Amicus Curiae Brief — Markwayne Mullin, Secretary of Homeland Security, et al., Petitioners v. Al Otro Lado, a California Corporation, et al.
Supreme Court briefFeb 17, 2026
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No. 25-5
IN THE
Supreme Court of the United States
___________
KRISTI NOEM, Secretary of Homeland Security, et al.,
Petitioners,
v.
AL OTRO LADO, et al.,
Respondents.
___________
On Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
___________
BRIEF OF MEMBERS OF CONGRESS AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS
___________
LINDSAY C. HARRISON
Counsel of Record
MORGAN SANDHU
JENNER & BLOCK LLP
1099 New York Ave., NW
Suite 900
Washington, DC 20001
(202) 639-6000
lharrison@jenner.com
Counsel for Amici Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................... iii
INTEREST OF AMICI CURIAE .................................. 1
SUMMARY OF ARGUMENT ......................................... 1
ARGUMENT ....................................................................... 3
I. Congress Intentionally Drafted Section
1158 to Permit Persons Who Arrive at the
Border to Apply for Asylum. ................................. 3
A. Congress Intended to Protect Asylum
Seekers in the INA and Preserved
Those Protections in IIRIRA. ......................... 3
B. Congress Intended Section 1158 to
Preserve Asylum for Persons Who
Arrive at the Border, Not Just for
Persons Physically Present in the
United States. .................................................... 7
1. The Text and Structure of Section
1158—and this Court’s Precedents
Considering It—Confirm that
Congress Preserved Asylum for
Persons Who Arrive at the Border........... 7
2. The Canon Against Surplusage
Confirms that “Arrives In” Has
Independent Meaning in Both
§§ 1158 and 1225(a). ................................... 12
II. The Petitioners’ Statutory Interpretation
Would Impermissibly Allow the Executive
and Courts to Usurp Legislative Power. ........... 16
ii
A. Petitioners Ask this Court to Adopt a
Limitation
Congress
Repeatedly
Declined to Enact. ........................................... 17
B.
The Executive May Not Use
Operational Choices to Rewrite the
Statute’s Eligibility Criteria. ......................... 18
C. Congress Alone Has The Authority to
Revise the Asylum Laws. .............................. 19
III. Operational Concerns at the Border Are
for Congress to Address. ...................................... 21
CONCLUSION ................................................................. 24
APPENDIX COMPLETE LIST OF AMICI
CURIAE............................................................................. 1a
iii
TABLE OF AUTHORITIES
CASES
American Foreign Service Ass’n v. Trump,
792 F. Supp. 3d 116 (D.D.C. 2025), appeal
docketed, No. 25-5290 (D.C. Cir. Aug. 13,
2025) .......................................................................... 20
Bartenwerfer v. Buckley, 598 U.S. 69 (2023) ............ 11
Barton v. Barr, 590 U.S. 222 (2020) ........................... 13
Bowe v. United States, No. 24-5438, 2026
WL 70342 (U.S. Jan. 9, 2026)................................. 12
Bufkin v. Collins, 604 U.S. 369 (2025) ................. 12, 13
Clark v. Martinez, 543 U.S. 371 (2005) ................ 20, 21
De Lima v. Bidwell, 182 U.S. 174 (1901) ................... 15
Department of Homeland Security v.
Thuraissigiam, 591 U.S. 103 (2020) ................... 4, 5
Duncan v. Walker, 533 U.S. 167 (2001) ..................... 12
Feliciano v. Department of Transportation,
605 U.S. 38 (2025) .................................................... 14
Fischer v. United States, 603 U.S. 480
(2024) ........................................................................ 12
Galvan v. Press, 347 U.S. 522 (1954)............................ 3
INS v. Cardoza-Fonseca, 480 U.S. 421
(1987) .................................................................... 5, 10
INS v. Chadha, 462 U.S. 919 (1983) ..................... 17, 19
INS v. Stevic, 467 U.S. 407 (1984)............................... 10
Jennings v. Rodriguez, 583 U.S. 281 (2018) .............. 11
iv
Kleindienst v. Mandel, 408 U.S. 753 (1972) ................ 3
Matter of Kolk, 11 I. & N. Dec. 103 (B.I.A.
1965) ............................................................................ 9
Kungys v. United States, 485 U.S. 759
(1988) ........................................................................ 12
Landon v. Plasencia, 459 U.S. 21 (1982) ................. 7, 8
Neal v. United States, 516 U.S. 284 (1996) ................ 17
Noem v. Vasquez Perdomo, 146 S. Ct. 1
(2025) ........................................................................ 16
Patel v. Garland, 596 U.S. 328 (2022) .................. 19, 21
Rimini Street, Inc. v. Oracle USA, Inc., 586
U.S. 334 (2019) ......................................................... 14
Sale v. Haitian Centers Council, Inc., 509
U.S. 155 (1993) ................................................... 10, 11
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953), superseded by
statute as stated in Department of
Homeland Security v. Thuraissigiam,
591 U.S. 103 (2020) .................................................. 15
Stanley v. City of Sanford, 606 U.S. 46
(2025) ........................................................................ 17
Utility Air Regulatory Group v. EPA, 573
U.S. 302 (2014) ......................................................... 19
V.O.S. Selections, Inc. v. Trump, 149 F.4th
1312 (Fed. Cir.), cert. granted, 146 S. Ct.
