SCOTUS Gets it Right: The Biden Administration Can End the Inhumane Remain in Mexico Program

In the last opinion released for the term, the Supreme Court of the United States affirmed the Biden Administration’s authority to end the “Remain in Mexico” policy, also known as the Migrant Protection Protocols (MPP).  This means that MPP is done – for now. 

MPP is a Trump-era policy, and the current version of the program resulted in more than 5,000 asylum seekers forced to wait in Mexico for their immigration court hearings.  The program also “made it nearly impossible for those arbitrarily placed in MPP to access attorneys and win asylum,” and kidnappings and violent attacks against individuals returned to Mexico common.  The federal government itself even acknowledged that the program “impos[ed] substantial and unjustifiable human costs on migrants who were exposed to harm while waiting in Mexico,” as well as these difficulties for asylum seekers to access counsel. 

The Biden Administration tried to end MPP with a memo released in June 2021. However, Texas sued to force them to continue the program, resulting in a nationwide injunction.  In response, the administration released an October 2021 memo and argued that the injunction should be vacated because the October memo superseded the June memo. The Court of Appeals disagreed, stating that the October memo was not “a new and separately reviewable ‘final agency action.’” Due to this injunction, MPP has continued throughout the litigation. 

What the Supreme Court Said 

In Biden v. Texas, the Supreme Court held that the district court did not have the jurisdiction to issue an injunction stopping MPP under the immigration statute (INA).  The part of the INA at issue (§ 1225(b)(2)(C)) cannot be enjoined or restrained by any court other than the Supreme Court because another part of the INA (§1252(f )(1)) removes this authority. This means that the injunction the lower courts issued was in error. 

The Court also found that DHS has discretionary authority to return an alien arriving on land to Mexico because the text of the statute says “may.”  In doing so, the Supreme Court rejected Texas’s argument that two parts of the statute should be read together, inferring that the government is required to expel migrants back to Mexico, and was required to do so well before the Trump Administration began the MPP policy. 

Notably, the statute at issue in Biden v. Texas is the INA, not the Administrative Procedure Act (APA).  The lower courts also did not address the October memo because it was dismissed as not final agency action, which the Supreme Court disagreed with.  The opinion explicitly suggests that “[o]n remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA.”  This leaves open the opportunity that the October MPP termination memo could be litigated under the APA grounds. 

What’s Next 

The Biden Administration can end MPP under the October memo once the Supreme Court sends the certified judgement to the Fifth Circuit.  This formal process usually takes about 28 days, although the administration can ask the Supreme Court to expedite this.   

While the lower courts do not have the jurisdiction to issue an injunction based on the INA, Texas can still attempt to vacate the October memo under the APA.  However, as Aaron Reichlin-Melnick at the American Immigration Council points out, there’s an open question on “whether a court can ‘vacate’ a policy under the [APA] without running afoul of the limitations” in the INA.  It seems likely we will see this issue before the Supreme Court again.   

Biden v. Texas is a win for immigration advocates.  However, this past Supreme Court term narrowed options available for future litigation.  The ability of the lower courts to issue an injunction under certain parts of the INA cuts both ways for future problematic administrative policies.  Earlier in the same term, the Court found in Garland v. Aleman-Gonzalez that the INA deprived the lower courts of the ability to “entertain class-wide injunctive relief.” 

And another thing to remember: while MPP can now be ended, the problematic policy of Title 42, is still ongoing due to litigation and Congressional efforts to hamper access to asylum.  To put it mildly, the fight is not over to ensure access to asylum and due process at the Southern border. 


Interested in learning more? Check out AILA’s press statement on the decision, an Immigration Impact blog post from our partners at the American Immigration Council, and AILA’s Featured Issue page on the Migrant Protection Protocols 

And don’t forget that YOU can use our Take Action tool to have your voice heard – take action and urge Congress to uphold asylum law at the U.S. Southern border! 

by Amy Grenier