WASHINGTON — The Supreme Court agreed Monday to hear a Trump administration appeal that argues migrants have no right to seek asylum at the southern border.
Rather, the government says border agents may block asylum seekers from stepping onto U.S. soil and turn away their claims without a hearing.
The new case seeks to clarify the immigration laws and resolve an issue that has divided past administrations and the 9th Circuit Court of Appeals.
Under federal law, migrants who faces persecution in their home countries may apply for asylum and receive a screening hearing if they are “physically present in the United States” or if such a person “arrives in the United States.”
Since 2016, however, the Obama, Biden and Trump administrations responded to surges at the border by adopting temporary rules which required migrants to wait on the Mexican side before they could apply for asylum.
But in May, a divided 9th Circuit Court ruled those restrictions were illegal if they prevented migrants from applying for asylum.
“To ‘arrive’ means ‘to reach a destination,’” wrote Judge Michelle Friedland, citing a dictionary definition. “A person who presents herself to an official at the border has ‘arrived.’”
She said this interpretation “does not radically expand the right to asylum.” By contrast, the “government’s reading would reflect a radical reconstruction of the right to apply for asylum because it would give the executive branch vast discretion to prevent people from applying by blocking them at the border.”
“We therefore conclude that a non-citizen stopped by U.S. officials at the border is eligible to apply for asylum,” she wrote.
The 2-1 decision upheld a federal judge in San Diego who ruled for migrants who had filed a class-action suit and said they were wrongly denied an asylum hearing.
But Solicitor Gen. D. John Sauer urged the Supreme Court to review and reverse the appellate ruling, noting 15 judges of the 9th Circuit joined dissents that called the decision “radical” and “clearly wrong.”
In football, a “running back does not ‘arrive in’ the end zone when he is stopped at the one-yard line,” Sauer wrote.
He said federal immigration law “does not grant aliens throughout the world a right to enter the United States so that they can seek asylum.” From abroad, they may “seek admission as refugees,” he said, but the government may enforce its laws by “blocking illegal immigrants from stepping on U.S. soil.”
Immigrants rights lawyers advised the court to turn away the appeal because the government is no longer using the “metering” system that required migrants to wait for a hearing.
Since June 2024, they said, the government has restricted inspections and processing of these noncitizens under a different provision of law that authorizes the president to “suspend the entry of all aliens or any class of alien” if he believes they would be “detrimental to the interests of the United States.”
The government also routinely sends back migrants who illegally cross the border.
But the solicitor general said the asylum provision should be clarified.
The justices voted to hear the case of Noem vs. Al Otro Lado early next year and decide “whether an alien who is stopped on the Mexican side of the U.S.-Mexico border ‘arrives in the United States’ within the meaning” of federal immigration law.
After months of hearings, a federal judge last month ruled that the U.S. Department of Veterans Affairs discriminates against homeless veterans whose disability compensation makes them ineligible for housing being constructed on its West Los Angeles campus.
U.S. District Judge David O. Carter had earlier found that the VA has a fiduciary duty to use the 388-acre campus primarily for housing and healthcare for disabled veterans, casting doubt on the legality of leases that have turned over portions of it for sports facilities, oil drilling and two parking lots.
Neither ruling, however, gave any indication of what remedies, if any, the VA might face. That question will be at issue in a non-jury trial starting Tuesday in downtown federal court, the culmination of more than a decade of legal battles — and half a century of grievances — over the veterans’ land.
In a brief filed last month, attorneys for the veterans asked Carter to issue an order requiring the VA to provide nearly 4,000 units of permanent supportive housing on the campus. That would be an addition of 2,740 units to the 1,215 already in planning or under construction under the terms of a prior lawsuit. They also are asking for the construction of 1,000 shelter beds.
They further ask the judge to enjoin the VA from contracting with developers whose funding sources impose restrictive income limits that bar veterans with disability compensation. If granted, such an order could have a national impact on VA housing construction that relies on third-party developers.
The brief is less specific about the leases to UCLA and the neighboring Brentwood School for athletic facilities and the oil and parking operations. It asks Carter to find the leases invalid but does not say whether they should be nullified or renegotiated to better serve veterans.
