On December 13, a three-judge panel of the Court of Appeals for the Fifth Circuit affirmed an order issued by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, enjoining the Biden administration’s June 1 termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. The circuit court’s decision is a doozy, and I trust the Biden administration is chastened by the exercise.
History of Remain in Mexico, and the Biden Administration’s Attempts to End It. In a November 4 post, I provided a full run-down of the Remain in Mexico saga (up to that point), but here is the extremely abridged version: In January 2019, then-DHS Secretary Kirstjen Nielsen initiated MPP to allow CBP to return aliens apprehended at the Southwest border back to Mexico to await their removal proceedings.
Nielsen created MPP to “address the urgent humanitarian and security crisis at the Southern border” and “end the exploitation of our generous immigration laws”. The program went through various stages of litigation but was up and running by the middle of 2019.
In its October 2019 assessment of the program, DHS determined that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.
Then-candidate Joe Biden railed against MPP, and on January 21, the Biden administration suspended new enrollments in the program. On April 13, the states of Texas and Missouri filed suit challenging the suspension of MPP in federal court in Texas, which was assigned to Judge Kacsmaryk.
On June 1, while that case was pending, the new DHS Secretary, Alejandro Mayorkas, issued a memo terminating MPP. That termination was rolled into the pending case brought by the states.
On August 13, Judge Kacsmaryk issued an order enjoining Mayorkas’s termination of MPP.
The government appealed that decision and asked a three-judge panel of the Fifth Circuit to stay Judge Kacsmaryk’s injunction, which it declined to do in an order dated August 19. That prompted the administration to file an application for a stay of Judge Kacsmaryk’s order from the Supreme Court, which was denied in a brief order from the Court issued on August 24.
While the underlying circuit court appeal was pending before a slightly different three-judge panel of the Fifth Circuit (Judge Andrew Oldham, who wrote the latest decision, was the only judge on both panels), Mayorkas issued a new memo terminating MPP on October 29.
That termination was set to “be implemented as soon as practicable after a final judicial decision to vacate” Judge Kacsmaryk’s injunction was issued and contained a slightly new rationale for terminating MPP, as I explained on November 1.
Oral arguments before the Fifth Circuit in that case were held as scheduled on November 2, and the timing of Mayorkas’s latest memo did not sit well with at least one of the judges.
The government contended that Mayorkas’s latest memo terminating MPP rescinded his June 1 termination memo, rendering it pointless to continue the litigation because that earlier memo was moot. If the states wanted to start over and challenge the new memo, DOJ counsel argued, they could do so.
As Law360 reported: “U.S. Circuit Judge Kurt Engelhardt ... called it ‘suspicious and disappointing’ that the Biden administration had issued a new memorandum on Oct. 29, days before the hearing”. Judge Engelhardt continued: “Why is it an Oct. 29 memo and not an Oct. 1 memo or a Sept. 15 memo? The motion comes with some suspicion of gamesmanship.” Hold that thought.
The December 13 Fifth Circuit Decision. This brings us to the latest, 117-page decision of the Fifth Circuit.
The circuit court deemed Mayorkas’s June 1 memo as the “Termination Decision” and held that the October 29 memo “did not reopen the actionable Termination Decision” and could not “render a final agency action” — the June 1 memo — “retroactively nonfinal”.
To explain, the circuit court analogized the termination decision “to the judgment of a court, and its memos ... analogous to a court’s opinion explicating its judgment. A judgment, not the opinion announcing that judgment, has a binding effect that settles the dispute before the court.”
If all that sounds vaguely familiar, it’s because the Trump DHS used a similar tactic when it tried to end the Obama administration’s Deferred Action for Childhood Arrivals program (DACA).
On September 5, 2017, Acting Secretary of Homeland Security Elaine Duke rescinded DACA, effective March 5, 2018. In response to direction from the U.S. District Court for the District of Columbia, Acting Secretary of Homeland Security Kirstjen Nielsen thereafter issued a memorandum in June 2018 concurring with and declining to disturb Duke's decision. Nielsen's memorandum contained additional justifications for the rescission of DACA.
In its June 2020 decision in DHS v. Regents of the University of California blocking DACA’s recission, the Supreme Court held that it could not review the June 2018 Nielsen memorandum, but was required to focus only on the reasoning in the September 2017 Duke memorandum, deeming Nielsen's memorandum an impermissible "post hoc rationalization" for Duke's September 2017 action.
Not surprisingly, Regents was cited 30 separate times in the circuit court’s December 13 decision. The court held that the June 1 termination decision was the final agency action for purposes of its review and that the October 29 memo did not render the case moot because it has “no present legal effect” and because the government failed to show that it does “anything to cure the Termination Decision’s unlawfulness”.
