Al Otro Lado v. Alejandro Mayorkas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AL OTRO LADO, a California Nos. 22-55988

corporation; ABIGAIL DOE; 22-56036

BEATRICE DOE; CAROLINA DOE;

DINORA DOE; INGRID DOE; D.C. No.

URSULA DOE; VICTORIA DOE; 3:17-cv-02366-

BIANCA DOE; JUAN DOE; BAS-KSC

ROBERTO DOE; CESAR DOE;

MARIA DOE; EMILIANA DOE,

individually and on behalf of all others OPINION

similarly situated,

Plaintiffs-Appellees /

Cross-Appellants,

v.

EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW,

Appellant / Cross-

Appellee,

and

ALEJANDRO N. MAYORKAS,

Secretary of Homeland Security;

CHRISTOPHER MAGNUS,

Commissioner of U.S. Customs and

2 AL OTRO LADO V. MAYORKAS

Border Protection (CBP); PETE

FLORES, Executive Assistant

Commissioner of CBP’s Office of

Field Operations, in their official

capacities,

Defendants-Appellants /

Cross-Appellees.

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted November 28, 2023

San Diego Carter & Keep U.S. Courthouse

Filed October 23, 2024

Before: John B. Owens, Michelle T. Friedland, and Ryan

D. Nelson, Circuit Judges.

Opinion by Judge Friedland;

Dissent by Judge R. Nelson

AL OTRO LADO V. MAYORKAS 3

SUMMARY *

Immigration

The panel affirmed in part and vacated in part the district

court’s permanent injunction relating to the application of

the “Asylum Transit Rule”—which generally required

persons traveling through a third country to apply for asylum

there before seeking asylum in the United States—to

noncitizens turned away at the border between Mexico and

the United States under the policy of “metering.”

Under the metering policy, whenever border officials

deemed a port of entry to be at capacity, they turned away

all people lacking valid travel documents. The district court

entered a permanent injunction prohibiting application of the

Asylum Transit Rule to members of a class of asylum

seekers who were turned away under the metering policy

before the Asylum Transit Rule took effect. The court also

ordered the Government to unwind past denials of asylum to

such individuals.

The panel affirmed the district court’s conclusion that the

metering policy violated section 706(1) of the

Administrative Procedure Act (“APA”), which provides that

a court shall “compel agency action unlawfully withheld or

unreasonably delayed.”

The Government contended that officials lack any duty

to noncitizens who have not stepped across the border.

Rejecting that argument, the panel held that a noncitizen

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 AL OTRO LADO V. MAYORKAS

stopped at the border is eligible to apply for asylum under 8

U.S.C. § 1158(a)(1), which provides that a noncitizen may

apply for asylum if she is “physically present in the United

States” or “arrives in the United States.” The panel

concluded that the latter encompasses those stopped at the

border, whichever side they are standing on.

The panel also held that such a noncitizen is an

“applicant for admission” under 8 U.S.C. § 1225, which sets

out the responsibilities of officials with respect to

noncitizens at the border. Accordingly, border officials have

a mandatory duty to inspect them. The panel explained that

the presumption against extraterritorial application of

statutes did not change its interpretation of § 1158 or § 1225.

As to § 706(1) of the APA, the panel held that when an

agency refuses to accept, in any form, a request that it take a

required action, it has “withheld” that duty. Explaining that

officials turned away noncitizens without taking any steps to

keep track of them or otherwise allow them to open asylum

applications, the panel concluded that the metering policy

constituted withholding of action, not delay.

The panel wrote that it need not reach Plaintiffs’ cross-

appeal of the district court’s denial of their other claims. The

panel also vacated the district court’s entry of judgment for

Plaintiffs on their due process claim, explaining that when a

constitutional holding is unnecessary, the court may simply

vacate that portion of the judgment without discussing the

merits.

Next, the panel affirmed the district court’s entry of

classwide declaratory relief. As the Government conceded,

precedent foreclosed its argument that classwide declaratory

relief is barred by 8 U.S.C. § 1252(f)(1), which provides that

“no court (other than the Supreme Court) shall have

AL OTRO LADO V. MAYORKAS 5

jurisdiction or authority to enjoin or restrain the operation”

of specified immigration statutes on a classwide basis.

The panel affirmed the grant of negative injunctive

relief, which prohibits the Government from applying the

Asylum Transit Rule to class members. The panel

concluded that this relief was not barred by § 1252(f)(1)

because it concerns § 1158, which is not covered by

§ 1252(f)(1).

The panel concluded that § 1252(f)(1) does not bar the

components of the district court’s affirmative relief requiring

the Government to identify possible class members and

notify them about their class membership and the

significance of the injunction. However, the panel held that

§ 1252(f)(1) barred the portion requiring the Government,

on its own initiative, to reopen or reconsider a prior

decision.

Dissenting, Judge R. Nelson concluded that an alien

“arrives in the United States” only when she crosses the

border into it and that the majority’s interpretation of that

phrase twists the statutory language, ignores history, flips

multiple presumptions, and ignores common-sense English

usage. In doing so, the majority imposes on the federal

government—for the first time—an obligation to interview

asylum seekers who are still in Mexico.

Judge R. Nelson also wrote that the majority erroneously

concluded that the government “withheld” a statutory duty

(rather than merely delaying it) by telling aliens to come

back later. In his view, the panel should have rejected

Plaintiffs’ claims, including those that the majority saved for

another day.

6 AL OTRO LADO V. MAYORKAS

COUNSEL

Melissa E. Crow (argued), Center for Gender and Refugee

Studies, Washington, D.C.; Neela O. Chakravartula and

Anne Dutton, Center for Gender and Refugee Studies, San

Francisco, California; Robert Pauw, Center for Gender and

Refugee Studies, Seattle, Washington; Baher Azmy (argued)

and Angelo Guisado, Center For Constitutional Rights, New

York, New York; Rebecca M. Cassler, Southern Poverty

Law Center, Immigrant Justice Project, Washington, D.C.;

Sarah Rich, Southern Poverty Law Center, Decatur,

Georgia; Matthew Fenn, Mayer Brown LLP, Chicago,

Illinois; Matthew H. Marmolejo, Mayer Brown LLP, Los

Angeles, California; Michelle N. Webster and Ori Lev,

Mayer Brown LLP, Washington, D.C.; Stephen M.

Medlock, Evan Miller, and Rami Abdallah E. Rashmawi,

Vinson & Elkins LLP, Washington, D.C.; Katherine M.

Goettel, Gianna Borroto, and Suchita Mathur, American

Immigration Counsel, Washington, D.C.; for Plaintiffs-

Appellees.

Alexander J. Halaska (argued) and Katherine J. Shinners,

Senior Litigation Counsel; Jason Wisecup, Assistant United

States Attorney; Samuel P. Go, Assistant Director; Erez

Reuveni, Counsel; William C. Peachey, Director; Office of

Immigration Litigation; Brian M. Boynton, Principal Deputy

Assistant Attorney General, Civil Division; United States

Department of Justice, Washington, D.C.; for Appellant and

Defendants-Appellants.

Aileen M. McGrath, Morrison & Forester, San Francsico,

California, for Amicus Curiae Amnesty International.

Wendy Wylegala, Kids in Need of Defense, New York, New

York; Alexander J. Cooper, Kids in Need of Defense, Los

Angeles, California; Jane Liu, Young Center for Immigrant

AL OTRO LADO V. MAYORKAS 7

Children's Rights, Chicago, Illinois; Stephany Arzaga, Legal

Services for Children, San Francisco, California; Mary T.

Ross, Public Counsel, Los Angeles, California; for Amici

Curiae Kids in Need of Defense, Legal Services for

Children, Inc., Public Counsel, and The Young Center for

Immigrant Children's Rights.

Katrina Eiland, Stephen Kang, Spencer E. Wittmann Amdur,

Cody Wofsy, and Oscar S. Roman, American Civil Liberties

Union, San Francisco, California; Omar Jadwat, Lee

Gelernt, and Anand Balakrishnan, American Civil Liberties

Union, New York, New York; for Amici Curiae American

Civil Liberties Union, ACLU of Southern California, ACLU

of Northern California; and Northwest Immigrant Rights

Project.

Sabrineh Ardalan and Tiffany J. Lieu, Supervising

Attorneys; Sarah Leadem and Simone Wallk, Supervised

Law Students; Harvard Immigration and Refugee Clinical

Program, Cambridge, Massachusetts; Sarah Sherman-

Stokes, Supervising Attorney; Catherine Kannam,

Supervised Law Student; Immigrants’ Rights and Human

Trafficking Program, Boston University School of Law,

Boston, Massachusetts; for Amici Curiae International

Refugee Law Scholars.

Anne Aufhauser, Sarah F. Warren, and Alison Goldman,

Fried Frank Harris Shriver & Jacobson LLP, New York,

New York, for Amici Curiae Haitian bridge Alliance, Ira

Kurzban, and Irwin Stotzky.

Raechel K. Kummer, Morgan Lewis & Bockius LLP,

Washington, D.C.; Matthew C. McDonough and Andrew

Savage, Morgan Lewis & Bockius LLP, Boston,

Massachusetts; for Amici Curiae Immigration Law

Professors.

8 AL OTRO LADO V. MAYORKAS

OPINION

FRIEDLAND, Circuit Judge:

In 2016, Customs and Border Protection adopted a

policy of “metering” asylum seekers at ports of entry along

the border between Mexico and the United States. Under

that policy, whenever border officials deemed a port of entry

to be at capacity, they turned away all people lacking valid

travel documents. Many of those people intended to seek

asylum in the United States but were not allowed to even

apply. They could try to come back some other time, but

there was no guarantee that they would ever be processed.

The immigrant rights group Al Otro Lado and various

individuals filed suit in federal district court challenging that

metering policy on behalf of classes of asylum seekers.

While the litigation was ongoing, the Government adopted a

regulation, known as the “Asylum Transit Rule,” that

generally required persons traveling through a third country

to apply for asylum there before seeking asylum in the

United States. For many asylum seekers who already had

been turned away under the metering policy, the Asylum

Transit Rule effectively barred them from qualifying for

asylum if they were ever able to apply—even though they

would not have been subject to the Rule if they had been

processed when they first presented themselves at the

border.

The district court ultimately declared the metering policy

to be unlawful. As part of the remedy, the district court

enjoined the Government from applying the Asylum Transit

Rule to noncitizens turned away under the metering policy

before the Rule’s adoption. The court also ordered the

AL OTRO LADO V. MAYORKAS 9

Government to unwind past denials of asylum to such

individuals.

We must evaluate the lawfulness of the metering policy

to decide whether to uphold the district court’s remedy, even

though the Government rescinded the metering policy years

ago. We largely affirm.

I.

Under federal law, asylum protects noncitizens who face

persecution in their home countries because of their race,

religion, nationality, membership in a particular social

group, or political opinion. 8 U.S.C. §§ 1158(b)(1)(A),

1101(a)(42)(A). A noncitizen is eligible to apply for asylum

if she is “physically present in the United States” or if she

“arrives in the United States.” Id. § 1158(a)(1).

People seeking to lawfully enter the United States via the

southern border generally must present themselves for

processing at a designated port of entry. 8 C.F.R. § 235.1(a).

By statute, immigration officials are required to inspect all

noncitizens “present in the United States who [have] not

been admitted,” noncitizens who “arrive[] in the United

States,” and noncitizens “otherwise seeking admission.” 8

U.S.C. § 1225(a)(1), (3). If, during inspection at a port of

entry, a noncitizen expresses an intent to apply for asylum or

a fear of persecution, the inspecting border official must

refer the noncitizen to an asylum officer for an interview to

determine whether the noncitizen has a credible fear of

persecution. Id. § 1225(b)(1)(A)(ii), (B). Otherwise, and if

the noncitizen is inadmissible within the meaning of the

statute, the official shall order her removed “without further

hearing or review.” Id. § 1225(b)(1)(A)(i).

10 AL OTRO LADO V. MAYORKAS

Until 2016, noncitizens seeking asylum at ports of entry

on the U.S.-Mexico border would cross over onto U.S. soil

and then wait in line to be inspected. In 2016, citing capacity

constraints, Customs and Border Protection (“CBP”)

officials began taking steps to prevent asylum seekers from

entering port buildings or otherwise joining an inspection

queue. In November 2016, the Department of Homeland

Security (“DHS”), which includes CBP, approved

“metering,” allowing border officials who deemed a port of

entry to be at capacity to turn away all people lacking valid

travel documents. CBP gave ports of entry flexibility to

implement metering based on “what [worked] best

operationally and whether it [was] required on any given day

or [at] any specific location.” At some ports of entry, people

were stepping onto U.S. soil before being turned back. CBP

soon determined that it could not send such people back to

Mexico without processing them, so it directed officials to

implement metering at “the actual boundary line.” Officials

standing on the U.S. side of the border therefore stopped

people right before they crossed the border.

The Government formalized its metering policy in the

spring of 2018. In an April 2018 guidance memorandum,

CBP authorized border officials to “meter the flow of

travelers at the land border” based on “the port’s processing

capacity.” The memorandum specifically permitted officials

to “establish and operate physical access controls at the

borderline.” It further stated that officers “may not provide

tickets or appointments or otherwise schedule any person for

entry” and that “[o]nce a traveler is in the United States, he

or she must be fully processed.” The DHS Secretary

publicly explained that the metering policy meant “that if we

don’t have the resources to let them in on a particular day,

they are going to have to come back.” A June 2018 guidance

AL OTRO LADO V. MAYORKAS 11

memorandum from the DHS Secretary stated that the agency

was prioritizing other components of its mission, such as

national security and trade, above “[p]rocessing persons

without documents required by law for admission arriving at

the Southwest Border.”

Due to the metering policy, asylum seekers began to

accumulate on the Mexico side of the border. Many camped

near the bridges at ports of entry. In an attempt to impose

some order, Mexican government officials and nonprofits

made lists of people waiting to be processed. U.S. border

officials sometimes coordinated informally with those

keeping lists, but they did not keep lists of their own.

Asylum seekers waited in Mexico for days, weeks, or

months. Many were subject to persecution and crime, and

they often lacked adequate food and shelter. Some were

murdered in Mexico while waiting for an opportunity to be

processed by U.S. officials. Some attempted to reach U.S.

soil by other means, such as running down vehicle lanes at

ports of entry, so that they could apply for asylum. Others,

including young children, tried to swim across the Rio

Grande River and drowned.

The immigrant rights organization Al Otro Lado, Inc.,

and thirteen individual asylum seekers (collectively

“Plaintiffs”) challenged the lawfulness of the metering

policy in a putative class action in the United States District

Court for the Southern District of California. They named

as defendants the DHS Secretary, the CBP Commissioner,

and the Executive Assistant Commissioner of CBP’s Office

of Field Operations (collectively “the Government”).

Plaintiffs asserted five claims, each presenting a different

legal theory for why the metering policy was unlawful. One

claim alleged that metering violated § 706(1) of the

12 AL OTRO LADO V. MAYORKAS

Administrative Procedure Act (“APA”), which prohibits

agencies from unlawfully withholding or unreasonably

delaying action that they are required by law to take.

Another claim alleged that the Government violated

§ 706(2) of the APA by acting “in excess of [its] statutorily

prescribed authority.” Plaintiffs also alleged that metering

violated the Immigration and Nationality Act (“INA”), the

Alien Tort Statute, and the Due Process Clause of the Fifth

Amendment. Plaintiffs sought the same relief for each

claim: classwide declaratory and injunctive relief ending the

Government’s metering policy. 1

The Government moved to dismiss the Complaint, and

the district court denied the motion in relevant part. Al Otro

Lado, Inc. v. McAleenan, 394 F. Supp. 3d 1168 (S.D. Cal.

2019).

At around the same time, DHS and the Department of

Justice jointly adopted the Asylum Transit Rule as an interim

final rule. That Rule rendered ineligible for asylum nearly

any noncitizen “who enter[ed], attempt[ed] to enter, or

arrive[d] in the United States across the southern land border

on or after July 16, 2019, after transiting through at least one

country” unless she first applied for protection in that other

country and received a final denial. Asylum Eligibility and

Procedural Modifications, 84 Fed. Reg. 33829, 33843

(July 16, 2019), codified at 8 C.F.R. § 208.13(c)(4) (2019).

1

In addition to challenging the metering policy, Plaintiffs alleged that

border officials used misrepresentations, threats, and coercion to deny

noncitizens the opportunity to seek asylum. On appeal, the parties do

not raise issues related to those other allegations and instead focus only

on the formalized metering policy. We therefore also focus only on that

policy.

