Biden Administration Files its Opening Brief in Biden v. Texas

The Biden administration filed its opening brief on Monday in Biden v. Texas, the case that will determine the fate of the Trump-era Migrant Protection Protocols (“MPP”) program often referred to as “Remain in Mexico.” A copy of the brief is available here.

Under the Remain in Mexico Program, which was instituted in 2018, certain migrants arriving by land on the Mexico-US border could be placed in removal proceedings, but sent to Mexico to await their court hearing.

On October 29 of last year, DHS issued a second decision to terminate the policy, which concluded that the program’s “benefits do not justify the costs.” 

In the brief filed this week, the administration argues, first, that the Fifth Circuit Court of Appeals erred when it held that 8 U.S.C. § 1225 requires the Secretary to use contiguous-territory return whenever DHS lacks adequate capacity to noncitizens described in Section 1225(b). In other words, the government argues, the position of the court of appeals has no basis in the Immigration and Nationality Act. As the petitioners argue: “Under the court of appeals’ unprecedented interpretation of Section 1225, every presidential administration—including the one that adopted MPP—has been in open and systemic violation of the INA since the relevant provisions were enacted in 1996.” (at 19).

Second, the petitioners argue that the Secretary’s October 29 decision terminating the MPP was issued properly, in accordance with the APA, and therefore should take legal effect. As the petitioners explain, the court’s “analysis misapplies this Court’s precedents and flouts hornbook principles of administrative law.” (at 37).

Previous posts on our blog regarding Texas v. Biden may be found here and here.

IE