The States Had Standing to Sue. In a lengthy analysis, the circuit court found that Judge Kacsmaryk’s findings that the states had standing to bring the case — largely due to increased fiscal costs that would be incurred by Texas due to an influx of illegal migrants resulting from MPP’s termination — were not clearly erroneous.
APA Considerations. Next, the circuit court concluded that the termination decision was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA) on a host of grounds, and “contrary to” section 235 of the Immigration and Nationality Act (INA).
The Supreme Court has held: “The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained.” I will spare you an in-depth APA analysis, but briefly, the court held that there were a number of “relevant factors” that DHS failed to consider in making the termination decision.
Among these were the plaintiff states’ “legitimate reliance interests” in the continuance of MPP (citing to Regents), the benefits of MPP (expressed in DHS’s own October 2019 assessment of the program), possible alternatives to MPP, and what the court termed “the legal implications of terminating MPP”.
The INA analysis played into that latter point. In their initial filing in the case (again, in April), the states asserted that under section 235 of the INA, DHS is required to detain “applicants for admission” that the department deems inadmissible, including aliens apprehended entering illegally.
In lieu of detention, section 235(b)(2)(C) of the INA permits DHS to send those applicants for admission back across the border to await their removal hearings, or it can parole them under section 212(d)(5) of the INA, but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit“. Ending MPP took the first option off the table.
Even though DHS had been placed on notice by the states’ filing of this case that this was an issue, the termination decision issued more than a month later failed to even discuss why ending MPP “comported with” section 235 of the INA.
The Termination Decision Violated the INA. In any event, the Fifth Circuit dispositively stated, “The Termination Decision ... violated the INA”, based on the detention mandates in section 235 of the INA and the limitations on parole in section 212(d)(5) of the INA.
Interestingly, the court also examined a release provision contained in section 236(a) of the INA, which I (somewhat presciently) analyzed in an October post captioned “DHS Can’t Just Release Illegal Migrants at the Border”. As I explained:
The Biden administration is apparently relying on the arrest and detention provisions in section 236(a) of the INA to release illegal migrants processed for section 240 removal proceedings. By its terms, however, section 236(a) of the INA does not apply to most illegal migrants apprehended at the border.
Section 236(a) of the INA gives DHS officers authority to arrest aliens on warrants. After those aliens are arrested, DHS can continue to detain them, or release them on bond or conditional parole.
The problem is that most illegal migrants who are apprehended are arrested without warrant, in “warrantless arrests”. Simply put, Border Patrol agents do not seek warrants to arrest migrants they see or know to have entered illegally at the border, because that would allow those aliens to abscond.
The court found that release under section 236(a) of the INA on bond or conditional parole (distinct from parole under section 212(d)(5) of the INA) does not apply to aliens seeking admission who are detained under section 235(b) of the INA. The court did not touch strongly on the warrant vs. warrantless distinction but found that section 236(a) only applies to aliens “who have already entered the United States”. (Emphasis in original.)
Even though the government “recognize[d] that the four statutory alternatives” in the INA (detention under section 235; return under section 235(b)(2)(C); parole in accordance with section 212(d)(5); and bond or conditional parole under the limitations in section 236(a)) were “exhaustive”, the circuit court held that “The Termination Decision nonetheless purported to arrogate to DHS a fifth alternative that Congress did not provide”, in contradiction of the scheme in section 235.
Significantly, the circuit court rejected the government’s contention that “DHS can ignore Congress’s limits on immigration parole and that Supreme Court precedent makes everyone (including the plaintiff States and the federal courts) powerless to say anything about it” (the court termed this argument “as dangerous as it is limitless”).
The circuit court distinguished that precedent (Town of Castle Rock v. Gonzales) from the instant case. Castle Rock involved the discretion of local police not to take enforcement action. The circuit court held that the termination decision was not “nonenforcement” but rather “misenforcement” or suspension of the mandates and limitations in the INA — or both.
Conclusion. The Biden administration has already reinstated MPP — with conditions and limitations, as I explained on December 3. The government could always seek to have the full Fifth Circuit review this decision en banc, with all 17 judges considering the matter, but it has not had much luck there lately.
The court was not pleased with the way the administration presented this case. The government had requested that the Fifth Circuit vacate the district court’s judgment and remand it back, an equitable — as opposed to legal — remedy. The circuit court held that “DHS’s litigation tactics” — issuing the October 29 MPP termination redo while the case was on appeal — “tilt the equities decidedly against vacatur”.
What the administration has received instead is more bad precedent in a court where it already had plenty. The president should learn from this matter, however, and start applying the INA as written, and follow Congress’s mandates therein. If the administration’s not chastened by this matter, it should be.