Dissent

For more than four decades, federal immigration law has been understood to require an immigration officer to inspect every noncitizen who presents at a port of entry seeking admission, and to receive every claim for asylum lodged at that port. The proposition has been the working understanding of the Executive Branch since the Immigration Act of 1917. It was codified in the Refugee Act of 1980, which extended asylum eligibility to noncitizens "physically present in the United States or at a land border or port of entry." Pub. L. No. 96–212, § 201(b), 94 Stat. 105. It was preserved by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which adopted the present text — "physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival)" — without altering the substantive coverage of port-of-entry arrivals. 8 U. S. C. § 1158(a)(1). And it has been confirmed by the agency's own implementing regulations, in force since 1997, which define an "arriving alien" to include "an applicant for admission coming or attempting to come into the United States at a port-of-entry." 8 C. F. R. § 1001.1(q).

The Court today rewrites that framework. It holds that an immigration officer may avoid both the inspection duty of § 1225(a)(3) and the asylum-eligibility provision of § 1158(a)(1) by the expedient of standing one step in front of the line — physically interposing himself between a noncitizen seeking inspection and the soil on which inspection would otherwise occur. The officer who pulls a noncitizen across the line must inspect; the officer who pushes a noncitizen back from the line need not. Whether the noncitizen is fleeing torture, persecution, or war, and whether the officer has any operational basis for the refusal at all, makes no difference to the Court's rule. A statute that mandates inspection becomes, under the Court's reading, a statute that mandates inspection only of those whom officers permit to be inspected.

The text Congress wrote does not require that result. The precedent the Court invokes does not compel it. And the consequences for refugee protection, for the United States' treaty obligations, and for the coherent operation of the inspection scheme are substantial. We would affirm the judgment of the Court of Appeals.

We proceed in five parts. Part I addresses the statutory text. Part II addresses the surplusage problem the Court's reading creates. Part III addresses Sale and the question whether its reasoning travels from the high seas to a land port of entry. Part IV addresses the 1998 regulation and the United States' obligations under the 1967 Protocol. Part V addresses the practical and structural consequences of the Court's holding.

I

The Court's textual analysis treats the prepositional phrase "in the United States" as the case's decisive feature. Ante, at 6–8. It is not.

The phrase Congress enacted is "arrives in the United States." That phrase is not the same as "is in the United States" or "is physically present in the United States." Congress used the latter formulations elsewhere in the same provision, and elsewhere in the same Act. The Court's reading erases the difference between them. On the Court's account, a noncitizen "arrives in the United States" only when she has come into the United States — which is to say, only when she is "in the United States." But Congress did not need the second phrase, "arrives in the United States," to capture noncitizens who are "in the United States." It already had the first phrase, "physically present in the United States." If "arrives in the United States" added nothing to "physically present in the United States," Congress's drafting was an exercise in unforced surplusage.

The verb tense Congress chose is not incidental. Congress did not write "an alien who has arrived in the United States" or "an alien who is in the United States." It wrote "an alien who … arrives in the United States." The choice of the simple present "arrives" — alongside the surrounding language describing those "physically present" and those "brought to the United States after having been interdicted" — describes a current arrival, not a completed one. The accompanying regulation, in force since 1997, captures this same temporal posture in its definition of "arriving alien": "an applicant for admission coming or attempting to come into the United States at a port-of-entry." 8 C. F. R. § 1001.1(q) (emphasis added).

The parenthetical that immediately follows "arrives in the United States" confirms the reading. It is, in full: "(whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters)." Two features of this parenthetical bear directly on the question presented.

First, the phrase "whether or not at a designated port of arrival" presupposes that an arrival may occur at a place that is not a designated port of arrival. Congress took as a given that "arriv[al] in the United States" may take place at non-port locations. The natural reading of that presupposition is that arrival is identified by the act of presenting oneself at the territorial threshold of the United States — at a designated port of entry, between ports, or, under the conditions specified by the second clause, in U. S. waters. The Court's reading, by contrast, holds that arrival requires being within the territorial United States — at which point the "whether or not at a designated port of arrival" qualifier is doing no work that "physically present in the United States" does not already do.

Second, the phrase "including an alien who is brought to the United States after having been interdicted" addresses an interdiction posture in which the United States has chosen to bring an alien into its territory. That phrase tells us something about Congress's understanding of the surrounding text: when Congress wanted to address a noncitizen who has been physically brought into the United States after interdiction, it said so expressly. The absence of any limiting language requiring that a noncitizen otherwise be "brought to" or "delivered to" the United States is striking. The structure of the parenthetical assumes that arrivals at the border, including arrivals at ports of entry, are already covered by the main text — and treats the interdicted-and-brought-in posture as a marginal extension that needed to be made explicit.

The Court's reading achieves coherence only by treating "arrives in the United States" as language Congress used loosely, when in fact Congress used it deliberately. The drafting record is to the contrary. The 1980 Refugee Act provided that an alien "physically present in the United States or at a land border or port of entry" could apply for asylum. Pub. L. No. 96–212, § 201(b), 94 Stat. 105. The 1996 amendment replaced "at a land border or port of entry" with "who arrives in the United States (whether or not at a designated port of arrival …)." The natural reading of that change is not that Congress narrowed asylum eligibility to those who had successfully entered. It is that Congress restated and expanded the territorial reach of the prior language to ensure that arrivals between ports, and interdicted noncitizens brought in by the United States, were covered along with arrivals at ports.

II

The surplusage problem the Court creates is not, as the Court suggests, modest. It is structural.

Under the Court's reading, "arrives in the United States" reaches only those who have, in physical fact, come into the United States. Ante, at 8–9, 11. The Court explains that this set is not perfectly coextensive with "physically present in the United States" because the entry fiction allows a noncitizen at a port of entry to be physically on U. S. soil while legally not yet "entered." Ante, at 10. On the Court's account, "physically present in" covers those who have settled in some legal status, and "arrives in" covers those who have stepped onto U. S. soil but whose legal arrival is incomplete.

This is a careful articulation but a thin one. It identifies a category of cases — the noncitizen who has crossed the borderline but stands within the entry-fiction zone — and assigns "arrives in" exclusively to that category. The category is genuine. The trouble is that Congress's broader drafting cannot be made to fit it. If Congress had intended to address only the entry-fiction posture, the surrounding parenthetical — "whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters" — would be deeply puzzling. The entry-fiction posture, as developed in Mezei, Kaplan v. Tod, and Leng May Ma, presupposes physical presence on U. S. soil at a port of entry. It does not address those who arrive between ports. It does not address those brought in after interdiction. The parenthetical's reach extends well beyond the entry-fiction zone — which suggests, contrary to the Court's reading, that the main text reaches beyond it as well.

The Court's tolerance for "belt-and-suspenders" redundancy, Barton v. Barr, 590 U. S. 222, 239 (2020), cannot bridge that gap. The redundancy Barton tolerated was a localized, modest overlap between two provisions whose principal functions remained distinct. Here, the Court's reading produces something different: it treats "arrives in the United States" as a phrase whose entire substantive work consists in capturing the entry-fiction zone — a zone the statute could have addressed in clearer terms, and which the parenthetical does not exhaust. "Redundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text." Id., at 224 (internal quotation marks omitted). The Court's reading eviscerates "arrives in the United States" of any independent work the parenthetical implies it does.

III

The Court treats Sale v. Haitian Centers Council, Inc., 509 U. S. 155 (1993), as a precedent whose reasoning is "broader than its facts." Ante, at 14. The premise of that move is wrong.

Sale construed a particular statutory provision — § 243(h)(1) of the INA, the predecessor to current 8 U. S. C. § 1231(b)(3) — that prohibited the Attorney General from "deport or return" certain aliens. 509 U. S., at 156. It concluded that the verb "return" did not extend to refugees interdicted on the high seas, on the ground that the surrounding statutory structure addressed only "proceedings to deport aliens already in the country and proceedings to exclude those already at the border." Id., at 156. The provision the Court interpreted was, on its face, the provision implementing the non-refoulement obligation under domestic law — and Sale held that that provision did not reach the high seas.

What Sale did not hold is that every asylum-related provision of the INA carries the same territorial reach as § 243(h)(1). Sale did not interpret § 1158(a)(1). It did not interpret § 1225(a)(1). It did not interpret "arrives in." On the contrary, Sale's own reasoning expressly recognized that "[t]he INA offers these statutory protections only to aliens who reside in or have arrived at the border of the United States." 509 U. S., at 160 (emphasis added). The italicized phrase — "arrived at the border" — is Sale's own description of the territorial reach of the asylum framework. It places noncitizens at the border within the protected class.