73 (2025) ................................................................... 20
Wisconsin Central Ltd. v. United States,
585 U.S. 274 (2018) ............................................ 19, 20
v
Zadvydas v. Davis, 533 U.S. 678 (2001) .............. 15, 16
STATUTES
8 U.S.C. § 1101 et seq. ..................................................... 1
8 U.S.C. § 1157 .............................................................. 10
8 U.S.C. § 1158 ........................ 3, 7, 10, 12, 15, 16, 18, 22
8 U.S.C. § 1158(a)(1) ......... 6, 8, 11, 12, 13, 14, 15, 16, 19
8 U.S.C. § 1158(b)(1) ....................................................... 7
8 U.S.C. § 1225(a) ...................................................... 9, 12
8 U.S.C. § 1225(a)(1) ............................................... 11, 16
8 U.S.C. § 1225(a)(2) ....................................................... 6
8 U.S.C. § 1225(a)(3) ....................................................... 9
8 U.S.C. § 1225(b)(1) ................................................. 6, 11
8 U.S.C. § 1229a(b)(4) ..................................................... 6
8 U.S.C. § 1229a(c)(7) ..................................................... 6
Immigration Act of 1917, ch. 29, 39 Stat.
874 ............................................................................... 9
Immigration and Nationality Act, ch. 477, 66
Stat. 163 (1952) .......................................................... 4
One Big, Beautiful Bill Act, Pub. L. No. 11921, 139 Stat. 72 (2025) ............................................. 22
Page Act of 1875, ch. 141, 18 Stat. 477 ......................... 9
Refugee Act of 1980, Pub. L. No. 96-212, 94
Stat. 102............................................................ 4, 5, 10
vi
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No.
104-208, Div. C, tit. VI, 110 Stat.
3009 ......................................................... 5, 6, 8, 16, 22
LEGISLATIVE MATERIALS
125 Cong. Rec. 23,232 (1979) (statement of
Sen. Kennedy) ........................................................... 5
126 Cong. Rec. 3,757 (1980) (statement of
Sen. Kennedy) ........................................................... 5
126 Cong. Rec. 4,500 (1980) (statement of
Rep. Holtzman) ......................................................... 5
H.R. 2, 118th Cong. (2023) (not enacted) ................... 17
H.R. 2022, 117th Cong. (2021) (not enacted) ............. 17
H.R. Rep. No. 104-469, pt. 1 (1996) .......... 4, 8, 9, 13, 19
Oversight of the Trump Administration’s
Border Policies and the Relationship
Between Anti-Immigrant Rhetoric and
Domestic Terrorism: Hearing Before the
Subcomm. on Immigr. & Citizenship of
the H. Comm. on the Judiciary, 116th
Cong. (2019) ........................................................22-23
vii
Ranking Member Thompson Leads
Homeland
Security
Committee
Democrats on Southwest Border Visit,
Committee on Homeland Security
Democrats (Apr. 20, 2023), https://dem
ocrats-homeland.house.gov/news/media
-advisories/ranking-member-thompsonleads-homeland-security-committee-de
mocrats-on-southwest-border-visit ..................... 23
The U.S. Immigration System: The Need for
Bold Reforms: Hearing Before the
Subcomm. on Immigr. & Citizenship of
the H. Comm. on the Judiciary, 117th
Cong. (2021) ............................................................. 22
The Way Forward on Border Security:
Hearing Before the H. Comm. On
Homeland Security, 116th Cong. (2019) ............. 22
Unaccompanied Children at the Border:
Stakeholder Perspectives on the Way
Forward: Hearing Before the Subcomm.
On Border Sec., Facilitation, and
Operations of the H. Comm. on
Homeland Sec., 117th Cong. (2021) ..................... 22
OTHER AUTHORITIES
8 C.F.R. § 208.2 ............................................................... 6
8 C.F.R. § 208.14 ............................................................. 6
Holly Straut-Eppsteiner, Cong. Rsch.
Serv., R47504, Asylum Process in
Immigration Courts and Selected
Trends (updated Dec. 2025) .................................... 6
INTEREST OF AMICI CURIAE1
Amici curiae are members of Congress who are
familiar with the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1101 et seq., and its careful protection
of asylum seekers. Many of Amici have been involved in
bipartisan negotiations over asylum and border policy
legislation. Amici have a strong interest in courts
interpreting the INA consistent with the intent of
Congress. Amici are well suited to provide the Court
with insights concerning that intent, as well as the
conflict between that intent and the Executive Branch
interpretation challenged in this litigation.
A complete list of amici is set forth in the appendix to
this brief.
SUMMARY OF ARGUMENT
For decades, Congress has used its plenary power
over immigration to protect those fleeing persecution.
After the Holocaust, the United States joined the
international community in committing to protect
refugees first by acceding to the 1967 Protocol then
codifying that commitment domestically through the
Refugee Act of 1980, which created a statutory asylum
system available to noncitizens present in the United
States or at its borders. When Congress enacted
IIRIRA in 1996, it tightened asylum procedures to
address conditions at the border while consistently
1
Pursuant to Rule 37.6, counsel for amici curiae state that no
counsel for a party authored this brief in whole or in part, and no
person or entity other than amici or their counsel has made a
monetary contribution to the preparation or submission of this
brief.
2
preserving the right of individuals who reach the
borders to apply for asylum. The statute’s text,
structure, and legislative history all confirm that asylum
is available to individuals who arrive at the border, not
only to those already physically present inside the
United States. This Court has consistently read the
statute the same way.
The canon against surplusage requires giving
“arrives in the United States” independent meaning.
Respondents’ interpretation gives effect to every phrase
in the statute, while Petitioners’ reading renders
“arrives in” entirely superfluous. None of Petitioners’
attempts to explain away the surplusage succeed: their
interpretation would not only frustrate the intent behind
the text Congress wrote, but would also strip an entire
statutory phrase of any independent meaning.
