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Magazine, Immigration, Think Immigration, by Amy Grenier

In the last opinion released for the term, the Supreme Court of the United States affirmed the Biden Administration’s authority to end the “Remain in Mexico” policy, also known as the Migrant Protection Protocols (MPP).  This means that MPP is done – for now. 

MPP is a Trump-era policy, and the current version of the program resulted in more than 5,000 asylum seekers forced to wait in Mexico for their immigration court hearings.  The program also “made it nearly impossible for those arbitrarily placed in MPP to access attorneys and win asylum,” and kidnappings and violent attacks against individuals returned to Mexico common.  The federal government itself even acknowledged that the program “impos[ed] substantial and unjustifiable human costs on migrants who were exposed to harm while waiting in Mexico,” as well as these difficulties for asylum seekers to access counsel. 

The Biden Administration tried to end MPP with a memo released in June 2021. However, Texas sued to force them to continue the program, resulting in a nationwide injunction.  In response, the administration released an October 2021 memo and argued that the injunction should be vacated because the October memo superseded the June memo. The Court of Appeals disagreed, stating that the October memo was not “a new and separately reviewable ‘final agency action.’” Due to this injunction, MPP has continued throughout the litigation. 

What the Supreme Court Said 

In Biden v. Texas, the Supreme Court held that the district court did not have the jurisdiction to issue an injunction stopping MPP under the immigration statute (INA).  The part of the INA at issue (§ 1225(b)(2)(C)) cannot be enjoined or restrained by any court other than the Supreme Court because another part of the INA (§1252(f )(1)) removes this authority. This means that the injunction the lower courts issued was in error. 

The Court also found that DHS has discretionary authority to return an alien arriving on land to Mexico because the text of the statute says “may.”  In doing so, the Supreme Court rejected Texas’s argument that two parts of the statute should be read together, inferring that the government is required to expel migrants back to Mexico, and was required to do so well before the Trump Administration began the MPP policy. 

Notably, the statute at issue in Biden v. Texas is the INA, not the Administrative Procedure Act (APA).  The lower courts also did not address the October memo because it was dismissed as not final agency action, which the Supreme Court disagreed with.  The opinion explicitly suggests that “[o]n remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA.”  This leaves open the opportunity that the October MPP termination memo could be litigated under the APA grounds. 

What’s Next 

The Biden Administration can end MPP under the October memo once the Supreme Court sends the certified judgment to the Fifth Circuit.  This formal process usually takes about 28 days, although the administration can ask the Supreme Court to expedite this.   

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