The two postures — high-seas interdiction in Sale and land-border metering here — differ in ways the Court underweights. In Sale, the U. S. officials whose conduct was at issue were Coast Guard officers operating on the high seas. The challenged action occurred outside U. S. territory. Here, the U. S. officials are immigration officers stationed at the borderline at a port of entry. Their conduct, in physical fact, takes place on U. S. soil. The presumption against extraterritoriality operates on the territorial location of the regulated conduct. RJR Nabisco's second-step "focus" inquiry asks whether "the conduct relevant to the statute's focus occurred in the United States." 579 U. S. 325, 326 (2016). When § 1225(a)(3) commands that immigration officers "shall" inspect noncitizens applying for admission, the conduct in question is the inspection itself — conduct performed, by U. S. officials, on U. S. soil. Whatever the location of the noncitizen at the moment of inspection, the conduct the statute regulates is domestic. Cf. Morrison v. National Australia Bank Ltd., 561 U. S. 247, 266 (2010).

The Court reads Sale's reference to the "special force" of the presumption against extraterritoriality in matters touching "foreign and military affairs," 509 U. S., at 188, as fortifying the territorial reading here. Ante, at 14. But the foreign-affairs concern that animated Sale — that interpreting § 243(h) to reach the high seas would have implicated the President's authority over a maritime interdiction program executed beyond the territorial sea — has no analog here. The metering policy is not a maritime interdiction. It is the operation of fixed U. S. ports of entry on U. S. soil, by U. S. officers, applying U. S. immigration laws to noncitizens who have come to the borderline of the United States to seek admission. The foreign-affairs context that gave Sale's extraterritoriality presumption its "special force" is absent.

IV

The Court's treatment of the 1998 regulation and the Charming Betsy canon understates both.

A

The regulation defining "arriving alien" — "an applicant for admission coming or attempting to come into the United States at a port-of-entry," 8 C. F. R. § 1001.1(q) — has been the agency's interpretation of the same statutory framework, in continuous operation, for nearly three decades. The Court characterizes the agency's view as inconsistent, ante, at 18, on the ground that the 2018 memoranda formalizing metering reflected a contrary view of the inspection duty. That characterization misreads the record. The 2018 memoranda were operational instructions to officers in the field, addressing CBP's response to port-of-entry surges. They did not purport to revise the agency's regulatory definition of "arriving alien." They did not amend 8 C. F. R. § 1001.1(q). The regulatory definition Congress's drafters were aware of in 1996, and which the Executive Branch has maintained throughout the period since, points unmistakably to a coverage zone that includes those "coming or attempting to come" — not only those who have crossed.

After Loper Bright Enterprises v. Raimondo, 603 U. S. 369 (2024), a court is not bound by an agency's interpretation of an ambiguous statute. But Loper Bright did not displace the relevance of longstanding agency practice as evidence of statutory meaning. The Court there preserved the traditional role of Skidmore persuasiveness — the recognition that an agency's interpretations may "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Id., at 392 (quoting Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)). A regulation in force since 1997, consistently applied across administrations of both parties, with internal operational memoranda departing from it for only a few years during a single Administration, is the paradigm of the kind of agency interpretation that carries persuasive weight. The Court treats that paradigm as inconsistency. We would not.

B

The Charming Betsy canon provides that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Murray v. Schooner Charming Betsy, 6 U. S. (2 Cranch) 64, 118 (1804). The Court holds that the canon is inapplicable because, in its view, the statute admits of no construction other than the one it adopts. Ante, at 20. That holding rests on the textual conclusion we have already addressed. If the text bears the reading the Court of Appeals adopted — and it does — then the canon counsels that reading where the alternative would put the United States in tension with its treaty obligations.

The 1967 Protocol Relating to the Status of Refugees, to which the United States acceded in 1968, incorporates Article 33.1 of the 1951 Convention. That article prohibits a contracting State from "expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened." 19 U. S. T. 6259, 6276. The 1980 Refugee Act was enacted to "bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees." INS v. Cardoza-Fonseca, 480 U. S. 421, 436 (1987); see INS v. Stevic, 467 U. S. 407, 421 (1984). The 1980 Act's drafters used language — "at a land border or port of entry" — that mapped directly onto the territorial reach the Protocol was understood to address. The 1996 amendment did not retract that coverage; the legislative history reflects no intention to do so.