AL OTRO LADO V. MAYORKAS 13

Plaintiffs moved for provisional class certification and

for a preliminary injunction blocking application of the

Asylum Transit Rule to the provisional class. They asserted

that, without an injunction, tens of thousands of people who

had been turned away under the metering policy would be

denied asylum under the Asylum Transit Rule. Plaintiffs

argued that people unable to seek asylum because of the

metering policy should not be subjected to asylum rules that

they would not have faced had they been processed when

they first presented themselves at the border. The district

court provisionally certified a “Preliminary Injunction

Class” (“P.I. class”), represented by named Plaintiff Roberto

Doe, consisting of “all non-Mexican asylum-seekers who

were unable to make a direct asylum claim at a U.S. [port of

entry] before July 16, 2019[,] because of the U.S.

Government’s metering policy, and who continue to seek

access to the U.S. asylum process.” The court granted the

requested preliminary injunction as to that class.

The court later clarified that the preliminary injunction

required the Government to reopen past denials of class

members’ asylum applications that were based on the

Asylum Transit Rule. The court also clarified that the

preliminary injunction bound the Executive Office of

Immigration Review (“EOIR”), which is the division of the

Department of Justice that includes immigration judges

(“IJs”) and the Board of Immigration Appeals (“BIA”).

Although EOIR was not a named defendant, the court held

that EOIR was bound by the injunction because it operated

in concert with the named defendants. 2

2

The Government filed two interlocutory appeals regarding the

preliminary injunction. The first appeal challenged the district court’s

14 AL OTRO LADO V. MAYORKAS

A final version of the Asylum Transit Rule took effect in

January 2021. See Asylum Eligibility and Procedural

Modifications, 85 Fed. Reg. 82260 (Dec. 17, 2020). The

accompanying statement in the Federal Register

“clari[fied]” that DHS and the Department of Justice

intended the Rule to apply to noncitizens subject to metering

prior to the Rule’s promulgation. Id. at 82268 & n.22. The

district court entered a temporary restraining order against

application of the Final Rule to members of the P.I. class.

The parties stipulated to the conversion of that temporary

restraining order into a second preliminary injunction.

As the litigation progressed, the district court certified an

additional class consisting of “all noncitizens who seek or

will seek to access the U.S. asylum process by presenting

themselves at a Class A [port of entry] on the U.S.-Mexico

border, and were or will be denied access to the U.S. asylum

process by or at the instruction of [CBP] officials on or after

January 1, 2016.”

The parties filed cross-motions for summary judgment.

The district court granted summary judgment in favor of the

Government on the INA and Alien Tort Statute claims. It

granted summary judgment in favor of Plaintiffs on the APA

initial entry of the preliminary injunction. Our court denied a stay

pending appeal, noting without deciding that Plaintiffs’ statutory

analysis was “likely correct.” Al Otro Lado v. Wolf, 952 F.3d 999, 1013-

16 (9th Cir. 2020). The second appeal challenged the district court’s

order clarifying the scope of the preliminary injunction. We again

denied a stay pending appeal. Order, Al Otro Lado v. Wolf, No. 20-

56287 (9th Cir. Jan. 14, 2021), ECF No. 30. Both interlocutory appeals

were later dismissed as moot when the district court entered final

judgment. Al Otro Lado v. Wolf, No. 19-56417, 2022 WL 15399693 (9th

Cir. Sept. 20, 2022); Al Otro Lado v. Wolf, No. 20-56287, 2022 WL

17369223 (9th Cir. Sept. 20, 2022).

AL OTRO LADO V. MAYORKAS 15

§ 706(1) and due process claims and concluded that it did

not need to reach the APA § 706(2) claim. It then ordered

the parties to brief the appropriate remedy.

Shortly thereafter, in November 2021, CBP rescinded

the metering policy. CBP issued new guidance stating that

“[a]bsent a [port of entry] closure, officers . . . may not

instruct travelers that they must return to the [port of entry]

at a later time.”

About a year after the district court ruled on the parties’

summary judgment motions, it entered declaratory and

injunctive relief in favor of Plaintiffs and entered final

judgment. The declaratory relief stated that the “denial of

inspection or asylum processing to [noncitizens] who have

not been admitted or paroled, and who are in the process of

arriving in the United States at Class A Ports of Entry, is

unlawful regardless of the purported justification for doing

so.”

The court entered permanent injunctive relief as to the

P.I. class. The permanent injunction replaced the two

preliminary injunctions and similarly prohibited the

application of the Asylum Transit Rule to members of the

P.I. class. The district court’s permanent injunction order

further clarified the scope of the Government’s obligations

under the injunction by summarizing (and largely

approving) the Government’s ongoing efforts to comply

with the preliminary injunctions. Those efforts included

identifying possible class members, notifying them of the

injunction, and reopening and reconsidering P.I. class

members’ asylum denials that were based on the Asylum

Transit Rule.

The parties timely cross-appealed. We heard oral

argument at the end of November 2023. The parties then

16 AL OTRO LADO V. MAYORKAS

engaged in six months of mediation, but their efforts to reach

a settlement ultimately failed.

II.

The district court exercised jurisdiction under 28 U.S.C.

§ 1331. We have jurisdiction over this appeal under 28

U.S.C. § 1291. 3

“We review legal questions de novo.” Romero v.

Garland, 7 F.4th 838, 840 (9th Cir. 2021). We review the

scope of a permanent injunction for abuse of discretion.

United States v. Washington, 853 F.3d 946, 962 (9th Cir.

2017). “A district court abuses its discretion when it makes

an error of law.” Native Ecosystems Council v. Marten, 883

F.3d 783, 789 (9th Cir. 2018).

III.

Section 706(1) of the Administrative Procedure Act

provides that a court shall “compel agency action unlawfully

withheld or unreasonably delayed.” 5 U.S.C. § 706(1). A

claim under § 706(1) can reach only “discrete agency

action” that an agency is “required to take.” Norton v. S.

Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis

omitted). The Government acknowledges that border

officials have a mandatory duty to process noncitizens,

including allowing them to apply for asylum. But the

3

The rescission of the metering policy does not render this case moot

because Plaintiffs sought (and the district court entered) equitable relief

to ameliorate past and present harms stemming from the policy, and the

relief ordered imposes ongoing obligations on the Government. Because

that relief could be modified, it is possible for us to “grant any effectual

relief whatever to the prevailing party,” preventing this appeal from

being moot. Edmo v. Corizon, Inc., 935 F.3d 757, 782 (9th Cir. 2019)

(quoting Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 628 (9th

Cir. 2016)).

AL OTRO LADO V. MAYORKAS 17

Government contends that the metering policy did not

violate § 706(1) because border officials lack any duty to

noncitizens who have not stepped across the border. The

Government also contends that even if the officials’

mandatory duty extends to such noncitizens, the metering

policy did not constitute withholding of that duty within the

meaning of § 706(1).

We disagree on both fronts.

A.

The extent of the Government’s duty turns on two

interacting statutes. One statute, 8 U.S.C. § 1158, defines

the rights of noncitizens to apply for asylum. Another

statute, 8 U.S.C. § 1225, governs the obligations of border

officials to process noncitizens. We begin with the statute

defining the right to apply for asylum because, as a practical

matter, the Government’s obligation to process a noncitizen

stopped at the border only matters here if that noncitizen is

eligible to apply for asylum. We agree with Plaintiffs that a

noncitizen stopped at the border is eligible to apply for

asylum under § 1158. We next conclude that a border

official must process such a noncitizen under § 1225. We

reject the Government’s contrary interpretations, including

its argument based on the presumption that statutes do not

apply extraterritorially.

1.

The right of a noncitizen to apply for asylum is codified

at 8 U.S.C. § 1158(a)(1), which 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

18 AL OTRO LADO V. MAYORKAS

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.

The parties agree that a noncitizen stopped by officials right

at the border is not yet “physically present in the United

States.” They disagree about whether such a person is

covered by the language “arrives in the United States.”

In the Government’s view, a noncitizen stopped on the

United States’ doorstep is not eligible to apply for asylum

because she is not covered by the phrase “arrives in the

United States.” The Government’s position is that one only

“arrives in the United States” upon stepping across the

border.

The Government improperly reads a fragment of

statutory text in isolation. “Statutory language ‘cannot be

construed in a vacuum. It is a fundamental canon of

statutory construction that the words of a statute must be read

in their context and with a view to their place in the overall

statutory scheme.’” Sturgeon v. Frost, 577 U.S. 424, 438

(2016) (quoting Roberts v. Sea-Land Servs., Inc., 566 U.S.

93, 101 (2012)). And another “cardinal principle of statutory

construction [is] that we must ‘give effect, if possible, to

every clause and word of a statute.’” 4 Williams v. Taylor,

4

The dissent criticizes our consideration of these commonsense canons

of statutory interpretation as “skip[ping]” a step, Dissent at 49, but until

we look at the language of the provision—the whole provision—and

figure out what it means, we cannot simply announce that Congress

“says in [the] statute what it means and means in [the] statute what it

says,” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992). Contrary

AL OTRO LADO V. MAYORKAS 19

529 U.S. 362, 404 (2000) (quoting United States v.

Menasche, 348 U.S. 528, 538-39 (1955)). Section

1158(a)(1) covers a noncitizen who is either “physically

present in the United States or who arrives in the United

States” (emphasis added). 5 We therefore must endeavor to

give the phrase “arrives in the United States” a meaning that

is not completely subsumed within the phrase “physically

present in the United States.” See Sale v. Haitian Ctrs.

Council, Inc., 509 U.S. 155, 174 (1993) (refusing to adopt

an interpretation of the word “return” that would make the

word “deport” redundant in another INA statute that uses

both words). The Government’s interpretation fails to do so

because it reads the phrase “arrives in the United States” to

to the dissent, Dissent at 49 n.1, our reliance on context here neither

replaces the statute’s ordinary meaning nor imposes a meaning it cannot

bear. See King v. Burwell, 576 U.S. 473, 486 (2015) (“[O]ftentimes the

‘meaning—or ambiguity—of certain words or phrases may only become

evident when placed in context.’” (quoting FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 132 (2000))).

5

The dissent engages in a corpus linguistics analysis even though no

party or amicus made a corpus linguistics argument in this case. Whether

or not this could be a helpful interpretive methodology, the relevant

question to ask the database would be how the phrase “physically present

in the United States or who arrives in the United States” has been used.

Because the corpus linguistics database tool is incapable of performing

this search, it has limited utility in this case. The dissent’s narrow focus

on the two words “arrives in,” Dissent at 50-55, wrenches these words

out of the context in which they are used in the statute, see Sturgeon, 577

U.S. at 438; Abuelhawa v. United States, 556 U.S. 816, 819 (2009)

(“[S]tatutes are not read as a collection of isolated phrases.”). We also

note that the database the dissent consults does not contain statutes,

which would seem to limit any value it has for determining how

Congress uses particular terms. See, e.g., Peter v. Nantkwest, Inc., 589

U.S. 23, 32 (2019) (looking to how two terms were used “across various

statutes” to indicate how “Congress understands” the terms).

20 AL OTRO LADO V. MAYORKAS

apply only to those who are also “physically present in the

United States.” 6

Considering the provision’s “text and context,”

Pulsifer v. United States, 601 U.S. 124, 141 (2024), we

conclude that it is possible to give nonredundant meaning to

those two categories. The phrase “physically present in the

United States” encompasses noncitizens within our borders,

and the phrase “arrives in the United States” encompasses

those who encounter officials at the border, whichever side

of the border they are standing on. 8 U.S.C. § 1158(a)(1).

The two categories overlap, because one might be both

physically present in the United States (that is, standing on

U.S. soil) while presenting oneself to a border official at a

port of entry. But each category includes people not

included in the other, such that every clause and word of the

provision has meaning.

Start with the text. The statute refers to any noncitizen

“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).” Id. Although the

statute does not define what it means to “arrive[] in the

United States,” that phrase plainly pertains to the border. To

“arrive” means “to reach a destination.” Arrive, Merriam-

6

The dissent all but concedes that the Government’s reading renders the

phrase “arrives in the United States” redundant with the phrase

“physically present in the United States,” calling that redundancy a “belt-

and-suspenders approach.” Dissent at 59. The dissent notes that

“[s]ometimes the better overall reading of the statute contains some

redundancy.” Id. at 61 (quoting Barton v. Barr, 590 U.S. 222, 239

(2020)). But the Government’s reading does not merely create “some

redundancy” in the statutory scheme. It creates total redundancy

between two phrases that Congress enacted side by side.

AL OTRO LADO V. MAYORKAS 21

Webster’s Collegiate Dictionary (10th ed. 1996). For a

person coming to the United States to seek asylum, the

relevant destination is the U.S. border, where she can speak

with a border official. A person who presents herself to an

official at the border has therefore reached her destination—

she has “arrive[d].” Although it is possible to imagine that

the prepositional phrase “in the United States” means that

she must both present herself to a border official and get one

of her feet onto U.S. soil, that is not the best reading of the

phrase. The lengthy parenthetical that follows the phrase

“arrives in the United States” specifies that the phrase covers

those “at a designated port of arrival.” A noncitizen who

presents herself to a border official at a port of entry has

“arrive[d] in the United States . . . at a designated port of

arrival,” whether she is standing just at the edge of the port

of entry or somewhere within it.7

Our construction of the statute’s language also comports

with the larger context of the immigration system. In

particular, it avoids creating a “perverse incentive to enter at

an unlawful rather than a lawful location.” DHS v.

Thuraissigiam, 591 U.S. 103, 140 (2020); see also 8 C.F.R.

§ 235.1(a) (“Application to lawfully enter the United States

shall be made in person to an immigration officer at a U.S.

7

The dissent’s corpus linguistics examples actually illustrate how the

phrases surrounding “arrives in” provide useful context to help

understand its meaning. For example, the dissent relies on the phrase

“greeted with a ticket-tape parade” to infer that “arrives in New York”

means that Nelson Mandela must be “inside the Empire State” because

he is “parad[ing] through New York.” Dissent at 52. But imagine if the

sentence instead read “arrives in New York at Ellis Island.” That would

describe a person who had reached Ellis Island, even if he might

technically be standing on the New Jersey side. Similarly, here, the

phrase “at a designated port of arrival” provides important context to

understand the meaning of “arrives in the United States.”

22 AL OTRO LADO V. MAYORKAS

port-of-entry when the port is open for inspection.”). Under

the Government’s reading, an asylum seeker who knows she

will be turned away at a port of entry before being allowed

to apply for asylum may well be better off circumventing the

official channels for entering the United States. If she

manages to surreptitiously cross the border, she will be able

to apply for asylum. We do not think Congress would have

created that incentive.

The Government proposes an alternative theory for why

§ 1158(a)(1) refers to both a noncitizen “physically present

in the United States” and a noncitizen who “arrives in the

United States.” It argues that the language “arrives in the

United States” is necessary to address the “entry fiction,” a

concept in immigration law that deems noncitizens

physically within the United States, but not legally admitted,

to be outside the United States for some legal purposes. See

Lin Guo Xi v. INS, 298 F.3d 832, 837 (9th Cir. 2002). For

instance, the Supreme Court has explained that noncitizens

“who arrive at ports of entry—even those paroled elsewhere

in the country for years pending removal—are ‘treated’ for

due process purposes ‘as if stopped at the border.’”

Thuraissigiam, 591 U.S. at 139 (quoting Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 215 (1953)). To

give another example, the Supreme Court once held that a

woman paroled into the United States pending a

determination on her assertion of U.S. citizenship was not

“within the United States” within the meaning of an INA

provision that would have allowed the Attorney General to

withhold her deportation. Leng May Ma v. Barber, 357 U.S.

185, 190 (1958). According to the Government, the entry

fiction means that some noncitizens, such as those who have

just crossed the border into the United States, are not

“physically present in the United States,” so Congress added

AL OTRO LADO V. MAYORKAS 23

the phrase “arrives in the United States” to allow them to

apply for asylum.

The Government’s explanation is unpersuasive. Other

language in § 1158(a)(1) already makes clear that the entry

fiction does not interfere with a noncitizen’s right to apply

for asylum. The statute grants that right to noncitizens

“physically present in the United States.” Id. (emphasis

added). The entry fiction means that certain noncitizens who

are physically present are nonetheless not legally present,

but it does not change the fact that they are physically

present. See, e.g., Leng May Ma, 357 U.S. at 188 (stating

that “the detention of an alien in custody pending

determination of his admissibility does not legally constitute

an entry [into the United States] though the alien is

physically within the United States” (emphasis added)). By

specifying “physically present,” Congress instructed courts

not to apply the entry fiction when interpreting § 1158(a)(1).

Moreover, both the “physically present” and “arrives in”

categories are modified by the phrase “irrespective of such

alien’s status.” Id. The entry fiction applies only to those

who lack lawful immigration “status.” See, e.g., Leng May

Ma, 357 U.S. at 190 (explaining that because parole into the

United States does not “affect an alien’s status,” a paroled

person was still not “within the United States” under the

entry fiction). It would have been very strange for Congress

to define two categories essentially based on immigration

status and then modify both with the phrase “irrespective of

such alien’s status.” Given those other features of the

statutory text, there is no reason to think that the phrase

“arrives in the United States” serves the purpose suggested

by the Government.

Furthermore, if the rest of the statutory language in

§ 1158(a)(1) were insufficient to ensure that someone

24 AL OTRO LADO V. MAYORKAS

potentially subject to the entry fiction can apply for asylum,

the phrase “arrives in the United States” would not do so

either. The Government contends that a person standing on

U.S. soil at a port of entry, waiting to be inspected by an

immigration officer, is not yet “physically present in the

United States” because of the entry fiction. According to the

Government, the phrase “arrives in the United States” fills

that gap. But if we thought that the entry fiction required us

to conclude that such a person on U.S. soil was not

“physically present in the United States,” then to be

consistent we would also have to conclude that she had not

yet “arrive[d] in the United States,” either. The

Government’s interpretation therefore does not make sense

as a way to address the entry fiction.

We note that our interpretation of § 1158 is not breaking

new ground. A prior version of § 1158 provided, “The

Attorney General shall establish a procedure for an alien

physically present in the United States or at a land border or

port of entry, irrespective of such alien’s status, to apply for

asylum.” 8 U.S.C. § 1158(a) (1980). 8 It is indisputable that

a noncitizen stopped at a border is “at a land border” whether

or not they have stepped across. So our interpretation of the

current “arrives in” category does not radically expand the

right to apply for asylum—it gives that category essentially

the same scope as the previous “at a land border” category.

8

The dissent suggests that this prior version of § 1158 contained the

phrase “arrives at,” Dissent at 50, but it did not. The dissent also suggests

that the italicized part of the phrase “an alien physically present in the

United States or at a land border or port of entry” (emphasis added)

somehow “compel[s] th[e] conclusion” that it was only discussing

people “in the United States.” Id. at 63. That not only ignores the

meaning of “or,” but it also makes the entire italicized phrase

surplusage—far from compelling the meaning the dissent offers.

AL OTRO LADO V. MAYORKAS 25

Indeed, the Government’s reading would reflect a radical

contraction of the right to apply for asylum because it would

give the Executive Branch vast discretion to prevent people

from applying by blocking them at the border. 9

The Government contends that interpreting § 1158 to

apply to persons stopped right before the border misses the

distinction between asylum under § 1158 and refugee

resettlement under 8 U.S.C. § 1157. Section 1157 empowers

9

Congress adopted the current text of § 1158(a)(1) in a 1996 omnibus

bill. Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-

208, tit. VI, subtit. A, § 604, 110 Stat. 3009, 3009-690 to -694 (1996).

The dissent argues that “the [amendment] history suggests the opposite”

of our interpretation. Dissent at 62 (alteration in original) (quoting

Trump v. Hawaii, 585 U.S. 667, 692 (2018)). But, as the dissent notes,

Congress “amend[ed] the [INA] in dozens of important but technical

ways.” Id. (alterations in original) (quoting Renteria-Gonzalez v. INS,

322 F.3d 804, 809 (5th Cir. 2002)). This situation is therefore unlike

Trump v. Hawaii, where Congress “borrow[ed] ‘nearly verbatim’ from

the pre-existing statute,” aside from “one critical alteration.” 585 U.S.

at 692. Nor is this case like Stone v. INS, 514 U.S. 386, 397 (1995),

where Congress amended the INA to add a brand-new exception to the

Hobbs Act procedures.

We have recognized that “[t]he mere fact of an amendment itself does

not [always] indicate that the legislature intended to change a law.”

United States v. Pepe, 81 F.4th 961, 978 (9th Cir. 2023) (alterations in

original) (quoting Callejas v. McMahon, 750 F.2d 729, 731 (9th Cir.

1985)), cert. denied, 144 S. Ct. 2565 (2024). Indeed, at least one part of

the legislative history indicates that the revisions to § 1158 were not

understood to substantively change the scope of the right to apply for

asylum. A committee report described the new language as “provid[ing]

that any alien who is physically present in the United States or at the

border of the United States, regardless of status, is eligible to apply for

asylum.” H.R. Rep. No. 104-469, pt. 1, at 259 (1996). In other words,

the report understood the new phrase, “arrives in the United States,” to

be essentially equivalent to the old phrase, “at a land border or port of

entry.”

26 AL OTRO LADO V. MAYORKAS

the Attorney General to “admit any refugee who is not firmly

resettled in any foreign country” (subject to numerical

limitations and other restrictions). 8 U.S.C. § 1157(c)(1). In

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Supreme

Court explained that § 1157 “governs the admission of

refugees who seek admission from foreign countries” while

§ 1158 “sets out the process by which refugees currently in

the United States may be granted asylum.” Id. at 433. We

made a similar statement in Yang v. INS, 79 F.3d. 932 (9th

Cir. 1996), where we explained that § 1157 “establishes the

procedure by which an alien not present in the United States

may apply for entry as a refugee” and that § 1158 “sets out

procedures for granting asylum to refugees within the United

States.” Id. at 938. Relying on those statements, the

Government contends that the noncitizens stopped at the

border under the metering policy remained within the ambit

of § 1157 because they were still in Mexico, and that they

therefore did not fall within § 1158.

Cardoza-Fonseca and Yang do not support the

Government’s position. Neither case concerned people

presenting themselves on the United States’ doorstep. The

sentences seized upon by the Government were general

background summaries of § 1157 and § 1158. Nothing

about the analysis in those cases suggested that either the

Supreme Court or our court was trying to define which

statute would apply to someone seeking protection at the

border. Moreover, both cases were referencing the prior

version of § 1158, which covered both noncitizens

“physically present in the United States” and noncitizens “at

a land border or port of entry.” Cardoza-Fonseca, 480 U.S.

at 427; Yang, 79 F.3d. at 934 & n.2. The cases’ willingness

to gloss § 1158 the way they did indicates that someone “at

a land border” is “in the United States” for purposes of

AL OTRO LADO V. MAYORKAS 27

asylum. That is consistent with our conclusion that someone

“arrives in the United States” under the current version of

§ 1158 when she encounters officials at a land border. 10

We therefore conclude that a noncitizen stopped by U.S.

officials at the border is eligible to apply for asylum under

§ 1158(a)(1).

2.

The responsibilities of officials with respect to

noncitizens at the border are set out in 8 U.S.C. § 1225. That

section defines as an “applicant for admission” any

noncitizen “present in the United States who has not been

admitted 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).” Id. § 1225(a)(1).

Border officials must “inspect[]” such applicants for

admission—essentially, process them to determine their

admissibility. Id. § 1225(a)(3). If, during inspection, a

noncitizen “indicates either an intention to apply for

asylum . . . or a fear of persecution, the officer shall refer”

her for an asylum interview. Id. § 1225(b)(1)(A)(ii).

The definition of an “applicant for admission” in

§ 1225(a)(1) is nearly identical to the language of

§ 1158(a)(1). The minor ways in which the relevant

language of § 1225(a)(1) differs from § 1158(a)(1) all relate

10

The dissent argues that the Fourth Circuit “disagrees” with our

conclusion. Dissent at 64 n.9 (citing Cela v. Garland, 75 F.4th 355, 361

n.9 (4th Cir. 2023)). But just as in Cardoza-Fonseca and Yang, the

Fourth Circuit in Cela provided background on the asylum and refugee

statutes; it did not address whether § 1158 applies to someone stopped at

the border. Cela’s discussion of the relationship between the asylum and

refugee statutes is entirely consistent with our holding here.

28 AL OTRO LADO V. MAYORKAS

to the fact that § 1225(a)(1) is solely about people seeking

admission to the country. Accordingly, for the same reasons

we just articulated regarding § 1158(a)(1), we conclude that

a noncitizen stopped by officials at the border is an

“applicant for admission” under § 1225(a)(1) because she

“arrives in the United States.” That is consistent with our

prior en banc holding that § 1225(a)(1) “ensures that all

immigrants who have not been lawfully admitted, regardless

of their physical presence in the country, are . . .

‘applicant[s] for admission.’” Torres v. Barr, 976 F.3d 918,

928 (9th Cir. 2020) (en banc) (quoting 8 U.S.C.

§ 1225(a)(1)).

Our conclusion comports with the Government’s own

reference in a regulation to an “applicant for admission

coming or attempting to come into the United States at a

port-of-entry.” 8 C.F.R. § 1.2 (emphasis added). Here, the

Government contends that a person “attempting to come into

the United States” cannot be an applicant for admission

because she has not yet succeeded in crossing the border.

But that would mean its own regulation erroneously refers to

just such a person: “an applicant for admission . . .

attempting to come into the United States.” Id. It may be

that the Government was wrong when it drafted its

regulation and that it is right today, but we “may consider

the consistency of an agency’s views when we weigh the

persuasiveness of any interpretation it proffers in court.”

Bittner v. United States, 598 U.S. 85, 97 (2023). We think

that the Government had it right when it drafted its

regulation, before the question became the subject of this

litigation.

Our reading of § 1225(a)(1) is bolstered by the

surrounding statutory text, which indicates that Congress did

not intend to impose strict limits on which noncitizens at the

AL OTRO LADO V. MAYORKAS 29

border must be inspected. The statute requires inspection not

only of “applicants for admission” but also of noncitizens

“otherwise seeking admission or readmission to or transit

through the United States.” 8 U.S.C. § 1225(a)(3). The

statute also provides that even a stowaway on a ship, who

“[i]n no case may . . . be considered an applicant for

admission,” is subject to “inspection by an immigration

officer” and must be referred for an asylum interview if the

stowaway states an intention to apply for asylum or a fear of

persecution. Id. § 1225(a)(2). Given that Congress took

care to provide for the inspection of both the catch-all

category of noncitizens “otherwise seeking admission” and

stowaways, we are confident that Congress did not define

the category of “applicant[s] for admission” to exclude those

stopped by U.S. officials right before the border.

Because noncitizens stopped right before the border are

“applicant[s] for admission” under § 1225(a)(1), border

officials have a mandatory duty to inspect them under

§ 1225(a)(3).

3.

The presumption against extraterritorial application of

statutes does not change our interpretation of § 1158 or

§ 1225. Although “Congress has the authority to enforce its

laws beyond the territorial boundaries of the United States,”

we presume that “‘legislation of Congress, unless a contrary

intent appears, is meant to apply only within the territorial

jurisdiction of the United States.’” EEOC v. Arabian Am.

Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros.,

Inc. v. Filardo, 336 U.S. 281, 285 (1949)). The presumption

against extraterritorial application of statutes serves two

primary purposes. First, it “protect[s] against unintended

clashes between our laws and those of other nations which

30 AL OTRO LADO V. MAYORKAS

could result in international discord.” Id. Second, the

presumption guards against unintended applications of U.S.

laws by giving force to “the commonsense notion that

Congress generally legislates with domestic concerns in

mind.” Smith v. United States, 507 U.S. 197, 204 n.5 (1993).

The Supreme Court has set out “a two-step framework

for analyzing extraterritoriality issues.” RJR Nabisco, Inc. v.

Eur. Cmty., 579 U.S. 325, 337 (2016). At the first step, a

court must ask whether the statute in question “gives a clear,

affirmative indication that it applies extraterritorially,” such

that the presumption is rebutted. Id. If so, the scope of the

statute’s extraterritorial application “turns on the limits

Congress has (or has not) imposed” in the statutory text. Id.

at 337-38. If not, then the court must proceed to the second

step and ask if the case at hand involves a “permissible

domestic application” of the statute. Id. at 337.

We conclude that § 1158 and § 1225 contain a “clear,

affirmative indication” of extraterritorial reach. RJR

Nabisco, 579 U.S. at 337. A “dispositive” indication of

extraterritorial reach may come from context. Id. at 340. No

magic words are required. Morrison v. Nat’l Austl. Bank

Ltd., 561 U.S. 247, 265 (2010). For instance, we have

concluded that Congress intended laws criminalizing the

illegal importation of weapons to apply extraterritorially

because those laws target “conduct that almost always

originates outside the United States.” United States v.

Ubaldo, 859 F.3d 690, 700 (9th Cir. 2017) (examining 18

U.S.C. § 922(l) and 22 U.S.C. § 2778(b)(2)). Sections 1158

and 1225 likewise address “conduct”—the arrival of

noncitizens to the United States—“that almost always

originates outside the United States.” Ubaldo, 859 F.3d at

700. That indication of extraterritorial reach, which is

evident in both the statutes’ text and context, is sufficient

AL OTRO LADO V. MAYORKAS 31

indication to rebut the presumption against

extraterritoriality.

That does not mean that § 1158 and § 1225 extend

worldwide. When the presumption is rebutted, we are left to

apply the “limits Congress has . . . imposed” in the statutory

text. RJR Nabisco, 579 U.S. at 337-38. As we explained in

our foregoing analysis of those sections, Congress crafted a

scheme for the inspection of noncitizens both physically

present in the United States and on its doorstep. 11

B.

Section 706(1) of the APA provides that “[t]he reviewing

court shall . . . compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1). The

Government offers two theories why, even if § 1158 and

§ 1225 create a mandatory duty to inspect noncitizens

stopped at the border, the metering policy did not withhold

that required action within the meaning of § 706(1).

First, the Government contends that the duty was not

withheld because the metering policy did not result in

universal denial of the opportunity to apply for asylum,

given that some noncitizens were processed in some

instances. But even if the Government processed other

noncitizens, the district court certified classes of people who

were not processed. The Government does not argue on

appeal that class certification was inappropriate, and whether

11

The dissent suggests that our decision conflicts with the Supreme

Court’s decision in Sale v. Haitian Centers Council, Inc., 509 U.S. 155

(1993). Dissent at 65-66. In Sale, the Coast Guard was going “beyond

the territorial sea of the United States” to intercept vessels on the high

seas. 509 U.S. at 158-59 (quotation marks omitted). By contrast, here,

noncitizens were stopped on the United States’ doorstep. There are

significant differences between those two scenarios.

32 AL OTRO LADO V. MAYORKAS

other people were processed does not affect whether the

Government fulfilled its obligations to the class members

here.

Second, the Government argues that the duty to inspect

was merely delayed as to each person, not withheld. The

distinction between agency withholding and delay is

important. If an agency withholds a required action, it

violates § 706(1) regardless of its reason for doing so. But

if an agency delays a required action, it violates § 706(1)

only if the delay is “unreasonabl[e].” Id. The

reasonableness of any delay is a fact-intensive inquiry

analyzed under “the so-called TRAC factors.” Indep. Mining

Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing

Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 79-80

(D.C. Cir. 1984)). 12

12

The TRAC factors are:

(1) the time agencies take to make decisions must be

governed by a “rule of reason”[;] (2) where Congress

has provided a timetable or other indication of the

speed with which it expects the agency to proceed in

the enabling statute, that statutory scheme may supply

content for this rule of reason[;] (3) delays that might

be reasonable in the sphere of economic regulation are

less tolerable when human health and welfare are at

stake[;] (4) the court should consider the effect of

expediting delayed action on agency activities of a

higher or competing priority[;] (5) the court should

also take into account the nature and extent of the

interests prejudiced by the delay[;] and (6) the court

need not “find any impropriety lurking behind agency

lassitude in order to hold that agency action is

unreasonably delayed.”

Indep. Mining Co., 105 F.3d at 507 n.7 (alterations in original) (quoting

Telecomms. Rsch. & Action Ctr., 750 F.2d at 80).

AL OTRO LADO V. MAYORKAS 33

The Tenth Circuit has articulated an apparently

categorical rule that agency action can be considered

“withheld” only if there is “a date-certain deadline” by

which the agency must act—otherwise the failure to act is

evaluated for unreasonable delay. Forest Guardians v.

Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999). If we were

to apply that rule, we would have to analyze the metering

policy for unreasonable delay because § 1158 and § 1225 do

not include specific deadlines.

But our court has taken a different approach from that of

the Tenth Circuit. In Vietnam Veterans of America v. CIA,

811 F.3d 1068 (9th Cir. 2016), we considered a regulation

that “unequivocally command[ed] the Army to provide

former [chemical-weapons] test subjects with current

information about their health.” Id. at 1076. The regulation

imposed no deadline for carrying out that duty, stating only

that the Army was required to provide test subjects with

“newly acquired information . . . when that information

becomes available.” Id. We concluded that the Army’s

obligations were enforceable under § 706(1) of the APA, and

we affirmed the district court’s decision to enter an

injunction requiring the Army to provide such information.

Id. at 1071, 1078-80. We did not state explicitly whether the

Army’s failure to comply with the regulation constituted

withholding or delay under the APA. See id. at 1078-80.

But we did not evaluate the TRAC factors or otherwise

consider the reasonableness of the Army’s failure to act, id.,

as would have been required before we could affirm the

injunction if agency action had been delayed instead of

withheld. Our decision therefore must have rested on a

conclusion that the Army’s failure to act constituted

withholding. Under that precedent, then, the fact that 8

U.S.C. § 1158 and § 1225 do not include a specific deadline

34 AL OTRO LADO V. MAYORKAS

does not resolve whether the Government’s failure to act in

this case constitutes withholding. 13

We hold that when an agency refuses to accept, in any

form, a request that it take a required action, it has

“withheld” that duty within the meaning of § 706(1). That

holding is informed by a provision of the APA that requires

an agency to “conclude a matter presented to it” “within a

reasonable time.” 5 U.S.C. § 555(b). By refusing to accept

a matter at all, an agency indicates that it will not “conclude”

it at any time in the future. In other words, it withholds

action entirely. See Viet. Veterans, 811 F.3d at 1079

(treating as withholding a “situation where a federal agency

refuses to act in disregard of its legal duty to act” (quoting

EEOC v. Liberty Loan Corp., 584 F.2d 853, 856 (8th Cir.

1978))).

Our interpretation of the difference between withholding

and delay in § 706(1) comports with the ordinary meaning

of those terms. When an action is delayed, one expects that,

13

The dissent would set aside Vietnam Veterans based on the briefing in

that case and would instead rely on Biodiversity Legal Foundation v.

Badgley, 309 F.3d 1166 (9th Cir. 2002). Dissent at 70-73. But Badgley

holds only that where there is a statutory deadline, failure to comply by

that deadline constitutes unlawful withholding of agency action. 309

F.3d at 1177-78, 1177 n.11. It does not say that an agency can have

withheld action only if there is a statutory deadline. In other words,

Badgley holds that violating a statutory deadline is a sufficient condition

for concluding that agency inaction constitutes withholding, but nothing

in Badgley suggests it is a necessary condition. The same is true of the

D.C. Circuit and Fourth Circuit cases on which the dissent relies. Indeed,

the Fourth Circuit described “an agency’s failure to meet a hard statutory

deadline” as only one example of when agency action can be “unlawfully

withheld” under 5 U.S.C. § 706(1), indicating that such a deadline is not

a necessary condition. South Carolina v. United States, 907 F.3d 742,

760 (4th Cir. 2018).

AL OTRO LADO V. MAYORKAS 35

with the passage of time (maybe even an unreasonable

amount of time), the action eventually will be completed. By

contrast, when an action has been withheld, no amount of

waiting can be expected to change the situation. With

patience, one can wait out delay, but even with superhuman

patience, one cannot wait out withholding.

Consider someone who heads to the post office to mail a

package shortly before the holidays. The postal workers tell

the person that they will not accept her package that day

because they are very busy, but that she is welcome to come

back the next day. They do not give her an appointment, and

they warn her that tomorrow they are likely to be just as busy

as today. Just keep coming back, they say—eventually,

perhaps within a few days or a few weeks or a few months,

the post office might accept her package. Have the postal

workers delayed carrying out the task of mailing her

package? No, they have withheld their services. That is true

even though the person could come back the next day to try

to mail the package again. If the postal employees gave the

customer an appointment to come back when they would

accept her package, then their conduct would amount to

delay. So too if they made a waitlist of customers and

guaranteed they would work through it. If the postal workers

accepted the package but were unable to ship it promptly,

that too would be delay, not withholding. But it is not mere

delay to tell a person requesting an action that her current

request will not be entertained but that she is welcome to

make the request again another time.

We accordingly conclude that the metering policy

constituted withholding of agency action, not delay. Under

the metering policy, border officials turned away noncitizens

without taking any steps to keep track of who was being

turned away or otherwise allowing them to open asylum

36 AL OTRO LADO V. MAYORKAS

applications. Such a wholesale refusal to carry out a

mandatory duty—leaving the responsibility to try again in

each noncitizen’s hands—cannot be called delay within the

meaning of § 706(1). Nor did the Government’s informal

and sporadic coordination with Mexican government

officials or nonprofits keeping waitlists transform the

metering policy into delay rather than withholding.

Organizing by interested third parties did not satisfy the

Government’s obligation to inspect asylum seekers. If

anything, it indicates that the Government was not fulfilling

its obligations.

We stress that our decision leaves the Government with

wide latitude and flexibility to carry out its duties at the

border. Our role as a court is not to superintend the

Executive Branch’s decisions about how to carry out its

many obligations. Our role is only to enforce the

requirements enacted into law by Congress. Even minimal

steps by the Government, such as implementing and

following a waitlist system or initiating the asylum process,

would shift the § 706(1) analysis of any challenge from the

withholding category into the delay category. But because

the Government in this case did not take any such steps, we

need not (and cannot) reach the question whether any delay

would have been reasonable. Sections 1158 and 1225

require border officials to inspect noncitizens seeking

asylum at the border, and the metering policy withheld that

duty.

IV.

Because we affirm the district court’s conclusion that the

metering policy violated § 706(1) of the APA, we need not

reach the other merits claims. Plaintiffs acknowledge that,

if they prove a § 706(1) violation, nothing about the scope or

AL OTRO LADO V. MAYORKAS 37

validity of the district court’s relief turns on whether they

also prevail on any of the other claims in their Complaint.

We accordingly construe Plaintiffs’ cross-appeal on the

§ 706(2), INA, and Alien Tort Statute claims as merely

presenting alternative grounds for affirmance, which we

decline to reach. See, e.g., Townsel v. Contra Costa County,

820 F.2d 319, 320 (9th Cir. 1987). We also vacate the

district court’s entry of judgment for Plaintiffs on the

constitutional due process claim without further analysis of

the parties’ arguments as to that claim. “A fundamental and

longstanding principle of judicial restraint requires that

courts avoid reaching constitutional questions in advance of

the necessity of deciding them.” Lyng v. Nw. Indian

Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). That

principle requires courts “to determine, before addressing [a]

constitutional issue, whether a decision on that question

could have entitled [the plaintiffs] to relief beyond that to

which they were entitled on their statutory claims.” Id. at

446. “If no additional relief would have been warranted, a

constitutional decision” is “unnecessary and therefore

inappropriate.” Id. When we are persuaded that a district

court’s constitutional holding was “unnecessary,” we may

“simply vacate the relevant portions of the judgment . . .

without discussing the merits of the constitutional issue.” Id.

We do so here.

V.

We turn finally to the appropriateness of the declaratory

and injunctive relief entered by the district court.

A.

The district court entered classwide declaratory relief

stating that the metering policy violated § 1158 and § 1225.

Such relief was proper under the Declaratory Judgment Act,

38 AL OTRO LADO V. MAYORKAS

28 U.S.C. § 2201(a). The Government presents only one

argument to the contrary: that the classwide declaratory

relief is prohibited by 8 U.S.C. § 1252(f)(1), which provides

that “no court (other than the Supreme Court) shall have

jurisdiction or authority to enjoin or restrain the operation”

of specified immigration statutes on a classwide basis. As

the Government concedes, however, that argument is

foreclosed by circuit precedent holding that § 1252(f)(1)

does not “bar classwide declaratory relief.” Rodriguez v.

Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010). We therefore

affirm the district court’s entry of classwide declaratory

relief. 14

B.

The district court entered a permanent injunction

prohibiting application of the Asylum Transit Rule to

members of the P.I. class—who were prevented by the

metering policy from applying for asylum before the Rule

took effect—and requiring the Government to unwind past

denials of P.I. class members’ asylum applications based on

the Rule. The Government asserts that the permanent

injunction violates 8 U.S.C. § 1252(f)(1), which, as

explained, prohibits courts other than the Supreme Court

from entering classwide injunctive relief regarding the

operation of specified immigration statutes. We summarize

the requirements of the district court’s injunction before

14

The Supreme Court recently declined to reach the question whether

§ 1252(f)(1) prohibits classwide declaratory relief. Garland v. Aleman

Gonzalez, 596 U.S. 543, 551 n.2 (2022). Because the Supreme Court’s

reservation of a question is not clearly irreconcilable with a precedent of

our court that resolves the same question, we follow our binding

precedent. Mont. Consumer Couns. v. FERC, 659 F.3d 910, 920 (9th

Cir. 2011) (citing Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)

(en banc)).

AL OTRO LADO V. MAYORKAS 39

addressing the meaning of § 1252(f)(1) and its application

here.

1.

The permanent injunction includes both negative

injunctive relief (prohibiting the Government from taking

certain actions) and affirmative injunctive relief (requiring

the Government to take certain actions). The negative

injunctive relief prohibits the application of the Asylum

Transit Rule to asylum applications by P.I. class members.

The affirmative injunctive relief has three components.

First, the Government “must make all reasonable efforts to

identify” P.I. class members. Second, the Government must

notify identified P.I. class members “in administrative

proceedings before United States Citizenship and

Immigration Services or EOIR, or in DHS custody, of their

class membership, as well as the existence and import of the”

injunction. Finally, DHS and EOIR “must take immediate

affirmative steps to reopen or reconsider past determinations

that potential [P.I. class members] were ineligible for asylum

based on the [Asylum Transit Rule], for all potential [P.I.

class members] in expedited or regular removal

proceedings.” The district court specified that “[s]uch steps

include identifying affected [P.I. class members] and either

directing immigration judges or the Board of Immigration

Appeals to reopen or reconsider their cases or directing DHS

attorneys representing the government in such proceedings

to affirmatively seek, and not oppose, such reopening or

reconsideration.” 15

15

The district court’s permanent injunction order detailed how the

Government was complying with its obligations under the materially

identical preliminary injunctions. Order, Al Otro Lado, Inc. v.

40 AL OTRO LADO V. MAYORKAS

2.

The Government contends that the injunction is

prohibited by 8 U.S.C. § 1252(f)(1), which provides in full:

Regardless of the nature of the action or claim

or of the identity of the party or parties

bringing the action, no court (other than the

Supreme Court) shall have jurisdiction or

authority to enjoin or restrain the operation of

the provisions of part IV of this subchapter [8

U.S.C. chapter 12, subchapter II], as

amended by the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996

[“IIRIRA”], other than with respect to the

application of such provisions to an

individual alien against whom proceedings

under such part have been initiated.

That provision poses no bar to injunctions concerning

§ 1158, the asylum statute, which falls within part I (not

part IV) of the relevant subchapter. But the provision

prohibits certain injunctions affecting the operation of

expedited removal proceedings under § 1225 and regular

removal proceedings under § 1229a, both of which do fall

Mayorkas, No. 17-cv-2366 (S.D. Cal. Aug. 5, 2022), ECF No. 816. The

district court largely concluded that the Government’s actions were

adequate, so we accept the parties’ understanding that the court’s

recitation of those actions defined the details of the injunction’s

requirements. It is not necessary for us to recount all those details here

to resolve this appeal.

AL OTRO LADO V. MAYORKAS 41

within part IV of the relevant subchapter. 16 We therefore

must decide whether any of the injunction’s requirements

“enjoin or restrain the operation of” those statutory sections.

Precedent offers some guidance. The Supreme Court

explained in Aleman Gonzalez that § 1252(f)(1) “generally

prohibits lower courts from entering injunctions that order

federal officials to take or to refrain from taking actions to

enforce, implement, or otherwise carry out the specified

statutory provisions” with respect to an entire class. 596

U.S. at 550. Such an injunction is barred even if a court

determines that the Government’s “operation” of a covered

provision is unlawful or incorrect. Id. at 552-54. Applying

§ 1252(f)(1), the Supreme Court concluded that the

provision prohibits classwide injunctions requiring the

Government to hold bond hearings for individuals detained

pending removal pursuant to a covered statutory provision.

Id. at 551. The Court explained that such an injunction

improperly “require[s] officials to take actions that (in the

Government’s view) are not required” by the detention

provision “and to refrain from actions that (again in the

Government’s view) are allowed by” that provision. Id. One

clear lesson of Aleman Gonzalez is that § 1252(f)(1)

prohibits courts from awarding injunctive relief that directly

adds a new procedural step to the Government’s operation

of covered provisions.

16

We have explained that § 1252(f)(1) does not apply to every section

codified within the specified portion of the U.S. Code, but rather applies

only to such sections that are also part of the INA. Galvez v. Jaddou, 52

F.4th 821, 829-31 (9th Cir. 2022). That wrinkle makes no difference

here because § 1225 and § 1229a are part of the INA. See Ira J. Kurzban,

Kurzban’s Immigration Law Sourcebook 2400 (17th ed. 2020-21).

42 AL OTRO LADO V. MAYORKAS

What else § 1252(f)(1) may prohibit is a more difficult

question. Our court has repeatedly held that § 1252(f)(1)

does not prohibit an injunction simply because of collateral

effects on a covered provision. In Gonzales v. DHS, 508

F.3d 1227 (9th Cir. 2007), we held that an injunction

regarding “the unlawful application of statutory provisions

regarding adjustment of status” was not barred by

§ 1252(f)(1). Gonzales v. DHS, 508 F.3d at 1233. We

explained that a court may enter a classwide injunction

regarding adjustment of status even though adjustment of

status can change the outcome of a removal proceeding

under a covered provision. Id. We observed that the

injunction would have at most a “collateral” effect on DHS’s

operation of proceedings under covered provisions, and that

the injunction “directly implicate[d]” a non-covered

provision. Id. We reasoned that a “one step removed” effect

on a covered provision did not bring the injunction within

the scope of § 1252(f)(1). Gonzales v. DHS, 508 F.3d at

1233.

More recently, in Gonzalez v. ICE, 975 F.3d 788 (9th

Cir. 2020), we considered an injunction concerning the

issuance of “immigration detainers,” with which federal

officials request that law enforcement agencies temporarily

keep a noncitizen in custody so that DHS can assume

custody and initiate removal proceedings. Id. at 797-99. We

concluded that the injunction in that case did not run afoul

of § 1252(f)(1) because DHS’s authority to issue such

detainers arises out of a section not covered by § 1252(f)(1).

Gonzalez v. ICE, 975 F.3d at 812-15, 814 n.17. Although

the detainers served to facilitate DHS’s authority to arrest

and detain noncitizens pending removal proceedings—an

authority that does arise from statutory sections covered by

AL OTRO LADO V. MAYORKAS 43

§ 1252(f)(1)—any effect on that authority was collateral.

See Gonzalez v. ICE, 975 F.3d at 815 & n.19.

The Supreme Court acknowledged our collateral-effect

rule in Aleman Gonzalez and left it undisturbed. 596 U.S. at

553 n.4 (citing Gonzales v. DHS, 508 F.3d at 1233).

3.

Applying those precedents here, the negative injunctive

relief entered by the district court is not barred by

§ 1252(f)(1). That relief, which prohibits the Government

from applying the Asylum Transit Rule to P.I. class

members, concerns asylum eligibility under § 1158, which

is not covered by § 1252(f)(1). The Asylum Transit Rule

was promulgated under § 1158(b)(2)(C) and

§ 1158(d)(5)(B), which allow the Attorney General to

establish additional substantive and procedural requirements

for obtaining asylum. See 84 Fed. Reg. 33829, 33830

(July 16, 2019). The negative injunctive relief therefore

“directly implicates” asylum eligibility under § 1158.

Gonzales v. DHS, 508 F.3d at 1233. Even though asylum

eligibility may change the outcome of a removal proceeding

under a covered provision, such an effect is collateral under

our precedents. In litigation concerning the validity of a

different rule excluding some people from eligibility for

asylum, we explained that “[a]t best, the law governing

asylum is collateral to the process of removal” because

noncitizens “can apply and be eligible for asylum and never

encounter any of the statutory provisions governing

removal.” E. Bay Sanctuary Covenant v. Biden, 993 F.3d

640, 667 (9th Cir. 2021). Although in that case we were not

addressing § 1252(f)(1), our reasoning that asylum

eligibility is collateral to removal is equally applicable here.

The negative injunctive relief prohibiting the application of

44 AL OTRO LADO V. MAYORKAS

the Asylum Transit Rule to P.I. class members’ asylum

applications is therefore permissible.

That conclusion is not affected by the fact that an asylum

application can arise within an expedited removal

proceeding under § 1225 or a regular removal proceeding

under § 1229a (which are covered provisions). The text of

§ 1225 repeatedly makes clear that applications for asylum

raised within expedited removal proceedings are

nevertheless made “under section 1158.” 8 U.S.C.

§ 1225(a)(2), (b)(1)(A)(i)-(ii), (b)(1)(B)(v), (b)(1)(C). An

asylum officer acting under § 1225 essentially predicts

whether a noncitizen “could establish eligibility for asylum

under section 1158.” Id. § 1225(b)(1)(B)(v). Section 1229a

likewise refers to asylum as relief “under section[] 1158.”

Id. § 1229a(c)(7)(C)(ii). In evaluating the merits of a

noncitizen’s application for “relief or protection from

removal,” id. § 1229a(c)(4)(A), an IJ applies “the applicable

eligibility requirements,” id. § 1229a(c)(4)(A)(i), which for

asylum are set out under § 1158. 17 None of those provisions

shift asylum determinations out from § 1158, which is not

covered by § 1252(f)(1).

The first two components of the affirmative injunctive

relief, which require the Government to identify possible P.I.

class members and notify them about their class membership

and the significance of the injunction, are also permissible

under § 1252(f)(1). Those requirements do not “enjoin or

17

Although § 1229a also suggests that asylum relief might arise under 8

U.S.C. § 1231(b)(3), that provision merely states that the Government

cannot remove a noncitizen to a country where the noncitizen’s “life or

freedom would be threatened” because of his or her “race, religion,

nationality, membership in a particular social group, or political

opinion.”

AL OTRO LADO V. MAYORKAS 45

restrain the operation” of any covered provision. Id.

§ 1252(f)(1). Indeed, the Government offers no specific

argument to the contrary.

The final portion of the affirmative injunctive relief

requires the Government either to “direct[] immigration

judges or the Board of Immigration Appeals to reopen or

reconsider” asylum determinations sua sponte for P.I. class

members denied asylum under the Asylum Transit Rule or

to “direct[] DHS attorneys representing the government in

such proceedings to affirmatively seek, and not oppose, such

reopening or reconsideration.” According to the

Government, that requirement is barred by § 1252(f)(1)

because it “affirmatively requires the Government to disturb

determinations that have already been made” under covered

removal provisions.

We agree that, in requiring the Government to take the

initiative to revisit determinations in removal proceedings

even absent a motion by the noncitizen, the injunction

“require[s] officials to take actions that (in the Government’s

view) are not required by” the covered removal provisions.

Aleman Gonzalez, 596 U.S. at 551. In effect, that

requirement forces the Government to add a new procedural

step within the removal process with respect to the P.I. class.

It “thus interfere[s] with the Government’s efforts to

operate” the covered removal provisions. Id. Because that

interference cannot be categorized as a collateral effect

under our precedents, we must narrow the district court’s

injunction in the following way: The injunction may not

require the Government, on its own initiative, to reopen or

reconsider (or to move to reopen or reconsider) an asylum

officer, IJ, or BIA decision in a removal proceeding.

46 AL OTRO LADO V. MAYORKAS

That said, the negative injunctive relief properly

prohibits the Government from applying the Asylum Transit

Rule to a P.I. class member, even if it permissibly applied

the Rule to that person in the past. For instance, if an IJ has

denied a P.I. class member’s asylum application on the basis

of the Asylum Transit Rule, and the P.I. class member moves

for reconsideration by the IJ, the negative injunctive relief

prohibits the IJ from relying on the Asylum Transit Rule to

deny the motion (although the IJ may deny the motion if

there is a different valid ground). Likewise, if that P.I. class

member appeals to the BIA, the BIA may not use the Asylum

Transit Rule to affirm the IJ’s decision (although the BIA

may affirm if there is a different valid ground). And if the

BIA reverses the IJ’s decision and remands, the IJ may not

apply the Asylum Transit Rule on remand. The same

principle applies if a P.I. class member moves to reopen her

removal proceeding: The IJ or the BIA may not use the

Asylum Transit Rule to deny the motion (although they may

deny the motion on a different valid ground). In each of

those scenarios, the negative injunctive relief operates under

§ 1158 and has only collateral effects on the operation of the

immigration statutes covered by § 1252(f)(1), as explained

above.

VI.

For the foregoing reasons, we affirm the judgment in

favor of Plaintiffs on the APA § 706(1) claim, vacate the

judgment in favor of Plaintiffs on the constitutional due

process claim, affirm the declaratory relief, and affirm the

injunctive relief other than the requirement that the

Government reopen or reconsider (or move to reopen or

reconsider) past determinations on its own initiative.

AFFIRMED IN PART, VACATED IN PART.

AL OTRO LADO V. MAYORKAS 47

R. Nelson, J., dissenting:

In 1996, Congress provided that an alien may apply for

asylum when she “arrives in the United States.” 8 U.S.C.

§ 1158(a)(1). That can mean only one thing: the alien must

be physically present in the United States. After years of

litigation, plaintiffs have not identified a single example of

when “arrives in” means anything besides physically

reaching a destination. The majority does not provide an

example, either. For good reason. A basic corpus linguistic

analysis shows that no English speaker uses the term “arrives

in” to mean anything but being physically present in a

location. This statutory language is as unambiguous as it

gets.

Yet the majority concludes that aliens currently in

Mexico have “arrive[d] in the United States” and can apply

for asylum. No circuit court has ever reached such a strained

conclusion. Not since the current act was adopted 30 years

ago. Not under the prior act adopted 45 years ago which had

even more permissive language. At oral argument,

Plaintiffs’ counsel acknowledged that in several years of

legal research, she could not find a single judicial precedent

supporting this interpretation. And the motions panel

majority four years ago entered an injunction without

deciding that Plaintiffs’ strained statutory argument was

likely correct. Al Otro Lado v. Wolf, 952 F.3d 999, 1013 (9th

Cir. 2020) (concluding it “need not decide” the issue).

The majority’s holding is wrong, troubling, and

breathtaking. In its struggle to create ambiguity in the

statutory language, the majority skips over the statute’s plain

meaning, ignores a common-sense understanding of the

English language, misapplies a semantic canon, disregards

the typical presumption against extraterritoriality, and

48 AL OTRO LADO V. MAYORKAS

usurps Congress’ authority to make law. By so doing, the

majority strikes Congress’s selected language (“arrives in

the United States,” whether or not “at a designated port of

arrival”) and replaces it with language of the majority’s

choosing (“stopped on the United States’ doorstep”). Maj.

at 31 n.11; see also id. at 18, 26, 31. As a result, it imposes

on the federal government—for the first time—an obligation

to interview asylum seekers who are still in Mexico. Finally,

perhaps recognizing the breathtaking consequences of its

ruling, the majority tries to limit its practical impact—not by

correcting its interpretation of “arrives in,” but by

misinterpreting yet another statute: the APA.

Because a person standing on Mexican soil has not

“arrive[d] in the United States” or “at a designated port of

arrival,” I dissent.

I

8 U.S.C. § 1158(a)(1) allows an alien who is “physically

present in the United States” or who “arrives in the United

States” to apply for asylum. A different statute, 8 U.S.C.

§ 1225(a)(1), provides that aliens who are unadmitted but

“present” in the United States or who “arrive[] in the United

States” can apply for admission. An applicant for admission

must, in turn, be inspected. Asylum officers then interview

inspected aliens to determine whether they have a credible

fear of persecution. Id. § 1225(b)(1)(B). The statute

imposes no deadline on these obligations.

All agree that “physically present in the United States”

refers to those located in the United States. Id. § 1158(a)(1).

As the majority explains, this phrase “encompasses

noncitizens within our borders.” Maj. at 20. That reading is

supported by our precedent. Barrios v. Holder, 581 F.3d

849, 863 (9th Cir. 2009) (“physically present” means

AL OTRO LADO V. MAYORKAS 49

“corporeally being in the place in question or under

consideration” (cleaned up)).

A

We disagree on whether an alien who has not “stepped

across the border,” Maj. at 17, “arrives in the United States.”

Text, history, precedent, and common sense show that she

has not—even if that means that “arrives in the United

States” and “physically present in the United States” have

nearly identical meanings.

1

Begin with the text. When, as here, “a statute does not

define a term, we typically give the phrase its ordinary

meaning.” FCC v. AT&T Inc., 562 U.S. 397, 403 (2011)

(quotation omitted). The ordinary meaning is not merely a

possible meaning. “[S]tatutes, no matter how impenetrable,

do—in fact, must—have a single, best meaning.” Loper

Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024).

Our role as judges is to “use every tool at [our] disposal to

determine th[at] best reading.” Id. “The starting point for

statutory interpretation is the actual language of the

statute”—what the words mean to an ordinary American.

United States v. Yankowski, 184 F.3d 1071, 1072 (9th Cir.

1999). The majority skips this important and basic first

step—which is dispositive here. 1

1

The majority claims that it cannot interpret “arrives in” without looking

to the whole statute. See Maj. at 18 n.4. True, words must be understood

in context. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569

(2012). But context is a tool to understand a law’s ordinary meaning,

not a tool to replace it. See id. We cannot use context to impose a

meaning that a term cannot bear. See id. (using context only after

50 AL OTRO LADO V. MAYORKAS

The first term is the verb “arrive.” Since at least the 14th

Century, the word “arrive” has meant to “reach[] a

destination.” John Ayto, Dictionary of Word Origins 36

(2011). Its meaning remained the same in 1996, when the

statute was enacted. Then, as now, “arrive” meant to “reach

a destination” or “come to a particular place.” The American

Heritage Illustrated Encyclopedic Dictionary 102 (1987).

Other dictionaries confirm that a person “arrives”

somewhere when she “come[s] to a certain point in the

course of travel” or “reach[es] [her] destination.” Random

House Webster’s Unabridged Dictionary 116 (2001).

Thus, to “arrive at” a place means to reach it after

traveling. Id.; see also Al Otro Lado, 952 F.3d at 1028

(Bress, J., dissenting) (collecting examples from other

dictionaries). 2 Had Congress used the term “arrive at,”

perhaps the majority’s ambiguity argument would have

some plausible force. But Congress didn’t use “arrives at”—

it used “arrives in.” Indeed, in 1996, Congress changed the

statutory language from “at” to “in.” And that is the

language we interpret.

“Arrive in,” the term Congress used, has a clearer

meaning—it is used “[w]hen the place of arrival is the

object.” Webster’s Dictionary of English Usage 120 (1989).

Consider the preposition “in.” “In has remained in use with

verbs of motion” for hundreds of years. Id. at 533. It

determining that a term “can encompass” two meanings); see also King

v. Burwell, 576 U.S. 473, 500–01 (2015) (Scalia, J., dissenting). The

majority’s proposed interpretation is not only unnatural, but unheard of.

2

For example, the term “at” is used with the “verb[] of motion” “arrive”

to “indicat[e] attainment of a position.” 1 Oxford English Dictionary

739 (2d ed. 1989). So a person could “arrive at” the border on either

side, depending on which direction they are coming from.

AL OTRO LADO V. MAYORKAS 51

describes being “[w]ithin the limits or bounds of” a place

with “material extension.” 7 Oxford English Dictionary 759

(2d ed. 1989). Accordingly, it is typically used “with the

proper names of . . . countries.” Id. Putting those two terms

together, a person “arrives in” a country when she has

reached its inner limits or bounds.

Real-life experience bears this out. Imagine, for

example, that Apple says a new iPhone will “arrive in stores”

on January 2. Hearing this, you would expect the phone to

be on the shelves on January 2—not in an unloaded

semitrailer behind the store. Or imagine that Amazon tells

you a package will “arrive in your mailbox” on June 3. On

June 3, you would expect the package to be inside your

mailbox—not at the local post office, ready for delivery. As

these common-sense examples show, to “arrive in” a

location means to be physically within the premises. Not at

the border, or in the process of arriving.

Linguistic data confirms that these are not isolated

examples. See Wilson v. Safelite Grp., 930 F.3d 429, 440

(6th Cir. 2019) (Thapar, J., concurring in part) (courts “ought

to embrace” corpus linguistics as “another tool to ascertain

the ordinary meaning”). The Corpus of Contemporary

American English is a database of over one billion words

spoken in everyday contexts between 1990 and 2010.

Within that database, “arrives in” was used to describe a

destination 161 times between 1990 and 1996 (when the

statute was enacted). 3 Appendix 1. Of those, 160—the

3

This search can be replicated by searching “arrives in” on english-

corpora.org/coca. Restrict results to those occurring before 1996. That

yields 219 results. But 58 are irrelevant. The statute uses “arrives in”

to describe where immigrants are located. By contrast, 58 results use

52 AL OTRO LADO V. MAYORKAS

overwhelming majority—referenced someone or something

physically within the destination. And not once was the

phrase clearly used to mean standing at the destination’s

border.

A few examples are illustrative. One source describes a

plane that “arrives in Newark but late,” forcing the

passengers to rush through the airport to catch their

connections. 4 Did the plane “arrive” when, circling miles

above the city, the captain announced that the plane was

cleared to begin its descent? Of course not. The plane

“arrive[d] in Newark” when it touched Newark ground.

After all, the passengers could not rush through the airport

until the plane physically landed.

Other sources describe dignitaries who “arrive[d] in” a

city to attend a summit. To attend the summit, of course, the

dignitaries must have been physically present. Nelson

Mandela, for example, “arrives in New York” and is

“greeted with a ticket-tape parade and crowds of

thousands.” 5 Clearly, to parade through New York,

Mandela was inside the Empire State—not standing just

across the river in Jersey City.

“arrives in” to describe either when something arrives (“arrives in two

hours”) or how it arrives (“arrives in a bad mood”). Setting aside those

58, 161 results use “arrives in” to describe a location. See Appendix 1.

4

Valerie Lister, Road Trip: The Women’s Pro Basketball Way, USA

Today (1996), relevant text available at Corpus of Contemporary

American English, https://www.english-corpora.org/coca (last accessed

Sep. 18, 2024).

5

Barbara Reynolds, Mandela’s Visit, USA Today (1990), relevant text

available at Corpus of Contemporary American English,

https://www.english-corpora.org/coca (last accessed Sep. 18, 2024).

AL OTRO LADO V. MAYORKAS 53

Finally, consider an example from the great American

sport: “As the pitch arrives in the catcher’s hands, the

catcher digs in to take on [the runner].” 6 A pitch “arrives in”

the catcher’s hands when it physically lands in the mitt. Not

when leaving the pitcher’s hand, flying through the air, or

even spinning inches from the catcher’s outstretched mitt.

We could go on and discuss all 161 usages. But the

underlying point is clear. English speakers use “arrives in”

to mean standing within a destination, not outside. 7 The

majority does not identity a counterexample. Nor does it

deny what this linguistic data suggests: its interpretation of

“arrives in” is not only unnatural, but unheard of. 8 See Maj.

at 19 n.5.

6

Cobb (1994), relevant text available at Corpus of Contemporary

American English, https://www.english-corpora.org/coca (last accessed

Sep. 18, 2024).

7

Of the 161 examples, one usage is arguable. A TV script said, “the

elevator arrives in the hall, bringing more people.” Metropolis (1995),

relevant text available at Corpus of Contemporary American English,

https://www.english-corpora.org/coca (last accessed Sep. 18, 2024).

Perhaps one could argue that elevators are at a hall’s border, not

physically inside. But even so, one ambiguous example out of 161 does

not show that “arrives in” ordinarily means to stand at a destination’s

border. If anything, the (arguable) exception proves the rule. To “arrive

in” a location is unambiguous and means only one thing: to be physically

inside.

8

The majority notes that neither party relied on corpus linguistics. Maj.

at 19 n.5. But both parties extensively briefed the ordinary meaning of

“arrives in.” And when interpreting a statute, we are not limited to the

tools the parties cite, just as we are not limited to the caselaw cited by

the parties when evaluating a legal proposition. See Muscarello v.

United States, 524 U.S. 125, 129 (1998) (relying on corpus linguistics

when neither party briefed the tool).

54 AL OTRO LADO V. MAYORKAS

Instead, the majority emphasizes that statutory language

must be understood in context. Id. at 19 n.5, 21 n.7. I agree.

Statutory interpretation must determine how words are

ordinarily understood, and ordinary English speakers

leverage context to convey and interpret meaning. It’s

because of context, after all, that we easily distinguish

“drove the sheep into the pen” from “used the pen to sign a

contract.” But context never justifies giving a term a

meaning that it cannot bear. See Taniguchi, 566 U.S. at 569

(using context only after determining a term “can

encompass” two meanings); see also King, 576 U.S. at 500–

01 (Scalia, J., dissenting). That is why the sentence “used

the corral to sign the contract” leaves readers scratching their

heads. Unlike “pen,” the term “corral” simply does not mean

a writing instrument, even if all the context suggests it might.

So too here. Dictionaries catalogue the possible uses of

“arrives in,” and linguistic evidence indicates which of those

uses are ordinary. Together, these tools confirm that “arrives

in” simply cannot mean standing outside a destination’s

border. No amount of context can change that linguistic fact.

See Taniguchi, 566 U.S. at 569.

Here, moreover, the context supports the plain meaning.

I discuss other contextual clues below, see infra at 57–58,

but two points are worth emphasis here. First, contrary to

the majority’s suggestion, the fact that the statute covers an

alien “who arrives in the United States (whether or not at a

designated port of arrival)” does not alter the plain meaning

of “arrives in.” Maj. at 20–21 & n.7. The parenthetical

clarifies that the statute applies to immigrants who arrived

through designated entry ports and those who crossed the

border elsewhere. It does not mean that immigrants who

have yet to enter an arrival port have somehow arrived in the

United States. Contra id. Because entry ports are part of the

AL OTRO LADO V. MAYORKAS 55

United States, an immigrant “arrives in the United States”

whether she stands on Ellis Island or in rural Texas. But

either way, the immigrant does not “arrive in” until she steps

onto United States soil.

Second, the majority suggests that because “arrives in”

appears in the context of a statute, the only relevant linguistic

evidence is other statutory language. Maj. at 19 n.5. Why

would that be? Congress presumably uses words “in their

natural sense.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 71

(1824). So evidence of how “arrives in” is used in everyday

contexts is highly probative. See Muscarello, 524 U.S. at

129 (citing dictionaries and “searching computerized

newspaper databases” to determine a word’s ordinary

meaning); United States v. Costello, 666 F.3d 1040, 1044

(7th Cir. 2012) (Posner, J.) (relying on dictionaries and a

Google search). Even so, other statutes use “arrives in” in

its ordinary sense. See 22 U.S.C. § 2507a(c) (providing for

training “[o]nce a volunteer has arrived in” a country). One

provision, for example, states that aliens who arrive in the

United States at undesignated times or locations are

inadmissible. 8 U.S.C. § 1182(a)(6)(A)(i). Are immigrants

who approach border agents after hours therefore

inadmissible? What about Mexican citizens who come

within 20 feet of an undesignated portion of the border? Of

course not. Congress, like ordinary English speakers, uses

“arrives in” to mean those physically present, not those

standing in Mexico—or as the majority calls it—“on the

United States’ doorstep.” Maj. at 31 n.11.

In sum, the linguistic data confirms what dictionaries and

intuition suggest: for a person to “arrive in the United

States,” she must arrive “in the United States”—“there is no

in-between.” Al Otro Lado, 952 F.3d at 1028 (Bress, J.,

dissenting).

56 AL OTRO LADO V. MAYORKAS

Today, the majority divines an “in-between.” Moving

forward, a person who “encounter[s] officials at the border,”

Maj. at 20, is “on the United States’ doorstep,” Maj. at 31

n.11, or is “in the process of arriving” in the United States,

Maj. at 15, 46, may apply for asylum.

The majority leaves each phrase ambiguously open-

ended. At any rate, none of these phrases appears in the text.

The statute does not say “encounter officials at the border.”

It does not say “on the United States’ doorstep.” Nor does it

say “in the process of arriving.” It says “arrives in.” No

amount of context justifies the majority’s redlining of

Congress’s statutory language.

In a half-hearted attempt to change the statutory text, the

majority cites a single dictionary definition for “arrive.”

Maj. at 20–21. But, again, the statute says “arrives in,” not

just “arrive.” And why credit that single definition over all

the other evidence discussed above? The majority does not

say. Nor does the majority explain how “arrives in” can

mean “at the border,” “on the doorstep,” or “in the process

of arriving” when each phrase has a historically different

meaning.

More than being wrong, the majority’s conclusion is

harmful. Judicial redlining of statutes, as the majority does

here, undercuts Congress’s authority, eliminates citizens’

ability to rely on the law, and erodes democracy, allowing

unelected judges to revise the decisions of the People’s

representatives.

There is more. Borders define the very bounds of a

nation’s sovereign power. Border, Black’s Law Dictionary

(12th ed. 2024) (“The boundary between one country (or a

political subdivision) and another.”). They also protect a

country from those outside it and are, by their nature,

AL OTRO LADO V. MAYORKAS 57

exclusionary. Thus, the Supreme Court has recognized a

“longstanding concern for the protection of the integrity of

the border.” United States v. Montoya de Hernandez, 473

U.S. 531, 538 (1985). So strong is that interest that even

constitutional rights yield when “[b]alanced against the

sovereign’s interests at the border.” Id. at 539. The majority

subverts these interests. It treats those in Mexico—but

ambiguously close to the border—as if they were “in” the

United States. And it assumes that Congress implicitly set

aside constitutional principles that, for centuries, have

uniformly been applied to protect our border.

The statutory language forecloses the majority’s

interpretation. A person at the border, but on the Mexican

side, might be close to the United States. She might have

arrived at the United States border. But until she crosses the

border, she has not arrived in the United States. This is not

just the best reading of the statute; it is the only reading. The

majority has not pointed to any example in which “arrives

in” means anything besides crossing the border into the

destination. We would expect Congress to use clearer

language to subvert long-established border protections.

2

The statute’s context reinforces the unambiguous plain

meaning. Another provision, § 1225, provides for the

expedited removal of noncitizens “from the United States.”

8 U.S.C. § 1225(b)(1)(A)(i) (emphasis added). As the

Supreme Court has explained, § 1225 allows applicants for

admission to “avoid expedited removal by claiming

asylum.” DHS v. Thuraissigiam, 591 U.S. 103, 109 (2020);

see also United States v. Gambino-Ruiz, 91 F.4th 981, 985

(9th Cir. 2024). We have explained that the statute “ensures

that all immigrants who have not been lawfully admitted,

58 AL OTRO LADO V. MAYORKAS

regardless of their physical presence in the country, are . . .

‘applicant[s] for admission.’” Torres v. Barr, 976 F.3d 918,

928 (9th Cir. 2020) (en banc) (quoting § 1225(a)(1)).

The majority reads “regardless of their physical presence

in the country” to mean that the expedited removal

protections can be avoided even when an alien is outside the

country. But that line is better understood to make asylum

available to those subject to expedited removal regardless of

whether they are in a port of entry or elsewhere within the

country. After all, a person not yet in the United States

cannot be “removed” from it.

This conclusion further follows from the fact that

Congress provided separate protections for immigrants who

have not yet arrived in the United States. See 8 U.S.C.

§ 1157. The Supreme Court has explained that § 1157, and

not § 1158, “governs the admission of refugees who seek

admission from foreign countries.” INS v. Cardoza-

Fonseca, 480 U.S. 421, 433 (1987). The majority’s reading

places aliens on the Mexican side of the border in a

penumbral zone where they can apply for refugee status

under § 1157 or for asylum under § 1158. Thus, while the

statutory scheme applies different protections to an alien

based on her location—either in the United States or out of

it—the majority’s reading creates a fiction where these

aliens are entitled to both.

In no other statute has Congress provided more asylum

protection to aliens outside the United States than those

inside. On the contrary, Congress consistently provides

foreign aliens fewer protections, as § 1157 demonstrates.

Thus, it makes sense that § 1158 applies only to those

physically within the United States.

AL OTRO LADO V. MAYORKAS 59

3

History and precedent further support this conclusion.

We have long treated aliens who arrive at a port of entry “as

if stopped at the border” even if they are “on U.S. soil.”

Thuraissigiam, 591 U.S. at 139 (quotation omitted). This is

called the “entry fiction.” Maj. at 22–23. For at least a

century, our immigration laws have treated those at ports of

entry as though they have not “entered the country.”

Thuraissigiam, 591 U.S. at 139. An alien who arrived at

Ellis Island, for example, “was to be regarded as stopped at

the boundary line and kept there unless and until her right to

enter should be declared.” Kaplan v. Tod, 267 U.S. 228, 230

(1925). So it makes sense that in § 1158, Congress listed

both those who “arrive in the United States” and those

already “physically present.” By so doing, Congress

clarified that, despite the entry fiction, those who just

crossed the border can apply for asylum on the same terms

as someone who is otherwise “physically present.”

The majority resists this conclusion. It notes that the

entry fiction is just that—a fiction. Whether or not aliens in

ports of entry are legally deemed to be outside the country,

they are nonetheless physically present. That is true. But

that is hardly a reason to set aside the statute’s plain

meaning. And, given the entry fiction’s long history,

Congress can hardly be faulted for going out of its way to

respond to it. Congress clarified that the two categories of

aliens contemplated in § 1158 and § 1225—those physically

present and those just arriving in the United States—can

apply for asylum. This belt-and-suspenders approach makes

sense, and it cleanly supports the statute’s plain meaning.

60 AL OTRO LADO V. MAYORKAS

Thus, text, history, and precedent all point in one

direction. An alien “arrives in the United States” only when

she crosses the border into it.

B

The majority ignores or diminishes this text, history, and

precedent. It engages in “textual backflips to find some

way[,] any way,” Fischer v. United States, 144 S. Ct. 2176,

2195 (2024) (Barrett, J., dissenting), to conclude that aliens

in Mexico have arrived in the United States. Each attempt

fails.

1

The majority begins with the rule against surplusage.

Because the majority deems it “possible to give

nonredundant meaning to those two categories,” it concludes

it must give “arrives in the United States” a different

meaning than “physically present in the United States.” Maj.

at 20.

But as I have already suggested, there is no surplusage.

The phrase “arrives in” addresses the entry fiction, ensuring

that those in ports of entry can apply for asylum just like

those who are otherwise physically present in the United

States. Thus, “arrives in” does not totally overlap with

“physically present;” it plays a meaningful, independent role

in the statute. Contra Maj. at 20 n.6.

Even if the majority were right that “arrives in” and

“physically present” totally overlap, id., that would not

justify disregarding the statute’s plain meaning. True, courts

often presume that ordinary speakers of English avoid

surplusage. But the presumption is just that—a presumption.

As anyone who has read a contract or deed knows,

surplusage is common. Moskal v. United States, 498 U.S.

AL OTRO LADO V. MAYORKAS 61

103, 120 (1990) (Scalia, J., dissenting) (“give, grant,

bargain, sell, and convey” (quotation omitted)); Freeman v.

Quicken Loans, Inc., 566 U.S. 624, 635 (2012). And, in any

case, the presumption “should not be used to distort ordinary

meaning.” Moskal, 498 U.S. at 120 (Scalia, J., dissenting).

“Sometimes the better overall reading of the statute contains

some redundancy.” Barton v. Barr, 590 U.S. 222, 239

(2020) (quotation omitted). Courts should “tolerate a degree

of surplusage rather than adopt a textually dubious

construction.” United States v. Atl. Rsch. Corp., 551 U.S.

128, 137 (2007); A. Scalia & B. Garner, Reading Law: The

Interpretation of Legal Texts 177–78 (2012). After all,

ordinary meaning—not nonduplicative meaning—is the

lodestar in statutory interpretation. The statute’s ordinary

meaning is clear, and the presumption against surplusage

does not justify rewriting it.

2

The majority next turns to the 1980 version of the statue.

The majority urges that its interpretation is not “breaking

new ground” because that prior version allowed aliens “at a

land border or port of entry” to apply for asylum. Maj. at 24

(quoting 8 U.S.C. § 1158(a) (1980)). Because this forty-

five-year-old statute used language that—in the majority’s

view—allowed aliens on the Mexican side of the border to

apply for asylum, the majority argues that its interpretation

of the current statute “does not radically expand” the asylum

right. Id.

No court, however, interpreted the 1980 statute like the

majority does now. Al Otro Lado, 952 F.3d at 1029 (Bress,

J., dissenting). That concern aside, the meaning of the 1980

statute cannot change the meaning of the 1996 statute now

before us.

62 AL OTRO LADO V. MAYORKAS

“If anything, the [amendment] history suggests the

opposite” of what the majority suggests. Trump v. Hawaii,

585 U.S. 667, 692 (2018). That Congress replaced “at a land

border” with “arrives in the United States” suggests that it

understood the terms to have different meanings. After all,

when Congress amends a statute, “we presume it intends its

amendment to have real and substantial effect.” Stone v.

INS, 514 U.S. 386, 397 (1995). Thus, the better view is that

Congress resolved whatever ambiguity existed in “at” by

using “in” in the 1996 statute. See supra at 49–51.

The majority suggests that the 1996 act did not

substantively change the law. Maj. at 24–25 & n.9. But

Congress used language in 1996 that differs in meaning from

the 1980 statute. We cannot disregard a statute’s amendment

history simply by declaring that the statute’s new terms—

though quite different—mean the same thing as the old

terms. Yet that is what the majority does. It claims the

amendment had no practical impact. And it provides no

textual analysis to support this ipse dixit.

Moreover, we have already rejected the majority’s

suggestion that the 1996 amendments were minor. As we

have noted, those amendments made “large scale changes to

the INA.” Gonzales v. DHS, 508 F.3d 1227, 1229 (9th Cir.

2007). Other circuits agree. Groccia v. Reno, 234 F.3d 758,

759 (1st Cir. 2000) (“In 1996, Congress made massive

changes to the immigration laws.”); Acevedo v. Barr, 943

F.3d 619, 623 n.6 (2d Cir. 2019) (enacted “comprehensive

immigration reform”); Prestol-Espinal v. Att’y Gen. of U.S.,

653 F.3d 213, 216, 222 n.9 (3d Cir. 2011) (“significant

changes”); Renteria-Gonzalez v. INS, 322 F.3d 804, 809 (5th

Cir. 2002) (“amend[ed] the [INA] in dozens of important but

technical ways”). That overhaul went only one direction—

the 1996 act was “widely regarded as placing important new

AL OTRO LADO V. MAYORKAS 63

limits on immigration.” Al Otro Lado, 952 F.3d at 1029

(Bress, J., dissenting). So even that major overhaul did not,

as the majority concludes, collapse § 1158 into § 1157 and

drastically expand asylum protections.

In any case, the majority is of two minds with respect to

the reach of the 1980 statute. When citing it as evidence of

the 1996 statute’s meaning, it assures the public that the

1996 amendments were minor. Everything changes when

the majority claims the 1996 amendments abrogated two

binding cases. Maj. at 26–27. In INS v. Cardoza-Fonseca,

480 U.S. at 433, the Supreme Court explained that § 1158

sets out the process by which refugees “currently in the

United States” can get asylum. We recognized the same in

Yang v. INS, 79 F.3d 932, 938 (9th Cir. 1996). After waiving

away those unambiguous statements as mere “general

background summaries,” the majority says these cases are

not helpful anyway because they reference the prior version

of § 1158. Maj. at 26. But this just shows that the Supreme

Court thought even the prior version of § 1158, which used

the much broader “at a land border” applied only on our side

of the border. Further, if the majority is correct that the 1996

changes were “minor,” then it is hard to say that those

changes extended the statute’s protections to aliens in

another country.

In any event, the majority errs in waiving away the clear

language of Cardoza-Fonseca and Yang. Those cases

recognized that § 1158 applied only to people “in the United

States” because the statute’s plain meaning compelled that

conclusion. Never has our court—or any other court—

concluded that § 1158 applies to aliens who seek admission

from foreign countries. The reason is clear. As discussed

above, such aliens—including Plaintiffs—can seek refugee

64 AL OTRO LADO V. MAYORKAS

status under § 1157. 9 Cardoza-Fonseca, 480 U.S. at 433.

So if anything, the 1996 amendments confirm that aliens can

apply for asylum only when they have entered the United

States.

3

Even if the majority could show that “arrives in the

United States” ordinarily references those just outside the

United States, its analysis still falls short. For at most, the

majority could show that “arrives in” is ambiguous. And the

Supreme Court has instructed us to apply a presumption

against extraterritoriality to ambiguous statutes.

“Congress ordinarily legislates with respect to domestic,

not foreign, matters.” Morrison v. Nat’l Australia Bank Ltd.,

561 U.S. 247, 255 (2010). Thus, “[w]hen a statute gives no

clear indication of an extraterritorial application, it has

none.” Id.

True, Congress need not enact an “express statement of

extraterritoriality” to overcome the presumption. RJR

Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 340 (2016). But

it must provide “a clear indication of extraterritorial effect.”

Id. Only the “rare statute” will meet this standard without

“an express statement of extraterritoriality.” Id.

The majority skirts this presumption. After laying out

the rule, the majority rejects it in a single paragraph. In the

9

At least one of our sister circuits disagrees with the majority’s

conclusion that Congress silently collapsed the differences between

§ 1157 and § 1158. See Cela v. Garland, 75 F.4th 355, 361 n.9 (4th Cir.

2023) (“Unlike aliens granted asylum—who are physically present in the

United States or arrive in the United States when they seek asylum—

aliens admitted as refugees seek admission to the United States from

foreign countries.” (citing Cardoza-Fonseca, 480 U.S. at 433)).

AL OTRO LADO V. MAYORKAS 65

process, the panel so “eliminat[es] or water[s] down the

presumption” that the “result[] i[s] purposivism.” Scalia &

Bryan, supra, at 272.

The majority suggests that Sections 1158 and 1225

contain an “indication of extraterritorial reach” because they

do not expressly limit their reach to those inside the United

States. Maj. at 30–31. But this flips the presumption on its

head. Rather than presuming that these provisions lack

extraterritorial effect, the majority presumes that they apply

in Mexico because Congress did not say otherwise. Worse,

perhaps recognizing the limitless reach of § 1158 and § 1225

in the presumption’s absence, the majority artificially limits

its interpretation by saying that the statutes “do[] not . . .

extend worldwide.” Id. The majority assures the public that

the statutes reach only those noncitizens that are “on [the

United States’] doorstep.” Id. This line drawing finds no

harbor in any interpretive tool, let alone the statute’s text.

The majority just makes it up.

Next, the majority relies on our cases involving “conduct

that almost always originates outside the United States.”

United States v. Ubaldo, 859 F.3d 690, 700 (9th Cir. 2017).

Immigration always originates outside the United States. So,

applying Ubaldo, the majority eliminates the presumption

against extraterritoriality from the entire immigration code.

