Criminal Justice & the Rule of Law

Supreme Court Eases Biden’s Way to Ending “Remain in Mexico” Program, but Termination Is Not a Done Deal

Peter Margulies
Thursday, July 7, 2022, 8:01 AM

The Supreme Court’s decision confirmed that the INA does not bar an end to the MPP, but the district court must still determine whether Secretary of Homeland Security Mayorkas’s October 2021 memorandum provided an adequate explanation for the shift under the APA.

Supreme Court. Photo: Wikimedia

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In a 5-4 decision on June 30, the Supreme Court cleared away a major obstacle to the Biden administration ending the Trump administration’s “Remain in Mexico” program (officially called Migrant Protection Protocols or MPP). Chief Justice John Roberts wrote for the court, in an opinion that Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor joined. Justice Brett Kavanaugh added a concurrence, and Justice Amy Coney Barrett, while she dissented on a threshold procedural point, stated that she agreed on the merits. Justice Samuel Alito filed a dissent on procedure and the merits, joined by Justices Neil Gorsuch and Clarence Thomas. On the merits, the majority held that 8 U.S.C. § 1225—part of the Immigration and Nationality Act (INA)—did not bar an end to MPP. However, before the Biden administration’s secretary of homeland security, Alejandro Mayorkas, can definitively end MPP, the district court must determine that Mayorkas’s reasons for ending the program in his October 2021 memorandum provide an adequate explanation under the Administrative Procedure Act (APA) and the court’s decision in Motor Vehicle Manufacturers Ass’n v. State Farm Automobile Insurance Co. 

MPP’s Implementation

As noted in an earlier post, the Trump administration, in starting MPP, relied on an INA provision—8 U.S.C. § 1225(b)(2)(C)—that authorizes immigration officials to “return” certain new entrants to a country that is “contiguous” to the United States while those foreign nationals await a full hearing. From January 2019 to January 2021, officials used MPP to remove almost 70,000 asylum-seekers to Mexico. At a date set in advance, participants in MPP then traveled back to U.S. border areas for hearings before immigration judges. 

The MPP was part of the Trump administration’s campaign to reduce asylum claims, which had increased due largely to more migration from Central America’s Northern Triangle countries—Guatemala, Honduras, and El Salvador. The Trump administration viewed the overall asylum adjudication process as a “pull” factor that drove higher migration levels through the prospect of protracted presence and employment in the United States. Before MPP, full hearings often took years, especially if the government had released an applicant under the government’s “parole” authority in 8 U.S.C. § 1182(d)(5), which allows release on a “case-by-case” basis for “compelling” reasons in the public interest. In October 2019, the Trump administration evaluated MPP’s results, concluding that it had substantially reduced entries to the United States from Mexico and winnowed out frivolous asylum claims.

The Biden Administration’s Response 

The Biden administration had a far more critical view of MPP. Secretary Mayorkas explained the administration’s reasons for ending the program in two memoranda issued in June and October 2021. The October memorandum, which Mayorkas issued after the U.S. District Court for the Northern District of Texas enjoined MPP’s termination, stemmed from a new inquiry by Mayorkas. In his October memorandum, Mayorkas acknowledged that MPP’s operation coincided with lower border arrests but questioned MPP’s causal role. Mayorkas observed that Mexico had expanded its immigration enforcement at the Guatemalan border. Moreover, the October memorandum noted that even during MPP, U.S. immigration officials processed 80 percent of prospective entrants under non-MPP programs. For Mayorkas, these other factors counseled against attributing a causal role to MPP on reduced entries. 

MPP’s Effect on Asylum Adjudication 

Each of Mayorkas’s memoranda also concluded that MPP undermined the INA’s asylum provisions by disrupting adjudication of asylum claims, including meritorious applications. As University of Texas border expert Stephanie Leutert wrote here and here, the border regions of Mexico, where MPP enrollees often remained in improvised encampments, were home to criminal gangs that specialized in kidnapping. Trips to the border for U.S. hearings were extremely dangerous. Mayorkas found that MPP enrollees’ legitimate safety concerns had likely prompted a wholesale exodus from Mexico that also entailed dropping “potentially meritorious protection claims.”

Reliance Interests and Collateral Impacts

The October 2021 memo also discussed the interaction of ending MPP with state and local interests, including those of states like Texas that had challenged MPP’s termination. Mayorkas acknowledged the costs to states for driver’s licenses, education, health care, and law enforcement. He reported that the Department of Homeland Security had collaborated with state, local, and tribal officials on addressing those impacts, including federal aid for law enforcement and the placement of released noncitizens and their families at locations in the U.S. interior. 

