On June 30, 2022, the Supreme Court held that the Biden administration’s termination of the Trump-era “Migrant Protection Protocols,” or MPP, did not violate the Immigration and Nationality Act, or INA. The Court further held that the Oct. 29, 2021, memorandum issued by the Secretary of Homeland Security terminating MPP was “final agency action.”

Background

Under the MPP program, also referred to as the “Remain in Mexico” program, individuals arriving at the southern border who requested asylum were issued Notices to Appear and returned to Mexico with instructions to return to a specific port of entry at a time and date for their next hearing.1 MPP has been roundly denounced by immigration and human rights advocates as a deadly program that forces vulnerable asylum seekers to live in unsafe conditions in Mexico while they wait for their cases to proceed in the United States.

In early 2021, the Biden administration announced an end to the MPP program. The Secretary of Homeland Security issued a memo on June 1, 2021, which formally terminated the program.

However, by the end of December 2021, the Biden administration was forced to re-implement MPP. This change came about based on litigation filed by two states that challenged the end of the MPP program, alleging that the termination of MPP violated the INA and the Administrative Procedures Act, or APA. In August 2021, a federal judge for the U.S. District Court for the Northern District of Texas ordered the government to reinstate MPP, finding that terminating MPP was in violation of the INA.2 The Department of Justice appealed, and the Secretary of Homeland Security reissued a memo in October 2021 outlining the reasons for terminating MPP. However, the Fifth Circuit upheld the district court order, agreeing that the termination of MPP violated the INA and finding that the new October 2021 memo was not a reviewable “final agency action.” 3 As a result of the district court injunction, the MPP program was re-started in late 2021.

The Supreme Court’s Decision in Biden v Texas.

In a decision issued on June 30, 2022, the Supreme Court held that: 1) the Biden’s administration termination of the MPP program did not violate the Immigration and Nationality Act; and 2) the October 29, 2021, memo issued by the Secretary of Homeland Security was “final agency action.” 597 U. S. ____ (2022).

Before reaching the merits of the case, the Supreme Court addressed the issue of jurisdiction. The Court held that the district court violated a provision of the INA which “prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.” Garland v. Aleman Gonzalez, 596 U. S. ___ (2022) at ___ (slip op., at 5). However, the Court held that, although the statute placed a limitation on the district court’s power to issue injunctive relief, the lower court did have subject matter jurisdiction over claims brought under certain provisions of the INA (sections 1221-1232). As such, the limitation on injunctive relief did not deprive the Supreme Court of jurisdiction to reach the merits of an appeal even where the lower court entered a form of relief barred by that provision.

Turning to the merits of the appeal, the Supreme Court held that, under the INA, the Secretary of Homeland Security has a discretionary authority to return a noncitizen to a foreign contiguous territory. However, the implementation of MPP is by no means mandatory under the statute. As the Court emphasized, “[t]he statute says ‘may.’” Thus, the Supreme Court found that both the district court and the Fifth Circuit had erred in finding that the INA required the implementation of MPP.

Second, the Supreme Court also held that the Fifth Circuit erred in finding the October 29, 2021, memo terminating MPP was not a new and separately reviewable “final agency action.” After the June 1 memorandum was vacated, DHS had two options under the Supreme Court’s precedent in Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The options were to either elaborate on its original reasons for agency action, or to take new agency action. The DHS Secretary selected the second option provided by Regents and took new agency action by issuing the Oct. 29, 2021, memo. As such, the October memo was “final agency action” as it marked the end of the agency’s decision-making process and resulted in the determination of rights and obligations.

The Supreme Court remanded the case to the district court to consider in the first instance whether the agency termination of MPP complied with section 706 of the APA.

Implications  

The short-term impacts of the Supreme Court decision in Biden v. Texas are largely positive in allowing the administration to terminate the MPP program. While litigation will continue over the states’ APA claims, the district court will be prohibited from issuing a nationwide injunction halting the termination of the program.

Following the Supreme Court’s June 30 decision, the U.S. District Court lifted the injunction that required DHS to reimplement MPP. DHS has since confirmed that individuals are no longer being newly enrolled in MPP and currently enrolled individuals will be disenrolled when they return for their next scheduled court date.

However, even without MPP in effect, the situation facing asylum-seekers at the border continues to be dire. Title 42 of the U.S. Code, section 265, has been used to prohibit the entry of individuals into the United States based on the COVID-19 pandemic. Since Title 42 was first asserted in March 2020, hundreds of thousands of individuals have been denied entry to the United States. The Biden administration, based on the CDC’s public health pronouncement, announced that use of Title 42 for this purpose would end on May 23, 2022. However, on May 20, 2022, a U.S. district court in Lafayette, Louisiana, issued a preliminary injunction that prevented the administration from ending reliance on this law to expel immigrants. Thus, Title 42 remains in effect and strips asylum-seekers of their right to seek asylum without being criminalized. While the Supreme Court’s decision is welcome news, much work needs to be done to ensure that the rights of vulnerable asylum-seekers at the border are protected.