Petitioners’ interpretation also effectively transfers
legislative power from Congress to the Executive.
Congress has repeatedly considered and rejected
legislation that would limit asylum to only those arriving
at ports of entry or require applications from abroad.
Petitioners ask this Court to adopt through statutory
construction the limitations Congress has declined to
enact. Compounding the problem, the Executive Branch
adopted a policy of metering—physically blocking
asylum seekers from reaching the border—and now
argues that those who have not crossed the border fall
outside the statute’s reach. The Court should not
endorse an interpretation that rewards the Executive
for manufacturing the conditions on which its preferred
reading depends.
3
Finally, Petitioners’ warnings of operational crisis at
the border cannot justify rewriting the statute.
Congress has plenary authority over immigration,
closely monitors border conditions, and has
demonstrated its willingness to act—including by
funding enforcement efforts at historically high levels. If
the asylum laws require revision, that decision belongs
to Congress alone.
The Ninth Circuit properly interpreted the relevant
statutory provisions, giving effect to every phrase
Congress wrote and respecting Congress’s authority
over our Nation’s immigration laws. This Court should
affirm.
ARGUMENT
I.
Congress Intentionally Drafted Section 1158 to
Permit Persons Who Arrive at the Border to
Apply for Asylum.
A.
Congress Intended to Protect Asylum
Seekers in the INA and Preserved Those
Protections in IIRIRA.
The formulation of “[p]olicies pertaining to the entry
of aliens and their right to remain . . . is entrusted
exclusively to Congress.” Galvan v. Press, 347 U.S. 522,
531 (1954). That fact is “as firmly imbedded in the
legislative and judicial tissues of our body politic as any
aspect of our government.” Id.; see also Kleindienst v.
Mandel, 408 U.S. 753, 769-70 (1972) (“[P]lenary
congressional power to make policies and rules for
exclusion of aliens has long been firmly established.”).
4
In exercising this plenary power, Congress has
consistently chosen to protect asylum. Asylum ensures
“the United States lives up to its ideals and its treaty
obligations.” Dep’t of Homeland Sec. v. Thuraissigiam,
591 U.S. 103, 106 (2020). And Congress has long
recognized that refugee protection serves not only
humanitarian values but also the national interest: the
Refugee Act of 1980 declares that “it is the historic
policy of the United States to respond to the urgent
needs of persons subject to persecution in their
homelands” and “to encourage all nations to provide
assistance and resettlement opportunities to refugees to
the fullest extent possible.” Pub. L. No. 96-212, § 101(a),
94 Stat. 102, 102. But Congress’s commitment to
protecting those fleeing persecution at our borders long
predates the 1980 Refugee Act. Even the 1952
Immigration and Nationality Act allowed noncitizens
seeking to avoid persecution to apply for relief from
deportation regardless of whether they had entered the
United States. ch. 477, § 243(h), 66 Stat. 163, 214 (1952).
From the outset, Congress understood that protection
from persecution must be available to those arriving at
our borders, not only to those who had already entered.
Welcoming refugees has strengthened American
credibility abroad, facilitated cooperation with military
and diplomatic partners, and reinforced the United
States’ role as a leader in the international order. See
H.R. Rep. No. 104-469, pt. 1, at 110 (1996) (“H. Rep.”)
(describing the United States as an “island of freedom”
with a “singular interest that its immigration laws
encourage the admission of persons who will enrich our
society” (quoting in part President Reagan)).
5
Following World War II, the United States joined
with nations from across the world to formally express a
commitment that those fleeing persecution would be
protected; this was initially done by treaty. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987). Congress
then codified these protections in the Refugee Act of
1980, which for the first time established an “asylum
procedure . . . mandated in our immigration law.” 126
Cong. Rec. 4,500 (1980) (statement of Rep. Holtzman). It
replaced what had been an “ad hoc,” “inadequate,” and
“discriminatory” administrative process, 125 Cong. Rec.
23,232 (1979) (statement of Sen. Kennedy), with a formal
asylum application process for any noncitizen
“physically present in the United States or at a land
border or port of entry, irrespective of such alien’s
status,” Refugee Act of 1980 § 208(a), 94 Stat. at 105. As
Senator Kennedy explained, “[t]he refugees of
tomorrow, like the refugees of today, will continue to
look to the United States for safe haven and
resettlement opportunities—and our Government will
continue to be called upon to help.” 126 Cong. Rec. 3,757
(1980) (statement of Sen. Kennedy).
In 1996, Congress reaffirmed this commitment while
at the same time addressing a perceived rise in
undocumented immigration and meritless asylum
claims. See, e.g., Thuraissigiam, 591 U.S. at 106.
Through the bipartisan Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA),
Congress tightened asylum procedures in multiple
respects. For example, it introduced a one-year filing
deadline for asylum applicants, Pub. L. No. 104-208, Div.
C, tit. VI, § 604(a), 110 Stat. 3009, 3009-690 to -691
6
(codified at 8 U.S.C. § 1158(a)(2)(B)), and created an
expedited removal system under which an immigration
officer “shall order the alien removed from the United
States without further hearing or review” if the
individual does not demonstrate “a credible fear of
persecution,” id. § 302, 110 Stat. 3009-580 to -581
(codified at 8 U.S.C. § 1225(b)(1)(A), (B)).
But critically, Congress tightened the process for
seeking asylum without eliminating access to it. Even
after IIRIRA, persons may apply for asylum through
multiple pathways. See Holly Straut-Eppsteiner, Cong.
