The U.S. Supreme Court, which agreed Nov. 13, 2026, to review the southern border asylum ban in Mullin v. RAICES. U.S. Department of Agriculture photo (public domain).
The justices will decide whether Proclamation 10888 lawfully cuts off asylum at the southern border and whether lower courts could block it classwide, but they declined to review the class definition.
The Supreme Court on Friday, Nov. 13, 2026, agreed to decide the legality of the border asylum ban President Trump imposed on his first day back in office. The Court granted the government’s petition in Mullin v. Refugee and Immigrant Center for Education and Legal Services (No. 26-239), but its docket shows the grant is “limited to Questions 1 and 2 presented by the petition.” That leaves out the government’s third question, a challenge to the certified class. The petition had been distributed for the Nov. 6 conference, as we reported in our preview, and was carried over to the Nov. 13 conference before the grant.
For practitioners, the grant does not change anything on the ground today. The asylum-related parts of the lower-court judgment have been on hold since August 2025 and will stay that way while the justices consider the case. What the grant does is put two questions with consequences well beyond this policy before the Court: how far a president’s power to suspend entry under Section 212(f) reaches people already on U.S. soil, and whether 8 U.S.C. 1252(f)(1) bars classwide relief against immigration enforcement policies.
What the Court agreed to decide
The government’s petition, filed Aug. 24 by Solicitor General D. John Sauer, asked three questions. The Court took the first two:
- Legality. Whether Proclamation 10888 (90 Fed. Reg. 8333) and its implementing guidance, which suspended entry of certain noncitizens and cut off their access to asylum and other provisions that would let them remain, are lawful.
- Classwide relief. Whether 8 U.S.C. 1252(f)(1) bars the classwide relief the district court entered.
The third question, whether the class definition satisfies Article III and Rule 23 of the Federal Rules of Civil Procedure, was not granted. The order gives no reasons, so the omission should not be read as a ruling on the class. But it means the D.C. Circuit’s modified class definition stands for now, and the case will turn on the statute and on the remedy rather than on class-action procedure.
How the case got here
Proclamation 10888, “Guaranteeing the States Protection Against Invasion,” was signed Jan. 20, 2025. 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 asylum and related protections. Reuters reported that the proclamation stays in effect until the president determines the “invasion” at the southern border has ended.
Immigrant rights groups, represented by the ACLU and the National Immigrant Justice Center, sued in federal court in Washington. On July 2, 2025, Judge Randolph D. Moss of the U.S. District Court for the District of Columbia (No. 25-cv-306) held the proclamation and guidance unlawful and certified a class of people subject to them. On Aug. 1, 2025, the D.C. Circuit partly stayed that judgment. According to the government’s petition, the stay paused the parts dealing with asylum, but not the parts protecting access to withholding of removal, Convention Against Torture (CAT) protection, and expedited removal or Section 240 procedures.
On April 24, 2026, a divided D.C. Circuit panel (No. 25-5243) affirmed. Judge Childs wrote for the court, joined by Judge Pillard; Judge Walker concurred in part and dissented in part. As the petition summarizes the opinion, the court held that:
- Section 212(f) governs entry, not removal, and does not let the executive remove people without the INA’s removal procedures;
- the asylum bar violates 8 U.S.C. 1158, because discretionary denials must be individualized, and the government cannot refuse applications on the theory that they are futile;
- the guidance is unlawful to the extent it circumvents statutory withholding and CAT protections; and
- Section 1252(f)(1) does not bar the injunction, because it does not mandate removals and only requires that removals follow the statute and regulations.
The full D.C. Circuit denied rehearing on July 23, 2026, and the court has held its mandate while the government sought Supreme Court review.
Why the 1252(f)(1) question may matter most
In Garland v. Aleman Gonzalez (2022), the Court held that Section 1252(f)(1) generally bars lower courts, other than for an individual noncitizen, from enjoining or restraining the operation of key removal provisions. By taking up that question here alongside the merits, the Court has given itself a narrower path. It could rule that the classwide relief went too far without deciding how far Section 212(f) reaches. A ruling on that ground could also shape class actions against other enforcement policies, since many rely on the same distinction the D.C. Circuit drew between orders that block removals and orders that only require the government to follow the statute.
On the merits, the government relies on the broad suspension power the Court recognized in Trump v. Hawaii (2018). The challengers rely on the text of 8 U.S.C. 1158(a)(1), which lets any noncitizen physically present in the United States, or arriving here, apply for asylum “whether or not at a designated port of arrival.” The Associated Press reported that the administration argues it need not accept applications that are destined to be rejected, while opponents say the order is an attempt to unilaterally “eviscerate” protections for people fleeing danger.
A crowded immigration term
Reuters noted that the Court has largely sided with the administration on immigration this year. In June it upheld the government’s authority to turn away asylum seekers at ports of entry deemed too overburdened, and in September it let removals to third countries resume; arguments in that third-country case are set for Dec. 9. That case is being tested by the Afghan deportation flight to Pakistan. Cross-border asylum questions are also being litigated outside U.S. courts, as in the Canadian Charter challenge to the Safe Third Country Agreement.
Practical takeaways
- No immediate change. The partial stay stays in place, so the asylum bar for covered border crossers continues while the case is pending. Under the August 2025 order, the parts of the judgment protecting withholding, CAT and removal procedures were not stayed.
- Preserve claims. Counsel for clients who entered between ports after Jan. 20, 2025, should keep withholding and CAT claims alive and document any asylum claim they could not file, in case the Court affirms.
- Watch the remedy ruling. A decision on 1252(f)(1) could affect class actions well beyond this policy, including detention and enforcement cases.
Dates and decisions to watch
- Briefing schedule and argument date: not yet set. Reuters reported argument is expected in the coming months, with a ruling by the end of June 2027.
- Dec. 9, 2026: argument in the third-country removal case.
- Amicus briefs: Iowa and 21 other states, the Federation for American Immigration Reform, America First Legal Foundation and America’s Future filed in support of review at the petition stage; more filings on both sides are likely.
This article is for general information and is not legal advice.
Sources
- Docket No. 26-239, Mullin v. Refugee and Immigrant Center for Education and Legal Services, Supreme Court of the United States (grant entered Nov. 13, 2026)
- Petition for a writ of certiorari, Mullin v. RAICES, U.S. Department of Justice (Aug. 24, 2026)
- “Supreme Court will weigh Trump’s asylum restrictions at US-Mexico border,” Reuters via Yahoo News (Nov. 13, 2026)
- “Supreme Court to decide on legality of Trump executive order suspending asylum,” Associated Press via KIRO 7 (Nov. 13, 2026)
- 8 U.S.C. 1158, Asylum, Cornell Legal Information Institute
- 8 U.S.C. 1252, Judicial review of orders of removal, Cornell Legal Information Institute
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