Impact on Foreign Relations

MPP’s adverse impact on the “important bilateral relationship” with Mexico was a focus of the June 2021 Mayorkas memorandum. MPP entailed removing 70,000 residents of third countries—primarily in Central America—from the United States to Mexico. All parties to the MPP litigation conceded that such a substantial action involving foreign nationals on Mexican territory required Mexico’s consent. As Mayorkas stated in each memorandum, this consent comes at a cost, both active and tacit. On the active side, obtaining consent is a negotiation, in which the United States has to make concessions that would not otherwise be necessary. On the tacit side, a huge program such as MPP tends to distract officials from other work that could be more pressing, such as transnational efforts to end drug smuggling. Dealing with this challenging problem demands “collaborative efforts” between states. The bureaucratic attention devoted to MPP on both sides of the border impaired those efforts. 

The October 2021 memorandum presented more detail on the costs to the U.S.-Mexico relationship imposed by MPP. As Mayorkas described, MPP has siphoned off Mexican government resources from combating drug trafficking and human smuggling. Moreover, the need to devote resources and time to MPP had hindered efforts to stand up a workable regional model of asylum adjudication—a model that immigration law expert and former Homeland Security Deputy General Counsel David Martin outlined here.

Jurisdiction Over Court Challenges to U.S. Government Policy on Removal of Noncitizens

After the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s injunction against ending MPP, the government sought certiorari and an expedited briefing and argument schedule. The Supreme Court granted cert and heard arguments in April. 

But before reaching the merits of the challenge by Texas and other states to ending MPP, the court resolved a question of jurisdiction. The Biden v. Texas majority found that the district court had jurisdiction over the state plaintiffs’ lawsuit challenging the termination of MPP. In contrast, four justices—Alito, joined by Thomas and Gorsuch, and Barrett, who wrote separately—dissented on this ground, asserting that a decision on jurisdiction required further court proceedings. The justices’ disagreement is worth unpacking because it will also influence court decisions on challenges to other government immigration policies, whether those challenges come from noncitizens at risk of removal from the United States, who favor policies that facilitate entering and remaining in the country, or states like Texas and the other plaintiffs here, who favor policies that prioritize speedy removal of noncitizens.

Jurisdiction in this case turned on the meaning of 8 U.S.C. § 1252(f)(1), which states that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation” of the INA’s removal provisions, apart from individual removal cases involving specific noncitizens. All the justices agreed that this provision limited the lower federal courts’ power in at least one respect: injunctions that expressly stopped the government from applying removal policies to groups, such as groups of noncitizens at the border. In June, the court ruled in Garland v. Aleman Gonzalez that 8 U.S.C. § 1252(f)(1) barred this group remedy. Under Aleman Gonzalez, a trial judge can no longer tell the U.S. government, “I hereby order you to stop applying Immigration Policy X to group Y.” 

In Aleman Gonzalez, the district court had ordered immigration officials to provide bond hearings to a class of detained noncitizens in removal proceedings. At the bond hearings that the district court ordered on a classwide basis, noncitizens whom the government had detained for more than 180 days could prove that, if released, they would attend future hearings on the merits of their removal. The district court’s order affected thousands of noncitizens. The Supreme Court held that 8 U.S.C. § 1252(f)(1) prohibited this kind of far-reaching injunctive relief for a class of noncitizens in removal proceedings. 

However, the Aleman Gonzalez Court did not rule on whether 8 U.S.C. § 1252(f)(1) stripped federal district courts of the power to order other kinds of relief besides group injunctions. Nor did Aleman Gonzalez address whether 8 U.S.C. § 1252(f)(1) deprived federal district courts of any and all power to hear group-based claims. That broader power to hear a claim at all is called subject matter jurisdiction. 

This broader jurisdiction matters because courts have other remedies besides classwide injunctions that can affect large groups of noncitizens. For example, a court can issue what is called declaratory relief. As the name suggests, this relief entails a judicial pronouncement that a person or persons have certain legal rights. In the detention context, this could involve a pronouncement that a noncitizen whom the government detains for more than 180 days has the right to a bond hearing. Declaratory relief does not include a court order requiring immigration officials to provide a court hearing to every detained noncitizen. Nor does declaratory relief subject government officials to the risk of being found in contempt of court, triggering fines or other sanctions, if those officials do not provide such a hearing. Nonetheless, because the availability of declaratory relief provides a path for adjudicating and implementing rights, subject matter jurisdiction matters a great deal.