Rsch. Serv., R47504, Asylum Process in Immigration
Courts and Selected Trends (updated Dec. 2025). Every
applicant for admission to the United States must be
allowed to seek asylum protection, even if that individual
is otherwise inadmissible or subject to expedited
removal proceedings at the border. If an individual
subject to expedited removal expresses a fear of
persecution, they are referred for a credible fear
interview, which can lead to asylum proceedings. 8
U.S.C. § 1225(a)(2), (b)(1)(A)(ii), (B). Individuals in
regular, non-expedited removal proceedings can seek
asylum as a ground for relief from removal. 8 U.S.C.
§ 1229a(b)(4). Individuals subject to a removal order
may seek to reopen removal proceedings based on
changed country conditions that make them eligible for
asylum. Id. § 1229a(c)(7). And individuals present in the
United States who are not in removal proceedings may
affirmatively seek asylum. 8 U.S.C. § 1158(a)(1), (b)(1);
see 8 C.F.R. §§ 208.2, 208.14 (describing different paths
for asylum applications depending on pendency of
removal proceedings).
7
IIRIRA was bipartisan legislation born of significant
compromise: it calibrated asylum procedure to
conditions at the border while retaining Congress’s
foundational commitment to a system that provides
access to asylum for those with a credible fear of
persecution.
B.
Congress Intended Section 1158 to Preserve
Asylum for Persons Who Arrive at the
Border, Not Just for Persons Physically
Present in the United States.
Congress has never understood asylum protections
to extend only to persons physically present in the
United States. The statute’s text, its structural
relationship to other provisions of the INA, and this
Court’s own precedent all confirm that § 1158 reaches
individuals who arrive at the border.
1.
The Text and Structure of Section
1158—and this Court’s Precedents
Considering It—Confirm that
Congress Preserved Asylum for
Persons Who Arrive at the
Border.
First, the text. Before IIRIRA, the INA used the
term “entry” to describe a noncitizen’s arrival into the
country. This language created a harsh result, where
those who were attempting to come to the United States
lawfully often received fewer protections than those who
had come to the United States through unlawful means.
See Landon v. Plasencia, 459 U.S. 21, 25-26 (1982).
IIRIRA replaced “entry” with “admission” throughout
the statute—a global transition that required
8
conforming amendments across numerous provisions,
including those relating to asylum. See IIRIRA
§ 308(d)(4)(D), 110 Stat. at 3009-617 to -618. As part of
that transition, Congress revised § 1158 to provide that
“[a]ny alien who is physically present in the United
States 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)”
may “apply for asylum.” 8 U.S.C. § 1158(a)(1).
IIRIRA’s replacement of ‘entry’ with ‘admission’
was designed to expand protections for those arriving
lawfully, ensuring they would not receive harsher
treatment than those who entered unlawfully. Before
IIRIRA, the concept of ‘entry’ created perverse results
where lawful arrivals were sometimes treated worse
than those who had unlawfully entered. See Landon, 459
U.S. at 25-26. Against this backdrop, the notion that
IIRIRA would simultaneously narrow asylum eligibility
for arriving noncitizens defies logic and history.
Congress would not have undertaken a global statutory
revision to eliminate unfair treatment of lawful arrivals
while simultaneously making asylum unavailable to
people seeking to present themselves at official ports of
entry.
The authoring committee’s contemporaneous
explanation of this language confirms that it was meant
to preserve—not narrow—asylum access for those
arriving at the border. The committee explained that the
revised statute “provides that any alien who is
physically present in the United States or at the border
of the United States” may apply for asylum. H. Rep. at
9
259. In other words, when Congress wrote “arrives in
the United States,” it understood that phrase to mean
“at the border of the United States.” Id. Just as before
IIRIRA, Congress intended asylum seekers to be able
to apply both when present in the United States and
when at its borders.
Second, the broader statutory structure confirms
this reading. Congress used materially identical
language in 8 U.S.C. § 1225(a) to define who qualifies as
an applicant for admission: “[a]n alien 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).” Every such
applicant for admission “shall be inspected by
immigration officers.” 8 U.S.C. § 1225(a)(3). This parallel
is significant. Since the United States first restricted
immigration into the country, Congress has required
immigration officers to inspect arriving noncitizens. See
Matter of Kolk, 11 I. & N. Dec. 103, 104 (B.I.A. 1965)
(citing the Page Act of 1875, ch. 141, 18 Stat. 477) (“The
immigration laws have provided for the inspection of
aliens entering the United States since the Act of March
3, 1875.”); Immigration Act of 1917, ch. 29, § 15, 39 Stat.
874, 885. Section 1225(a) is the latest iteration of that
requirement. Congress’s inspection mandate reflects its
judgment that, as a matter of national security, the
United States must know who is at its borders and why
they seek to come in. If “arrives in the United States”
meant the same thing as “physically present in the
United States,” the inspection mandate in § 1225(a)
10
would not reach noncitizens who present themselves at
the border but have not yet crossed it—precisely the
individuals Congress most clearly intended to subject to
inspection.
Third, this Court has consistently recognized that
individuals at the border are eligible to apply for asylum.
When the Refugee Act of 1980 created separate
provisions for refugee admissions from abroad (§ 207,
now codified at 8 U.S.C. § 1157) and asylum (§ 208, now
codified at 8 U.S.C. § 1158), the Court described the new
§ 208(a) as “direct[ing] the Attorney General to establish
procedures permitting aliens either in the United States
or at our borders to apply for ‘asylum.’” INS v. Stevic,
467 U.S. 407, 423 n.18 (1984); see also Cardoza-Fonseca,
480 U.S. at 427, 433 (describing § 207 as governing
refugees “who seek admission from foreign countries,”
distinct from the asylum provision which applied for
those “physically present . . . or at a land border or port
of entry” (internal quotation marks omitted)). The
Court’s own description confirms what Congress
intended and has always understood: that persons at our
borders are eligible to apply for asylum.
