Amicus Curiae Brief — Markwayne Mullin, Secretary of Homeland Security, et al., Petitioners v. Refugee and Immigrant Center for Education and Legal Services, et al.

No. 26-239

In the

Supreme Court of the United States

______________

MARKWAYNE MULLIN, SECRETARY OF HOMELAND

SECURITY, ET AL.,

Petitioners,

v.

REFUGEE AND IMMIGRANT CENTER FOR EDUCATION

AND LEGAL SERVICES, ET AL.,

Respondents.

______________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the D.C. Circuit

______________

BRIEF OF AMERICA FIRST LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

______________

MICHAEL B. BUSCHBACHER

Counsel of Record

TAYLOR M. MYERS

WALKER FORTENBERRY

BOYDEN GRAY PLLC

800 Connecticut Ave. NW

Suite 900

Washington, DC 20006

(202) 955-0620

mbuschbacher@boydengray.com

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE........................... 1

SUMMARY OF ARGUMENT................................... 2

ARGUMENT ............................................................ 7

I.

Congress Made Asylum A Discretionary Benefit,

Not A Judicially Enforceable Pathway For

Illegal Entry ...................................................... 7

A.

The INA Commits The Asylum Decision

Entirely To Executive Discretion ............... 7

B.

The INA Permits The Executive To Exercise

Its Asylum Discretion Categorically......... 10

C.

Having Categorically Denied Asylum, The

Executive Need Not Accept Futile

Applications ............................................. 12

II. Article II Confirms The Breadth Of Section

1182(f) ............................................................. 15

III. Review Is Warranted Because The Decision

Below Would Undo The Proclamation’s Success

In Restoring The Process Congress Designed.. 18

CONCLUSION ....................................................... 23

ii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Am. Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003) ........................................... 16

Arizona v. United States,

567 U.S. 387 (2012) ........................................... 18

Biden v. Texas,

597 U.S. 785 (2022) ........................................... 19

Bond v. United States,

572 U.S. 844 (2014) ........................................... 17

DHS v. Regents of the Univ. of Cal.,

591 U.S. 1 (2020) ............................................... 19

DHS v. Thuraissigiam,

591 U.S. 103 (2020) .................................... 3, 9, 14

Gonzales v. Thomas,

547 U.S. 183 (2006) ........................................... 19

Huisha-Huisha v. Mayorkas,

27 F.4th 718 (D.C. Cir. 2022).......................... 3, 15

INS v. Aguirre-Aguirre,

526 U.S. 415 (1999) ..........................................3, 8

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) .................................... 3, 8, 12

iii

INS v. Orlando Ventura,

537 U.S. 12 (2002) ............................................. 19

INS v. Yueh-Shaio Yang,

519 U.S. 26 (1996) ............................................. 11

Jama v. Immigr. & Customs Enf’t,

543 U.S. 335 (2005) ........................................... 18

Jesner v. Arab Bank, PLC,

584 U.S. 241 (2018) ............................................. 7

United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950) ........................................ 5, 16

Margolin v. Nat’l Ass’n of Immigr. Judges,

608 U.S. 339 (2026) ........................................... 19

Moncrieffe v. Holder,

569 U.S. 184 (2013) ..........................................3, 7

Mullin v. Al Otro Lado,

146 S. Ct. 2079 (2026) .................................. 17, 23

Olim v. Wakinekona,

461 U.S. 238 (1983) ........................................... 14

Refugee & Immigrant Ctr. for Educ. &

Legal Servs. v. Mullin,

174 F.4th 81 (D.C. Cir. 2026).......... 4, 7, 10–13, 15

Refugee & Immigrant Ctr. for Educ. &

Legal Servs. v. Noem,

No. 25-5243, 2025 WL 5144253 (D.C.

Cir. Aug. 1, 2025)............................ 4, 5, 10, 15, 18

iv

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) ........................................... 16

Sessions v. Dimaya,

584 U.S. 148 (2018) ........................................... 17

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ........................................... 14

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ............................................. 5

Trump v. CASA, Inc.,

606 U.S. 831 (2025) ............................................. 5

Trump v. Hawaii,

585 U.S. 667 (2018) .................................. 5, 16, 19

Trump v. Int’l Refugee Assistance Project,

582 U.S. 571 (2017) ........................................... 19

United States v. Texas,

507 U.S. 529 (1993) ........................................... 18

Webster v. Doe,

486 U.S. 592 (1988) ........................................... 16

Zemel v. Rusk,

381 U.S. 1 (1965) ............................................... 16

STATUTES

8 U.S.C. § 1101 et seq................................................ 2

8 U.S.C. § 1158 ......................................................... 2

8 U.S.C. § 1158(a)(1) ..............................................3, 8

v

8 U.S.C. § 1158(b)(1)(A) ............................. 3, 8, 11, 14

8 U.S.C. § 1158(b)(2)(A) .......................................... 13

8 U.S.C. § 1158(b)(2)(A)(i)–(vi).................................. 9

8 U.S.C. § 1158(b)(2)(C) ............................................ 9

8 U.S.C. § 1158(d)(2) ................................................. 9

8 U.S.C. § 1158(d)(5)(A)(iii) ...................................... 9

8 U.S.C. § 1158(d)(6) ................................................. 9

8 U.S.C. § 1158(d)(7) .......................................... 10, 14

8 U.S.C. § 1182(d)(5)(A) .......................................... 11

8 U.S.C. § 1182(f) .................................................... 16

8 U.S.C. § 1225(a)(1) ............................................... 13

Act of Oct. 3, 1965, Pub. L. No. 89-236,

79 Stat. 911 ......................................................... 8

Illegal Immigration Reform and

Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, div. C,

110 Stat. 3009-546............................................... 9

Refugee Act of 1980, Pub. L. No. 96-212,

94 Stat. 102 ......................................................8, 9

OTHER AUTHORITIES

Adam Isacson, U.S.-Mexico Border Update,

Wash. Off. on Latin Am. (Apr. 17, 2026) ........... 22

vi

Address of the Minority in the Virginia

Legislature to the People of that

State (1799) ....................................................... 17

Andorra Bruno, Cong. Rsch. Serv.,

R48802, Development of the U.S.

