SCOTUS: Courts Cannot Enjoin Termination of ‘Remain in Mexico’

But the Court left most major questions about Biden’s border policy for the lower courts to decide

By Andrew R. Arthur on June 30, 2022

On June 30, the Supreme Court issued its opinion in Biden v. Texas. The Court invalidated a district court injunction of the Biden administration’s rescission of the Trump era Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, but it left many major questions about the Biden administration’s management of the disaster at the Southwest border for the lower courts to answer.

The Issues. The statutory basis for MPP is the “contiguous territory” return provision in section 235(b)(2)(C) of the Immigration and Nationality Act (INA), which provides DHS with the authority to return “applicants for admission” at a land border — including illegal migrants — back across the border to await their removal hearings.

Despite Remain in Mexico’s success in deterring illegal migrants from entering the United States, candidate Joe Biden denounced the program, and one of his first acts as president was to suspend new enrollments in MPP.

State plaintiffs filed suit in district court in Texas challenging that action in April 2021, asserting that the suspension of MPP would increase the number of illegal migrants in their communities, and thus force the states and local governments to incur greater fiscal costs.

While that suit was pending, DHS Secretary Alejandro Mayorkas issued a memo on June 1 terminating MPP, which was rolled into the ongoing district court litigation.

The district court held that DHS was required, under section 235(b) of the INA, to detain illegal migrants, and that while it could release those migrants into the United States on a case-by-case basis pursuant to its narrowly drawn parole authority in section 212(d)(5)(A) of the INA, it could not release those aliens en masse simply because it lacked detention space.

Given that detention mandate, and the limitations on the parole authority, the court concluded, DHS could not terminate Remain in Mexico, because it acts as a safety valve on the system by providing DHS a third avenue for dealing with those migrants.

Accordingly, in August 2021, the district court enjoined the June 1 termination memo.

The government unsuccessfully sought a stay of that injunction from both the Fifth Circuit and the Supreme Court. Thereafter, the government appealed the district court’s decision to the Fifth Circuit.

While that appeal was pending (and just days before oral argument in the case), DHS issued a second termination memo along with a more expansive explanation memo on October 29. The termination memo purported to rescind the June 1 memo and provide additional reasons for terminating MPP.

The Fifth Circuit dismissed the government’s appeal in December, affirming the district court while holding that the October 29 memo “did not constitute a new and separately reviewable ‘final agency action’” that would have mooted out the state plaintiffs’ original claims.

The Supreme Court Opinion. Chief Justice Roberts, writing for the majority, reversed the Fifth Circuit.

The Court held that the authority in section 235(b)(2)(C) of the INA allowing DHS to return aliens back across the border is discretionary, and does not become mandatory simply because DHS lacks the ability to detain those migrants.

Notably, however, the Court did not resolve the issue of whether section 235(b) of the INA requires DHS to detain illegal migrants, or whether the Biden administration is properly paroling those migrants. Those issues will be resolved by the Fifth Circuit and/or the district court on remand.

The Court also held that DHS Secretary Alejandro Mayorkas’ second, October 29 termination of Remain in Mexico was not a post hoc rationalization of his prior, June 1, decision to terminate the program. That does not answer the question of whether that rescission violated the Administrative Procedure Act (APA) — an issue that likely also will be further litigated by the lower courts.

Finally, the Court held that judicial limitations in section 242(f) of the INA did not deprive it or the lower courts of subject-matter jurisdiction over the state plaintiffs’ INA and APA arguments.

Following up on the Court’s recent decision in Garland v. Aleman Gonzalez, the majority held that those lower courts lack the authority to enjoin Mayorkas’ termination of MPP (authority that the Supreme Court expressly retains), but the justices reserved decision on whether section 242(f) of the INA prevents the lower courts from issuing declaratory relief.

Takeaway. In short, the Court has left the door open to the state plaintiffs’ challenge of the Biden administration’s policy of releasing on parole hundreds of thousands of illegal migrants who are not expelled from the United States under Title 42, but instead processed under the INA.

It will now be up to the Fifth Circuit and the district court to determine whether Mayorkas’ October 29 termination of Remain in Mexico complied with the APA, and whether the Biden administration’s release of illegal migrants at the Southwest border violates the INA. This is likely not the last time the Court will be considering this case.