Subsequent
decisions
confirm
the
same
understanding. In Sale v. Haitian Centers Council, Inc.,
the Court explained that “[t]he INA offers [asylum] only
to aliens who reside in or have arrived at the border of
the United States.” 509 U.S. 155, 160 (1993). Throughout
Sale, the Court treated persons “arriving at the border”
as a distinct class from those intercepted on the high seas
and prevented from “from reaching our shores.” Id. at
158, 160. The Court drew a clear line between those who
were “at the border”—and thus eligible to apply for
11
asylum protections, even if they could still be ultimately
excluded from the United States—and those “beyond
the territorial waters of the United States.” Id. at 177.
Similarly, in Jennings v. Rodriguez, the Court
identified two distinct groups of noncitizens: those “who
have arrived at an official ‘port of entry’ (e.g., an
international airport or border crossing) or who have
been apprehended trying to enter the country at an
unauthorized location,” and separately, those “who are
already present inside the country.” 583 U.S. 281, 285
(2018). The Court explained that those present “at the
Nation’s borders and ports of entry” are applicants for
admission. Id. at 287. Those applicants for admission
must be allowed to apply for asylum. See id.; 8 U.S.C.
§ 1225(b)(1).
Petitioners correctly note that “Congress enacted
the current text of Sections 1158(a)(1) and 1225(a)(1) as
part of IIRIRA in 1996, three years after the decision in
Sale.” Pet. Br. at 32. And as members of Congress, we
further agree with the Court’s presumption that “when
Congress enacts statutes, it is aware of this Court’s
relevant precedents.” Id. (quoting Bartenwerfer v.
Buckley, 598 U.S. 69, 80 (2023)). Yet those principles
compel the opposite conclusion from the one Petitioners
draw. Sale confirmed that the INA offers immigrants
the opportunity to apply for asylum once they reach our
border. 509 U.S. at 160. Legislating against that
backdrop, Congress enacted the 1996 amendments to
ensure the same would remain true—providing
explicitly that even “an alien who is brought to the
United States after having been interdicted in
12
international or United States waters” must be allowed
to apply for asylum. 8 U.S.C. § 1158(a)(1).
2.
The Canon Against Surplusage
Confirms that “Arrives In” Has
Independent Meaning in Both
§§ 1158 and 1225(a).
The canon against surplusage confirms what the
text, structure, and precedent already establish. It is a
“cardinal rule of statutory interpretation” that “no
provision should be construed to be entirely redundant.”
Kungys v. United States, 485 U.S. 759, 778 (1988); see
also Fischer v. United States, 603 U.S. 480, 496 (2024)
(“[S]urplusage is . . . disfavored,” and a “construction
that creates substantially less of it is better than a
construction that creates substantially more.”
(quotation marks omitted)); Bowe v. United States, No.
24-5438, 2026 WL 70342, at *14-15 (U.S. Jan. 9, 2026)
(rejecting construction that would make the inclusion of
another phrase “mere surplusage”). Indeed, the Court
has stated that it is duty-bound “to give effect, if
possible, to every clause and word of a statute.” Duncan
v. Walker, 533 U.S. 167, 174 (2001) (quotation marks
omitted).
Where, as here, a statute has been amended, the
canon against surplusage carries even greater weight.
Though the Court is “reluctant to treat statutory terms
as surplusage in any setting,” “[its] reluctance increases
when Congress amends a statute.” Bufkin v. Collins,
604 U.S. 369, 386 (2025) (quotation marks omitted).
“[W]hen Congress [amends a statute], it intends its
amendment to have real and substantial effect.” Id.
(internal quotation marks omitted). For § 1158
13
specifically, that effect was to continue to allow asylees
to apply at any border, regardless of whether they had
“entered” (under the pre-IIRIRA language) or been
“admitted” (under the new language). See H. Rep. at 259;
8 U.S.C. § 1158(a)(1).
Respondents’ reading gives independent meaning to
both phrases in the statute, as Congress intended.
“Physically present in the United States” refers to
individuals who have crossed the border. “Arrives in the
United States” refers to those at the border, including
those presenting themselves for inspection by
immigration officials at ports of entry. The reading
urged by Petitioners, by contrast, collapses the two
phrases into one, rendering “arrives in” entirely
superfluous.
The rare circumstances in which the Court has
sometimes tolerated surplusage are not present here. In
Bufkin v. Collins, the canon against surplusage could
not do any tiebreaking work because neither side’s
interpretation avoided the redundancy. See 604 U.S. at
387 (canon “does not apply” where “competing
interpretation would [not] avoid superfluity”). And in
Barton v. Barr, 590 U.S. 222 (2020), both the majority
and dissent acknowledged “that under either side’s
interpretation” there was “redundant surplusage.” Id. at
239 (Kavanaugh, J.); id. at 253 (Sotomayor, J.
dissenting). With that backdrop, the Court’s observation
that “[s]ometimes the better overall reading of the
statute contains some redundancy,” id. at 239 (quotation
marks omitted), carries little weight here, where only
one side’s reading creates surplusage. Here, the
situation is the opposite: Respondents’ interpretation
14
gives independent meaning to every phrase in the
statute, while Petitioners’ reading alone renders
“arrives in the United States” superfluous. This is
precisely the circumstance where the canon has its
greatest force. Nor can Petitioners find refuge in Rimini
St., Inc. v. Oracle USA, Inc., which involved a statute
addressing costs where some “redundancy is hardly
unusual.” 586 U.S. 334, 346 (2019) (quotation marks
omitted).
