Biden v. Texas
Issues
Is the Department of Homeland Security required by law to continue returning certain undocumented aliens to Mexico, consistent with the Migrant Protection Protocols; and, was the Fifth Circuit correct in holding DHS erred in terminating MPP?
This case asks the Supreme Court to consider whether the Department of Homeland Security (“DHS”) must continue enforcing the Migrant Protection Protocols (“MPP”). On October 29, 2021, DHS issued a decision terminating MPP, a Trump administration policy where Border Patrol returns certain undocumented aliens arriving at the southern border to Mexico during their immigration proceedings. The Biden Administration (“President Biden”) argues that DHS permissibly rescinded MPP via agency memoranda because the amended Immigration and Nationality Act (“INA”) gives DHS discretion over whether to remove, detain, or parole noncitizens. Texas and Missouri respond that DHS’s rescission of MPP has no legal effect because if DHS lacks capacity to detain undocumented aliens, the INA obligates DHS to remove such persons by continuing to enforce MPP. The outcome of this case has significant implications for undocumented aliens seeking asylum in the United States and immigrant communities within the United States, as well as the role of the executive in determining immigration policy.
Questions as Framed for the Court by the Parties
(1) Whether 8 U.S.C. § 1225 requires the Department of Homeland Security to continue implementing the Migrant Protection Protocols, a former policy under which certain noncitizens arriving at the southwest border were returned to Mexico during their immigration and proceedings; and (2) whether the U.S. Court of Appeals for the 5th Circuit erred by concluding that the secretary of homeland security’s new decision terminating MPP had no legal effect.
In December 2018, the Department of Homeland Security (“DHS”) initiated the Migrant Protection Protocols (“MPP”). Texas v.
Additional Resources
- Stephen Loiaconi, With ‘Remain in Mexico’ order, Supreme Court challenges Biden on immigration, News Channel 8 (Aug. 25, 2021).
- Robert Barnes and Nick Miroff, Supreme Court will hear Biden administration plan to rescind Trump immigration policy on asylum seekers, Washington Post (Feb. 18, 2022).
- Suzanne Monyak, Supreme Court to review ‘Remain in Mexico’ policy revival, Roll Call (Feb. 18, 2022).
- Hannah Brem, US Supreme Court agrees to hear 'Remain in Mexico' policy case, Jurist (Feb. 21, 2022).