Ubaldo cannot bear this weight. If Ubaldo exempted all

immigration law from the presumption, some case—any

case—would have noted that remarkable result. None does.

To the contrary, the Supreme Court has stated the opposite:

statutes applying extraterritorially without an express

statement are “rare.” RJR Nabisco, 579 U.S. at 340.

The majority’s reliance on Ubaldo departs from how the

Supreme Court has applied the presumption to other

66 AL OTRO LADO V. MAYORKAS

provisions of the INA—all of which, under the majority’s

new Ubaldo reading, would have extraterritorial effect. For

example, in Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155,

173–74 (1993), the Supreme Court decided that § 243(h)(1)

of the INA lacked extraterritorial effect. At the time, that

provision forbade the Attorney General from “deport[ing] or

return[ing] any alien . . . to a country” if that alien qualified

as a refugee. 8 U.S.C. § 1253(h)(1) (1988). Despite that

clear statutory mandate, the President “directed the Coast

Guard to intercept vessels illegally transporting passengers

from Haiti to the United States and to return those passengers

to Haiti without first determining whether they may qualify

as refugees.” Sale, 509 U.S. at 158. In holding that

§ 243(h)(1)’s statutory mandate did not apply on the high

seas, the Court explained that the presumption against

extraterritoriality applies with “special force when . . .

construing . . . statutory provisions that may involve foreign

and military affairs for which the President has unique

responsibility.” Id. at 188.

As Sale makes clear, the INA—which sets our Nation’s

immigration’s policies—is one such statute. Later cases

make this point more forcefully. In Trump v. Hawaii, the

Supreme Court reversed our court after we failed to

recognize that “the admission and exclusion of foreign

nationals is a ‘fundamental sovereign attribute exercised by

the Government’s political departments largely immune

from judicial control.’” 585 U.S. at 702 (quoting Fiallo v.

Bell, 430 U.S. 787, 792 (1977)).

That fundamental sovereign attribute applies here with

just as much “special force” as in Sale given the executive’s

“unique responsibility” to govern immigration. The

majority provides no reason to the contrary—it just says that

there are “significant differences” between the high seas and

AL OTRO LADO V. MAYORKAS 67

the border. Maj. at 31 n.11. But the majority takes no pains

to explain why those differences affect the presumption

against extraterritoriality. Nor could it. Despite those

differences, the Supreme Court “has generally treated the

high seas the same as foreign soil for purposes of the

presumption against extraterritorial application.” Kiobel v.

Royal Dutch Petrol. Co., 569 U.S. 108, 121 (2013)

(emphasis added) (citing Sale as an example). Thus, the

Supreme Court has expressly rejected the majority’s attempt

to distinguish Sale. Maj. at 31 n.11.

Even if there were ambiguity in the statute (there is not),

the majority cannot overcome the presumption against

extraterritoriality. That presumption confirms that § 1158

applies only to aliens who have crossed the border.

4

The majority next argues that its interpretation is

necessary to avoid a perverse incentive for aliens to enter the

United States somewhere other than a designated port of

entry. Maj. at 21–22 (quoting Thuraissigiam, 591 U.S.

at 140). 10 This argument is grounded in the presumption

against ineffectiveness, which provides that interpretations

that “further[] rather than obstruct[] the document’s

purpose” are to be favored. See Scalia & Garner, supra, at

63.

This presumption prevents interpretations that would

“enable offenders to elude its provisions in the most easy

10

Thuraissigiam addresses perverse incentives in a single sentence and

only after the Supreme Court had rejected all other textual arguments.

591 U.S. at 140. That case provides weak support for the majority’s

reliance on the presumption against ineffectiveness, particularly because

the majority uses the presumption to avoid the text’s plain meaning.

68 AL OTRO LADO V. MAYORKAS

manner.” Garland v. Cargill, 602 U.S. 406, 428 (2024)

(quoting The Emily, 22 U.S. (9 Wheat.) 381, 389 (1824)).

But like all presumptions, it is rebuttable. The majority’s

reliance on this presumption is misplaced for at least two

reasons. First, as with the other interpretive canons, the

presumption only applies to textually permissible

interpretations. Scalia & Garner, supra, at 63. As already

explained, the majority’s interpretation is not textually

permissible.

Second, the presumption does not allow courts to

supplant or “rewrite statutory text” just because a bad actor

might evade the statute to avoid an interpretation that its

plain text requires. Cargill, 602 U.S. at 428 (quotation

omitted).

Cargill illustrates this principle. There, the Supreme

Court considered whether semiautomatic rifles equipped

with a bump-stock device are machineguns as defined by

statute. 26 U.S.C. § 5845(b) defines machineguns as

weapons that can fire more than one shot “automatically . . .

by a single function of the trigger.” Bump stocks allow a

semiautomatic rifle to fire quickly, but they still require a

shooter to “reset the trigger between every shot.” Cargill,

602 U.S. at 415. Faced with these facts, the Supreme Court

concluded that, although bump-stock-equipped

semiautomatic rifles can fire at rates that approach those of

true machineguns, they were not machineguns as defined in

the statute. In so concluding, the Court rejected arguments

grounded in the presumption against ineffectiveness. Id.

at 427–28. The Court applied the statute’s plain meaning—

even if that meaning would undermine the statute’s overall

purpose in some applications.

AL OTRO LADO V. MAYORKAS 69

As in Cargill, adopting the statute’s plain meaning may

well have perverse consequences. And those consequences

may well undermine the very purpose of the INA—to

regulate the border in an orderly fashion. But those

consequences exist under any interpretation of the statute.

The several hoops through which aliens must jump when

seeking admission to the United States already encourage

millions to enter the country at unlawful locations. And even

though laws require those procedures, “it remains relatively

easy for individuals to enter the United States,” and often

“without detection.” United States v. Martinez-Fuerte, 428

U.S. 543, 552 (1976). Our cases are full of examples of

aliens doing just that. See United States v. Gambino-Ruiz,

91 F.4th 981, 983–84 (9th Cir. 2024) (discussing one alien

who repeatedly illegally crossed the border at various

points). This reality does not give the majority a blank check

to cash any atextual interpretation. Nor may the majority

adopt a textually impermissible interpretation just to avoid

perverse incentives.

In sum, the statute’s plain text precludes the majority’s

interpretation. But even if the statute were ambiguous, the

presumption against extraterritoriality, properly applied,

supports the plain meaning. The majority’s attempts to find

a workaround fail. All roads lead to the same conclusion:

an alien “arrives in the United States” only when she crosses

the border.

II

After erroneously holding that the government has a duty

to process asylum seekers in Mexico, the majority narrowly

defines what it means for the government to “withh[old]”

that duty. See 5 U.S.C. § 706(1). The majority assures the

government that it retains broad discretion to decide how to

70 AL OTRO LADO V. MAYORKAS

process asylum seekers in Mexico. And it suggests that the

government could comply with its duty simply by keeping a

list of potential asylum seekers. Maj. at 36.

The majority’s narrow interpretation of “withholding”

limits the practical impact of its opinion. Indeed, because

the government retains broad discretion to limit access to

asylum, plaintiffs just across the border likely will still not

get any relief—despite the majority’s expansive reading of

“arrives in.” That is a salutary effect. But the way the

majority gets there—narrowly interpreting “withholding”—

is wrong. And two wrongs do not make a right.

Section 706(1) of the APA requires us to compel agency

action if it is either “withheld or unreasonably delayed.” 5

U.S.C. § 706(1). Under this section, “the only agency action

that can be compelled under the APA is action legally

required.” Norton v. S. Utah Wilderness All., 542 U.S. 55,

63 (2004) (emphasis in original). Even when an organic

statute requires agency action, it may not require immediate

agency action. Unless the statute imposes a deadline,

agencies need only complete their statutory duties “within a

reasonable time.” 5 U.S.C. § 555(b).

We have held that agency action is “withheld” when

“Congress has specifically provided a deadline for

performance.” Biodiversity Legal Found. v. Badgley, 309

F.3d 1166, 1177 n.11 (9th Cir. 2002). We explained that the

“failure to complete” the required agency action “within the

mandated time frame compelled the court to grant injunctive

relief.” 11 Id. at 1178.

11

Although we did not analyze the text of § 706(1) in Badgley, the Fourth

Circuit correctly recognized that, by declining to apply the unreasonable-

AL OTRO LADO V. MAYORKAS 71

Other circuits follow a similar approach. In the D.C.

Circuit, agency action is withheld when “agency inaction

violates a clear duty to take a particular action by a date

certain.” Sierra Club v. Thomas, 828 F.2d 783, 794 (D.C.

Cir. 1987). 12 The Fourth Circuit similarly recognizes that

“an agency’s failure to meet a hard statutory deadline” is

withholding. South Carolina, 907 F.3d at 760. So too the

Tenth Circuit, which has concluded that agency action is

withheld only if “Congress imposed a date-certain deadline

on agency action” that the agency fails to meet. Forest

Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999).

The weight of authority—including our opinion in

Badgley—thus provides that agency action is withheld only

when an agency fails to act by a statutory deadline. Rather

than create a circuit split, we should follow this clear

consensus. Applying that standard here, the government did

not withhold one of its duties. The statute does not impose

any deadline on the government’s obligation to process

asylum seekers (assuming an obligation exists). So not even

the majority argues that the government “withheld” agency

action under this standard.

Instead, the majority concludes that we have already

rejected this standard. It reaches this conclusion based on a

delay factors, we necessarily concluded that the agency action was

“unlawfully withheld.” South Carolina v. United States, 907 F.3d 742,

760 (4th Cir. 2018) (citing Badgley, 309 F.3d at 1176–77 & n.11).

12

The D.C. Circuit recognizes that “[a]n agency’s own timetable for

performing its duties in the absence of a statutory deadline is due

‘considerable deference.’” Cobell v. Norton, 240 F.3d 1081, 1096 (D.C.

Cir. 2001) (quoting Sierra Club v. Gorsuch, 715 F.2d 653, 658 (D.C. Cir.

1983)). This suggests that it is difficult, if not impossible, for an agency

to withhold an action in the absence of a statutory deadline.

72 AL OTRO LADO V. MAYORKAS

questionable reading of Vietnam Veterans of Am. v. CIA, 811

F.3d 1068, 1081 (9th Cir. 2016). There, we granted relief

under the APA under a statute that did not impose a deadline.

The majority concludes that, because we did not address

whether agency action was unreasonably delayed, we must

have decided that the government “withheld” its obligations.

At the start, Vietnam Veterans was decided more than a

decade after Badgley. To the extent there is any conflict,

Badgley—which held that a missed deadline was

withholding, not delay—controls. 13

In any event, the majority overreads Vietnam Veterans.

It concedes that Vietnam Veterans did not analyze “whether

the Army’s failure to comply with the regulation constituted

withholding or delay under the APA.” Maj. at 33. Rather,

we held that the Army had a mandatory obligation

enforceable under § 706(1)—without deciding whether the

Army withheld or delayed action. Thus, Vietnam Veterans

cannot have defined what it means for agency action to be

“withheld.”

The majority concludes otherwise, arguing that the only

possible conclusion in Vietnam Veterans was that the

“failure to act constituted withholding.” Id. This cannot

withstand scrutiny. First, for a century, the Supreme Court

13

To circumvent Badgley, the majority notes that Badgley held a

statutory deadline was a sufficient (but not necessary) condition for

withholding. Maj. at 34 n.13. But the majority fails to identify another

case addressing the distinction between withholding and delay. Badgley

is the closest we have. Even so, the relevant question is not whether a

statutory deadline is necessary or sufficient for withholding. The

relevant question is instead whether the government “withheld” an

obligation (rather than “delayed” it) when it told aliens to come back

later.

AL OTRO LADO V. MAYORKAS 73

has cautioned that “[q]uestions which merely lurk in the

record, neither brought to the attention of the court nor ruled

upon, are not to be considered as having been so decided as

to constitute precedents.” Cooper Indus. v. Aviall Servs.,

Inc., 543 U.S. 157, 170 (2004) (quoting Webster v. Fall, 266

U.S. 507, 511 (1925)). We have applied that rule to issues

lurking in our own cases. See Schram v. Robertson, 111 F.2d

722, 725 (9th Cir. 1940). And it should govern with greater

force here. The briefing in Vietnam Veterans suggests that

the issue litigated was not whether a duty was withheld or

delayed, but whether there was a duty at all. 14 In Badgley,

by contrast, the government argued—and we rejected—that

any deviation from the statutorily mandated deadline was

reasonable delay. 309 F.3d at 1177 n.11. Thus Badgley, not

Vietnam Veterans, governs whether agency inaction

constitutes withholding.

Second, Vietnam Veterans is distinguishable. Here, the

government told Plaintiffs—like it told all other metered

aliens—to come back to the overwhelmed port of entry for

processing later. The Army in Vietnam Veterans, by

contrast, gave no indication that it would ever take the

actions the plaintiffs sought. See generally Vietnam

Veterans, 811 F.3d at 1068. Unlike in Vietnam Veterans,

the government has not “withheld” any duty to process

asylum applications. At most, it has delayed that duty.

14

See generally Opening Brief of Appellants, Vietnam Veterans, 811

F.3d at 1068; Opening Brief for Defendants-Appellees/Cross-

Appellants, Vietnam Veterans, 811 F.3d at 1068; Appellants’/Cross-

Appellees’ Reply Brief and Opposition to Cross-Appeal, Vietnam

Veterans, 811 F.3d at 1068; Reply Brief for Defendants-

Appellees/Cross-Appellants, Vietnam Veterans, 811 F.3d at 1068.

74 AL OTRO LADO V. MAYORKAS

Unmoored from precedent, the majority’s sweeping new

rule—that the government withholds a duty whenever it

“refuses to accept, in any form, a request that it take a

required action” for any period is indefensible. Maj. at 34.

The majority’s rule swallows the distinction between

“withheld” and “delayed” agency action. After all, the

government did not say it would never process Plaintiffs. It

merely told those aliens who were turned away to come back

when the Ports of Entry were not overwhelmed. That is a far

cry from “refus[ing] to accept” a duty to interview those

aliens.

In any event, as even Vietnam Veterans recognizes, “the

operation of § 706(1) is restricted to discrete actions that are

unequivocally compelled by statute or regulation.” Vietnam

Veterans, 811 F.3d at 1081. That obligation must be “so

clearly set forth that it could traditionally have been enforced

through a writ of mandamus.” Id. at 1076 (quoting Hells

Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923,

932 (9th Cir. 2010)). The majority does not even try to

explain how its withholding rule satisfies this standard.

To the contrary, the majority suggests the government

would not have “withheld” its duty to process aliens if it had

kept a waitlist or immediately initiated the asylum process.

Maj. at 36. But under Vietnam Veterans, we can grant

§ 706(1) relief only if the statute “unequivocally compels”

those actions. The relevant statute says nothing about a

waitlist or immediate processing. Thus, the majority

imposes on agencies a requirement to do “that which [they

are] not required to do.” In re A Cmty. Voice, 878 F.3d 779,

784 (9th Cir. 2017). Section 706(1) gives the majority no

such authority. See Norton, 542 U.S. at 63.

AL OTRO LADO V. MAYORKAS 75

The good news is the majority’s error is limited. If—as

the majority concludes—“[e]ven minimal steps,” such as

keeping a waitlist, would evade the majority’s rule and “shift

the § 706(1) analysis . . . from the withholding category into

the delay category,” then the majority’s rule is good for this

case only. Maj. at 36. But the narrowness of the majority’s

conclusion only limits its harm; it does not make it legally

correct. We should reverse the grant of summary judgment

to Plaintiffs on their § 706(1) claim and vacate the

corresponding injunction.

III

Plaintiffs’ other claims also fail.

A

The majority properly vacates the injunction based on

Plaintiffs’ Due Process claim. It does so, however, on

constitutional avoidance grounds. Maj. at 37. I would reject

the claim on the merits.

“[M]ore than a century of precedent” establishes that

aliens denied entry have no Due Process rights beyond “the

procedure authorized by Congress.” Thuraissigiam, 591

U.S. at 138–39 (quotation omitted). In other words, arriving

noncitizens’ procedural rights “are purely statutory in nature

and are not derived from, or protected by, the Constitution’s

Due Process Clause.” Mendoza-Linares v. Garland, 51

F.4th 1146, 1167 (9th Cir. 2022). Plaintiffs thus warrant no

relief on their Due Process claim.

B

Plaintiffs also raise a claim under § 706(2) of the APA.

The district court did not reach this claim. But I would

dismiss this claim as moot because the memoranda

76 AL OTRO LADO V. MAYORKAS

promulgating the metering policy were rescinded years ago.

See Akiachak Native Cmty. v. Dep’t of Interior, 827 F.3d

100, 113 (D.C. Cir. 2016) (“[W]hen an agency has rescinded

and replaced a challenged regulation, litigation over the

legality of the original regulation becomes moot.”).