Recognizing the force of the surplusage problem,
Petitioners and their amici offer several theories for why
“arrives in” adds nothing to “physically present” without
creating redundancy. None succeeds.
First, several Congressmen claim the redundancy is
purposeful. According to them, “Congress said not
once—but twice—that to seek asylum, the alien must be
‘in the United States.’” Br. for Ted Cruz et al. as Amici
Curiae Supporting Pet’rs. at 8. To be sure, Congress did
repeat that phrase twice. But the statute’s repetition of
“in the United States” is preceded by two different
phrases—the very phrases at the heart of this case: the
asylum seeker must be “physically present in the United
States or [one] who arrives in the United States.” 8
U.S.C. § 1158(a)(1). The senators’ argument simply
ignores these distinct terms. “Whenever a reading
arbitrarily
ignores
linguistic
components
or
inadequately accounts for them, the reading may be
presumed improbable.” Feliciano v. Dep’t of Transp.,
605 U.S. 38, 51-52 (2025) (quotation marks omitted).
Next, Petitioners and their amici contend that
“arrives in” is necessary to prevent courts from using
the entry fiction—the concept that someone physically
15
within the United States may be “treated as if stopped
at the border,” Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 215 (1953), superseded by statute as
stated in Dep’t of Homeland Sec. v. Thuraissigiam, 591
U.S. 103 (2020)—to exclude arriving noncitizens from
the category of those “physically present.” Pet. Br. at 2122. But this turns the entry fiction on its head. The entry
fiction provides that certain individuals who are
undisputedly physically present in the United States
are not treated as having legally entered. See, e.g.,
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (collecting
cases). The fiction operates on the legal concept of entry,
not on physical location. Because § 1158(a)(1) refers to
“physical[] presen[ce]”—not entry or admission—the
entry fiction would pose no interpretive difficulty. The
statute’s plain language already resolves the concern
Petitioners raise.
Finally, a group of Congressmen offer a different
theory: “arrives in” distinguishes noncitizens who would
arrive after the statute’s passage from those “physically
present” when it was enacted. Br. for Ted Cruz et al. as
Amici Curiae Supporting Pet’rs. at 8. But this argument
defies basic principles of statutory interpretation. A
“statute is presumed to speak from the time of its
enactment” and “embraces all such persons or things as
subsequently fall within its scope.” De Lima v. Bidwell,
182 U.S. 174, 197 (1901). Section 1158 applies to those
who are physically present in the United States today,
and it will apply tomorrow to those who are physically
present tomorrow. The statute’s language does not
freeze its scope at the moment of enactment.
16
IIRIRA’s text further undercuts this temporal
theory. Where Congress was concerned about the
temporal scope of particular provisions in IIRIRA, it
said so expressly. A separate section of the statute set
forth detailed transitional rules clarifying how specific
provisions applied to noncitizens already in immigration
proceedings versus those who would enter proceedings
in the future. See IIRIRA § 309(c), 110 Stat. at 3009-625
to -627 (codified at 8 U.S.C. § 1101 note). Congress knew
how to draw temporal distinctions when it wanted to. Its
decision not to do so in § 1158(a)(1) is telling.
II.
The Petitioners’ Statutory Interpretation
Would Impermissibly Allow the Executive and
Courts to Usurp Legislative Power.
This Court has long recognized “that Congress has
plenary power to create immigration law.” Zadvydas,
533 U.S. at 695. Other members of Congress frame the
Ninth Circuit’s decision as a separation of powers
violation and judicial aggrandizement. But their
argument presupposes that Petitioners’ interpretation
is correct and overlooks the separation of powers
problem it in fact creates. The courts’ role in
immigration cases is to “ensure, . . . that the Executive
Branch acts within the confines of the Constitution and
federal statutes.” Noem v. Vasquez Perdomo, 146 S. Ct.
1, 6 (2025) (Kavanaugh, J. concurring in the grant of the
application for stay). That role is implicated here
because Petitioners’ proposed reading of §§ 1158 and
1225(a)(1) would effectively transfer legislative power
from Congress to the Executive.
17
A.
Petitioners Ask this Court to Adopt a
Limitation Congress Repeatedly Declined
to Enact.
Congress’s commitment to preserving asylum access
at the border is demonstrated not only by what it has
enacted, but also by what it has declined to enact. Over
the last decade, numerous bills have been introduced
that would have curtailed asylum eligibility. Time and
again, Congress has declined to enact them. See, e.g.,
H.R. 2, 118th Cong. (2023) (not enacted) (proposed
limiting asylum to those arriving at ports of entry); H.R.
2022, 117th Cong. (2021) (not enacted) (proposed
requiring asylum interviews abroad before entering the
United States). Most recently, bipartisan border
negotiations in 2024 again considered but declined to
limit asylum to those arriving at ports of entry,
demonstrating continued congressional commitment to
preserving border asylum access even in the face of
operational challenges. These proposals were considered
and rejected through the ordinary legislative process—
the “single, finely wrought and exhaustively considered,
procedure” the Framers prescribed. INS v. Chadha, 462
U.S. 919, 951 (1983).
