On April 26, 2022, the Supreme Court of the United States will hear oral arguments over whether the Biden Administration has the authority to terminate the "Migrant Protection Protocols" (also known as the "Remain in Mexico" policy).
The Migrant Protection Protocols (“MPP” aka the “Remain in Mexico” policy) was a former policy of the Department of Homeland Security (“DHS”) under which certain noncitizens arriving at the southern border were returned to Mexico while their immigration proceedings were pending.DHS Secretary Mayorkas issued a memo on June 1, 2021 (later replaced by an October 29, 2021 memo) terminating MPP, which led to Texas and Missouri filing suit.
A federal court in Texas ruled in favor of Texas and Missouri, as did the Fifth Circuit Court of Appeals. The U.S. Supreme Court agreed to hear the case, and oral arguments will be held today, April 26, 2022, with a decision expected in either June or July.
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What are the Migrant Protection Protocols?
The Migrant Protection Protocols (“MPP” aka the “Remain in Mexico” policy) was a discretionary border-management policy that was first implemented in 2019 (under the Trump Administration by then-DHS Secretary Kirstjen Nielsen) in order to require certain non-Mexican nationals arriving by land from Mexico to return to Mexico and wait there while their U.S. immigration proceedings were pending.
This policy was based upon 8 U.S.C. 1225(b)(2) which, until that time, had been used on an ad hoc/as-needed basis.
(2) Inspection of other aliens
(A) In general
Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.
***
(C) Treatment of aliens arriving from contiguous territory
In the case of an alien described in subparagraph (A) 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 proceeding under section 1229a of this title.
- 8 U.S.C. 1225(b)(2)
With the implementation of MPP in January 2019, however, the requirement to remain in Mexico would be applied “on a wide-scale basis” along the southern border.
On June 1, 2021, Secretary Mayorkas (under the Biden Administration) issued a memo terminating MPP, citing the extent of agency personnel and resources required to implement the program, the availability of more-effective alternative approaches for managing irregular migration, and MPP’s impact on US-Mexico foreign relations as his reasons for doing so (the “June Memo”).
Unhappy with the termination of MPP, Texas and Missouri brought suit in the Northern District of Texas against President Biden, the Department of Homeland Security, DHS Secretary Mayorkas, and others, claiming that the June Memo violated the Immigration and Nationality Act (“INA”) and the Administrative Procedure Act (“APA”).
What Happened in the Courts?
The Northern District of Texas sided with Texas and Missouri, concluding that the June Memo violated the INA because, in the court’s view, Section 1225 mandates that DHS return noncitizens to Mexico whenever it lacks the funds or capacity to detain all non-citizens described in that section. The court also determined that the reasons for terminating MPP were inadequately explained, thereby violating the APA.
As a result, the Northern District of Texas “vacated” the June Memo and sent it back to DHS “for further consideration.”The court also entered a nationwide injunction requiring DHS to reinstate and implement MPP in good faith until:
(1) the federal government has sufficient detention capacity to detain all non-citizens subject to mandatory detention under Section 1225 and without releasing any aliens because of a lack of resources; and
(2) MPP has been lawfully rescinded in compliance with the APA – i.e., there must be an adequate explanation for the termination.
The federal government promptly appealed the order and, in the meantime, also sought to delay the effect of the injunction. The requests to stay the injunction were denied by the district and appellate courts, as well as by the Supreme Court, though the appeals continued on.
While the appeal was pending, DHS took steps to comply with the requirement that MPP be reinstated and implemented in good faith. At the same time, DHS undertook a new review of MPP to determine whether to maintain, terminate, or modify the program. As a result of that review, on October 29, 2021, Secretary Mayorkas issued a new decision, again terminating MPP but this time including a 38-page memorandum detailing the reconsideration process and the reasons for his decision (the “October Memo”). The termination would take effect immediately but would not actually be implemented until the district court’s injunction was lifted.
As a result of the October Memo, the government filed various motions for a portion of the appeal to be declared a non-issue. Instead, the Fifth Circuit Court of Appeals held that the October Memo was simply an after-the-fact explanation of the June termination decision, that the government did not follow proper procedure to issue the new decision, and that DHS violated the Immigration and Nationality Act by terminating.
SCOTUS Agrees to Hear the Case
Disagreeing with the 5th Circuit’s ruling, the government petitioned to the Supreme Court of the United States (“SCOTUS”) and SCOTUS agreed to hear the case. Texas and Missouri are the respondents.
Each side has submitted its briefs, and there have been approximately 18 additional “friend of the court” briefs submitted by organizations and groups who have a particular perspective or represent a particular group that would be informative for SCOTUS to consider.
