Texas v. Biden

646 F.Supp.3d 753

State of TEXAS, et al., Plaintiffs, v. Joseph R. BIDEN, Jr., et al., Defendants.

2:21-CV-067-Z

United States District Court, N.D. Texas, Amarillo Division

Signed December 15, 2022

William Thomas Thompson, Patrick K. Sweeten, Ryan Daniel Walters, Office of the Attorney General, Austin, TX, for Plaintiff State of Texas.

Dean John Sauer, Pro Hac Vice, Jesus A. Osete, Pro Hac Vice, Office of the Missouri Attorney General, Jefferson City, MO, