Biden v. Texas

LII note: the oral arguments in Biden v. Texas are now available from Oyez. The U.S. Supreme Court has now decided Biden v. Texas .


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?

Oral argument: 
April 26, 2022

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 The Biden Administration (“President Biden”) argues that DHS permissibly rescinded MPP via agency memoranda because the amended Immigration and Nationality Act (“INA”) gives DHS discretion over whether to remove, detain, or parole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. Biden at 5. Congress authorized MPP through the Immigration and Nationality Act (“INA”) in 8 U.S.C. § 1225(b)(2)(C). Id. at 6. Under MPP, DHS returned undocumented aliens to Mexico, while their removal cases were pending in the United States. Id. at 5. On January 8, 2021, DHS and Texas settled on a Memorandum of Understanding (“Agreement”) in which Texas agreed to provide immigration-related information to DHS in return for DHS’s commitment to consult with Texas before modifying their immigration-enforcement policies. Id.

On January 20, 2021, the Biden Administration (“President Biden”) indicated that it would suspend the enrollment of any new individuals in MPP (“Suspension Decision”). Id. at 6–7. On February 2, 2021, DHS notified Texas that it had terminated the Agreement between them. Id. at 7. Subsequently, Texas and Missouri (collectively, “Texas”) sued President Biden, claiming that the Suspension Decision violated the Administrative Procedure Act (“APA”), the INA, the Constitution, and the Agreement. Id. Texas moved for a preliminary injunction in the United States District Court for the Northern District of Texas. Id. Before the court issued a decision on the injunction motion, DHS terminated MPP (“Termination Decision”). Id. The district court then allowed Texas to amend its complaint and file a new preliminary injunction motion. Id.

The district court granted the injunction, concluding that the Termination Decision was invalid on its merits under the APA because it was arbitrary and capricious, and that the Decision also violated § 1225. Id. at 8. The district court ordered DHS to continue enforcing MPP until a court grants authorization under the APA to rescind the program. Id. Also, the court ordered that MPP remain in effect until DHS proves that it can detain all undocumented aliens subject to mandatory detention under § 1225. Id. President Biden appealed to the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”). Id.

In October 2021, prior to oral argument, DHS issued two new memoranda relating to the Termination Decision. Id. The memoranda did not alter that decision but offered additional justification for its continued effect. Id. at 9. In response, President Biden argued before the Fifth Circuit that the new memoranda mooted the appeal and recommended that it vacate the district court’s judgment and injunction. Id. The Fifth Circuit rejected President Biden’s argument, finding that the new memoranda have no basis in the APA. Id. at 29. In addition, the Fifth Circuit held that the Termination Decision was a final agency action, notwithstanding the new memoranda, and hence that the court has jurisdiction to review it. Id. at 12.

The Fifth Circuit agreed with the district court that the Termination Decision was arbitrary and capricious on its merits, in violation of the APA. Id. at 87. Specifically, the Fifth Circuit found that DHS failed to consider several “relevant factors” such as the benefits of MPP and cost of replacing the protocols, among other factors. Id. at 88. The Fifth Circuit also determined that the Termination Decision violated § 1225 because that provision requires DHS to either detain undocumented aliens seeking admission or return them to contiguous territories, like Mexico. Id. at 102. Accordingly, the Fifth Circuit affirmed the district court judgment. Id. at 116.

President Biden appealed, and on February 18, 2022, the United States Supreme Court granted certiorari to hear this case.



President Biden contends that both text and history of 8 U.S.C. § 1225, which the Illegal Immigration Reform and Responsibility Act of 1996 (“IIRIRA”) revised, supports their position that DHS has discretion to return asylum seekers pending resolution of their claims. Brief for Petitioner, Joseph R. Biden, Jr. et al. at 21. First, President Biden argues that the plain language “may return” in § 1225(b)(2)(C) means that DHS retains the authority to return asylum seekers to contiguous territory, but is under no obligation to do so. Id. at 19. President Biden also claims that Town of Castle Rock v. Gonzales’s precedent, which seems to cut against its position, maintains that even the “shall. . . detain” language in § 1225 (b)(2)(A) does not override the discretionary nature of law enforcement. Id. at 29. Second, President Biden argues that the historical context of § 1225 undermines the notion that Congress created removal authority as an obligatory “safety valve” if DHS otherwise lacked detention capacity for asylum seekers. Id. at 21. President Biden contends that if courts impute an obligation to remove undocumented aliens, then every presidential administration has openly violated the INA by releasing certain aliens on parole. Id. at 19. President Biden further notes that Congress knew DHS did not have the capacity to detain all removable citizens when it drafted IIRIRA but still did not explicitly call for the removal of undocumented aliens pending admission. Id. at 22. Rather, President Biden claims that Congress only added the removal authorization provision to codify longstanding practices. Id. at 23. Last, President Biden argues that the executive branch needs control over immigration enforcement because of the issue's significant link to foreign relations, thereby permitting DHS to rescind MPP. Id. at 26.

