Biden v. Texas

RETURN TO CONTIGUOUS TERRITORY: DISCRETION OR OBLIGATION?

President Biden contends that both text and history of 8 U.S.C. § 1225, which the Illegal Immigration Reform and Responsibility Act of 1996 (“IIRIRA”) revised, supports their position that DHS has discretion to return asylum seekers pending resolution of their claims. Brief for Petitioner, Joseph R. Biden, Jr. et al. at 21. First, President Biden argues that the plain language “may return” in § 1225(b)(2)(C) means that DHS retains the authority to return asylum seekers to contiguous territory, but is under no obligation to do so. Id. at 19. President Biden also claims that Town of Castle Rock v. Gonzales’s precedent, which seems to cut against its position, maintains that even the “shall. . . detain” language in § 1225 (b)(2)(A) does not override the discretionary nature of law enforcement. Id. at 29. Second, President Biden argues that the historical context of § 1225 undermines the notion that Congress created removal authority as an obligatory “safety valve” if DHS otherwise lacked detention capacity for asylum seekers. Id. at 21. President Biden contends that if courts impute an obligation to remove undocumented aliens, then every presidential administration has openly violated the INA by releasing certain aliens on parole. Id. at 19. President Biden further notes that Congress knew DHS did not have the capacity to detain all removable citizens when it drafted IIRIRA but still did not explicitly call for the removal of undocumented aliens pending admission. Id. at 22. Rather, President Biden claims that Congress only added the removal authorization provision to codify longstanding practices. Id. at 23. Last, President Biden argues that the executive branch needs control over immigration enforcement because of the issue's significant link to foreign relations, thereby permitting DHS to rescind MPP. Id. at 26.

Texas and Missouri respond that the removal authorization provision in § 1225(b)(2)(C) clearly issues an obligatory command when read with § 1225 (b)(2)(A)’s mandate that DHS “shall . . . detain” any arriving alien clearly not entitled to admission into the United States, thus supporting the view that President Biden must enforce MPP. Brief for Respondents, State of Texas; State of Missouri at 15. Texas claims that because §1225 (b)(2)’s provisions are disjunctive statements, DHS must comply either by detaining or removing aliens. Id. at 21. Texas thus asserts that whenever DHS lacks the capacity to detain undocumented aliens, it must remove those aliens under the MPP to comply with the law. Id. at 20–21. Moreover, Texas counters President Biden’s claim that IIRIRA codified longstanding discretionary removal practices, instead arguing that the amendment restricted executive discretion to release undocumented aliens on parole pending resolution of their asylum claims. Id. at 19. Texas explains that DHS did not have a longstanding history of removal, because the normal practice has been to detain aliens pending any immigration proceedings since the original Immigration and Nationality Act of 1952. Id. at 18. Finally, Texas claims that a court that mandates enforcement of the MPP will not undermine the executive branch’s ability to conduct foreign relations because Congress is constitutionally authorized to establish rules of naturalization. Id. at 26. Thus, the weight of the constitution contests President Biden’s claim that courts should reject DHS’s discretionary nonenforcement of MPP. Id.

PAROLE AS AN ALTERNATIVE TO REMOVAL

President Biden proposes that when DHS lacks detention capacity, DHS need not remove undocumented aliens under MPP because DHS has another way to comply with § 1225 by paroling those same persons on a discretionary basis following federal immigration law. Brief for Petitioner at 35. President Biden points out that § 1182(d)(5)(A) allows DHS to authorize parole on a case-by-case basis where the undocumented alien does not pose a security or flight risk. Id. President Biden therefore contends that where detention capacity is lacking, DHS has statutory authority to release undocumented aliens on parole to create additional capacity for higher priority applicants. Id. at 36. Similarly, President Biden maintains that § 1226(a) gives DHS discretion to release undocumented aliens arrested crossing into the United States on bond or parole. Id. at 35. President Biden argues that because some of these undocumented aliens also fall within the purview of MPP, DHS therefore can fulfill its statutory obligations by granting parole. Id.

Texas counters that § 1182(d)(5)(A)’s parole authorization does not license DHS to sidestep § 1225’s requirements because doing so would require the agency to parole undocumented aliens en masse, thereby violating § 1182(d)(5)(A)’s reservation provision that grants such paroles for exceptional litigants on a case-by-case basis. Brief for Respondents at 30–32. Texas responds that § 1226(a)’s parole authorization also fails to give DHS an alternative compliance mechanism because that section applies only to undocumented aliens within United States borders, whereas § 1225 and the MPP concern undocumented aliens apprehended at the border. Id. at 34. Texas concludes that because neither parole provision legally provides for an alternative to mandatory removal under § 1225, DHS must hence enforce MPP. Id.

AGENCY DECISION MAKING AND RE-EXPLANATION

President Biden argues that DHS’s second rescission of MPP carries full legal effect because it represented a new agency action complete with an independent and adequate re-explanation of the agency’s decision under the Administrative Procedure Act (“APA”). Brief for Petitioner at 37–38. President Biden asserts that when DHS rescinded the MPP for the second time, the agency thoroughly re-analyzed the issue, spoke with stakeholders, and promulgated a new, independent decision that did not merely repeat the agency’s first, assertedly invalid rescission of MPP. Id. at 38–39. Therefore, President Biden contends that the second rescission has legal effect because it comports with the fundamental principle that courts may only sustain an agency action based on the grounds the agency offered when it made the decision. Id. President Biden further alleges that the Fifth Circuit, which held that DHS only once decided to rescind, and then impermissibly rearticulated its rationale, the court failed to apply the settled administrative law principle from SEC v. Chenery Corp. (Chenery II). Id. at 41. Chenery II permits an agency to reexamine a decision and still reach the same result. Id. Finally, President Biden claims courts should give full effect to DHS’s second decision to rescind the MPP because, despite DHS making a preliminary announcement to intend to rescind a second time, it was not merely pretextual. Id. at 42. Rather, President Biden urges that the Fifth Circuit should not have even considered the pretext issue because Texas made no showing of bad faith, as required by Citizens to Preserve Overton Park v. Volpe. Id. at 43. Consequently, President Biden claims that DHS’s explanations adequately match its second decision to rescind the MPP, and therefore courts must give legal effect to the new decision. Id. at 44–45.

Texas answers that the Fifth Circuit correctly concluded that DHS’s second rescission represented a post hoc rationalization of its earlier rescission because the agency supplied reasons only after it had already decided to end MPP, thereby depriving the rescission of any legal effect. Brief for Respondents at 37. Texas acknowledges that an agency may arrive at the same policy decision on remand but notes that an agency must still base its decision on the record when made. Id. at 40. Here, Texas argues that DHS did not identify anything in the administrative record to justify its October rescission of the MPP on an independent post-hoc theory. Id. at 41. Additionally, Texas claims that the Fifth Circuit did not fail to apply Chenery II’s holding because DHS never honestly reconsidered any relevant factors before deciding to rescind MPP. Id. at 44. Texas urges that because the court in Dep’t of Homeland Sec. v. Regents of the Univ. of Cal found DHS’s explanations for rescinding DACA a “pretext” to end its prior invalidated decision, courts must similarly find DHS’s post hoc rationale similarly pretextual. Id. at 40–41. Texas further notes that between DHS’s first and second rescissions, DHS announced its intention to rescind the MPP, thereby showing that the agency had already decided to terminate before reexamining the issue. Id. Finally, Texas argues that even if courts accept the second rescission on its face, the decision merely repeats the original rescission’s inadequate rationales, and therefore similarly has no legal effect as an arbitrary and capricious agency decision. Id. at 46.