Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes an opinion issued on February 24, 2022 (Part I); and cases granted review on February 7, 18, and 22, 2022 (Part II).
Opinion: Biden v. Texas, 21-954
Biden v. Texas, 21-954. The Court will determine whether the Biden Administration complied with both the Immigration and Nationality Act and the Administrative Procedures Act when it terminated the Migrant Protection Protocols (MPP), a policy implemented by the Trump Administration under which “certain noncitizens arriving at the southwest border were returned to Mexico during their immigration proceedings.” The MPP stems from the interplay between two provisions of 8 U.S.C. §1225. Section 1225(b)(2)(A) provides that an applicant for admission whom immigration officers determine “is not clearly and beyond a doubt entitled to be admitted . . . ‘shall be detained for a proceeding under [8 U.S.C. §]1229a’ to determine whether he will be removed from the United States or is eligible to receive some form of relief or protection from removal, such as asylum.” (Emphasis added.) While the statute says an applicant “shall be detained,” all agree that “DHS encounters substantially more noncitizens described in Section 1225 than it has capacity to detain.” Section 1225(b)(2)(C), however, provides that where such an applicant “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.” (Emphasis added.) The Trump Administration adopted the MPP under “the contiguous-territory-return authority” granted under §1225(b)(2)(C) so that “certain non-Mexican nationals arriving by land from Mexico could be ‘placed in removal proceedings and returned to Mexico to await their immigration court proceedings.”
This suit arises from the Biden Administration’s efforts to terminate MPP. On the President’s first day in office, DHS suspended new enrollments pending further review. Then, on June 1, 2021, the Secretary issued a memorandum terminating MPP. Texas and Missouri promptly challenged the suspension of MPP and then amended their complaint when the Secretary terminated MPP, alleging that the action violated the APA. The district court held a bench trial and entered judgment for the states on the grounds that §1225 requires DHS to “return inadmissible applicants for admission to Mexico whenever DHS lacks the resources to detain them” and “that the Secretary’s June 1 decision was inadequately explained in violation of the APA.” The district court vacated the June 1 memorandum, remanded “for further consideration,” and issued a nationwide injunction requiring the government to reinstate and implement MPP “in good faith.” The government appealed and requested a stay, but the district court, the Fifth Circuit, and the Supreme Court denied the stay request. The government thus undertook efforts to reinstate MPP while at the same time briefing its appeal before the Fifth Circuit. During that time, the Secretary “conducted a fresh evaluation process to consider ‘whether to maintain, terminate, or modify MPP,” culminating in an October 29 memorandum once again terminating MPP on the grounds that the “benefits do not justify the costs” owing to the “flaws in the program” and that implementation efforts “have played a particularly outsized role in diplomatic engagements with Mexico,” thereby “diverting attention from more productive efforts to . . . address the root causes of migration.” The Fifth Circuit, however, held that the October 29 memorandum had no legal effect because it “did not constitute a new and separately reviewable ‘final agency action.’” The court thus limited its review to the June 1 memorandum and affirmed the district court’s conclusions that it did not adequately explain the reason for terminating MPP and that the termination decision violated §1225. 20 F.4th 928.
The petition presents two questions: First, “[w]hether [§]1225 requires DHS to continue implementing MPP.” And second, “[w]hether the court of appeals erred by concluding that the Secretary’s new decision terminating MPP had no legal effect.” On the first question, the government argues that the Fifth Circuit’s interpretation “cannot be reconciled with the text, structure, or history of Section 1225.” Textually, the government stresses that §1225(b)(2)(C) says that the Secretary “may” use the contiguous-territory-return authority, not that he must. By using that term, the government maintains, Congress “unmistakably indicate[d] 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 government rejects the lower court’s reasoning that even though the term “may” is discretionary it becomes mandatory when DHS lacks capacity to detain all applicants who fall within §1225, for at least three reasons: First, although §1225(b)(2)(A) says that applicants “shall be detained,” that provision does not impose a detention “mandate” because it would ignore traditional law-enforcement discretion and be inconsistent with the discretionary parole authority conferred on the Secretary by §1182(d)(5)(A). Second, the context and history of §1225(b)(2)(C) shows that the Congress that enacted the provision “did not appropriate adequate funds for the Executive Branch to detain all noncitizens described in Section 1225” yet still chose the phrase “may return” in §1225(b)(2)(C). And third, reading §1225 as the Fifth Circuit did would mean that Congress “conferred on Mexico”—whose independent cooperation is necessary—“the effective power to decide whether or not the Secretary employs contiguous-territory return,” which the government says is an “implausible” construction.
With regard to the second question, the government insists that the Fifth Circuit “ignored hornbook principles of administrative law and relied on novel theories that even respondents had not advocated.” In the government’s view, “the Secretary did exactly what an agency is supposed to do when a reviewing court finds its explanation lacking.” Specifically, the government says that “DHS followed the teaching” of DHS v. Regents of the University of California, 140 S. Ct. 1891 (2020), in “taking new agency action” and choosing to “deal with the problem afresh” by “commenc[ing] a new and thorough evaluation process, culminating in the October 29 decision in which he ‘supersede[d] and rescind[ed] the June 1 memorandum’ and in its place again ‘terminat[ed] MPP.’” And because the October 29 decision “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,’” the government insists that, “‘by its own terms,’ the October 29 decision ‘implement[ed] a new policy.’” The government also observes that since SEC v. Chenery Corp., 332 U.S. 194 (1947), “it has been hornbook law that when a court finds an agency’s original explanation lacking, the agency on remand may ‘reexamine the problem, recast its rationale, and reach the same result.’”
The states reject the government’s view on both questions and argue that the Fifth Circuit’s decision “was well-reasoned and correct.” With respect to §1225, they say that the government’s position “takes a statutory regime that explicitly directs that almost no arriving aliens shall be released in the United States pending removal proceedings, and transforms it into a regime where almost all arriving aliens are released into the United States pending removal proceedings.” They explain that the government’s understanding of §1225 defies “both plain English and common sense” because “[w]hen one has both (1) an obligation to do something, and (2) a discretionary option that offers a potential means to fulfill that obligation; but (3) under the circumstances, the discretionary obligation is the only method of fulfilling the obligation; then the discretionary option becomes obligatory.” Moreover, they argue that Congress’s failure to appropriate adequate funds to detain all noncitizens described in §1225 “proves nothing” because the “contiguous-territory-return authority is a ‘safety valve’ providing an alternative option to detention,” and “Congress could easily have intended for the Government to use that safety valve and thought additional detention capacity unnecessary.” With respect to the APA question, the states argue that, “[g]iven the factual and procedural history of this case, only the most naïve of observers could have believed that DHS returned to the issue ‘afresh’ when it issued the October Memoranda.” It necessarily follows, say the states, that the October 29 memorandum “can be viewed only as impermissible post hoc rationalizations.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]