The Court responds that Sale held the Article 33 obligation does not have extraterritorial reach. Ante, at 19. That is true of the high-seas posture Sale addressed. It is not true of the at-the-border conduct of immigration officers on U. S. soil — a posture Sale did not address. Indeed, Sale's own discussion of the negotiating history of Article 33 acknowledged that the verb "return" in the asylum framework, properly understood, "means a defensive act of resistance or exclusion at a border rather than an act of transporting someone to a particular destination." 509 U. S., at 182. To the extent the obligation reaches border conduct at all, it reaches the precise conduct at issue here: the physical interposition of an officer between a noncitizen at the borderline and the inspection she is entitled to receive.

V

A final word about consequences.

The Court suggests that the statute Congress wrote is the statute the Court must apply. Ante, at 21. We agree with that proposition. We do not agree that the statute Congress wrote is the statute the Court today identifies.

The Court's reading produces a coherence problem the briefing did not fully reach. Under § 1225(a)(3), the immigration officer "shall" inspect every applicant for admission. Under § 1158(a)(1), every noncitizen who has arrived may apply for asylum. If a noncitizen presents at a port of entry and is stopped before stepping across the line — even by an officer who has no operational basis for the stop, and even where the noncitizen has presented credible evidence of imminent persecution in her country of origin — neither provision applies. The officer's choice to interpose himself, rather than to allow the step, eliminates the statute's coverage.

That cannot be the design Congress chose. A mandate to "inspect" cannot mean "inspect those whom officers permit to be inspected." A statute providing that noncitizens who arrive "may apply for asylum" cannot mean "may apply only if officers do not prevent them from arriving." The Court's reading converts a statutory floor into an executive ceiling. It does so against the textual evidence, against the regulatory practice, and against the treaty obligations Congress legislated to implement.

It is worth observing what the Court's reading rewards and what it penalizes. A noncitizen who attempts to cross between ports, evading the inspection officers Congress required, is — on the Court's reading and on petitioner's — a noncitizen who "arrives in the United States" once she has crossed the line. The asylum statute applies to her. A noncitizen who, by contrast, presents lawfully at a port of entry and asks an officer for inspection — the conduct Congress expressly contemplated, the conduct the agency's regulations were drafted to facilitate, and the conduct petitioners themselves agreed is preferable to unlawful crossing, Tr. of Oral Arg. 48–49 — gets no protection if the officer chooses to refuse her. Congress, on this reading, has built a statutory scheme that privileges the unlawful crosser over the rule-follower. Whatever might be said for that scheme as a matter of policy, we doubt very much that it is the scheme Congress designed.

The Court's reading also unsettles a piece of the immigration framework that has operated continuously since 1917. For more than a century, the inspection mandate has been understood by Congress, by the Executive Branch, and by this Court to attach at the port of entry — at the borderline, not one foot past it. The Court replaces that long understanding with a new one. The new understanding requires that all of the immigration laws governing port-of-entry conduct be re-examined to determine whether they presuppose, as the Court now holds, that the line between officer-blocked and officer-admitted noncitizens has constitutional and statutory significance. None of the parties to this case briefed those downstream questions, and we do not undertake to answer them here. They will arise, and they will have to be answered, on facts the Court has not yet seen.

* * *

The Refugee Act of 1980 took its shape, in part, against the memory of the MS St. Louis. In 1939, that ship — carrying more than nine hundred Jewish refugees fleeing Nazi Germany — was turned away from Havana, from Miami, and from Halifax. More than two hundred of its passengers were murdered in the Holocaust. The 1980 Act's drafters knew the history and wrote a statute, in the language of "physically present in the United States or at a land border or port of entry," that they understood would prevent its repetition. The 1996 amendment did not narrow that commitment. It re-described it.

The Court today re-describes it again. It holds that the asylum statute reaches only those whom the United States, in its administrative discretion, permits to come within its borders. We do not think Congress's commitments are so easily revisable. We respectfully dissent.