American flags decorate tents at an encampment of homeless veterans along San Vicente Boulevard in Brentwood, Calif., on July 4, 2020.
(Luis Sinco / Los Angeles Times)
Justice Department lawyers representing the VA argue in an opposing brief that Carter should not order more housing or issue an injunction because the remedy sought is unnecessary and unfeasible and would place an undue burden on the VA.
The lawsuit, filed last November by 14 veterans and since made a class action, reprised an earlier lawsuit that challenged the leases and asserted an unmet need for permanent housing. In a 2015 settlement, the VA agreed to develop a master plan for the campus. A draft master plan, completed in 2016, called for 1,200 units of housing on the campus in new and rehabilitated buildings with a commitment to complete more than 770 units by the end of 2022. Only 54 of those units were completed by the deadline, and only 233 are currently open.
The new lawsuit, filed by Public Counsel, the Inner City Law Center and law firms Brown Goldstein & Levy LLP and Robins Kaplan LLP, alleges that the VA has reneged on the settlement agreement.
The plaintiff’s lead counsel, Mark Rosenbaum of Public Counsel, said in a hearing last year that the new case was necessary because he had erred by not demanding court monitoring of the 2015 settlement.
“The phrase ‘homeless veteran’ should be an American oxymoron,” the complaint said. “But this is the cruel truth—the federal government consistently refuses to keep its word and take meaningful actions to bring the abomination of veteran homelessness to an end.”
The West Los Angeles campus, formally called the Pacific Branch of the National Home for Disabled Volunteer Soldiers, was established as a home for Civil War veterans on land donated in 1888 by Sen. John P. Jones and his business partner, the socialite and businesswoman Arcadia Bandini Stearns de Baker, scion of a landowning family going back to the mission era. After World War I, the campus “gradually evolved from institutional housing to medical care that allowed Veterans to reintegrate into civilian society,” according to a history on the VA website.
As many as 4,000 veterans lived on the property in the early 20th Century, but the transformation of the campus into a medical center continued after World War II, as advances in battlefield medical care resulted in greater survival rates with more serious injuries. By 1962, the West L.A. VA Medical Center was the largest in the country, with more than 6,000 patients and 4,500 staff.
But in the late 1960s, residential use declined. Then, following the 1971 Sylmar earthquake, the Wadsworth Hospital building was judged seismically unsound and demolished. To make room for a temporary hospital during its reconstruction, the roughly 1,000 remaining residents of the Old Soldiers Home were abruptly evicted. Only about half relocated to other VA facilities, and, after the new hospital opened, the old buildings were left to deteriorate.
Carter ruled in December that the 1888 deed of 300 acres dedicated to the “establishment, construction and permanent maintenance of a branch of said National Home for Disabled Volunteer Soldiers” created a charitable trust and that Congress, in adopting the West Los Angeles Leasing Act of 2016, assumed enforceable fiduciary duties to use the land to benefit veterans.
In May, Carter certified the case as a class action representing all homeless veterans with serious mental illness or traumatic brain injuries who reside in Los Angeles County and a subclass of all class members whose income (including veterans’ disability benefits) exceeds 50% of the area’s median income.
Last month, Carter issued a partial summary judgment in favor of the veterans, finding that the VA discriminates against veterans whose disability compensation makes them ineligible for housing built by developers whose funding sources come with income limits.
“Those who gave the most cannot receive the least,” he wrote.
In the pretrial brief, Rosenbaum argued that the lack of adequate housing at the VA forces veterans with serious mental illness or traumatic brain injury toward institutionalization.
“Homeless veterans with serious mental illness and traumatic brain injury who lack permanent supportive housing experience an institutional circuit of temporary housing, emergency departments, psychiatric institutions, and jails in order to receive healthcare, including mental healthcare, services,” he wrote.
To support their case for more housing, the plaintiffs intend to present testimony from three prominent Angelenos. Developer and former Police Commissioner Steve Soboroff will testify that he has identified space on the campus for an additional 4,000 units. Jonathan Sherin, former director of the Los Angeles County Department of Mental Health, and Benjamin Henwood, director of the Center for Homelessness, Housing and Health Equity Research at the USC Suzanne Dworak-Peck School of Social Work, will testify on the mental health impacts of homelessness.
