Border Asylum Ban: Supreme Court Weighs Review Nov. 6

The justices meet Friday to decide whether to hear the government’s appeal over Proclamation 10888, which two lower courts held cannot cut off asylum at the southern border.

The Supreme Court will consider on Friday, Nov. 6, whether to take up the border asylum ban that President Trump imposed on his first day back in office, a policy two lower courts have ruled unlawful. The case, Mullin v. Refugee and Immigrant Center for Education and Legal Services (No. 26-239), asks whether a president can suspend entry at the southern border and, in the same stroke, bar people already on U.S. soil from applying for asylum and related protection.

The timing matters. If the justices grant review at Friday’s private conference, the order would most likely appear on the Court’s Monday order list, and a case granted this early in the term is normally argued and decided by the end of June 2027. A denial would leave in place an appeals court ruling against the policy, the broadest judicial rejection yet of the administration’s effort to use emergency entry powers to override the asylum statute.

How the border asylum ban reached the justices

Proclamation 10888, “Guaranteeing the States Protection Against Invasion,” was signed Jan. 20, 2025, and published at 90 Fed. Reg. 8333. Relying on Sections 212(f) and 215(a) of the Immigration and Nationality Act, it suspended entry of people crossing the southern border and barred them from invoking provisions of immigration law that would allow them to stay, including asylum.

A federal district court in Washington struck down the proclamation and its implementing guidance on July 2, 2025, and certified a class of people subject to it. The D.C. Circuit partly stayed that judgment on Aug. 1, 2025, keeping the asylum-related parts on hold, then affirmed in a divided decision on April 24, 2026, and denied rehearing en banc on July 23. On July 27 the appeals court agreed to hold its mandate while the government sought Supreme Court review, so the partial stay remains in effect, according to the government’s petition. Solicitor General D. John Sauer filed the petition Aug. 24; the ACLU, representing the plaintiffs, filed its opposition Sept. 23.

Three questions, and why the second may decide the case

Legality: whether the proclamation and its guidance are lawful.
Classwide relief: whether 8 U.S.C. 1252(f)(1) bars the relief the district court granted to the whole class.
Class definition: whether the certified class satisfies Article III and Federal Rule of Civil Procedure 23.

The first question is the one that draws headlines. The government’s position is that Section 212(f) gives the president broad power to suspend entry, a reading the Supreme Court endorsed in Trump v. Hawaii in 2018. The plaintiffs’ position rests on the text of the asylum statute, 8 U.S.C. 1158(a)(1), which says any noncitizen “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival)” may apply. The D.C. Circuit sided with the plaintiffs, reasoning in part that Section 212(f) addresses entry, not removal, according to the petition’s account of the decision.

The second question may matter more in practice. In Garland v. Aleman Gonzalez (2022), the Court held that Section 1252(f)(1) generally bars lower courts from issuing classwide injunctions against the operation of key removal provisions. If the justices find that the relief here crossed that line, the government could win much of what it wants without a ruling on presidential power, leaving relief to individual cases. That is a common path for a Court that often prefers narrower grounds.

What the government says the policy achieved

The petition tells the justices that border encounters fell 93 percent after the proclamation took effect, to the lowest levels since the 1960s, citing the government’s filings in the appeals court. It also cites the proclamation’s own finding that at least 8 million people were encountered at the southern border in the four years before it was issued. Those figures speak to how sharply crossings fell, not to how many people the asylum bar actually turned away, which the petition does not quantify. A group of states led by Iowa, the Federation for American Immigration Reform and two other organizations also filed friend-of-the-court briefs in the case.

The case joins a crowded immigration docket. The Court has already agreed to hear the government’s third-country removal appeal, a policy now being tested by the Afghan deportation flight to Pakistan, as well as a bond-hearing case on mandatory detention, and an asylum-eligibility case under the terrorism bar, while immigration courts completed a record number of cases in fiscal 2026. A grant would put the core question of presidential power at the border before the justices alongside those cases, during a term in which a newly Democratic Congress is unlikely to rewrite the asylum statute in either direction.

What to watch

Nov. 9 order list: the first chance for a grant or denial; the Court may also relist the petition for a later conference.
Scope of any grant: the justices can limit review to one or two of the three questions, which would signal how broadly they intend to rule.
The partial stay: it stays in place while review is pending, so the asylum-related parts of the lower-court judgment will not take effect in the meantime.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

Author's website Author's posts