawyers) cannot even bear to repeat” them, Kagan wrote in a dissenting opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

Today’s decisions are likely to increase immigration law violations. By allowing federal officers to stop migrants from beginning the asylum request process by blocking them at the border, the court is incentivizing clandestine entry into the United States. Al Otro Lado made this point to the justices, but the majority diminished its importance. Instead of trusting people who work with migrants daily (or academic researchers), the rightwing justices declared that metering “merely delays the date when some may enter.” After explaining the legal consequences of sneaking into the United States, the justices added that anyone “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.”

That is true. No one prefers to wade across the treacherous Río Grande River or trek through the deadly Sonora Desert. But people do it when it’s better than waiting in violent Mexican border cities for an unknown number of weeks or months wondering how long it will be before violence, perhaps in the form or rape or death, arrives. As one migrant told sociologist Bertha Alicia Bermúdez as they both hid from cartel members, “Look at the floor, don’t look them in the eye; they do not want to be seen.”

Similarly, the TPS decision paves the way for the largest mass de-legalization initiative in the history of the United States. The court’s decision to allow DHS to strip Haitians and Syrians of TPS will immediately de-legalize approximately 330,000 Haitians and 3,900 Syrians. Soon the administration will likely move forward with plans to strip another 1 million people of their legal permission to live and work in the United States – citizens of Afghanistan, Burma, Cameroon, Ethiopia, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Venezuela, and Yemen.

The humanitarian consequences of today’s Supreme Court decisions are astounding. In two decisions, the justices expanded the executive branch’s power and molded immigration law more clearly as just another tool in the president’s political toolbox.