SCOTUS will hear oral arguments in this case on April 26, 2022, with two key questions to be ultimately decided:
Does 8 U.S.C. 1225 require the Department of Homeland Security to continue implementing MPP?
Did the 5th Circuit Court of Appeals err when it concluded that the DHS Secretary’s October 29, 2021 decision terminating MPP had no legal effect?
Question 1: Does Section 1225 Require DHS to Continue Implementing MPP?
As to this first question, the government’s position is that Section 1225 does not require it to continue to implement MPP. In support, these are some of the arguments made by the government:
The use of the word “shall” in Section 1225(b)(2)(A) is not an “inflexible detention mandate.” Citing to prior Supreme Court cases, the government argues that such “seemingly mandatory legislative commands do not displace the deep-rooted nature of law enforcement discretion” and that “undoubtedly, ‘shall’ is sometimes the equivalent of ‘may’ when used in a statute prospectively affecting government action.” As a result, the government argues that even though the word “shall” is used, it’s hard to imagine that Congress intended to deprive DHS officers a level of discretion to determine that particular circumstances or competing duties weigh in favor of declining to detain a particular noncitizen pending removal. Indeed, INA permits the DHS Secretary to release certain noncitizens on parole or pursuant to a bond on a case-by-case basis, and the government argues that detention capacity is properly part of that consideration.
Section 1225(b)(2)(C) allows for the exercise of discretion. Section 1225(b)(2)(C) provides that the DHS Secretary “may” return land-arriving noncitizens to Mexico or Canada. Because the word “may” is used, the Secretary has the discretion whether or not to return noncitizens. Furthermore, the government points out that since 1996, not a single presidential administration (including the Trump Administration) has interpreted this statute as being mandatory since no administration has returned all land-arriving inadmissible noncitizens whenever detention capacity was lacking, even with MPP in place. Indeed, only about 68,000 individuals were enrolled in the program as of January 21, 2021 – i.e., just 6.5% percent of the more than 1 million inadmissible noncitizens that DHS processed at the southern border from January 2019 to January 2021. In other words, if the current administration is violating Section 1225, then so has every other administration before it.
There has never been sufficient funding and capacity to detain all noncitizens subject to detention, therefore this can’t be read into the law as a requirement. The government also points to historical context and that, at all times before, during, and after Section 1225 was written, Congress chose not to provide the hundreds of millions of dollars that would have been needed for detention of this magnitude. Instead, Congress implemented other procedures, such as expedited-removal to weed out “patently meritless claims.”
Forcing MPP to exist in perpetuity has foreign-relations implications. The Executive Branch has the constitutional authority to manage the border and foreign relations. In the government’s view, the court’s rulings are an intrusion on this authority and negatively impact foreign relations by forcing the Executive Branch to send third-country nationals into a foreign sovereign nation such as Mexico or Canada, regardless of whether Mexico or Canada consented.
In response, Texas and Missouri make the following arguments:
Section 1225(b) imposes a mandatory detention obligation. Texas and Missouri argue that “Congress has unequivocally spoken” and that the use of the word “shall” usually means a requirement. Moreover, they take the position that DHS cannot defeat the use of the word “shall” by claiming there is a tradition of exercising discretion because a prior Supreme Court case held that the provisions of Section 1225 mandate detention and because the “deep-rooted nature of law-enforcement discretion” claimed by the government does not actually exist in the immigration context.
There are only three ways to comply with Section 1225, and the end of MPP is not one of them. Texas and Missouri argue there are only three ways to comply with Section 1225: (1) detain the noncitizen; (2) parole the noncitizen on a case-by-case basis for urgent humanitarian reasons or significant public benefit (not en masse); or (3) return the noncitizen to Mexico while his immigration proceedings are pending. What DHS cannot do, they argue, is terminate MPP because MPP enables DHS to comply with option 3 when options 1 and 2 are not available. If DHS terminates MPP, then it is violating its obligations under Section 1225.
The argument that Congress didn’t provide detention resources is not persuasive. Texas and Missouri argue that just because Congress hasn’t provided enough resources to detain all noncitizens who are subject to detention, it doesn’t mean that DHS is free to ignore the requirements of Section 1225. To that end, Texas and Missouri point to the government’s own admission that MPP deters unlawful crossings and that individuals enrolled in MPP do not need to be detained – i.e., two things that reduce, rather than aggravate, financial shortfalls in detention funding. Moreover, the Executive Branch can’t give up on complying with its federal-law obligations by placing the blame on Congress.