In Biden v. Texas, the majority found that 8 U.S.C. § 1252(f) did not strip lower federal courts of subject matter jurisdiction over legal challenges to removal rules, although Roberts left for another day exactly what kind of relief a district court could provide. In finding that the statute preserved subject matter jurisdiction, Roberts made arguments based on statutory text and structure. Roberts first noted that Congress did not expressly strip courts of subject matter jurisdiction. Straightforward language to this effect would have used words “far simpler” than the language Congress selected, which in rococo phrasing stripped courts of “jurisdiction or authority to enjoin or restrain” removal rules. Roberts surmised that Congress must have used the elaborate language in the statute to achieve a more nuanced result: prohibiting classwide injunctive relief while preserving subject matter jurisdiction. Moreover, Roberts observed, the statutory provision’s title in the U.S. Code—“Limits on injunctive relief”—also supported the more limited curb on judicial authority that Roberts found.

Reinforcing this argument, Roberts turned to statutory structure. In determining the meaning of statutory language, courts often turn to other parts of a statute. Roberts noted that other subsections of 8 U.S.C. § 1252 expressly eliminated subject matter jurisdiction. For example, 8 U.S.C. § 1252(a)(2) specifically describes types of immigration rulings that comprise “[m]atters not subject to judicial review.” Courts cannot consider claims based on these out-of-bounds topics, period. Roberts concluded that Congress’s failure to use similar language in 8 U.S.C. § 1252(f)(1) was a conscious choice.

Responding to Roberts, Alito’s dissent discussed both the text of 8 U.S.C. § 1252(f)(1) and prudential guidelines of courts that recommend deciding cases on the narrowest possible grounds. Alito noted that the statute expressly withdrew both the “authority” and the “jurisdiction” of district courts to order relief regarding removal procedure in cases not involving a single noncitizen’s removal. For Alito, whether “jurisdiction” meant all jurisdiction, including subject matter jurisdiction, was a close question that the majority decided too hastily.

Alito suggested that the better course for the court would have been one of two alternatives: (a) remand to the district court on the question of whether 8 U.S.C. § 1252(f)(1) stripped the courts of subject matter jurisdiction, or (b) issue a new briefing schedule and hold reargument in the case this October, focusing on the jurisdictional issue. At the very least, Alito suggested, the court would then have had more input from the parties on a complex issue. Moreover, if more comprehensive input from the parties persuaded the court that the statute withdrew subject matter jurisdiction, the court would not have to reach the merits at all. Even if the court ultimately reached the merits on this more reflective route, it would have had the benefit of fuller briefing and additional time for deliberation. However, since the majority had found subject matter jurisdiction, Alito also added his view on the merits, which favored the challengers to MPP’s termination (more about the merits below). 

Barrett’s dissent echoed Alito’s concern about the benefits of time and comprehensive briefing. On the merits, however, Barrett sided with the majority, adding a one-sentence approval of the reasoning of Roberts and Kavanaugh. 

While the jurisdictional point is technical, its consequences are significant. The majority’s approach paved the way for resolving an important question on the merits now, which the four dissenters would have left for the future. In addition, although the majority did not address access to declaratory relief under the INA or relief under the APA, its reasoning suggested that 8 U.S.C. § 1252(f)(1) preserved at least some relief. If the five justices in the majority were convinced that the statute precluded all possible relief apart from individual cases, the entire dispute with the dissent over subject matter jurisdiction would have been futile. If some remedies are available, then both noncitizens and third parties such as states will have an opportunity to challenge policies in court. 

Even if injunctive relief is precluded, other relief can still affect policy. The likely consequences of the majority’s jurisdictional holding will make a difference in court. Moreover, that prospect will also play a role in policymakers’ calculations, as officials factor in to their decisions the possibility of litigation.

The Merits: Under the INA, MPP Is Optional, Not Mandatory

Having resolved the jurisdictional issue, the majority then turned to the merits, finding that the INA did not require continuation of MPP. As we shall see, the majority left an important issue on the merits for the district court to decide on remand: whether Mayorkas’s particular reasons for ending MPP, as stated in his October 2021 memorandum, were sufficient under the APA. However, the majority finding that the future of MPP turned on the sufficiency of the particular reasons that Mayorkas had provided, not on the text and structure of the INA, gave the Biden administration an important victory. Moreover, the majority, in both the opinion of the court by Roberts and the concurrence by Kavanaugh, suggested that Mayorkas’s assessment of MPP’s costs and benefits for the U.S.-Mexico relationship was an important factor in deciding the APA issue.