The government’s opposing brief argued that the 2022 update of the master plan provides for a “supportive, integrated community” with services, amenities and recreational, cultural and open spaces.
The plaintiffs’ demand would impose an undue burden, the government argued, by requiring the VA to build approximately 40 buildings, to obtain a new environmental report clearances for historic preservation and to extend utilities into new areas of the campus.
It cited several improvements the VA has made to its services and changes to the income requirements that make 97% of homeless veterans eligible for federal housing vouchers.
It also argued that housing a majority of veterans with serious mental illness or traumatic brain injury on the campus would “segregate them from the broader community and would likely result in their stigmatization based on their disabilities.”
Carter has not yet ruled on the validity of the leases, which reserve limited time for veterans to use the athletic facilities and generate income from the oil and parking operations for VA operations.
Rosenbaum cited a 2021 report by the VA’s Office of Inspector General concluding that seven of the VA’s land-use leases, including those with the Brentwood School and the oil and parking operators, failed to comply with the West Los Angeles Leasing Act and that seven and a half years after the earlier settlement, no supportive housing had yet been completed.
Lawyers representing Bridgeland Resources LLC intervened in the case and filed a brief in which they argue that the 2017 lease under which the company uses a portion of the VA property to slant drill into a West Los Angeles oil field complies with the West Los Angeles Leasing Act because it provides a 2.5% royalty to the Disabled American Veterans Los Angeles Chapter “solely for the purpose of providing transportation to Veterans on and around the VA Greater Los Angeles Healthcare System Campus.” If that lease were invalidated, they said, earlier leases would then take effect, allowing Bridgeland to expand its operation.
Rosenbaum said those earlier leases also would be invalid.
Neither UCLA nor Brentwood School have had lawyers present or sought to intervene. Spokespeople for UCLA and the Brentwood School declined to comment.
Times researcher Scott Wilson contributed to this article.
After months and months of SARS-CoV-2 subvariant soup, one ingredient has emerged in the United States with a flavor pungent enough to overwhelm the rest: XBB.1.5, an Omicron offshoot that now accounts for an estimated 75 percent of cases in the Northeast. A crafty dodger of antibodies that is able to grip extra tightly onto the surface of our cells, XBB.1.5 is now officially the country’s fastest-spreading coronavirus subvariant. In the last week of December alone, it zoomed from 20 percent of estimated infections nationwide to 40 percent; soon, it’s expected to be all that’s left, or at least very close. “That’s the big thing everybody looks for—how quickly it takes over from existing variants,” says Shaun Truelove, an infectious-disease modeler at Johns Hopkins University. “And that’s a really quick rise.”
All of this raises familiar worries: more illness, more long COVID, more hospitalizations, more health-care system strain. With holiday cheer and chilly temperatures crowding people indoors, and the uptake of bivalent vaccines at an abysmal low, a winter wave was already brewing in the U.S. The impending dominance of an especially speedy, immune-evasive variant, Truelove told me, could ratchet up that swell.
But the American public has heard that warning many, many, many times before—and by and large, the situation has not changed. The world has come a long way since early 2020, when it lacked vaccines and drugs to combat the coronavirus; now, with immunity from shots and past infections slathered across the planet—porous and uneven though that layer may be—the population is no longer nearly so vulnerable to COVID’s worst effects. Nor is XBB.1.5 a doomsday-caliber threat. So far, no evidence suggests that the subvariant is inherently more severe than its predecessors. When its close sibling, XBB, swamped Singapore a few months ago, pushing case counts up, hospitalizations didn’t undergo a disproportionately massive spike (though XBB.1.5 is more transmissible, and the U.S. is less well vaccinated). Compared with the original Omicron surge that pummeled the nation this time last year, “I think there’s less to be worried about,” especially for people who are up to date on their vaccines, says Mehul Suthar, a viral immunologist at Emory University who’s been studying how the immune system reacts to new variants. “My previous exposures are probably going to help against any XBB infection I have.”