Even if the § 706(2) claim remained live, it fails on the

merits. The metering policy was a lawful exercise of the

government’s authority to “[s]ecur[e] the borders,” 6 U.S.C.

§ 202(2), (8), and the ability to admit aliens falls within the

Executive’s inherent powers, United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 543 (1950). The government’s

exercise of its inherent authority was reasonable given the

pressures it faced at the border when it enacted the metering

policy.

C

Finally, Plaintiffs raise a claim under the Alien Tort

Statute (ATS), arguing that the metering policy violated the

international-law norm of non-refoulement. This claim also

lacks merit.

The ATS gives district courts “original jurisdiction of

any civil action by an alien for a tort only, committed in

violation of the law of nations or a treaty of the United

States.” 28 U.S.C. § 1350. This modest statute is an

ordinary jurisdictional statute. It does not say when an

action violates the law of nations or a federal treaty. Nor

does it say which torts properly fall within its reach.

In Sosa v. Alvarez-Machain, the Supreme Court

established a path for “recogni[zing] . . . new causes of

action” under the ATS. Doe v. Cisco Sys., Inc., 73 F.4th 700,

714 (9th Cir. 2023) (citing Sosa v. Alvarez-Machain, 542

U.S. 692, 728 (2004)). Gratefully, that path is exceedingly

AL OTRO LADO V. MAYORKAS 77

narrow. The bar for recognizing a new cause of action is

“high.” Sosa, 542 U.S. at 727. The ATS creates a cause of

action only for “violations of international law norms that

are ‘specific, universal, and obligatory.’” Kiobel, 569 U.S.

at 117 (citing Sosa, 542 U.S. at 732). 15 But even identifying

such a norm is not enough—once identified, courts then

apply a second, “extraordinarily strict” step of asking

whether there is “even one” reason to think that Congress

might “doubt the efficacy or necessity of the new remedy.”

Nestle USA, Inc. v. Doe, 593 U.S. 628, 637 (2021) (plurality

op.) (quotation omitted). If the answer to the second

question is “yes,” then “courts must refrain from creating [a]

remedy” for even a specific, universal, and obligatory norm.

Jesner v. Arab Bank, PLC, 584 U.S. 241, 264 (2018)

(quotation omitted).

Since both steps must be met, private rights of action

under the ATS are available only “in very limited

circumstances.” Nestle, 593 U.S. at 631 (plurality op.).

Indeed, the Supreme Court has “yet to find [the two-part test]

satisfied.” Id. at 637. The Court’s reluctance to expand the

ATS beyond Sosa underscores its commitment to ending the

“ancien regime” when the Court “ventur[ed] beyond

Congress’s intent” to create rights of action that were—at

best—only implied. Alexander v. Sandoval, 532 U.S. 275,

287 (2001). A plurality of the Court has already suggested

that it will not infer any rights of action beyond “the three

historical torts identified in Sosa”: “violation of safe

conducts, infringement of the rights of ambassadors, and

15

This test “bears a marked resemblance to the ‘clearly established law’

standard in qualified immunity analysis.” Gerald Weber, The Long Road

Ahead: Sosa v. Alvarez-Machain and “Clearly Established”

International Tort Law, 19 Emory Int’l L. Rev. 129, 132 (2005).

78 AL OTRO LADO V. MAYORKAS

piracy.” Nestle, 593 U.S. at 635, 637 (plurality op.).

Reading between the lines, we should never infer additional

causes of action under the ATS. The three torts identified in

Sosa, and no more.

Finally, even if plaintiffs allege violations of one of the

three torts identified in Sosa, they must go a step further and

show that the violation took place in the United States. That

is because the ATS lacks extraterritorial effect. Any claim

alleging “violations of the law of nations occurring outside

the United States is barred.” Kiobel, 569 U.S. at 124.

Plaintiffs’ ATS claim founders on all these shoals.

Extraterritoriality is a good place to start. Plaintiffs seek a

remedy under the ATS for actions that occurred in Mexico.

Because “the presumption against extraterritoriality applies

to claims under the ATS,” id., their claim cannot succeed

even if non-refoulement is a “specific, universal, and

obligatory” norm.

Besides seeking to give extraterritorial effect to the ATS,

Plaintiffs also seek to elevate non-refoulement to a universal

status it does not have. Assume Plaintiffs are right to define

non-refoulement as they do: non-refoulement

“encompass[es] any measure . . . which could have the effect

of returning an asylum-seeker or refugee to the frontiers of

territories where his or her life or freedom would be

threatened[.]” UNHCR Exec. Comm., Note on International

Protection, ¶ 16, U.N. Doc. A/AC.96/951 (Sept. 13, 2001).

Even on that definition, the metering policy is not non-

refoulement. The United States did not accept any metered

aliens into the United States. So how could it have returned

asylum-seekers or refugees anywhere?

In any event, assuming that the metering policy was non-

refoulement, Plaintiffs’ arguments remain unpersuasive.

AL OTRO LADO V. MAYORKAS 79

Plaintiffs argue that non-refoulement has reached jus cogens

status, meaning that it is binding on the United States

regardless of whether it has consented to it. Siderman de

Blake v. Republic of Arg., 965 F.2d 699, 714–17 (9th Cir.

1992). Because finding that a norm has jus cogens status is

harsh medicine, only the rarest of norms will achieve that

status. Jus cogens norms must be “so universally

disapproved by other nations” that they are “automatically

unlawful.” Sosa, 542 U.S. at 751 (Scalia, J., concurring in

part). The list of such norms is so small that the Restatement

(Third) of the Foreign Relations Laws of the United States

enumerates them: only norms prohibiting “official torture,”

“genocide, slavery, murder or causing disappearance of

individuals, prolonged arbitrary detention, and systematic

racial discrimination” have achieved that status. Siderman

de Blake, 965 F.2d at 717. The refoulement of aliens who

have never entered the United States is a far cry from that

status.

As the district court correctly recognized, many

European countries and Australia have policies that belie any

claim that the non-refoulement standard universally applies

extraterritorially. Indeed, some countries have policies that

mirror the metering policy here. That is unsurprising. Most

countries, including the United States, respect and protect

their borders. Only the Ninth Circuit—which is not a

sovereign nation—seems to reject this nearly universal goal

of national border security. Plaintiffs cannot identify the

“general assent of civilized nations” necessary to create a

cause of action under the ATS. See Presbyterian Church of

Sudan v. Talisman Energy, Inc., 582 F.3d 244, 254 (2d Cir.

2009).

But even if non-refoulement were as universally

disapproved as Plaintiffs suggest, a cause of action would

80 AL OTRO LADO V. MAYORKAS

still not exist under the ATS. Under the second prong of the

Court’s ATS test, there are countless sound reasons to think

that Congress would doubt the efficacy or necessity of a

remedy under the ATS. Jesner, 584 U.S. at 264.

I offer just one—the ATS “has not been held to imply

any waiver of sovereign immunity.” Tobar v. United States,

639 F.3d 1191, 1196 (9th Cir. 2011). “A waiver of sovereign

immunity cannot be implied but must be unequivocally

expressed.” Id. at 1195 (quoting United States v. Mitchell,

445 U.S. 535, 538 (1980)). Thus, recognizing an ATS claim

against the United States for violating a norm of non-

refoulement would require us to find that Congress, which

generally legislates against the backdrop of existing law, see

Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994), silently

waived the Nation’s sovereign immunity in cases brought by

any alien not immediately processed at the border. Nothing

Plaintiffs identify would support such a drastic departure

from precedent, particularly in a case that would open the

federal coffers to aliens who have never stepped foot in the

United States.

In sum, for a host of reasons, Plaintiffs’ ATS claim,

which would mark a drastic expansion of Sosa, fails.

IV

The majority’s interpretation of “arrives in the United

States” is indefensible. It twists the statutory language,

ignores history, flips multiple presumptions, and ignores

common-sense English usage. The majority also

erroneously concludes that the government “withheld” a

statutory duty (rather than merely delaying it) by telling

aliens to come back later. We should have rejected

Plaintiffs’ claims, including those that the majority saves for

another day. I dissent.

AL OTRO LADO V. MAYORKAS 81

APPENDIX 1

Table 1: 161 Uses of “Arrives in” to Describe a

Destination

Year Source Context

1990 Christian Transplanted from her West Indian home,

Science the 19-year-old arrives in a large East

Monitor Coast city…to work as an au pair.

1990 Nelson Mandela, who arrives in New

USA Today York today, is being greeted with a ticker-

tape parade and crowds of thousands.

1990 Christian Mr. Gorbachev arrives in Washington [for

Science a summit].

Monitor

1990 Prime Minister Tadeusz Mazowiecki, the

diffident, sad-faced leader of Poland's

Washington

Solidarity-controlled government,

Post

arrives in Washington [to meet with

President Bush].

1990 When the new

Washington Congress arrives in Washington in

Post January, it will face a major piece of

unfinished business.

1990 [She] used to think that money was got on

J. of Am. the streets here, but if ever she arrives

Ethnic in this country she will find it quite

History different, as there is nothing got here by

idleness.

1990 A vendor arrives in the market with a

Ethnology small supply of capital and knowledge of

market trade.

82 AL OTRO LADO V. MAYORKAS

Year Source Context

1990 Soviet leader Mikhail Gorbachev

World

arrives in Beijing for the first Sino-Soviet

Affairs

summit in thirty years.

1990 When Roderick arrives in London, he

Style must concoct a voice with which to

advance his career.

1990 In “Squaring the Circle,” a mountain man

American from Kentucky arrives in Manhattan and

Heritage is made vertiginous by its pitiless rush

forward.

1990 [Photo description:] Lajos Kossuth

American arrives in America in 1851, with the

Heritage Guardian Genius of Hungary in

attendance.

1990 White You can leave if you want. I'm staying.

Hunter: The company arrives in Entebbe the day

Black Heart after tomorrow [to film a movie].

1990 Ragged arrives in an era of declining rock'

USA Today

n' roll, a drift that hasn’t alarmed Young.

1990 [Photo description:] Ambassador to

Newsweek Kuwait Nathaniel Howell arrives in

Germany.

1990 Mikhail Gorbachev arrives in Washington

ABC

next Wednesday evening [for a summit].

1990 [We have to design the equipment so that

CNN it] is lighter and able to get there and then

Specials do a different job when it arrives in the

arena.

1990 And your view is that…let[ting] food

CNN

supplies go into Kuwait would be an

Crossfire

excellent idea?...The moment that food

AL OTRO LADO V. MAYORKAS 83

Year Source Context

arrives in Kuwait, it will be taken by the

Iraqis.

1990 PBS Mandela arrives in New York on

Newshour Wednesday for a 12-day visit to the U.S.

1990 Each day a new harvest of inmates arrives

PBS in The Crosses [where they are detained

Newshour for months, waiting for investigations to

finish.]

1990 I think he is positioning himself also to

PBS improve the chances for his foreign

NewsHour minister, Teraq Aziz, when he arrives in

Washington [for negotiations].

1990 Furthermore, he said when Perez de

ABC Cuellar arrives in Amman, they are not

Nightline arriving with any proposals for the

secretary general.

1990 As first light arrives in a beech and

Atlantic hemlock forest, setting the birds sounding

their chaotic vowels…

1990 Interior I am the one by whom my past arrives in

Landscapes this world.

1990 A bedraggled Henry arrives in his brother,

Good Fellas Michael’s, room. Michael is all dressed

and sitting in his wheelchair, ready to go.

1990 Hence, productivity begins even before

Newsweek

the worker arrives in the office.

1990 This child…is the grandson of…a Russian

Jew who arrives in Baltimore on the

Newsweek

Fourth of July, 1914, and declares it the

most beautiful place he’s ever seen.

84 AL OTRO LADO V. MAYORKAS

Year Source Context

1990 U.S. News & Until the supertanker arrives in the U.S.,

World no one knows the price its oil cargo will

Report bring.

1990 [A cruise ship], for example, leaves

Changing Miami on Saturdays and after two days at

Times sea arrives in St. Martin/St. Maarten,

which is half French and half Dutch.

1990 [T]he Count, disguised as a large, black

dog, arrives in England. Fortunately for

Weatherwise His Excellency, immigration and

quarantine laws were much less strict then

than now.

1990 If you think of the telephone purely as a

TIME secular voice thrower, it arrives in the

mind at its most irritating.

1991 On November 15th, a second ambassador

arrives in the United States to help

ABC Special

Nomura, the current ambassador, who's

been negotiating for almost a year.

1991 [T]he note is seen as an ultimatum. The

ABC Special same day Hull’s note arrives in Japan, the

Japanese fleet departs from Japan.

1991 Terry Anderson arrives in Germany [to

PBS

begin his first full day of freedom at an

Newshour

American military base]

1991 ABC James Baker arrives in Saudi Arabia

Nightline tonight [to meet with Kuwait’s leader.]

1991 Once the food arrives in the port, yes,

ABC

there will have to be some work done on

Nightline

the roads.

1991 ABC He will likely tell the President which way

Nightline it's going to go before he arrives in

AL OTRO LADO V. MAYORKAS 85

Year Source Context

Moscow for the summit with Mr.

Gorbachev, July 30th, 31st.

1991 Six months after he arrives in Russia,

JFK Francis Gary Powers’ U2 spy flight goes

down in Russia.

1991 [I]f the wine is likely to cost at least 20%-

Forbes 25% more when it arrives in the U.S. 18

to 24 months later.

1991 Her calculation is shown in one sequence

in Truth or Dare when her tour arrives in

Nat’l Rev. Toronto and she is told that the police are

prepared to arrest her if [she performs a

specific bit.]

1991 Saturday In New York City, only 32 cents of every

Evening Post education dollar arrives in the classroom.

1991 The robot will sell for less than $1,000

Compute! when it arrives in stores and catalogs next

February.

1991 When the shuttle arrives in space, the

Compute! crew reconfigures the computers for

orbital operations.

1991 [Photo description:] An ore carrier

bearded with the frozen spray of the Great

Weatherwise

Lakes arrives in Superior, Wisconsin, in a

-15 degrees F deep freeze.

1991 She gives one party each summer for

NY Times about 400 Saratogians, even before the

racing crowd arrives in town.

1991 Gorbachev decided to speed it up and

Christian

finish everything before the delegation

Science

arrives in Vilnius….Then the delegation

Monitor

will arrive to find ‘order’ restored.

86 AL OTRO LADO V. MAYORKAS

Year Source Context

1991 First Egyptian contingent arrives in Saudi

Associated Arabia. Iraqi President Saddam Hussein

Press urges Arabs to sweep “emirs of oil” from

power.

1991 The Giffords will be reunited temporarily

USA Today Friday. Kathie Lee arrives in Tampa to

tape Regis & Kathie Lee.

1991 John Major is expected to brief President

Bush on the positions of Britain, Italy,

USA Today France and Germany when he arrives in

the United States Wednesday for a three-

day visit.

1991 His new album, Dangerous, arrives in

USA Today

stores Tuesday.

1992 Uher said he would support a rules change

Houston requiring the Calendars Committee to

Chronicle schedule a bill for floor debate within 30

days after it arrives in Calendars.

1992 President Bush arrives in Japan on

ABC

Tuesday on a mission to open Japanese

Business

markets to American products.

1992 As Clinton arrives in Albuquerque, New

ABC Special Mexico, it is very late at night and [local

supporters are gathered to meet him.]

1992 NPR All The vice president arrives in Tokyo on

Things Tuesday to take part in a ceremony.

Considered

1992 One drawback to electing a governor

President is that he arrives in the White

CNN

House with little foreign policy

experience.

AL OTRO LADO V. MAYORKAS 87

Year Source Context

1992 President Bush arrives in Japan with a

ABC

demand: Japanese markets must be

Nightline

opened to American-made goods.

1992 NPR Boris Yeltsin arrives in Washington, DC,

Weekend on Tuesday [for a summit.]

1992 Descending the stone stairs, Alfred arrives

Batman 2

in the Batcave.

1992 Frick arrives in the doorway [to speak to

Batman 2

someone.]

1992 Jennifer [A man] spits gum at the sink as he arrives

Eight in the kitchen.

1992 [She] hurr[ies] into her dressing gown

Jennifer with a similar urgency to get out.

Eight She arrives in the living room as the figure

is clambering through the window.

1992 [Photo description:] A shipload of Somali

Newsweek

refugees arrives in Yemen

1992 The hero of And You, Too arrives in

America

France [to study]

1992 Christian A young senator, Jefferson Smith, arrives

Science in the nation’s capital [to serve his term]

Monitor

1992 Churchill arrives in Cairo, disturbed by a

Associated telegram from Gen. Auchinlek saying

Press Britain's 8th Army will not have the

strength to make new attacks.

1992 Churchill arrives in Moscow to tell Stalin

Associated

no second front will be opened in Europe

Press

in 1942.

1992 The first installment of her $60 million,

Washington

multimedia deal with Time Warner arrives

Post

in

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