Summary
The Supreme Court held that the Biden administration's rescission of the Migrant Protection Protocols did not violate the Immigration and Nationality Act because the contiguous-territory return authority in 8 U.S.C. § 1225(b)(2)(C) is discretionary. The Court also held that the October 29, 2021 memoranda constituted new and separately reviewable final agency action under the Administrative Procedure Act. The Court reversed and remanded the Fifth Circuit's judgment.
Topics
Practice areas
Questions Presented
- Whether 8 U.S.C. § 1252(f)(1), which limits lower-court injunctive relief concerning specified immigration provisions, deprived the Supreme Court of jurisdiction to reach the merits.
- Whether 8 U.S.C. § 1225(b)(2)(C)'s authority to return certain arriving aliens to a contiguous foreign territory is discretionary or becomes mandatory when the Government does not detain aliens under § 1225(b)(2)(A).
- Whether DHS's October 29, 2021 memoranda constituted new and separately reviewable final agency action under the Administrative Procedure Act.
Holdings
- Section 1252(f)(1) limits lower courts' authority to grant specified injunctive relief; it does not strip lower courts of all subject-matter jurisdiction over claims under the covered INA provisions and does not deprive the Supreme Court of jurisdiction to review the merits of the appeal.
- The authority granted by 8 U.S.C. § 1225(b)(2)(C) to return an arriving alien to a contiguous foreign territory is discretionary and remains discretionary even if the Government is violating or unable to satisfy the detention requirement in § 1225(b)(2)(A). The INA therefore did not require DHS to continue implementing MPP.
- The October 29, 2021 memoranda constituted new and separately reviewable final agency action under the APA.
Key quotations
“The problem is that the statute does not say anything like that. The statute says “may.” And “may” does not just suggest discretion, it “clearly connotes” it.” (13-14)
“We merely hold that section 1225(b)(2)(C) means what it says: “may” means “may,” and the INA itself does not require the Secretary to continue exercising his discretionary authority under these circumstances.” (18)
“The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action.” (20)
Factual background
DHS established the Migrant Protection Protocols in 2019, under which certain non-Mexican nationals arriving by land from Mexico were returned to Mexico while their removal proceedings proceeded. After a change in administrations, DHS first suspended and then terminated MPP in June 2021, citing operational burdens, policy concerns, and foreign-relations considerations. Texas and Missouri challenged the termination, and while the appeal was pending DHS issued October 29 memoranda superseding the June memorandum and again terminating MPP with additional reasons.
Procedural history
Texas and Missouri challenged DHS's June 1, 2021 memorandum terminating the Migrant Protection Protocols under the Immigration and Nationality Act and the Administrative Procedure Act. After a bench trial, the District Court entered judgment for the States, vacated the memorandum, remanded to DHS, and issued a nationwide injunction. The Fifth Circuit affirmed and held that DHS's October 29, 2021 termination memoranda were not new, separately reviewable final agency action. The Supreme Court reversed and remanded.
Remand instructions
The District Court was directed to consider in the first instance whether the October 29 memoranda comply with § 706 of the APA, including the arbitrary-and-capricious standard.