Foreign relations are not limited to the Executive Branch. In response to the government’s concerns about the negative impact on foreign relations, Texas and Missouri point out that Congress, too, plays an important role in aspects of foreign policy and that Congress, not the President, has the constitutional authority to establish immigration laws. Finally, any foreign relations problems with terminating MPP would be self-inflicted, since “Mexico is capable of understanding that DHS is required to follow the laws of the United States.”
Question 2: Did the Appellate Court Make a Mistake When It Determined the October Memo Had No Legal Effect?
As to the second question, the government takes the position that the October Memo was not an after-the-fact explanation of the June Memo and that proper procedure was followed. As a result, the government argues the 5th Circuit made a mistake in determining that the October Memo had no legal effect. In support, these are some of the arguments made by the government:
The 5th Circuit’s determination conflicts with a 2020 Supreme Court decision. The government argues that the 5th Circuit’s determination (that the October Memo was nothing more than an after-the-fact explanation) is in direct conflict with a 2020 Supreme Court case that holds when an agency’s explanation for an action is inadequate, the agency can either elaborate on its prior reasons or issue a new decision. The government argues that DHS elected the second of the two options and that the new decision was properly issued.
The 5th Circuit failed to find that DHS acted in “bad faith” in issuing the October Memo. The 5th Circuit suggested that DHS did not really reconsider the matter, but simply issued the October Memo to provide “pretextual cover” for a decision made months earlier. The government argues, however, that to make that determination the court was first required to find that DHS acted in bad faith, an inquiry that the 5th Circuit did not even explore.
The government followed proper procedure in issuing the October Memo. Specifically, the 5th Circuit claimed that the government improperly issued a new decision while at the same time pursuing an appeal. The government’s position, though, is that agencies routinely revise regulations and policies while litigation is pending, and to hold otherwise would grind government to a halt. Moreover, the government argues that the 5th Circuit’s reasoning was not based on any cases, statutes, or other authority.
Issuance of the October Memo was consistent with the District Court’s injunction. Lastly, the government argues that the issuance of the October Memo was consistent with the district court’s injunction requiring that MPP continue until there was sufficient detention capacity and a lawful rescission of MPP with an adequate explanation for the rescission.
Texas and Missouri take a contrary view, arguing the following points:
Just because the October Memo was issued doesn’t mean SCOTUS shouldn’t still review the June Memo. Texas and Missouri argue that the October Memo does not render their challenge to the June Memo moot because (1) the October Memo doesn’t attempt to do anything until the injunction ends; and (2) the October Memo does not undo the injuries the states sustained as a result of the June Memo.
DHS’ issuance of the October Memo was not a valid administrative action. In their view, the October Memo was nothing but an after-the-fact rationalization for terminating MPP, and that there is nothing in the record to support the claim that it is a new decision other than the government’s say so. Furthermore, while the government insists that the October Memo is a new decision, Texas and Missouri argue that the government’s bad-faith litigation conduct of “eleventh-hour surprises” and “gamesmanship” say otherwise, and that there was no actual reconsideration of MPP by Secretary Mayorkas.
The government failed to make the argument in the appellate court that the October Memo satisfies one of the requirements of the injunction. According to Texas and Missouri, the government failed to argue to the 5th Circuit that the October Memo is proper because it satisfies one of the two requirements by the district court when it issued the injunction. As a result, the government should be prohibited from making this argument to SCOTUS. Even if they didn’t forfeit the right, though, Texas and Missouri argue that the proper procedure for satisfying an injunction is to seek a reopening of the judgment in the lower court, not an appeal.
The October Memo is arbitrary and capricious. Lastly, Texas and Missouri argue that the October Memo issued by DHS was arbitrary and capricious, and therefore in violation of the Administrative Procedure Act, because the action taken was not reasonable and was not reasonably explained.Specifically, the October Memo fails to consider the key benefits of MPP, fails to consider the alleged financial injuries sustained by Texas and Missouri, and relies on incorrect legal conclusions
Closing Thoughts
While this case deals with immigration specifically, the potential impact from SCOTUS' eventual decision (expected in June or July) will likely be felt by most federal agencies, especially when it comes to rule-making. Moreover, this case, as many often do, raises more questions than answers ... What happens if it's determined that an agency can't change its policies or regulations so long as those regulations are the subject of litigation? Will states controlled by parties on the other side of the spectrum be tempted to use the courts as a set of proverbial handcuffs when they don't like something that a federal agency is doing? And when does "may" mean "shall" and "shall" mean "may"?
Stay tuned to find out.
Disclaimer: This post is for informational purposes only, and shall not be considered legal advice, or be used as a substitute for competent counsel. No attorney-client relationship exists without a signed agreement.
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