Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 27, 29, and 30, 2022 (Part I).
Opinion: Biden v. Texas, 21-954
Biden v. Texas, 21-954. The Court held by a 6-3 vote that (1) the Biden Administration’s attempt to terminate the Migrant Protection Protocols (the Trump Administration’s “remain in Mexico” policy) did not violate §1225 of the Immigration and Nationality Act; and (2) a new explanation for the termination policy issued by the government while the appeal was pending constitutes reviewable final agency action. The Court held by a 5-4 vote that it had jurisdiction to reach the merits of this appeal even though the district court entered an injunction that violated 8 U.S.C. §1252(f)(1). In December 2018, the then-Secretary of Homeland Security announced the Migrant Protection Protocols (MPP), which “provided that certain non-Mexican nationals arriving by land from Mexico would be returned to Mexico to await the results of their removal proceedings.” MPP was issued pursuant to 8 U.S.C. §1225(b)(2)(C), which provides that “[i]n the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending” a removal proceeding. Separately, the Immigration and Nationality Act (INA) provides that “if an alien seeking admission is not clearly and beyond doubt entitled to be admitted, the alien shall be detained” for a removal proceeding. §1225(b)(2)(A). The Department of Homeland Security began implementing MPP in January 2019, and enrolled just over 68,000 aliens in the program by December 31, 2020. The Biden administration sought to terminate the program. On January 20, 2021, the Acting Secretary of Homeland Security wrote that effective the next day the Department will suspend new enrollments in MPP pending further review of the program. On June 1, 2021, Secretary Mayorkas issued a memorandum (the “June 1 Memorandum”) officially terminating the program.
In April 2021, the States of Texas and Missouri filed suit in federal district court challenging the termination. Their complaint, as amended, asserted that the June 1 Memorandum violated the INA and the Administrative Procedure Act. The district court ruled in favor of the plaintiff states, holding that terminating MPP would violate the INA. “It reasoned that section 1225 of the INA ‘provides the government two options’: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory return pursuant to section 1225(b)(2)(C). Because the Government was unable to meet its detention obligations under section 1225(b)(2)(A) due to resource constraints, the court concluded, ‘terminating MPP necessarily leads to the systemic violation of Section 1225 as aliens are released into the United States.’ Second, the District Court found that the agency failed to engage in reasoned decisionmaking and therefore acted arbitrarily and capriciously in violation of the APA.” (Citations omitted.) The district court imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith.” The district court, the Fifth Circuit, and the Supreme Court declined to stay the injunction. While the Government’s appeal to the Fifth Circuit was pending, Secretary Mayorkas released a memorandum that again announced termination of MPP, along with a 39-page addendum providing the reasons for doing so (the “October 29 Memoranda”). The Government moved to vacate the injunction based on the October 29 Memoranda. The Fifth Circuit instead affirmed the district court. In addition to agreeing with the district court’s analysis of §§1225(b)(2)(A) and (C), the Fifth Circuit held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’” Rather, found the court, it simply explained DHS’s prior decision to terminate. In an opinion by Chief Justice Roberts, the Court reversed and remanded.
The Court first addressed its jurisdiction, noting that under Garland v. Aleman Gonzalez, 596 U.S. ___ (2022), it had recently held that 8 U.S.C. §1252(f)(1) “’generally 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.’” Thus, the district court injunction here violated that provision. The Court held, however, that that did not deprive it of jurisdiction to reach the merits of the Government’s appeal. The Court reasoned that §1252(f)(1), although it uses the word jurisdiction, did not deprive the district court of subject matter jurisdiction over the states’ suit; it merely deprived the district court of “jurisdiction or authority” “to grant a particular form of relief.” And a parenthetical in §1252(f)(1) expressly preserves the Supreme Court’s power to enter injunctive relief. “If section 1252(f)(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the provision’s specific carveout for Supreme Court injunctive relief nugatory.” The Court added that other parts of §1252 were explicit when it “intended to deny subject matter jurisdiction over a particular class of claims.” Finally, the Court observed that in Nielsen v. Preap, 586 U.S. ___ (2019), the Court reached the merits of a suit even though the district court apparently violated §1252(f)(1).
Turning to the merits, the Court emphasized that §1225(b)(2)(C)―which (again) provides that “[i]n the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending” a removal proceeding (emphasis added)―”confers a discretionary authority to return aliens to Mexico during the pendency of their immigration proceedings.” That is because the provision uses the word “may.” The Court rejected the lower courts’ reasoning that, “[b]ecause 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.” “May” means “may,” found the Court. “If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, . . . [i]t would surely  have coupled that grant of discretion with some indication of its sometimes-mandatory nature.” And all this is so even assuming arguendo that §1225(b)(2)(A) truly is mandatory, “and that the Government is currently violating its obligations under that provision.” The Court added that historical context supports its interpretation. Congress added §1225(b)(2)(C) in 1996―”more than 90 years after the Immigration Act of 1903 added the ‘shall be detained’ language that appears in section §1225(b)(2)(A).” And Congress added §1225(b)(2)(C) in response to a Board of Immigration Appeals “decision that specifically called into question the legality of the contiguous-return practice.” “That modest backstory suggests a more humble role for section 1225(b)(2)(C) than as a mandatory ‘safety valve’ for any alien who is not detained under section 1225(b)(2)(A).” The Court also noted that since enactment of §1225(b)(2)(C), “every Presidential administration has interpreted” the provision “as purely discretionary.” Further, “the foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. . . . By 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 noted that “the INA expressly authorizes DHS to process applicants for admission under a third option: parole. See 8 U.S.C. §1182(d)(5)(A).” And “[e]very administration, including the Trump and Biden administrations, has utilized this authority to some extent.”
