Migrants and asylum seekers wait to be picked up and processed by U.S. Border Patrol agents in Organ Pipe Cactus National Monument along the U.S.-Mexico border about a mile west of Lukeville on Dec. 4, 2023. The Lukeville Port of Entry was closed indefinitely by officials Dec. 4.

WASHINGTON − The Supreme Court will decide whether the federal government can turn asylum seekers away at the U.S.-Mexico border if too many migrants want the chance to apply.

The court on Nov. 17 agreed to review a practice known as “metering,” which has been used by both Democratic and Republican administrations.

The Department of Justice said the practice is a critical tool when there are surges of people at the border.

But lower courts said federal law allows migrants to seek assistance once they’ve reached U.S. territory.

Thirteen asylum seekers and the immigrant rights group Al Otro Lado challenged the practice in 2017 on behalf of migrants who were turned back to Mexico. Their lawyers said in a statement on Nov. 17 that turning asylum seekers back at the border was an "illegal scheme."

"Vulnerable families, children, and adults fleeing persecution were stranded in perilous conditions where they faced violent assault, kidnapping, and death," the lawyers said.

The DOJ didn't immediately respond to USA TODAY's request for comment.

The 1986 Immigration and Nationality Act allows anyone “who is physically present in the United States or who arrives in the United States” to apply for asylum.

The San Francisco-based 9th U.S. Circuit Court of Appeals said the best way to interpret “arrives in” is that it doesn’t mean the same thing as “physically present,” which would be redundant.

Instead, the term “encompasses those who encounter officials at the border, whichever side of the border they are standing on,” a divided panel of judges said.

Otherwise, the court said, the law gives migrants an incentive to try to circumvent border crossings, something Congress likely did not intend.

The DOJ argues that that interpretation defies the plain text of the law.

“In ordinary English, a person 'arrives in' a country only when he comes within its borders,” the government said in its appeal.

The practice of not letting a potential asylum seeker cross through a checkpoint was used periodically during former President Barack Obama's administration, when border officers began turning away hundreds of Haitian asylum seekers at ports of entry in California.

Customs and Border Protection officers could stop undocumented migrants from physically setting foot on U.S. soil whenever they considered a border crossing too busy.

The policy was formalized during the first Trump administration, and the Biden administration rolled back the formal policy but allowed exceptions.

The current Trump administration told the Supreme Court it wants the option to formally revive the practice.

Managing the nation’s 1,900-mile border with Mexico is daunting even without surges of migrants that have repeatedly recurred in recent years, the DOJ said in its filing.

A district judge and the appeals court sided with the asylum seekers.

Lawyers for the migrants said the Supreme Court should not get involved because the government is now using other ways of controlling the border and is unlikely to bring back metering because it pushed asylum seekers to cross the border between ports of entry.

The administration’s appeal is expected to be heard next year and decided by the end of June.

This article has been updated to add new information.

This article originally appeared on USA TODAY: Supreme Court to review controversial policy at US-Mexico border to limit asylum seekers

Reporting by Maureen Groppe and Aysha Bagchi, USA TODAY / USA TODAY

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