Mullin v. Al Otro Lado · ¶99

The Ninth Circuit agreed with respondents on both points. 138 F. 4th, at 1113. First, it held that §1225(a) requires the Government to inspect “noncitizen[s] stopped by U. S. officials at the border” and that §1158(a)(1) requires allowing such noncitizens to apply for asylum. Id., at 1118– 1119. Second, it held that the metering policy constituted “withholding of agency action,” as opposed to delay of agency action, because “border officials turned away noncitizens without taking any steps to keep track of who was being turned away or otherwise allowing them to open asylum applications.” Id., at 1122. In other words, the policy constituted a “wholesale refusal to carry out a mandatory duty,” which “le[ft] the responsibility to try again in each noncitizen’s hands.” Ibid. The panel further explained that the difference between withholding and delay of a mandatory duty “is important”…

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