Asylum System: In Brief (2026) ........................... 8

David Luhnow, Alicia A. Caldwell & Juan

Forero, The Explosion of Asylum Claims

Driving the Global Migrant Crisis, Wall

St. J. (Apr. 8, 2024)............................................ 20

Holly Straut-Eppsteiner, Cong. Rsch.

Serv., R47637, Immigration Judge

Hiring and Projected Impact on the

Immigration Courts Backlog (2023) .................. 21

Joint Appendix, Refugee & Immigrant Ctr.

for Educ. & Legal Servs. v. Noem,

No. 25-5243, Dkt. No. 1208769239 ................. 2, 10

Julia Preston, The Real Origins of the Border

Crisis, Foreign Affs. (July/Aug. 2023)........... 21, 22

Luis Chaparro, Cartel Human

Smuggling Business Is Turning

Entire Border Towns into War Zones,

Fox News (Jan. 21, 2024) .................................. 21

Luis Ferré-Sadurní, What to Know About

the Migrant Crisis in New York City,

N.Y. Times (Aug. 19, 2024) ................................ 20

vii

Majority Staff of H. Comm. on

Homeland Sec., Border Crisis

Startling Stats (Oct. 22, 2024) ........................... 19

Miriam Jordan, The Real Reasons

Migrants Are Coming in Droves:

They Believe They Can Stay, N.Y.

Times (Jan. 31, 2024) ........................................ 20

Nat’l Immigration Forum, Explainer:

Asylum Backlogs (Jan. 23, 2024) ....................... 20

Oversight Hearing—U.S. Customs &

Border Protection: Hearing Before

the Subcomm. on Homeland Sec. of

the H. Comm. on Appropriations,

119th Cong. (2025) ............................................ 23

Press Release, DHS, Lowest Fiscal Year

for Border Patrol Apprehensions

Since 1970 (Oct. 7, 2025) ................................... 22

Proclamation No. 10888, Guaranteeing the

States Protection Against Invasion, 90

Fed. Reg. 8,333 (Jan. 29, 2025)........... 2, 10, 19, 22

Saikrishna B. Prakash & Michael D.

Ramsey, The Executive Power over

Foreign Affairs, 111 Yale L.J. 231 (2001) .......... 17

Sup. Ct. R. 10(c)...................................................... 18

viii

U.S. Dep’t of Justice, Exec. Office for

Immigration Review, Workload and

Adjudication Statistics, Total Asylum

Applications (data generated July 24,

2026) ................................................. 20, 21, 22, 23

USAFacts, Are Immigration Judges Keeping

Up with Rising Caseloads? (Nov. 6, 2025) ......... 21

Will Freeman, Tough New Immigration

Rules Risk Empowering the Cartels,

Council on Foreign Rels. (Jan. 16, 2024) ........... 21

1 William Blackstone, Commentaries on

the Laws of England (1765) ............................... 17

1

INTEREST OF AMICUS CURIAE 1

Amicus curiae America First Legal Foundation

(“AFL”) is a 501(c)(3) non-profit organization

headquartered in Washington, D.C. AFL is dedicated

to defending the constitutional separation of powers

and the faithful enforcement of the Nation’s

immigration laws. AFL accordingly has a strong

interest in judicial interpretations that correctly

apply the text of the Immigration and Nationality Act,

and in protecting and preserving the Executive’s

constitutional and statutory prerogatives over the

entry of aliens.

1 Counsel for amicus curiae timely provided notice to all parties

of intent to file this brief. No party’s counsel authored this brief

in whole or in part, and no person or entity other than amicus or

its counsel made a monetary contribution intended to fund its

preparation or submission.

2

SUMMARY OF ARGUMENT

In the first week of his second term, President

Trump issued Proclamation No. 10888 in response to

the escalating crisis at the southern border of the

United States. See Proclamation No. 10888,

Guaranteeing the States Protection Against Invasion,

§§ 2–3, 90 Fed. Reg. 8,333 (Jan. 29, 2025). Invoking

his authority under the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1101 et seq., and Article II, the

President suspended the entry of aliens crossing the

southern border outside designated ports of entry and

prohibited aliens who violate that suspension from

invoking INA provisions that would allow their

continued presence, including asylum, 8 U.S.C.

§ 1158. See 90 Fed. Reg. at 8,335. Guidance

implementing this Proclamation directs immigration

officers not to accept asylum applications from such

aliens. Joint Appendix (“J.A.”), Refugee & Immigrant

Ctr. for Educ. & Legal Servs. v. Noem, No. 25-5243,

Dkt. No. 1208769239, at 101–02. The Proclamation

thus does two things: it exercises the President’s

express statutory power under the INA to suspend

entry, and it exercises the President’s discretion

under that statute to deny asylum—and thus the need

for an opportunity to apply for asylum—to those who

enter in defiance of that suspension.

