On June 30, 2022, the U.S. Supreme Court decided Biden v. Texas, No. 21-954. The Court held that the Immigration and Nationality Act (INA) does not prohibit the Biden administration’s Department of Homeland Security (DHS) from rescinding the Trump administration’s “remain-in-Mexico” immigration policy, and the District Court on remand must consider whether the Biden administration’s latest agency action reflected in an October 2021 termination memorandum complies with the Administrative Procedure Act (APA).
During his term, President Trump’s administration implemented a “remain-in-Mexico” policy, which required immigrants seeking entry to the U.S. at a point of entry on the Mexico border to wait in Mexico for their U.S. admissions determinations. Following President Biden’s inauguration in January 2021, his administration took steps to suspend and ultimately terminate that policy. Biden’s DHS issued a memorandum officially terminating the policy on June 1, 2021. Texas and Missouri challenged the termination in federal court. The District Court ruled that the termination was impermissible under the INA, vacated the termination decision, and entered an injunction order requiring the Government to continue to enforce the remain-in-Mexico policy.
The Government appealed. While the appeal was pending, Biden’s DHS issued a new memorandum on October 29, 2021, which rescinded the June 1 memorandum in full and again terminated the remain-in-Mexico policy. The Court of Appeals ultimately held that the October 29 memorandum was merely supportive of the June 1 memorandum and was not a separate agency action. It then affirmed the District Court ruling.
The Supreme Court began by addressing its own jurisdiction. The Court held that 8 U.S.C. § 1252(f)(1) prohibited the District Court from entering its injunction in the case. The Court ruled that the statute “deprives courts of the power to issue a specific category of remedies”; however, “the question whether a court has jurisdiction to grant a particular remedy is different from the question whether it has subject matter jurisdiction over a particular class of claims.” Therefore, the Court ruled that the District Court still had subject matter jurisdiction over the case and that the Supreme Court itself likewise had subject matter jurisdiction.
The Court then considered whether termination of the remain-in-Mexico policy would violate the INA. Under 8 U.S.C. § 1225(b)(2)(C), when an alien seeks admission to the U.S., DHS “may return the alien to [a contiguous] territory pending” admissions proceedings. The Court ruled that the use of the word “may” in the statute was dispositive and that “contiguous-territory return is a tool that [DHS] ‘has the authority, but not the duty,’ to use.” It rejected the argument that contiguous-territory return should be deemed mandatory to ensure that DHS is in compliance with its obligation to detain aliens under section 1225(b)(2)(A). The Court applied an assumption that DHS was violating that statute, but it nevertheless ruled that “contiguous-territory return authority in section 1225(b)(2)(C) is discretionary — and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).”
Finally, the Court ruled that the October 29, 2021, termination memorandum was a new and separately reviewable “final agency action,” not merely supplemental “post hoc rationalizations” for the June 1, 2021, memorandum. Therefore, the Court ruled, the Biden administration’s termination of the remain-in-Mexico policy is not prohibited by the INA, and the District Court must consider the October memorandum — not the June memorandum — in further proceedings on remand regarding DHS’s compliance with the APA.
Chief Justice Roberts delivered the opinion of the Court, in which Justices Breyer, Sotomayor, Kagan, and Kavanaugh joined. Justice Kavanaugh filed a concurring opinion. Justice Alito filed a dissenting opinion, in which Justices Thomas and Gorsuch joined. Justice Barrett also filed a dissenting opinion, in which Justices Thomas, Alito, and Gorsuch joined as to all but the first sentence.