Texas & Missouri v. Biden, No. 2:21-cv-00067-Z (N.D. Tex., filed Apr. 13, 2021); 21-10806 (5th Cir., filed Aug. 16, 2021; 23-10143 (5th Cir., filed Feb. 14, 2023)
Within hours after President Biden’s inauguration, the Biden administration suspended new enrollments into the Trump administration’s Remain in Mexico program (also known as the “Migrant Protection Protocols” or “MPP”), which forcibly returned certain people seeking asylum at the southern U.S. border to Mexico, where they had to survive dangerous conditions during the pendency of their immigration proceedings in U.S. immigration courts. The program was notoriously a humanitarian disaster – as a result of the policy, people seeking asylum were murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions. They also faced significant procedural barriers to meaningfully presenting their legal claims for protection.
On April 13, 2021, the states of Texas and Missouri (Plaintiffs) filed suit in the Northern District of Texas, arguing that the Biden administration’s January 2021 statement suspending new enrollments into MPP “functionally end[ed] the MPP” program and was arbitrary and capricious in violation of the Administrative Procedures Act (APA) given the “huge surge of Central American migrants, including thousands of unaccompanied minors, passing through Mexico in order to advance meritless asylum claims at the U.S. border.” Plaintiffs also argued that the Biden Administration’s decision to suspend MPP violated both the Constitution and an agreement between Texas and the federal government.
On May 14, 2021, Plaintiffs moved for a preliminary injunction. However, before the briefing was complete, the Department of Homeland Security (DHS) issued a new memo on June 1, 2021 formally terminating MPP. The court concluded that the June 1 memorandum mooted Plaintiffs’ original complaint (which had focused on the January 2021 pronouncement), but allowed Plaintiffs to amend their complaint and file a new motion seeking to enjoin the June 1 memo. Plaintiffs did so. On June 25, 2021, Defendants filed their response to Plaintiffs’ preliminary injunction motion, and Plaintiffs filed their reply on June 30, 2021.
On July 22, 2021, the district court held a consolidated hearing and bench trial on the merits, and the parties then filed supplemental briefs on the scope of relief available to Plaintiffs. On August 13, 2021, the district court issued an order concluding that Plaintiffs were entitled to relief on both their APA and statutory claims and issued a nationwide injunction permanently enjoining Defendants from implementing or enforcing the June 1 memo, vacating the June 1 memo in its entirety, and ordering Defendants “to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all [noncitizens] subject to mandatory detention under Section 1255 without releasing any [noncitizens] because of a lack of detention resources.” The court’s reasoning was rooted in a mistaken understanding of 8 U.S.C. § 1225(b)(2)(A) and its determination that MPP “demonstrated operational effectiveness” — a finding based on Trump Administration statements and flawed data analysis and which ignored hundreds of pages of record evidence detailing the dangers MPP respondents had experienced in Mexico.
The district court stayed its order for seven days to allow the federal government time to seek emergency relief from the Fifth Circuit. On August 16, 2021, the Biden administration sought an additional stay from the district court, which the district court summarily denied two days later. The Biden administration then appealed to the Fifth Circuit. The American Immigration Council, Center for Gender and Refugee Studies, Human Rights First, and Southern Poverty Law Center, filed an amicus brief in support of the government, asking the Fifth Circuit to prevent the reinstatement of MPP and arguing that the district court’s order rests on inaccurate facts about the purported effectiveness of MPP in deterring migration and reducing meritless asylum claims. The ACLU and ACLU of Texas filed a separate amicus brief in support of the government primarily focusing on the district court’s misinterpretation of 8 U.S.C. § 1225(b)(2)(A).
On August 19, 2021, the Fifth Circuit denied the government’s request for a stay in a published decision that wholly adopted as true the Trump administration’s claims about the effectiveness of MPP in deterring migration and ignored the mountainous evidence refuting such claims. The decision, however, stated that the administration does not have to restart MPP at any particular time, just “in good faith” (without defining the term) and clarified that the government “can choose to detain” someone in accordance with § 1225, so long as the government does not “simply release every [noncitizen] described in § 1225 en masse into the United States.”