Both actions are lawful, and the policy judgments

behind them are not for courts to second-guess.

Review is warranted because the D.C. Circuit’s

decision conflicts with this Court’s asylum precedents

and dismantles the policy that ended the border crisis.

Because of the very expansive scope of the D.C.

Circuit’s injunction, moreover, there is unlikely to be

3

any further percolation of the issue for the foreseeable

future.

For decades, this Court has repeatedly affirmed

that the INA commits the ultimate decision whether

to grant asylum to the Executive’s discretion. See INS

v. Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987)

(“[T]here is no entitlement to asylum, it is only

granted to eligible refugees pursuant to the Attorney

General’s discretion.”); see also INS v. AguirreAguirre, 526 U.S. 415, 420 (1999); Moncrieffe v.

Holder, 569 U.S. 184, 187 (2013); DHS v.

Thuraissigiam, 591 U.S. 103, 110 n.4 (2020); 8 U.S.C.

§§ 1158(a)(1), (b)(1)(A). And Congress has repeatedly

legislated to preserve that discretion.

Because the Executive may deny asylum to aliens

who violate the suspension, and has done so here,

those aliens have no legally protected interest in filing

applications whose outcome has already been lawfully

determined. After all, as a prior D.C. Circuit panel

aptly put it, “if the asylum decision has already been

made,” subsequent hoop-jumping through the

application “procedures would be futile.” HuishaHuisha v. Mayorkas, 27 F.4th 718, 731 (D.C. Cir.

2022). Section 1158(a)(1) permits an alien to apply “in

accordance with this section”—a section that makes

the grant of asylum discretionary. 8 U.S.C.

§ 1158(a)(1). It confers no right to years of presence in

the United States while an application makes its way

through overburdened immigration courts on its way

to the inevitable denial that the Proclamation

requires.

A panel of the D.C. Circuit partially stayed the

district court’s injunction on exactly this reasoning,

4

concluding that the President likely could deny

asylum categorically and thus decline to accept futile

applications. Refugee & Immigrant Ctr. for Educ. &

Legal Servs. v. Noem, No. 25-5243, 2025 WL 5144253,

at *16–17 (D.C. Cir. Aug. 1, 2025) (“Noem”) (Millett,

J., concurring); id. at *24 (Katsas, J., concurring in

part and dissenting in part).

But the merits panel disagreed. Over a partial

dissent by Judge Walker, it held that (1) “the INA does

not support categorical, ex ante denial of asylum” but

the Executive’s discretion “must be exercised on an

‘individualized’ basis”; and (2) even if categorical

denial were permitted, futility “is not a sufficient

reason” to deny aliens the right to apply. Refugee &

Immigrant Ctr. for Educ. & Legal Servs. v. Mullin,

174 F.4th 81, 107–08 (D.C. Cir. 2026) (“RAICES”).

That decision was incorrect on both points.

Nothing in the INA requires the Executive to exercise

its discretion one applicant at a time. This Court has

long held that discretion of this kind may be exercised

through general policy. Nor is the panel right that

refusing futile applications would justify refusing

applications from aliens who are statutorily ineligible

for asylum. That analogy fails on the statute’s own

terms. Each ineligibility ground turns on a

determination about the particular applicant, so the

application is the means by which ineligibility is

found. An alien’s coverage under the Proclamation, by

contrast, turns on facts an officer can determine at the

5

moment of encounter, and the discretionary denial

has already been made.2

Article II confirms that § 1182(f) of the INA

means what it says. That provision “exudes deference

to the President in every clause.” Trump v. Hawaii,

585 U.S. 667, 684 (2018). When Congress legislates on

the admission of aliens, “[i]t is implementing an

inherent executive power.” United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).

Founding-era sources treated an alien’s admission as

a revocable permission, not a vested right. Courts

should read the INA against that backdrop, and

should not presume that Congress created an

enforceable entitlement to an individualized process

that would render such suspensions ineffective for

aliens who enter in defiance of a presidential

suspension of entry.

The panel presumed exactly that, reallocating to

the judiciary a power the Constitution and the INA

commit to the President. Moreover, given the

unbounded, ill-defined class the panel sustained, no

alien subject to the Proclamation is likely to bring

another suit, and the only other conceivable plaintiffs,

The panel also affirmed a sweeping injunction that “raises

serious constitutional problems,” because even as modified by

the stay panel, it reaches uninjured aliens (and aspiring aliens)

anywhere in the world who may someday fall within the

Proclamation. Noem, 2025 WL 5144253, at *25 (Katsas, J.,

concurring in part and dissenting in part). Article III forecloses

such relief, “class action or not.” TransUnion LLC v. Ramirez,

594 U.S. 413, 431 (2021) (citation omitted); see also Trump v.

CASA, Inc., 606 U.S. 831, 868 (2025) (Alito, J., concurring)

(warning that “the universal injunction will return from the

grave under the guise of ‘nationwide class relief’”).

2

6

advocacy organizations and States, have no incentive

to challenge a nationwide ruling whose benefit they

already enjoy. A circuit split is therefore unlikely to

develop while the decision below takes effect and

dismantles the policy that has reversed the border

crisis. This Court should grant review now to

definitively resolve these questions of national

importance.

The harmful consequences that will follow from

the decision below are difficult to overstate. In the

years before the Proclamation, the asylum application

process was weaponized into a procedural tool for

obtaining years of presence in the U.S. That drew

record numbers of aliens to the southern border—

where smugglers and cartels preyed upon them—

because filing an application meant release into the

interior and years of presence regardless of the claim’s

merit.