Texas and Missouri respond that the removal authorization provision in § 1225(b)(2)(C) clearly issues an obligatory command when read with § 1225 (b)(2)(A)’s mandate that DHS “shall . . . detain” any arriving alien clearly not entitled to admission into the United States, thus supporting the view that President Biden must enforce MPP. Brief for Respondents, State of Texas; State of Missouri at 15. Texas claims that because §1225 (b)(2)’s provisions are disjunctive statements, DHS must comply either by detaining or removing aliens. Id. at 21. Texas thus asserts that whenever DHS lacks the capacity to detain undocumented aliens, it must remove those aliens under the MPP to comply with the law. Id. at 20–21. Moreover, Texas counters President Biden’s claim that IIRIRA codified longstanding discretionary removal practices, instead arguing that the amendment restricted executive discretion to release undocumented aliens on parole pending resolution of their asylum claims. Id. at 19. Texas explains that DHS did not have a longstanding history of removal, because the normal practice has been to detain aliens pending any immigration proceedings since the original Immigration and Nationality Act of 1952. Id. at 18. Finally, Texas claims that a court that mandates enforcement of the MPP will not undermine the executive branch’s ability to conduct foreign relations because Congress is constitutionally authorized to establish rules of naturalization. Id. at 26. Thus, the weight of the constitution contests President Biden’s claim that courts should reject DHS’s discretionary nonenforcement of MPP. Id.


President Biden proposes that when DHS lacks detention capacity, DHS need not remove undocumented aliens under MPP because DHS has another way to comply with § 1225 by paroling those same persons on a discretionary basis following federal immigration law. Brief for Petitioner at 35. President Biden points out that § 1182(d)(5)(A) allows DHS to authorize parole on a case-by-case basis where the undocumented alien does not pose a security or flight risk. Id. President Biden therefore contends that where detention capacity is lacking, DHS has statutory authority to release undocumented aliens on parole to create additional capacity for higher priority applicants. Id. at 36. Similarly, President Biden maintains that § 1226(a) gives DHS discretion to release undocumented aliens arrested crossing into the United States on bond or parole. Id. at 35. President Biden argues that because some of these undocumented aliens also fall within the purview of MPP, DHS therefore can fulfill its statutory obligations by granting parole. Id.

Texas counters that § 1182(d)(5)(A)’s parole authorization does not license DHS to sidestep § 1225’s requirements because doing so would require the agency to parole undocumented aliens en masse, thereby violating § 1182(d)(5)(A)’s reservation provision that grants such paroles for exceptional litigants on a case-by-case basis. Brief for Respondents at 30–32. Texas responds that § 1226(a)’s parole authorization also fails to give DHS an alternative compliance mechanism because that section applies only to undocumented aliens within United States borders, whereas § 1225 and the MPP concern undocumented aliens apprehended at the border. Id. at 34. Texas concludes that because neither parole provision legally provides for an alternative to mandatory removal under § 1225, DHS must hence enforce MPP. Id.


President Biden argues that DHS’s second rescission of MPP carries full legal effect because it represented a new agency action complete with an independent and adequate re-explanation of the agency’s decision under the Administrative Procedure Act (“APA”). Brief for Petitioner at 37–38. President Biden asserts that when DHS rescinded the MPP for the second time, the agency thoroughly re-analyzed the issue, spoke with stakeholders, and promulgated a new, independent decision that did not merely repeat the agency’s first, assertedly invalid rescission of MPP. Id. at 38–39. Therefore, President Biden contends that the second rescission has legal effect because it comports with the fundamental principle that courts may only sustain an agency action based on the grounds the agency offered when it made the decision. Id. President Biden further alleges that the Fifth Circuit, which held that DHS only once decided to rescind, and then impermissibly rearticulated its rationale, the court failed to apply the settled administrative law principle from SEC v. Chenery Corp. (Chenery II). Id. at 41. Chenery II permits an agency to reexamine a decision and still reach the same result. Id. Finally, President Biden claims courts should give full effect to DHS’s second decision to rescind the MPP because, despite DHS making a preliminary announcement to intend to rescind a second time, it was not merely pretextual. Id. at 42. Rather, President Biden urges that the Fifth Circuit should not have even considered the pretext issue because Texas made no showing of bad faith, as required by Citizens to Preserve Overton Park v. Volpe. Id. at 43. Consequently, President Biden claims that DHS’s explanations adequately match its second decision to rescind the MPP, and therefore courts must give legal effect to the new decision. Id. at 44–45.

Texas answers that the Fifth Circuit correctly concluded that DHS’s second rescission represented a post hoc rationalization of its earlier rescission because the agency supplied reasons only after it had already decided to end MPP, thereby depriving the rescission of any legal effect. Brief for Respondents at 37. Texas acknowledges that an agency may arrive at the same policy decision on remand but notes that an agency must still base its decision on the record when made. Id. at 40. Here, Texas argues that DHS did not identify anything in the administrative record to justify its October rescission of the MPP on an independent post-hoc theory. Id. at 41. Additionally, Texas claims that the Fifth Circuit did not fail to apply Chenery II’s holding because DHS never honestly reconsidered any relevant factors before deciding to rescind MPP. Id. at 44. Texas urges that because the court in Dep’t of Homeland Sec. v. Regents of the Univ. of Cal found DHS’s explanations for rescinding DACA a “pretext” to end its prior invalidated decision, courts must similarly find DHS’s post hoc rationale similarly pretextual. Id. at 40–41. Texas further notes that between DHS’s first and second rescissions, DHS announced its intention to rescind the MPP, thereby showing that the agency had already decided to terminate before reexamining the issue. Id. Finally, Texas argues that even if courts accept the second rescission on its face, the decision merely repeats the original rescission’s inadequate rationales, and therefore similarly has no legal effect as an arbitrary and capricious agency decision. Id. at 46.



The Border Project and the National Immigrant Justice Center (“NIJC”), in support of President Biden, argue that continued enforcement of MPP deprives asylum seekers of justice because returning these individuals to Mexico significantly impairs their ability to access counsel, therefore supporting President Biden’s view that DHS had the authority to terminate MPP. Brief of Amici Curiae The Border Project and NIJC, in Support of Petitioner at 14. The Border Project and NIJC contend that logistical obstacles and resource limitations severely hinder both the presence and effectiveness of immigration-related legal services in Mexico. Id. at 15–16. For instance, the Border Project and NIJC point to gang violence as a significant factor preventing lawyers from traveling to Mexico to assist asylum seekers. Id. at 17. In addition, the State of Illinois, sixteen other states, and D.C. (“Illinois”), also in support of President Biden, argue that continued enforcement of MPP and removal of undocumented aliens strips them of a considerable portion of their immigrant populations, and therefore, consistent with President Biden’s position, reversal is necessary to the continued vitality of their communities. Brief of Amici Curiae State of Illinois et al., in Support of Petitioner at 21–22. For instance, Illinois posits that immigrants, including undocumented aliens paroled within US borders, bolster state economies through payment of taxes and other positive financial contributions. Id. at 22–26. Illinois further adds that Texas cannot justify its fear of undocumented aliens sparking a crime surge because, compared to non-immigrant communities, crime rates are statistically low in immigrant communities. Id. at 26–27. Accordingly, Illinois concludes that affirmation of the Fifth Circuit’s decision will harm undocumented aliens who reside within their borders, as well as other similarly situated undocumented communities, throughout the nation. Id. at 30.

Texas counters that, while some harm to immigrants or their communities is possible by enforcing MPP, extralegal measures do not properly remedy these problems because the law itself includes certain harm-reducing mechanisms. Brief for Respondents at 28. Specifically, Texas points to § 1225 and asserts that granting parole to undocumented aliens on a case-by-case basis, accounting for humanitarian concerns or evidence of public benefit, can alleviate some of the potential harm to asylum seekers and immigration communities that amici identify. Id. at 28–31. Texas also claims that granting parole en masse to undocumented aliens does not provide the same benefit as do case-by-case determinations because it fails to consider the personal and particular hardships faced by each asylum seeker. Id. at 33–35. Accordingly, Texas concludes that granting parole en masse is both unlawful and ineffective as a matter of policy in addressing undocumented aliens’ individual situations, thus supporting the Fifth Circuit’s decision. Id.


A group of bipartisan former officials of the Department of Homeland Security (“DHS”) and the Immigration and Naturalization Service (“INS”) (collectively, “Former Officials”), in support of President Biden, argue that the Fifth Circuit improperly disregarded longstanding immigration policy norms because it ignored the executive branch’s longstanding role in these matters, and therefore the Court should act to restore this understanding. Brief of Amici Curiae Former Officials, in Support of Petitioner at 23. Specifically, the Former Officials assert that the Immigration and Nationality Act (“INA”) confers upon the executive branch significant discretion over immigration. Id. at 24. The Former Officials contend that the executive branch must necessarily exercise its discretion over removal and detention because Congress has never allocated enough resources to allow DHS to remove all persons liable for deportation. Id. Similarly, the Former Officials indicate that Congress has not provided ample resources to make wide-scale detention feasible. Id. The Former Officials add that the executive branch retains a form of prosecutorial discretion over immigration and that the MPP are simply a manifestation of this discretion. Id. at 25. Accordingly, the Former Officials emphasize that the same prosecutorial discretion can likewise support termination of the MPP. Id. at 28.

Texas counters that, while the executive branch enjoys discretion over matters of immigration enforcement, rescission of the MPP falls outside this discretion because it violates the government’s mandatory-detention duties, indicating that the Court should thus affirm the Fifth Circuit’s decision. Brief for Respondents, State of Texas; State of Missouri at 14. Texas argues that § 1225(b) requires that DHS detain the undocumented aliens who fall within the scope of its provision. Id. at 15. Texas underscores that the use of the word “shall,” rather than “may,” in the statutory provision supports its view that President Biden cannot arbitrarily decide to rescind the MPP. Id. Hence, Texas concludes that the executive branch does not have unlimited discretion over immigration matters, and as the relevant provision illuminates, Congress can hence reduce this discretion and mandate particularized actions as it deems necessary. Id. at 19-20.



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