In Biden v. Texas the U.S. Supreme Court held 5-4 that the Biden administration may end the Migrant Protection Protocols (MPP).

MPP was a Trump administration program which provided for the return to Mexico of non-Mexicans who were detained attempting to enter the United States at the United States-Mexico border. On Inauguration Day President Biden announced he would suspend the program the next day, and he ultimately sought to terminate it.

Texas and Missouri argued that MPP can’t be rescinded. The Supreme Court disagreed in an opinion written by Chief Justice Roberts.

The statutory basis for MPP is Section 1225(b)(2)(C) of the Immigration and Nationality Act (INA) which states: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Both sides agree that the “may” language in Section 1225(b)(2)(C) makes it discretionary.

But Texas and Missouri point to Section 1225(b)(2)(A) which states “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.”

Texas and Missouri argue that because Section 1225(b)(2)(A) makes detention mandatory, “the otherwise-discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that detention mandate.”

The Court rejected this argument first noting “[t]he problem is that the statute does not say anything like that.” “If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any non-compliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term ‘may.’ It would surely instead have coupled that grant of discretion with some indication of its sometimes-mandatory nature—perhaps by providing that the Secretary ‘may return’ certain aliens to Mexico, ‘unless the government fails to comply with its detention obligations, in which case the Secretary must return them.’ The statutory grant of discretion here contains no such caveat, and we will not rewrite it to include one.”

The Court also noted that Section 1225(b)(2)(C) was not added to the statute until 1996 after a Board of Immigration Appeals decision “specifically called into question the legality of the contiguous-territory return practice.”

Likewise, every President since Section 1225(b)(2)(C) was added has interpreted it as discretionary. Relatedly, “[b]y interpreting section 1225(b)(2)(C) as a mandate, the Court of Appeals imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico.”

Finally, the Court opined that the existence of a third option to process applicants seeking admission into the United States—parole—makes it clear MPP can be discontinued.  

Justices Alito, Thomas, and Gorsuch dissented, disagreeing with the Court’s interpretation of the statutory sections. Justice Barrett dissented opining that she didn’t think the Court should have decided the case—but that she nevertheless agreed with the Court on the merits.

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