The Proclamation closed that loophole with

immediate and substantial effects, while still

ensuring that meritorious asylum claims are

processed for those who seek to come to the U.S.

lawfully via its ports of entry. Border apprehensions

fell more than 85%, with a concomitant drop in

border-crossing deaths, human and drug trafficking,

and crimes against Americans who live near the

border. Asylum filings dropped by more than twothirds, and the immigration courts began, for the first

time in nearly two decades, to reduce their pending

asylum caseload, restoring our immigration and

asylum system to Congress’s design. The panel’s rule

that the government must accept and adjudicate

7

applications it has already lawfully denied will undo

the Proclamation’s success.

“[F]ederal courts generally lack the institutional

expertise and constitutional authority to oversee

foreign policy and national security, and should be

wary of straying where they do not belong.” Jesner v.

Arab Bank, PLC, 584 U.S. 241, 292 (2018) (Gorsuch,

J., concurring in part and concurring in the

judgment). The panel below strayed beyond its

constitutional role to second-guess the wisdom of the

Executive’s immigration policy. This Court should

grant the petition for certiorari and reverse.

ARGUMENT

I.

Congress Made Asylum A Discretionary

Benefit, Not A Judicially Enforceable

Pathway For Illegal Entry

The panel acknowledged that “asylum decisions

are ultimately discretionary,” yet imposed a litany of

procedural limits, none of which appear in the INA.

RAICES, 174 F.4th at 107. The statute’s text and

history commit the asylum decision to the Executive;

nothing in the statute requires that decision to be

made individually; and aliens subject to a lawful

categorical denial have no legally protected interest in

filing futile applications.

A. The INA Commits The Asylum Decision

Entirely To Executive Discretion

Asylum is a “form[] of discretionary relief.”

Moncrieffe, 569 U.S. at 187. Section 1158(a)(1) of the

INA provides that any alien physically present in the

United States “may apply for asylum.” 8 U.S.C.

8

§ 1158(a)(1) (emphasis added). As this Court has

recognized, that language is permissive and confers

no right to asylum; instead, “the decision whether

asylum should be granted to an eligible alien is

committed to the Attorney General’s discretion.”

Aguirre-Aguirre, 526 U.S. at 420; Cardoza-Fonseca,

480 U.S. at 428 nn.5–6; see 8 U.S.C. § 1158(b)(1)(A)

(“The Secretary of Homeland Security or the Attorney

General may grant asylum ….”).

Statutory history confirms that Congress intended

to give the Executive sweeping authority over asylum

decisions. As originally enacted in 1952, the INA did

not contain an asylum provision. Andorra Bruno,

Cong. Rsch. Serv., R48802, Development of the U.S.

Asylum System: In Brief 1 (2026). Congress did not

address the subject until 1965, when it amended the

INA to allow only the “conditional entry” of aliens

“because of persecution or fear of persecution on

account of race, religion, or political opinion.” Act of

Oct. 3, 1965, Pub. L. No. 89-236, § 3, 79 Stat. 911, 912–

13. But that limited asylum was subject to “such

regulations as [the Attorney General] may prescribe.”

Id.

When Congress created a formal asylum regime in

1980, it again committed the ultimate decision

whether to grant asylum to the Executive. See

Refugee Act of 1980, Pub. L. No. 96-212, § 201(b), 94

Stat. 102, 105. The Refugee Act provided that “[t]he

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, and the alien may

be granted asylum in the discretion of the Attorney

9

General if the Attorney General determines that such

alien is a refugee.” Id.

Congress revisited asylum again with the Illegal

Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”). Pub. L. No. 104-208, div. C,

§ 604, 110 Stat. 3009-546, 3009-690 to 3009-694. “A

major objective of IIRIRA was to protect the

Executive’s discretion from undue interference by the

courts; indeed, that can fairly be said to be the theme

of the legislation.” Thuraissigiam, 591 U.S. at 112

(cleaned up).

That theme was expressed in three ways. First, the

IIRIRA codified the six ineligibility conditions the

Executive had promulgated by regulation after the

Refugee Act. See 8 U.S.C. § 1158(b)(2)(A)(i)–(vi).

Second, the IIRIRA expressly authorized the

Executive to “establish additional limitations and

conditions, consistent with [§ 1158], under which an

alien shall be ineligible for asylum.” Id.

§ 1158(b)(2)(C). And third, the statute reworked the

application process itself, in an attempt to ensure that

filing an application would not itself become a means

of remaining in the country. Congress barred work

authorization for at least 180 days after filing, id.

§ 1158(d)(2);

required

that

applications

be

adjudicated within 180 days, id. § 1158(d)(5)(A)(iii);

imposed permanent ineligibility for any immigration

benefit on aliens who knowingly file frivolous

applications, id. § 1158(d)(6); and provided that

nothing in the application procedures “shall be

construed to create any substantive or procedural

right or benefit that is legally enforceable by any party

against the United States,” id. § 1158(d)(7). In short,

10

Congress restricted asylum, empowered the Executive

to narrow it further, and made clear that the

application process exists to serve the asylum

decision, not to confer benefits of its own.

The statute’s text and its history thus establish

that asylum is a benefit the Executive may grant, and

the discretion to withhold it is the Executive’s alone.

