Biden v. Texas: Termination of return-to-Mexico policy did not violate INA; lower courts cannot enter injunctions in certain INA matters, but retain subject matter jurisdiction
The Biden Administration’s repeal of the policy which returned noncitizens who entered the country illegally from Mexico back to Mexico pending removal proceedings did not violate the Immigration and Nationality Act, the U.S. Supreme Court held June 30 in Biden v. Texas.
The Court further held that although lower courts lack power to enter injunctions in cases such as this, they have subject matter jurisdiction.
In 2018, the Trump Administration’s Department of Homeland Security issued the “Migrant Protection Protocols” (MPP), which required that certain noncitizens who entered the U.S. illegally through the southern border be returned to Mexico to await the results of their removal proceedings.
MPP was implemented under express authorization of the Immigration and Nationality Act (INA), which provides that noncitizens who enter the U.S. on land from a contiguous country may be returned to that country pending removal.
The Biden Administration sought to end the program. On June 1, 2021, the Homeland Security Secretary issued a memorandum terminating the program.
Texas and Missouri sued the Secretary, alleging the June 1 termination memo violated INA and the Administrative Procedure Act (APA).
The District Court ruled for Texas and Missouri.
While the appeal was pending, the Secretary issued a new memorandum, in October 2021, again terminating the program and further explaining the Department’s reasons for doing so.
The Court of Appeals affirmed, and also held the October 2021 memorandum did not constitute a new and separately reviewable “final agency action.”
The Supreme Court reversed, in a 5-4 opinion, which addressed several issues.
First, the Court held that although lower courts lack power to enter injunctions in cases such as this, they have subject matter jurisdiction.
INA Sec. 1252(f)(1) provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to restrain the operation” of Secs. 1221-1232, except with respect to an individual noncitizen.
The District Court’s injunction violated this provision, the Court said. But the Court held 1252(f)(1) did not deprive the lower courts of subject matter jurisdiction.
“Section 1252(f)(1) deprives courts of the power to issue a specific category of remedies: those that ‘enjoin or restrain the operation of’ the relevant sections of the statute,” the Court said. “A limitation on subject matter jurisdiction, by contrast, restricts a court’s ‘power to adjudicate a case.’”
“Section 1252(f)(1) bears no indication that lower courts lack power to hear any claim brought under sections 1221 through 1232,” the Court said.
In any event, “1252(f)(1) leaves no doubt that this Court has jurisdiction: the parenthetical explicitly preserving this Court’s power to enter injunctive relief,” the Court said.
Turning to the merits, the Court noted that Section 1225(b)(2)(C) of INA provides that the Secretary “may return the alien” to Mexico pending removal proceedings.
The use of the word “may” shows that the Secretary “has the authority, but not the duty” to return noncitizens to Mexico pending removal proceedings, the Court said.
Texas and Missouri relied on a different provision of INA, which provides that noncitizens “shall be detained” pending removal proceedings.
Because that section of INA mandates detention, Texas and Missouri argued that otherwise-discretionary return authority in 1225(b)(2)(C) is also mandatory.
“The problem is that the statute does not say anything like that,” the Court said. “The statute says ‘may.’ And ‘may’ does not just suggest discretion, it clearly connotes it.”
“In addition to contradicting the statutory text and context, the novelty of [Texas and Missouri’s] interpretation bears mention,” the Court said, noting that every presidential administration since INA was enacted 26 years ago had interpreted the return provision as “purely discretionary.”
The “foreign affairs consequences” of mandating return also point in favor of discretion, the Court said. “[T]he Court has taken care to avoid the danger of unwarranted judicial interference in the conduct of foreign policy.”
By interpreting the return policy as mandated by INA, “the Court of Appeals imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico,” the Court said.
Lastly, the Court held the October 2021 memorandum did constitute a new and separately reviewable “final agency action.”
When a court finds that an agency’s action is inadequate, a court can remand to the agency to offer a fuller explanation of agency action, or the agency can “deal with the problem afresh” by taking “new” agency action, the Court said.
Here, the Secretary took the latter approach. The Secretary accepted the District Court’s ruling that that earlier June 1 memorandum was inadequate, and issued a new memorandum during the appeal more fully explaining the reasons for terminating the program.
“That second option can be more procedurally onerous than the first – the agency ‘must comply with procedural requirements for new agency action’ – but the benefit is that the agency is not limited to its prior reasons in justifying its decision,” the Court said.
“Nothing prevents an agency from undertaking new agency action while simultaneously appealing an adverse judgment,” the Court said.
“That is particularly so under the circumstances of this case” where the District Court’s injunction sought to bind the Government to “implement MPP in perpetuity,” the Court said.
The agency had “no choice but to appeal,” the Court said, but the agency also “reasonably chose to accede to the District Court’s APA analysis of the June 1 Memorandum and seek to ameliorate those concerns in the meantime.”
The Court remanded the case for the District Court to consider, in the first instance, whether the October memorandum complies with the APA.
Dissenting opinion says jurisdictional ruling will affect other cases
Justice Barrett issued a dissent, in which she “agree[d] with the Court’s analysis of the merits – but not with its decision to reach them.”
She noted that “just two weeks ago,” the Court had decided Garland v. Aleman-Gonzalez, which held that Section 1252(f)(1) deprives lower courts of “jurisdiction to entertain” requests for injunctions under INA except for a suit by an individual noncitizen.
She said the Court should remand the case to the lower courts to consider the implications of Aleman-Gonzalez.
“Instead, the Court plows ahead to break new jurisdictional ground,” she said. “[I]t embraces a theory of Section 1252(f)(1) that – so far as I can tell – no court of appeals has ever adopted: that Section 1252(f)(1) limits only the lower courts’ remedial authority, not their subject matter jurisdiction.”
“This would all matter less if the jurisdictional question were easy or unimportant – but it is neither,” she said. She said the “jurisdictional holding is likely to affect many cases.”
Justices Thomas, Gorsuch and Alito also dissented.