Hello Karen,

As you probably know by now, the Supreme Court has issued its decision in Biden v. Texas, ruling that the Biden Administration's rescission of Remain in Mexico did not violate the Immigration and Nationality Act, and that the second memo (October 29th) was final agency action. 

This does not undo the harm inflicted upon the 71,000+ asylum seekers who were subjected to RMX, but is a huge victory in the fight to defend the right to seek asylum. 

Below is the JAC team's distilled legal analysis of the decision. We hope it's helpful! Of course, more updates on red state legal challenges are available at our litigation tracker. 

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Key Takeaways in SCOTUS Decision in Biden v. Texas

June 30, 2022

In a resounding win for the Biden administration with big implications for noncitizens seeking admission at the southern border, in an opinion written by Chief Justice Roberts joined in full by 4 other Justices and in large part by Justice Barrett (so 6-3 on the merits), the Supreme Court today held that the Fifth Circuit was wrong in finding that the Biden administration was required by law to reimplement Remain in Mexico and to refuse to review its second memo terminating that disastrous program. SCOTUS now sends the case back down to the district court for it to consider whether the second termination memo violated the law, if Texas decides to challenge it.

Here’s what the opinion said, and what this means for lawyers, advocates, and individuals seeking asylum:



A big win in this case that will have mixed implications for future litigation in the immigration space: consistent with the Aleman-Gonzalez decision issued two weeks ago, SCOTUS held that the district court did not have jurisdiction to grant the injunction requiring the administration to reimplement MPP (RMX).

  • Section 1252(f)(1) of the Immigration and Nationality Act (INA) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief (namely, injunctions). But, it does not deprive the lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA.
  • The district court’s injunction violated that provision.

What does this mean for the continued force of the district court’s injunction?

  • Because the district court did not have the authority to issue it, and the Supreme Court disagreed with it, the unlawful injunction should have no legal force or effect.
  • This means that the Biden administration can stop MPP 2.0 once the court sends the certified judgment to the Fifth Circuit. Normally this takes place within 28 days, but the Biden administration can ask the Supreme Court to do so on an expedited basis.

What does this mean for the district court’s ability to force another MPP reimplementation back at the district court?

  • The district court does not have authority to issue another injunction requiring Biden to reimplement MPP. This rules out both preliminary and permanent injunctions, so it may be difficult for Texas to swiftly get an order in its favor.
  • The next fight may be whether the district court retains authority to “vacate” agency action that violates the APA, and thus be able to “vacate” the second memo and attempt to reinvigorate MPP that way.

May Means May: Return Authority Is Discretionary

  • Another huge win: return to Mexico is not required by statute.
  • The Court made clear it disagreed with every one of Texas’s arguments that the executive must return asylum-seekers to Mexico if it cannot detain them all under the INA’s mandatory detention provision.
  • The Court adopted every one of the Biden administration’s arguments to support this conclusion: based on the statutory text, the legislative history, the “novelty” of the argument (i.e., no administration has read the statute that way in 25 years), and the foreign affairs implications.

Mandatory Detention and Parole Authority

Immigrants’ rights advocates live to fight another day on mandatory detention and parole authority – the court did not issue any binding decisions that implicate those authorities.

  • The Court expressly declined to address whether the INA provision requiring mandatory detention is subject to "traditional principles of law enforcement discretion” or whether the administration is violating the mandatory detention statute.
  • The Court also declined to address whether the government is lawfully exercising its parole authority, but noted the following:
  • The existence of the parole authority further affirmed its decision that the return authority is not mandatory, and
  • Hinting at possible limits in future litigation, the parole authority is “not unbounded.”

Biden’s Second Termination Memo: Back to the District Court for Initial Review

  • The Court held that the second memo constitutes final agency action and the lower courts should have considered its merits.
  • The Court again disagreed with all of the Fifth Circuit’s and Texas’s reasoning here that previously foreclosed judicial review of DHS’s October memoranda issuing a new decision to terminate MPP.
  • The second memo was an independent and final agency action, did not engage in impermissible “post hoc rationalization,” and was not done in “bad faith” so as to cause a court to disregard the agency’s stated reasons.
  • The result is that, if Texas chooses to challenge the second memo, the district court must review it to determine whether it complied with the APA.
  • In so doing, the Court left very helpful breadcrumbs for the Biden administration if the lawfulness of the second memo is litigated in the district court.

Amy Coney Barrett Agreed on the Merits

  • J. Barrett expressly wrote that she agreed with the Court’s opinions on the “merits,” meaning that return to Mexico is not required by the INA and that the administration’s second termination memo constituted final agency action.
  • She said that she would not have reached those decisions, however, because of the complicated jurisdictional questions that remain unanswered regarding § 1252(f)(1).

We hope this is helpful! Thanks for reading and for joining us in the fight to ensure migrants are #SafeNotStranded.

Esther Sung

Legal Director

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