B. The INA Permits The Executive To

Exercise

Its

Asylum

Discretion

Categorically

The Proclamation is an exercise of that

discretion. It identifies the asylum statute and

prohibits aliens who violate the entry suspension from

“invoking” it in a way that would “permit their

continued presence in the United States.” 90 Fed. Reg.

at 8,335. The implementing guidance directs that

those aliens “are not permitted to apply for asylum.”

J.A. 101, 107. Two judges of the stay panel read those

directives as “an upfront, categorical discretionary

denial of asylum,” Noem, 2025 WL 5144253, at *1,

*16–17 (Millett, J., concurring); id. at *24 (Katsas, J.,

concurring in part and dissenting in part), and Judge

Walker agreed in his merits-stage opinion, RAICES,

174 F.4th at 128–29 (Walker, J., concurring in part

and dissenting in part).

The merits panel did not dispute that the

Executive may weigh an alien’s defiance of a

suspension of entry in deciding whether to grant

asylum in any individual case. Instead, it held that

the Executive may not make that decision for all such

aliens at once, because it said that the INA requires

discretion to be exercised “on an ‘individualized’

basis.” Id. at 107.

11

The statute imposes no such requirement.

Section 1158(b)(1)(A) says the Secretary or the

Attorney General “may grant asylum.” 8 U.S.C.

§ 1158(b)(1)(A). It does not limit the factors the

Executive may consider or the form its decision must

take. This Court has read similarly phrased language

in the INA to confer “unfettered discretion,” and has

explained that an agency holding such discretion may

“announce[] and follow[]—by rule or by settled course

of adjudication—a general policy by which its exercise

of discretion will be governed.” INS v. Yueh-Shaio

Yang, 519 U.S. 26, 30, 32 (1996).

Moreover, where Congress wanted discretion

under the INA exercised individually, it said so. See 8

U.S.C. § 1182(d)(5)(A) (parole “only on a case-by-case

basis”). It said nothing of the kind in § 1158(b)(1)(A).

And even where a statute does require individualized

determinations, an agency may resolve recurring

questions by categorical rule. See Petition for a Writ

of Certiorari (“Pet.”) 19, Mullin v. Refugee &

Immigrant Ctr. for Educ. & Legal Servs., No. 26-239

(U.S. filed Aug. 24, 2026) (citing Am. Hosp. Ass’n v.

NLRB, 499 U.S. 606, 612 (1991), and Heckler v.

Campbell, 461 U.S. 458, 467 (1983)).

The panel’s remaining evidence of “Congress’s

expectation of individualized consideration,” RAICES,

174 F.4th at 107, fares no better. The procedures in

§ 1158(d)(5)(A) and the credible-fear provisions of

§ 1225(b)(1) govern how applications are processed

once they exist, and are thus “inapplicable if there are

no asylum applications to consider.” Id. at 133

(Walker, J., concurring in part and dissenting in part).

12

Lacking a statutory hook, the panel drew its

individualized-exercise requirement from CardozaFonseca’s observation that Congress assigned the

Attorney General “the task of making these hard

individualized decisions” about “which, if any, eligible

refugees should be denied asylum.” 480 U.S. at 444–

45; see RAICES, 174 F.4th at 107. But the Court there

was explaining why the breadth of the refugee

definition was tolerable—because the Attorney

General retains discretion to deny asylum even to

those who meet it. See Cardoza-Fonseca, 480 U.S. at

443–44, 428 n.5. It was identifying where the

discretion resides, not prescribing how it must be

exercised. No question about categorical exercise was

before it.

C. Having Categorically Denied Asylum, The

Executive Need Not Accept Futile

Applications

Because the Executive may deny asylum

categorically, the remaining question is whether it

must nonetheless accept applications it has already

refused. The panel said yes, reasoning that futility

cannot justify refusing applications, because “the

same could be said about individuals who are

ineligible for asylum by statute or regulation, and no

one disputes that they have a right to apply.”

RAICES, 174 F.4th at 108.

The analogy fails. Every statutory ineligibility

ground applies only “if the Attorney General

determines” a fact about the particular applicant—

that he “participated in the persecution of any

person,” was convicted of a “particularly serious

crime,” or presents “reasonable grounds for regarding”

13

him as “a danger to the security of the United States.”

8 U.S.C. § 1158(b)(2)(A). Those facts can be found only

through an application and an adjudication. For an

alien ineligible for asylum under these statutory

criteria, then, the application serves a function: it is

the means by which ineligibility is determined.

An alien covered by the Proclamation stands in a

different position. His coverage turns on facts an

officer can determine at the moment of encounter

without any formal asylum application—when and

where he crossed, and whether he falls within one of

the Proclamation’s enumerated exceptions—and the

discretionary decision that follows from those facts

has already been made. Nothing about the merits of

his asylum claim remains for an application to

determine or balance.

Nor does the text of § 1158(a)(1) cut the other

way. The panel read its parenthetical—extending the

right to apply to aliens arriving “whether or not at a

designated port of arrival”—as a deliberate choice to

protect those who cross between ports. RAICES, 174

F.4th at 106. But the phrase is not a grant of

solicitude; it is a term of coverage, and Congress used

it twice in IIRIRA to the same end. The parenthetical

confirms only that manner of entry itself does not bar

the Executive from considering an application; it

remains a legitimate consideration in the

discretionary decision that follows. In § 1225(a)(1),

the identical parenthetical—down to the clause on

aliens interdicted at sea—deems such an alien “an

applicant for admission.” 8 U.S.C. § 1225(a)(1). The

phrase therefore identifies the class of aliens Congress

placed at the threshold of entry, who possess “only

14

those rights regarding admission that Congress has

provided by statute” even when apprehended inside

the border. Thuraissigiam, 591 U.S. at 139–40. It does

not mark out illegal entrants for special protection. An

alien who crosses between ports in defiance of a

suspension of entry is thus not a person with a vested

claim to process, but an applicant for admission whose

application the Executive has already resolved.

