On June 30, 2022, the Supreme Court decided Biden v. Texas and, by a vote of 5-4, 1) held the government’s decision to rescind the Migrant Protection Protocols (MPP) did not violate section 1255 of the Immigration Nationality Act (INA) and 2) found the Department of Homeland Security’s (DHS) October 29, 2021, second memorandum terminating the MPP constituted final agency action that did not violate the Administrative Procedure Act (APA).

DHS implemented the MPP in 2019. The MPP essentially provided a statutory mechanism that allowed the United States to send certain aliens who came to the U.S. by land back to Mexico while they awaited the results of their removal proceedings under section 1225 of the INA. Shortly after President Biden took office, DHS issued a memorandum dated June 1, 2021, which formally ended the program. The states of Missouri and Texas challenged the memorandum, alleging that it violated the INA and the APA in a lawsuit originally filed in the United States District Court for Northern District of Texas. The District Court agreed with Missouri and Texas that terminating the so-called Remain in Mexico policy would necessarily lead to illegal entrants being released into the United States and lead to systemic violations of section 1225 of the INA. While the case was pending in the 5th Circuit Court of Appeals, DHS issued a second memorandum dated October 29, 2021. The Court of Appeals affirmed the decision of the District Court that ending the MPP violated the INA and disposed of the October 29 memorandum, concluding it was not a final agency action that was separately reviewable.

In an opinion written by Chief Justice Roberts, the Supreme Court first took issue with the Court of Appeals’ position that section 1225(b)(2)(A) makes detention mandatory. Under the Supreme Court’s analysis, the statutory language of the Remain in Mexico provision contains “may,” which denotes permissive and not mandatory action when it says, “In the case of an alien . . . who is arriving on land . . . from a foreign country contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” The Court refused to interpolate a mandatory element to the statute given the use of the discretionary “may.” In short, the Court said “may” means “may,” and the contiguous territory return is a mechanism DHS has the authority, but not the duty to use.

Second, the Court found that DHS’ October 29 second memorandum offered new reasons for terminating the MPP that were absent from the June 1 memorandum, and therefore the second memorandum properly constituted final agency action under the APA subject to review. As such, the Court reversed the judgment of the Court of Appeals and remanded to the Northern District of Texas for further proceedings.

Justices Alito and Barrett wrote dissenting opinions. Justice Barrett wrote to agree with the Court’s analysis on the merits, but she would have vacated and remanded the case on a jurisdictional issue. Justice Alito referenced government data showing that encounters between aliens crossing the border and border agents more than doubled just two months after the Biden administration rescinded the MPP. He also lamented the expedited briefing schedule and argument date, which he believed led to a quick decision that did not allow thorough consideration of new questions and certain issues important to the outcome of the Court’s decision.

Any opinion, viewpoint, and/or analysis expressed herein is the author’s and not necessarily that of the United States Department of Justice.

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