Petitioners now ask this Court to accomplish through
statutory interpretation what Congress has repeatedly
declined to do through legislation: restrict who may
access asylum, including those at our borders. But the
“decision whether to” narrow a statute’s reach “lies with
[the Congressional] body, not this one.” Stanley v. City
of Sanford, 606 U.S. 46, 59 (2025); see also Neal v. United
States, 516 U.S. 284, 296 (1996) (“Congress, not this
Court, has the responsibility for revising its statutes.”).
18
Adopting Petitioners’ interpretation would do precisely
what Congress has repeatedly chosen not to do—and
would do so without any of the deliberation, compromise,
or democratic accountability that the legislative process
demands.
B. The Executive May Not Use Operational
Choices to Rewrite the Statute’s Eligibility
Criteria.
The separation-of-powers concern here is not merely
theoretical. The record in this case demonstrates that
the Executive Branch adopted a policy of “metering”—
physically preventing asylum seekers from reaching the
United States’ side of the border—and now argues that
those who have not crossed the border are ineligible to
apply for asylum. See, e.g., Pet. App. 4a–5a; Pet. Br. 9–
10. In other words, the Executive used operational
choices to prevent individuals from satisfying a
purported statutory condition and now invokes their
failure to satisfy that condition as a basis for denying
them access to relief.
Petitioners’ interpretation creates an intolerable
separation-of-powers problem: it would allow the
Executive to eliminate a statutory right through
operational decisions. By implementing a metering
policy that physically prevented asylum seekers from
‘arriving in’ the United States under Petitioners’
preferred definition, the Executive effectively nullified
§ 1158’s requirements. The Executive then points to its
own obstruction as proof that asylum seekers failed to
satisfy statutory requirements. This Court should not
endorse an interpretation that rewards the Executive
for manufacturing the conditions on which its preferred
19
reading depends. “The power of executing the laws . . .
does not include a power to revise clear statutory terms
that turn out not to work in practice.” Util. Air Regul.
Grp. v. EPA, 573 U.S. 302, 327 (2014). Still less does it
include the power to render statutory protections
inaccessible through enforcement decisions and then cite
that inaccessibility to justify a narrower reading of the
statute. Congress provided that individuals who
“arriv[e] in the United States” may apply for asylum. 8
U.S.C. § 1158(a)(1). As the committee report confirms,
that phrase encompasses those “at the border of the
United States.” H. Rep. at 259. The Executive cannot
nullify that protection by ensuring no one reaches the
border and then arguing the statute does not apply to
them.
As always, “policy concerns cannot trump the best
interpretation of the statutory text.” Patel v. Garland,
596 U.S. 328, 346 (2022). Petitioners emphasize the need
for Executive authority to manage the border, but the
Framers entrusted the “legislative power of the Federal
government” to Congress, not the President. Chadha,
462 U.S. at 951. If the Executive believes current asylum
procedures are inadequate, the remedy is to seek
legislation—not to adopt a statutory reading that
effectively rewrites the statute Congress enacted.
C. Congress Alone Has The Authority to
Revise the Asylum Laws.
If the law needs to be updated to address changed
circumstances, “Congress alone has the institutional
competence, democratic legitimacy, and (most
importantly) constitutional authority to revise statutes
in light of new social problems and preferences.” Wis.
20
Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018).
Where there is a legitimate concern that “the security of
our borders will be compromised” by the Court’s
interpretation of an immigration statute, “Congress can
attend to it.” Clark v. Martinez, 543 U.S. 371, 386 (2005).
And Congress has historically demonstrated its capacity
to do exactly that. See id. at 386 n.8 (observing that
Congress passed legislation to overturn the Court’s
interpretation of an immigration statute less than four
months after the decision).
This principle carries particular weight at a moment
when the boundary between executive and legislative
power in immigration is under significant strain. Courts
across the country have been called upon to assess
whether Executive action has exceeded statutory
authority in a range of contexts. See, e.g., V.O.S.
Selections, Inc. v. Trump, 149 F.4th 1312, 1318-19 (Fed.
Cir.), cert. granted, 146 S. Ct. 73 (2025); Am. Foreign
Serv. Ass’n v. Trump, 792 F. Supp. 3d 116, 123-24
(D.D.C. 2025), appeal docketed, No. 25-5290 (D.C. Cir.
Aug. 13, 2025). The Court’s vigilance in ensuring that the
Executive operates within statutory bounds is essential
to preserving the constitutional structure—and
nowhere more so than in the immigration context, where
Congress’s plenary authority is well established and the
consequences of executive overreach fall on some of the
most vulnerable individuals within the legal system.
If Congress wishes to reform the United States’
asylum laws, it may do so. But Congress alone may take
that step. Wis. Cent., 585 U.S. at 284.
21
III.
Operational Concerns at the Border Are for
Congress to Address.
Petitioners and their amici warn of operational
difficulties at the border if the Ninth Circuit’s decision is
allowed to stand. Pet. Br. at 35–36; Br. for Ted Cruz et
al. as Amici Curiae Supporting Pet’rs. at 10–15. But
these policy arguments lack foundation and, in any
event, cannot justify rewriting the statute. As members
of Congress, amici can confirm that Congress is both
aware of conditions at the border and capable of
responding to them through legislation.
As an initial matter, refusing to allow noncitizens to
apply for asylum at ports of entry along the border
creates its own operational difficulties, by potentially
“incentiviz[ing people] to attempt to cross into the
United States illegally, between ports of entry.” J.A.
399. When last reforming the INA, Congress made clear
it did not intend noncitizens arriving lawfully to suffer
harsher treatment than those arriving through unlawful
means. But allowing those present in the United
States—with or without authorization—to apply for
asylum while those at the border cannot would create
precisely that disparate treatment.