Stripped of any claim to a different outcome,

Respondents argued below that the process has value

independent of the outcome it produces. But

§ 1158(a)(1) permits an alien to apply only “in

accordance with this section,” and “this section”

makes the grant of asylum discretionary. See 8 U.S.C.

§ 1158(b)(1)(A). The right conferred is a right to seek

a discretionary benefit under the procedures the

Executive establishes, not a right to a particular

outcome. And Congress has disclaimed any

“procedural right or benefit that is legally enforceable”

arising from those procedures. Id. § 1158(d)(7).

Where the substantive benefit has already been

lawfully withheld, “there is no such interest for

process to protect.” Olim v. Wakinekona, 461 U.S. 238,

250 (1983); see also Spokeo, Inc. v. Robins, 578 U.S.

330, 341 (2016) (explaining that a “bare procedural

violation, divorced from any concrete harm,” is not a

cognizable injury); Pet. 17–18. That conclusion follows

from first principles. “Process is not an end in itself”;

its “purpose is to protect a substantive interest to

which the individual has a legitimate claim of

entitlement.” Olim, 461 U.S. at 250.

More fundamentally, the panel’s holding ignores

the logical consequences of its own premise. If “asylum

15

decisions are ultimately discretionary,” RAICES, 174

F.4th at 107, then it follows that the President may

foreclose both the “grant of asylum” and “the

statutorily mandated procedures that aliens use to

apply for asylum.” Huisha-Huisha, 27 F.4th at 731.

“[T]hose procedures would be futile,” because the

President has “already … made” the asylum decision.

Id. Requiring the Executive to receive and adjudicate

applications he has already lawfully refused would

therefore transform a discretionary benefit into a

procedural entitlement to be told “no” in a very timeconsuming and costly manner.

As three judges on the D.C. Circuit concluded, “the

same reasoning” clearly “extends to aliens covered by

[the] proclamation suspending entry.” Noem, 2025 WL

5144253, at *24 (Katsas, J., concurring in part and

dissenting in part); see also id. at *16–17 (Millett, J.,

concurring); RAICES, 174 F.4th at 128–29 (Walker,

J., concurring in part and dissenting in part). “[T]he

Executive—and our country—need not suffer an

influx of frivolous asylum claims when the Executive

has already exercised his discretion to deny all of

them.” RAICES, 174 F.4th at 133 (Walker, J.,

concurring in part and dissenting in part). This Court

should reach the same conclusion.

II.

Article II Confirms The Breadth Of Section

1182(f)

Section 1182(f) authorizes the President,

whenever he “finds that the entry of any aliens or of

any class of aliens into the United States would be

detrimental to the interests of the United States,” to

“suspend the entry of all aliens or any class of aliens”

and to “impose on the entry of aliens any restrictions

16

he may deem to be appropriate.” 8 U.S.C. § 1182(f). As

this Court has recognized, that provision leaves to the

President “whether and when to suspend entry,”

“whose entry to suspend,” “for how long,” and “on what

conditions.” Hawaii, 585 U.S. at 684. Language of that

kind “fairly exudes deference” and “forecloses the

application of any meaningful judicial standard of

review” to the judgments it commits to the Executive.

Webster v. Doe, 486 U.S. 592, 600 (1988). The

President’s determination that a suspension of entry

cannot be effective unless those who violate it are

denied the discretionary benefit of asylum is such a

judgment.

That reading follows from the constitutional

background against which Congress created § 1182(f).

“Under our Constitution, the ‘executive Power’—all of

it—is ‘vested in a President.’” Seila Law LLC v. CFPB,

591 U.S. 197, 203 (2020) (quoting U.S. Const. art. II,

§ 1, cl. 1). Inherent in that power is the President’s

“vast share of responsibility for the conduct of our

foreign relations,” Am. Ins. Ass’n v. Garamendi, 539

U.S. 396, 414 (2003) (citation omitted), including

immigration, Knauff, 338 U.S. at 542. Thus, “[w]hen

Congress prescribes a procedure concerning the

admissibility of aliens, it is not dealing alone with a

legislative power. It is implementing an inherent

executive power.” Id. For that reason, when Congress

delegates authority over the entry of aliens, it “must

of necessity paint with a brush broader than that it

customarily wields in domestic areas,” Zemel v. Rusk,

381 U.S. 1, 17 (1965), and courts “have neither the

ability nor the authority to assess and countermand”

the Executive’s policy choices in this area. Mullin v.

Al Otro Lado, 146 S. Ct. 2079, 2088 n.5 (2026).

17

Founding-era understandings of the executive

power point the same way. Blackstone placed “foreign

concerns” first among executive prerogatives, and

specified that the Crown could send alien friends

“home whenever the king sees occasion,” grant “safe

conduct” to aliens of hostile nations, and make an

alien

a “denizen.”

1 William

Blackstone,

Commentaries on the Laws of England *245, *251–

252, *362 (1765); see also Saikrishna B. Prakash &

Michael D. Ramsey, The Executive Power over Foreign

Affairs, 111 Yale L.J. 231, 269 n.161 (2001)

(summarizing Blackstone’s list of the Executive’s

“foreign affairs prerogatives that relate to aliens”).