On August 20, 2021, the Biden administration filed an application to stay the district court’s injunction and for an emergency administrative stay with the Supreme Court. That same day – just minutes before the injunction was to go into effect – Justice Alito granted an emergency stay of the injunction until 11:59 pm EDT on August 24, 2021, to allow the full Court to consider the application. On August 23, 2021, the ACLU and ACLU of Texas filed an amicus brief in the Supreme Court in support of the stay application, again addressing the lower courts’ deeply flawed premise that the federal government must subject all people seeking asylum apprehended at the border to mandatory detention or return them to Mexico under MPP.
On August 24, 2021, the Supreme Court denied the government’s stay request in a 6-3 decision, stating that “[t]he applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” The decision, however, did not endorse the states’ incorrect claims that the government is actually required to return people to Mexico under the immigration statutes. That same day, DHS issued a statement saying that the Department “respectfully disagrees with the district court’s decision,” have appealed that order, and “will continue to vigorously challenge it.” However, the Department stated that “[a]s the appeal process continues . . . DHS will comply with the order in good faith.”
On September 23, 2021, Plaintiff States filed a motion to enforce the preliminary injunction and expedite discovery, citing delayed implementation of MPP and bad faith on the part of the government. The federal government responded that Plaintiff States had not met their burden of proof to demonstrate that the government is not acting in good faith to implement the injunction. The federal government filed their reply at the Fifth Circuit on October 19, 2021.
On October 29, 2021, DHS issued a memorandum terminating MPP again. In light of the termination memo, the administration filed a motion with the Fifth Circuit in Texas v. Biden stating that the appeal of the injunction requiring them to re-start MPP in good faith was now moot and requesting that the court vacate the district court’s preliminary injunction and remand or, alternatively, to stay the appeal while the case is remanded. On November 1, 2021, the states filed an opposition to the administration’s claim of mootness and request for vacatur or stay and remand, and the Fifth Circuit heard oral arguments from both parties the following day.
On November 18, 2021, the district court issued an opinion granting in part Plaintiffs’ motion to enforce, allowing for limited discovery but denying Plaintiffs’ request to implement MPP in the same manner. On December 21, 2021, the Fifth Circuit issued an order affirming the district court’s judgment and refusing to vacate the injunction. The Biden administration petitioned for certiorari. The Supreme Court granted certiorari and reversed the Fifth Circuit’s decision on June 30, 2022. The Supreme Court held, as an initial matter, that the district court’s injunction violated 8 U.S.C. § 1252(f)(1). Further, the Court held that the government’s recission of the MPP program did not violate section 1225 of the INA.
The Fifth Circuit then remanded the action to the Northern District of Texas on August 6, 2022. The Defendants moved to vacate the permanent injunction, and the district court vacated the injunction on August 8, 2022. Following the district court’s decision vacating the injunction, DHS announced that it will no longer enroll new individuals in MPP, and will disenroll individuals currently in MPP when they return for their next scheduled court date.
On the same day, Plaintiffs filed a motion for leave to file a second amended complaint, along with a motion to “postpone the effective date” of the October 29 memo rescinding MPP under the APA. The district court set a discovery and briefing schedule for the motion to postpone. The Defendants produced the relevant administrative record and filed a response in opposition to the motion to stay agency action on September 2, 2022. Briefing on the motion to stay agency action–including surreplies by both parties—was completed on September 20, 2022.
On December 15, 2022, the district court stayed the October 29 memo and the decision to terminate MPP pending the resolution of the merits of the claim. On February 13, 2023, Defendants filed an interlocutory appeal to the Fifth Circuit.
Counsel for Amicus: ACLU Immigrants’ Rights Project; ACLU Foundation of Texas; American Immigration Council; Center for Gender & Refugee Studies; Human Rights First; Southern Poverty Law Center