On June 26, a front-page article reported Justice Sonia Sotomayor’s concern that the Supreme Court’s decision in Mullin v. Al Otro Lado could increase illegal border crossings in the United States. Sotomayor warned that permitting the government to block asylum seekers at designated ports of entry before they are officially considered to have entered the country may push vulnerable individuals toward unauthorized border crossings, despite government efforts to deter such actions.

Under U.S. law, specifically 8 U.S. Code Section 1325, entering the country outside a designated point of entry is a criminal offense. However, immigration and asylum law provide important nuances to this rule. Federal statutes allow individuals to apply for asylum once physically present in the United States, regardless of whether they arrived at an official port of entry. This provision reflects the United States’ obligations under international law, including Article 31 of the 1951 Refugee Convention, which prohibits penalizing refugees for their unauthorized entry or presence if they present themselves promptly to authorities.

Advocates argue that many asylum seekers are forced by circumstances to cross borders irregularly, as fleeing persecution often leaves no time to await formal entry. When the government denies access at ports of entry and then prosecutes those who cross elsewhere, critics contend it effectively punishes asylum seekers for seeking protection, undermining the humanitarian intent of U.S. and international refugee law.

The debate centers on the interpretation of “illegal entry” in relation to the right to seek asylum. While the Supreme Court’s ruling tightens controls over entry locations where asylum claims can be made, critics maintain that no method of reaching U.S. soil to request asylum can be deemed truly illegal under existing refugee protections. This tension highlights the complex balance between enforcing immigration laws and upholding the right to seek refuge from persecution.

Natasha Arnpriester, senior legal counsel at the Open Society Justice Initiative, emphasized that despite the court’s decision making asylum more difficult to obtain, the fundamental right to seek protection on U.S. soil remains intact and cannot be criminalized. The ruling thus raises questions about how U.S. immigration policy will accommodate or restrict asylum claims moving forward.