Statutory Text 

The majority started its discussion with the text of the INA on returning noncitizens to Mexico to await later removal hearings in the United States. That subsection—8 U.S.C. §1225(b)(2)(C)—states that immigration officials “may return” the noncitizen to a foreign state “contiguous to [next to] the United States” (emphasis added). As the majority noted, the court’s decisions have construed Congress’s use of the term “may” as indicating that the decision-maker covered by the statute has discretion. In this sense, as Roberts explained, Congress’s use of the word “may” contrasts with its use of words like “must” or “shall,” which would mandate a particular action. 

The majority rejected the state plaintiffs’ argument that the future of MPP turned on a neighboring subsection, which in fact used the term “shall” to describe the need to detain a noncitizen at the border who was not “clearly” admissible (because the noncitizen lacked a visa authorizing a visit or a permanent stay). Most prospective entrants at the southern border are asylum-seekers who are not clearly admissible in this sense. According to 8 U.S.C. § 1225(b)(2)(A), a noncitizen who is not clearly admissible “shall be detained.” The state plaintiffs contended that if the government chooses not to detain noncitizens covered by this mandate, it must return them to Mexico to await removal hearings under the contiguous-territory authority provided in § 1225(b)(2)(C). 

The Relationship of Contiguous-Return Authority and Parole 

This juxtaposition of the “may” language in the contiguous-territory return provision and the “shall” language in the subsection on detention led both the majority (including Barrett, who agreed with the majority on the merits) and three dissenting justices (Alito, Gorsuch, and Thomas) to a third provision of the INA, 8 U.S.C. § 1182(d)(5), which governs parole. Under its parole authority, the government may release noncitizens from detention on a “case-by-case basis” for “urgent humanitarian reasons or significant public benefit.” In particular, under 8 U.S.C. § 1182(d)(5)(2), the government may parole in a refugee claiming a safe harbor from persecution abroad only for “compelling reasons in the public interest.” 

The majority, which sided with the government on this point, and Alito, joined by Gorsuch and Thomas, who sided with the state plaintiffs, had different ideas about the relationship between the INA’s parole provisions and the contiguous-return authority in 8 U.S.C. § 1225(b)(2)(C). The majority read the existence of statutory parole authority as reinforcing its view that contiguous-return authority was a discretionary option, not a mandate. The majority noted that parole was also an option. As the majority described, past practice of every administration, including Trump and Biden, has included recourse to parole authority. That past practice, while not dispositive, was a useful data point about historic acceptance of parole. Moreover, as the majority recounted, Congress had never come close to appropriating sufficient funds to detain all border entrants. While appropriation levels were also not dispositive, they bolstered the argument that Congress viewed parole as an option in at least some percentage of cases. Otherwise, Congress would be engaging in magical thinking. The court typically declines to cast Congress in this negative light.

Importantly, the majority qualified its analysis of parole, noting that the government had to use the parole option reasonably and provide sufficient reasons for its use to steer clear of the APA’s prohibition of “arbitrary and capricious” agency action. The majority left this APA issue for the district court on remand. In indicating that the use of parole was subject to the APA, the majority rejected the government’s position, explained by Yale professor Cristina Rodriguez, that use of parole was either entirely unreviewable by courts or entitled to absolute deference. Nevertheless, in construing the INA as a whole, the majority viewed the existence of statutory parole authority as a further demonstration that the statute did not lock in continuation of MPP but, instead, provided the executive branch with a menu of options, each to be exercised within the confines of reason. 

MPP and Foreign Affairs 

As further support, the majority invoked the president’s foreign affairs authority under Article II of the Constitution. Generally, the majority suggested, the court has construed legislation as encompassing a measure of deference to the executive branch’s competence and access to information on foreign relations. In earlier cases such as Arizona v. United States, the court has recognized the link between foreign policy and discretion in immigration policy, which often requires the cooperation of foreign states (see my article analyzing discretion). The majority stressed that the implementation of MPP necessarily involved cooperation with Mexico, since the U.S. government could not unilaterally send nationals of Central American or other countries to Mexico without Mexico’s consent. 