Many of the Federalists understood the President to

hold that same prerogative. See Sessions v. Dimaya,

584 U.S. 148, 217–18 (2018) (Thomas, J., dissenting)

(collecting sources); see also Al Otro Lado, 146 S. Ct.

at 2099 (Thomas, J., concurring). As the Virginia

minority’s defense of the Alien Friends Act, attributed

to John Marshall, put it: “the right of remaining in our

country is vested in no alien; he enters and remains

by the courtesy of the sovereign power, and that

courtesy may at pleasure be withdrawn.” Address of

the Minority in the Virginia Legislature to the People

of that State 9–10 (1799).

Courts should interpret the INA against this

background. “Congress legislates against the

backdrop of certain unexpressed presumptions.” Bond

v. United States, 572 U.S. 844, 857 (2014) (cleaned

up). Unless “a statutory purpose to the contrary is

evident,” courts should not lightly discard “longestablished and familiar principles.” United States v.

Texas, 507 U.S. 529, 534 (1993) (cleaned up).

18

Consistent with that principle, this Court has

maintained a “customary policy of deference to the

President in matters of foreign affairs” such as

“[r]emoval decisions,” which “require consideration of

changing political and economic circumstances.”

Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 348

(2005) (internal quotation marks omitted). That

deference extends to the President’s decisions

regarding asylum, which, like other “discretionary

decisions” in immigration law, turn on “policy choices

that bear on this Nation’s international relations.”

Arizona v. United States, 567 U.S. 387, 396 (2012);

Noem, 2025 WL 5144253, at *3 (Millett, J.,

concurring)

(acknowledging

the

President’s

“constitutional role in immigration law”).

Article II therefore reinforces the President’s

prerogative over immigration and counsels reading

the INA’s asylum provisions to preserve, not

constrain, his discretion.

III. Review Is Warranted Because The Decision

Below Would Undo The Proclamation’s

Success In Restoring The Process Congress

Designed

This case is exceptionally important and warrants

this Court’s review. See Sup. Ct. R. 10(c). Left in place,

the ruling below will dismantle the most effective

response to a yearslong border crisis that eroded the

Nation’s sovereignty and produced a humanitarian

catastrophe. That alone is sufficient reason to grant

review, as this Court has recognized by repeatedly

granting review, without waiting for a circuit split,

where a lower court has blocked a major Executivebranch immigration policy. See, e.g., Trump v. Int’l

19

Refugee Assistance Project, 582 U.S. 571 (2017) (per

curiam); Trump v. Hawaii, 585 U.S. 667 (2018); DHS

v. Regents of the Univ. of Cal., 591 U.S. 1 (2020); Biden

v. Texas, 597 U.S. 785 (2022). 3

Nor is any conflict likely to develop, because the

amorphous and universal class sustained below

effectively precludes any alien subject to the

Proclamation from bringing another suit, and

organizations and States have no incentive to

challenge a nationwide ruling whose outcome they

favor. This is likely the Court’s only opportunity to

address the questions presented.

And getting those questions right matters because

the stakes are high. Until the Proclamation, the

southern border was in a profound operational crisis.

In the four years before the President issued the

order, border officials encountered more than 8.7

million aliens at the southern border, Majority Staff

of H. Comm. on Homeland Sec., Border Crisis

Startling Stats (Oct. 22, 2024) (“2024 Border Crisis

Report”), https://perma.cc/B82W-SK8V. At least two

million more evaded detection entirely. See id. The

volume of aliens overwhelmed the immigration

system, and “rendered many of the INA’s provisions

ineffective.” 90 Fed. Reg. at 8,334.

3 Indeed, this Court has summarily reversed for less. See

Margolin v. Nat’l Ass’n of Immigr. Judges, 608 U.S. 339 (2026)

(per curiam) (reversing the Fourth Circuit’s revival of a challenge

to an internal speech-approval policy for immigration judges);

Gonzales v. Thomas, 547 U.S. 183 (2006) (per curiam) (reversing

the Ninth Circuit’s resolution, in the first instance, of a single

asylum applicant’s “particular social group” claim); INS v.

Orlando Ventura, 537 U.S. 12 (2002) (per curiam) (similar).

20

Over a million of these aliens filed asylum

applications during this time period. See U.S. Dep’t of

Justice, Exec. Office for Immigration Review,

Workload and Adjudication Statistics, Total Asylum

Applications (data generated July 24, 2026),

https://perma.cc/V68S-6P8S

(“EOIR

Asylum

Statistics”). Although the vast majority of asylum

claims failed even under the Biden Administration,

final decisions took, on average, almost four years.

Nat’l Immigration Forum, Explainer: Asylum

Backlogs (Jan. 23, 2024), https://perma.cc/P3CWT2SU; Luis Ferré-Sadurní, What to Know About the

Migrant Crisis in New York City, N.Y. Times (Aug. 19,

2024), https://www.nytimes.com/article/nyc-migrantcrisis-explained.html. Filing an application therefore

became a way to postpone removal, regardless of the

claim’s merit. See Miriam Jordan, The Real Reasons

Migrants Are Coming in Droves: They Believe They

Can

Stay,

N.Y.

Times (Jan.

31,

2024),

https://www.nytimes.com/2024/01/31/us/usimmigration-asylum-border.html (describing this

delay tactic and explaining that “even when” asylum

claims are rejected, “applicants are highly unlikely to

be deported”).