Additionally, this Court has squarely held that
“policy concerns cannot trump the best interpretation of
the statutory text.” Patel, 596 U.S. at 346. Where a party
argues that “the security of our borders will be
compromised” by the Court’s reading of an immigration
statute, the answer is not to adopt a different reading—
it is to recognize that “Congress can attend to it.” Clark,
543 U.S. at 386. Even accepting that managing the
border presents genuine challenges, the remedy is
22
legislative action, not judicial reinterpretation. The
Court should not distort the meaning of § 1158 to solve a
problem that Congress has the authority—and the
responsibility—to address.
Nor should the Court credit the premise that
Congress is unable or unwilling to act. Congress has
plenary authority over immigration and has exercised it
repeatedly to adjust the statutory framework in
response to changing conditions at the border. IIRIRA
itself was precisely such an adjustment—a
comprehensive, bipartisan response to a perceived
increase in undocumented immigration that tightened
asylum procedures while preserving access. See supra
Section I.A. And Congress has continued to demonstrate
its capacity to act: when the Executive Branch identified
a need for additional enforcement resources, Congress
responded by funding immigration enforcement efforts
at historically high levels. See, e.g., One Big, Beautiful
Bill Act, Pub. L. No. 119-21, 139 Stat. 72, 385-89 (2025).
Congress has also closely monitored conditions at the
border through hearings, investigations, and member
visits. See, e.g., Unaccompanied Children at the Border:
Stakeholder Perspectives on the Way Forward: Hearing
Before the Subcomm. On Border Sec., Facilitation, &
Operations of the H. Comm. on the Judiciary, 117th
Cong. 1-3 (2021); The U.S. Immigration System: The
Need for Bold Reforms: Hearing Before the Subcomm.
on Immigr. & Citizenship of the H. Comm. on the
Judiciary, 117th Cong. (2021); The Way Forward on
Border Security: Hearing Before the H. Comm. On
Homeland Sec., 116th Cong. (2019); Oversight of the
Trump Administration’s Border Policies and the
23
Relationship Between Anti-Immigrant Rhetoric and
Domestic Terrorism: Hearing Before the Subcomm. on
Immigr. & Citizenship of the H. Comm. on the
Judiciary, 116th Cong. (2019); Ranking Member
Thompson Leads Homeland Security Committee
Democrats on Southwest Border Visit, Committee on
Homeland Security Democrats (Apr. 20, 2023),
https://democrats-homeland.house.gov/news/media-adv
isories/ranking-member-thompson-leads-homeland-sec
urity-committee-democrats-on-southwest-border-visit.
Amici are well aware of the operational realities at the
border and the tools available to address them. Indeed,
even without the unlawful practice of metering there are
numerous tools available to create an orderly process at
the border, many of which were used during prior
administrations. To the extent those tools prove
insufficient, it is Congress’s prerogative to craft new
ones—through the deliberative legislative process, not
through executive fait accompli ratified by judicial
reinterpretation.
There is also a deeper problem with crediting
Petitioners’ operational arguments. As discussed in
Section II.B, the Executive Branch’s own policy of
metering—physically preventing asylum seekers from
reaching the border—is a significant contributor to the
conditions Petitioners now cite as justification for their
preferred reading. Endorsing that reading would create
a perverse incentive: it would reward the Executive for
creating operational difficulties and then invoking those
difficulties to justify a statutory interpretation that
Congress never intended. The Court should decline that
invitation.
24
If Congress determines that the asylum laws require
revision—whether to address operational concerns,
security considerations, or any other policy objective—
it has the constitutional authority and institutional
capacity to do so. But that decision belongs to Congress.
It cannot be made by the Executive through
enforcement policy, nor ratified by the Court through
statutory reinterpretation.
CONCLUSION
For the foregoing reasons, amici curiae respectfully
request that this Court affirm the decisions below.
February 17, 2026
Respectfully submitted,
LINDSAY HARRISON
Counsel of Record
MORGAN SANDHU
JENNER & BLOCK LLP
1099 New York Avenue NW
Suite 900
Washington, DC 20001
(202) 639-6000
lharrison@jenner.com
Counsel for Amici Curiae
Members of Congress
APPENDIX
TABLE OF CONTENTS
COMPLETE LIST OF AMICI CURIAE ............. 1a
1a
APPENDIX
COMPLETE LIST OF AMICI CURIAE
Jamie Raskin
Representative of Maryland
Bennie G. Thompson
Representative of Mississippi
Pramila Jayapal
Representative of Washington
Becca Balint
Representative of Vermont
Troy A. Carter, Sr.
Representative of Louisiana
Steve Cohen
Representative of Tennessee
J. Luis Correa
Representative of California
Jasmine Crockett
Representative of Texas
Jesús G. “Chuy” García
Representative of Illinois
Dan Goldman
Representative of New York
2a
Al Green
Representative of Texas
Pablo José Hernández
Representative of Puerto Rico
Henry C. “Hank” Johnson, Jr.
Representative of Georgia
Sydney Kamlager-Dove
Representative of California
Ted W. Lieu
Representative of California
Lucy McBath
Representative of Georgia
LaMonica McIver
Representative of New Jersey
Jerrold Nadler
Representative of New York
Nellie Pou
Representative of New Jersey
Delia C. Ramirez
Representative of Illinois
Deborah K. Ross
Representative of North Carolina
3a
Mary Gay Scanlon
Representative of Pennsylvania
Eric Swalwell
Representative of California
Shri Thanedar
Representative of Michigan
James Walkinshaw
Representative of Virginia
Alex Padilla
Senator of California
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.