The Court next held that the Fifth Circuit “also erred in holding that ‘[t]he October 29 Memoranda did not constitute a new and separate reviewable “final agency action.”’” The Court observed that in Department of Homeland Security v. Regents of Univ. of Cal., 591 U.S. ___ (2020), it explained that an agency has two options after a finding that the grounds for agency action are inadequate. First, the agency can offer a fuller explanation for the agency’s initial reasoning; under this approach the agency may elaborate on its initial reasons but may not offer new ones. Second, the agency can take new agency action; under this approach the agency is not limited to its prior reasons. The Court here found that the Secretary of DHS took the second route. The October 29 Memoranda “made clear” that the Secretary was offering new reasons for terminating MPP. “The October 29 Memoranda was therefore final agency action for the same reasons that the June 1 Memorandum was final agency action.” The Court rejected the states’ argument that the October 29 Memoranda were merely “post hoc rationalizations of the June 1 Memorandum.” “The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents.” The Court also rejected the Fifth Circuit’s objection that the Secretary “failed to proceed with a sufficiently open mind.” The “Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action.” Finally, the Court found that nothing prevented DHS “from undertaking new agency action while simultaneously appealing an adverse judgment against its original action.” The Court remanded, stating that “the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA.”
Justice Kavanaugh filed a concurring opinion to note, among other things, that “when there is insufficient detention capacity, both the parole option and the return-to-Mexico option are legally permissible options under the immigration statutes.” Indeed, he observed, “every President since the late 1990s has employed the parole option.” He also approved the Court’s decision to remand the APA issue to the district court, while noting that a court engaging in that analysis “must be deferential to the President’s Article II foreign-policy judgment.”
Justice Alito filed a dissenting opinion, which Justices Thomas and Gorsuch joined. After agreeing with Justice Barrett’s separate dissent (discussed below) on jurisdiction, Justice Alito turned to the merits. He stated that the Court in Jennings v. Rodriguez, 583 U.S. ___ (2018), correctly held that §1225(b)(2)(A)’s requirement that aliens “shall be detained” is mandatory. But, said Justice Alito, the majority decision here effectively makes detention discretionary. “The Government is failing to meet the statutory detention mandate, not only because of limitations on its detention capacity, but also because it refuses to use the contiguous-territory return authority.” Parole is not an answer, he said, because it requires a case-by-case analysis, and “the number of aliens paroled each month under that provision―more than 27,000 in April of this year―give rise to a strong inference that the Government is not really making these decisions on a case-by-case basis.” (Footnote omitted.) Justice Alito rejected the majority’s reliance on §1225(b)(2)(C)’s use of the word “may.” “When it is not possible for the Government to comply with the statutory mandate to detain inadmissible aliens pending further proceedings, it must resort to one or both of the other two options in order to comply with the detention requirement to the greatest extent possible.” It matters not that §1225(b)(2)(C) doesn’t say this in express terms: “what logic compels need not be stated expressly.” Justice Alito discounted foreign affairs concerns, stating that “enforcement of immigration laws often has foreign relations implications, and the Constitution gives Congress broad authority to set immigration policy” that the President may not override. And with respect to prior administrations’ actions, “[t]he majority cites no authority for the doctrine that the Executive can acquire authority forbidden by law through a process akin to adverse possession.”
As to the October 29 Memoranda, Justice Alito noted that the Government issued it “after briefing in the Court of Appeals had been completed and only days before the appeal was set to be argued.” He believed that the Fifth Circuit correctly ruled that the memoranda were not final agency action, especially since it did not have before it the administrative record for the memoranda. Plus, DHS acknowledged in the memoranda that termination of MPP couldn’t be implemented until there was “a final decision to vacate the . . . injunction.” All told, said Justice Alito: “the majority seems to assume that an administrative agency may obviate a district court decision setting aside agency action under §706 of the APA by pursuing the following course of conduct: first, appeal the district court decision; second, take a purportedly ‘new’ action that achieves the same result as the one previously set aside; and third, while declining to seek vacatur of the earlier judgment in the district court, ask the court of appeals to vacate that judgment without reviewing its correctness or the lawfulness of the second action. The Court of Appeals was correct to view this as an effort to thwart the normal appellate process.”
Justice Barrett also filed a dissenting opinion, which Justices Thomas, Alito, and Gorsuch joined except as to the first sentence, which stated that Justice Barrett agreed with the Court’s analysis of the merits. But she disagreed with the Court’s jurisdictional holding. She would “vacate and remand for the lower courts to reconsider their assertion of jurisdiction in light of Aleman Gonzalez.” Justice Barrett observed that the parties and the Court operated on “a compressed timeline” on the jurisdictional issue (the Court called for supplemental briefing on the issue). And she noted that no court of appeals had yet held, as the majority did, “that §1252(f)(1) limits only the lower courts’ remedial authority, not their subject-matter jurisdiction.” Justice Barrett pointed to several “doubts” she had about the Court’s analysis. She “would think that Congress is free to link a court’s subject-matter jurisdiction to its remedial authority,” similar to how the amount-in-controversy and the redressability requirement of Article III do. Justice Barrett also posed questions about how the Court’s approach would work. “Does it mean that the restriction on remedial authority is subject to waiver or forfeiture, so that a lower court can sometimes properly enter non-individual injunctive relief that this Court can then review? That a district court has the authority to enter some kinds of non-individual relief (for example, a classwide declaratory judgment) and that this Court can enter different relief (for example, a classwide injunction) on review of that judgment?” Given all that, she would let the lower courts tackle these issues first.