SARS-CoV-2’s evolution is still worth tracking closely through genomic surveillance—which is only getting harder as testing efforts continue to be pared back. But “variants mean something a little different now for most of the world than they did earlier in the pandemic,” says Emma Hodcroft, a molecular epidemiologist at the University of Bern, in Switzerland, who’s been tracking the proportions of SARS-Cov-2 variants around the world. Versions of the virus that can elude a subset of our immune defenses are, after all, going to keep on coming, for as long as SARS-CoV-2 is with us—likely forever, as my colleague Sarah Zhang has written. It’s the classic host-pathogen arms race: Viruses infect us; our bodies, hoping to avoid a similarly severe reinfection, build up defenses, goading the invader into modifying its features so it can infiltrate us anew.
But the virus is not evolving toward the point where it’s unstoppable; it’s only switching up its fencing stance to sidestep our latest parries as we do the same for it. A version of the virus that succeeds in one place may flop in another, depending on the context: local vaccination and infection histories, for instance, or how many elderly and immunocompromised individuals are around, and the degree to which everyone avoids trading public air. With the world’s immune landscape now so uneven, “it’s getting harder for the virus to do that synchronized wave that Omicron did this time last year,” says Verity Hill, an evolutionary virologist at Yale. It will keep trying to creep around our defenses, says Pavitra Roychoudhury, who’s monitoring SARS-CoV-2 variants at the University of Washington, but “I don’t think we need to have alarm-bell emojis for every variant that comes out.”
Some particularly worrying variants and subvariants will continue to arise, with telltale signs, Roychoudhury told me: a steep increase in wastewater surveillance, followed by a catastrophic climb in hospitalizations; a superfast takeover that kicks other coronavirus strains off the stage in a matter of days or weeks. Omens such as these hint at a variant that’s probably so good at circumventing existing immune defenses that it will easily sicken just about everyone again—and cause enough illness overall that a large number of cases turn severe. Also possible is a future variant that is inherently more virulent, adding risk to every new case. In extreme versions of these scenarios, tests, treatments, and masks might need to come back into mass use; researchers may need to concoct a new vaccine recipe at an accelerated pace. But that’s a threshold that most variations of SARS-CoV-2 will not clear—including, it seems so far, XBB.1.5. Right now, Hodcroft told me, “it’s hard to imagine that anything we’ve been seeing in the last few months would really cause a rush to do a vaccine update,” or anything else similarly extreme. “We don’t make a new flu vaccine every time we see a new variant, and we see those all through the year.” Our current crop of BA.5-focused shots is not a great match for XBB.1.5, as Suthar and his colleagues have found, at least on the antibody front. But antibodies aren’t the only defenses at play—and Suthar told me it’s still far better to have the new vaccine than not.
In the U.S., wastewater counts and hospitalizations are ticking upward, and XBB.1.5 is quickly elbowing out its peers. But the estimated infection rise doesn’t seem nearly as steep as the ascension of the original Omicron variant, BA.1 (though our tracking is now poorer). XBB.1.5 also isn’t dominating equally in different parts of the country—and Truelove points out that it doesn’t yet seem tightly linked to hospitalizations in the places where it’s gained traction so far. As tempting as it may be to blame any rise in cases and hospitalizations on the latest subvariant, our own behaviors are at least as important. Drop-offs in vaccine uptake or big jumps in mitigation-free mingling can drive spikes in illness on their own. “We were expecting a wave already, this time of year,” Hill told me. Travel is up, masking is down. And just 15 percent of Americans over the age of 5 have received a bivalent shot.
The pace at which new SARS-CoV-2 variants and subvariants take over could eventually slow, but the experts I spoke with weren’t sure this would happen. Immunity across the globe remains patchy; only a subset of countries have access to updated bivalent vaccines, while some countries are still struggling to get first doses into millions of arms. And with nearly all COVID-dampening mitigations “pretty much gone” on a global scale, Hodcroft told me, it’s gotten awfully easy for the coronavirus to keep experimenting with new ways to stump our immune defenses. XBB.1.5 is both the product and the catalyst of unfettered spread—and should that continue, the virus will take advantage again.