In making this point, the majority also credited Mayorkas’s explanation that implementing MPP had assumed a “particularly outsized role” in the bilateral U.S.-Mexico relationship. The space taken up by that conspicuous role left less room for other bilateral measures, such as combating gangs and reckoning with the “root causes of migration.” Interpreting contiguous-return authority as mandatory would entail an inappropriately intrusive role for courts, which would have to “force the Executive to the bargaining table with Mexico,” no matter the cost to other aspects of U.S. foreign policy. The courts would then have to assume a notably nonjudicial role to “supervise [the United States’] continuing negotiations with Mexico to ensure that they are conducted in ’good faith.’” As Kavanaugh noted in his concurrence, it would be incongruous to read a statute as requiring the courts to “improperly second-guess the President’s Article II judgment with respect to American foreign policy and foreign relations.” Interpreting contiguous-return authority as discretionary, not mandatory, sidestepped these complications for foreign policy and the role of the courts. 

Alito disagreed with the majority, instead positing that contiguous-return authority was mandatory when the government could not detain border entrants. While the majority viewed parole as an option, albeit one that the government had to use reasonably, Alito viewed parole as available only in exceedingly narrow situations, thus stressing the need to resort to contiguous-return authority when detention was not possible. On this view, contiguous-return authority, parole, and detention were in what Alito described as a “hydraulic relationship.” As pressure built on detention space, the government would have to use contiguous-return authority as a safety valve, given the limited capacity for parole. Alito did not explain how this conception of the INA, which literally depended on several moving parts, fit the statute better than the majority’s reading, which cited statutory text and structure along with foreign affairs in viewing contiguous-return authority as an option, not a mandate. 

Crediting the October 2021 Mayorkas Memorandum

In reaching their respective conclusions, the majority and Alito also attached different significance to Mayorkas’s October 2021 memorandum, which was more extensive and detailed than his June memorandum. In an earlier decision, DHS v. Regents of the University of California, finding that the Trump administration had failed to provide adequate reasons under the APA for ending the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, the court had considered only an initial memorandum by Acting Homeland Security Secretary Elaine Duke. The court held that under administrative law principles, an agency should explain its actions clearly at the first opportunity, rather than changing its explanation to suit the pressures of the day, and therefore refused to consider a later memorandum by Homeland Security Secretary Kirstjen Nielsen that provided more detail on the DACA termination. The court found, in an opinion by Roberts, that the later Nielsen memorandum failed the APA’s “one bite at the apple” test. 

The majority in Biden v. Texas took a different view of Mayorkas’s October 2021 memorandum on terminating MPP. It viewed this memorandum as a new decision, which rethought the MPP issue from the ground up. To be sure, the majority observed, it would be unrealistic and artificial to require Mayorkas to relinquish longtime views about immigration policy. However, the majority concluded, Mayorkas had made a reasonable effort at a fresh review. According to the majority, that was all that the APA required. Alito disagreed, suggesting that the October memorandum was merely an expedient response to adverse judicial rulings. On balance, the additional reasons and substantially greater length and detail in the October memorandum suggest that the majority was correct.

The Path Forward on Remand to the District Court

As a technical matter the Supreme Court’s formal issuance of its decision within the next 4-6 weeks will vacate the district court’s injunction against ending MPP. However, the Biden administration faces one remaining hurdle to a definitive end to the program: demonstrating on remand to the district court that the administration’s reasons for terminating the program, as stated in the October 2021 Mayorkas memorandum, were not “arbitrary and capricious” under the APA. Citing the landmark decision in Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Automobile Insurance Co., the court in the DACA case had found that the initial memorandum by Duke failed to consider the impacts of terminating DACA or the merits of less drastic alternatives. On remand to the district court in the MPP case, the government will have to show that the October 2021 memorandum passed this test. 

To clear this hurdle, the government will have to submit clear and compelling evidence on the points raised in the October 2021 memorandum. Evidence placed on the record should include information on the foreign affairs effects of continuing MPP; the Department of Homeland Security’s efforts to work with state and local governments to mitigate any adverse impact of ending the program; and the disruptive effect of MPP on orderly presentation of sound asylum claims. The Supreme Court’s five-justice majority, joined on the merits by Barrett, appears to have an open mind on these issues. The government should avoid broad legal arguments and focus instead on methodically making a favorable record. That will be the most effective way to hurdle this last obstacle to ending MPP. Given the path of the case thus far, the Supreme Court will likely have another opportunity to rule in the case, possibly as early as next term. 

Peter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National Security Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York: NYU Press, 2010).

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