In Biden v. Texas the U.S. Supreme Court will decide whether a federal statute requires the Biden administration to implement the Migrant Protection Protocols (MPP). The Supreme Court will also decide whether the lower court erred in concluding that the Department of Homeland Security’s (DHS) new decision to terminate MPP had no legal effect.

Per MPP certain undocumented persons were removed to Mexico while awaiting removal proceedings. Before MPP, DHS release thousands of undocumented persons into the United States after instructing them to voluntarily appear for removal proceedings. On June 1, 2021, DHS terminated MPP.   

A federal district court ruled that DHS’s decision to terminate MPP was arbitrary and capricious in violation of the Administrative Procedures Act and that terminating it violated the Immigration and Nationality Act (INA). On October 29, 2021, the DHS Secretary issued a new “38-page memorandum exhaustively describing his evaluation process and the reasons for his decision to [again] terminate” MPP.

The Fifth Circuit held that terminating MPP violates the INA. 8 U.S.C. § 1225(b)(2)(A) states that an undocumented person “who is an applicant for admission” “shall be detained” if the person “is not clearly and beyond a doubt entitled to be admitted.” Section 1225(b)(2)(C) states that if such a person arrives from Mexico or Canada the Attorney General “may return” the person to Mexico or Canada pending removal proceedings.

The Fifth Circuit read 8 U.S.C. § 1225(b)(2)(A)’s “shall” language to require detention for undocumented persons seeking admissions. And it read Section 1225(b)(2)(C)’s “may” language as allowing “contiguous-territory return” (to Mexico or Canada) as a “permissible alternative to otherwise-mandatory detention.” According to the Fifth Circuit, because DHS lacks the resources to detain every undocumented person seeking admissions to the United States at the southern border it must return such persons to Mexico. It must therefore implement MPP.   

In its petition asking the Court to review the Fifth Circuit’s decision the United States argues the language of Section 1225(b)(2)(C) indicates MPP is discretionary and not, as the Fifth Circuit concluded, a “safety valve to address [the] problem” of inadequate detention capacity. “Congress’s use of the word ‘may’ in Section 1225(b)(2)(C) . . . unmistakably indicates that contiguous-territory return is always a discretionary tool that the Secretary has permission to use, but never one that he is compelled to use.”

The United States also argues that the Fifth Circuit’s “unprecedented interpretation also suggests that every presidential administration—including the one that adopted MPP—has been in continuous and systematic violation of Section 1225 since the relevant statutory provisions took effect in 1997.”

Before the Fifth Circuit the United States argued that its October 29 memo cured the defects the district court identified in its June 1 decision, rendering the case moot. The Fifth Circuit rejected this argument concluding the October 29 memo has “zero legal effect.” According to the Fifth Circuit the district court vacated the June 1 decision rendering it void and meaning DHS couldn’t rescind it.

According to the United States in its petition asking the Court to decide this case, per Supreme Court precedent if a court finds an agency’s actions arbitrary and capricious it may “’deal with the problem afresh’ by taking new agency action,” which is what DHS did in the October 29 memo. “The October 29 decision accordingly rested on several ‘new reasons’ that were ‘absent from’ the June 1 decision . . . and expressly addressed each of the ‘considerations that the District Court [had] determined were insufficiently addressed in the June 1 memo.’”

Recommended Posts