Aliens, and those who traffic in them, recognized

this “key loophole” and exploited it. David Luhnow,

Alicia A. Caldwell & Juan Forero, The Explosion of

Asylum Claims Driving the Global Migrant Crisis,

Wall St. J. (Apr. 8, 2024), https://www.wsj.com/usnews/asylum-claims-driving-migrant-crisis-ebdffcb6.

From 2019 to 2024, asylum applications rose nearly

320%, from 217,505 to 912,717. EOIR Asylum

Statistics, supra.

21

Immigration courts could not absorb the volume of

applications. By 2024, more than 2.5 million asylum

applications were pending, up from 868,911 in 2020,

EOIR Asylum Statistics, supra, and the average

caseload for each immigration judge climbed to an

astounding 5,286 cases, USAFacts, Are Immigration

Judges Keeping Up with Rising Caseloads? (Nov. 6,

2025), https://perma.cc/DM9E-DSU2. Even before

that peak, analysts had estimated that clearing the

backlog, with hundreds of additional judges, would

take until 2032. Holly Straut-Eppsteiner, Cong. Rsch.

Serv., R47637, Immigration Judge Hiring and

Projected Impact on the Immigration Courts Backlog

(2023).

But perhaps the heaviest costs of that cycle fell on

the aliens themselves, who, incentivized by the

backlogged asylum system, risked their lives on the

dangerous journey to the southern border to claim

asylum. Julia Preston, The Real Origins of the Border

Crisis,

Foreign

Affs.

(July/Aug.

2023),

https://www.foreignaffairs.com/united-states/originsimmigration-border-crisis-asylum-biden.

Human

smugglers capitalized on the influx, charging aliens

thousands of dollars for unsafe passage across Mexico

and holding them for ransom in stash houses on the

border. Will Freeman, Tough New Immigration Rules

Risk Empowering the Cartels, Council on Foreign

Rels. (Jan. 16, 2024), https://perma.cc/H9XF-VWNN;

Luis Chaparro, Cartel Human Smuggling Business Is

Turning Entire Border Towns into War Zones, Fox

News (Jan. 21, 2024), https://perma.cc/5NQMMUXM. Tens of thousands of aliens encamped on the

Mexican side of the border, where drug cartels preyed

22

on them through extortion, kidnapping, and sexual

assault. Preston, supra.

Recognizing “[t]he public safety and national

security risks” the border crisis posed, President

Trump issued the Proclamation immediately upon

beginning his second term. 90 Fed. Reg. at 8,333. It

has been a resounding success. Southern border

apprehensions dropped from an average of 1.86

million in the previous four fiscal years to 237,565 in

2025—an 87% decline, and the lowest level in more

than half a century. Press Release, DHS, Lowest

Fiscal Year for Border Patrol Apprehensions Since

1970 (Oct. 7, 2025), https://perma.cc/QY3Q-QQXX.

“The Border Patrol figure is on track to make 2026 the

lowest year for migrant apprehensions since 1967 ….”

Adam Isacson, U.S.-Mexico Border Update, Wash. Off.

on Latin Am. (Apr. 17, 2026), https://www.wola.org/

2026/04/u-s-mexico-border-update-border-datareconciliation-bill-dhs-transition-ice-detention-wallmigration-route/. Controlling the southern border has

significantly curtailed the human rights abuses and

exploitation that once ran unchecked.

The number of meritless asylum applications has

likewise plummeted. In the first nine months of the

fiscal year following the Proclamation, only 199,069

applications were filed—an annualized rate of about

265,000, a 71% reduction from the 912,717 filed

during the previous administration’s last full year.

EOIR Asylum Statistics, supra. That reduction has

allowed immigration courts, for the first time in

nearly two decades, to begin clearing away the

immense logjam of asylum cases, ensuring that those

who come to the U.S. through lawful ports of entry are

23

not stuck in procedural purgatory. Pending asylum

applications in U.S. immigration courts fell from

2,530,933 at the end of fiscal year 2024 to 2,508,982

at the end of fiscal year 2025. Id.

These results should come as no surprise because

the Proclamation targets the perverse incentive that

produced the surge rather than its symptoms. The

Proclamation’s benefits extend well beyond the

immigration system. Resources once consumed by

processing volume are now available to combat

trafficking in humans, drugs, and weapons. Oversight

Hearing—U.S. Customs & Border Protection: Hearing

Before the Subcomm. on Homeland Sec. of the H.

Comm. on Appropriations, 119th Cong. (2025)

(testimony of Pete R. Flores, Acting Comm’r, U.S.

Customs & Border Prot.), https://perma.cc/9AW44WPV.

The Proclamation’s success thus vindicates the

Founders’ choice to entrust the Executive Branch, not

courts, with immigration decisions, which necessarily

turn on policy judgments courts are not well-equipped

to make. Putting the D.C. Circuit in charge of the

immigration system in the way it has asserted here

would undermine all this progress.

But whether one views this as progress or not, at

the end of the day, “[t]he wisdom of the policy … is not

before” this Court. Al Otro Lado, 146 S. Ct. at 2096.

Instead, this Court’s role is to decide whether the

Proclamation is consistent with the INA. The answer

is yes. This Court should grant review and reverse.

CONCLUSION

The petition for certiorari should be granted.

24

Respectfully submitted,

MICHAEL B. BUSCHBACHER

Counsel of Record

TAYLOR M. MYERS

WALKER FORTENBERRY

BOYDEN GRAY PLLC

800 Connecticut Ave. NW

Suite 900

Washington, DC 20006

(202) 955-0620

mbuschbacher@boydengray.com

September 23, 2026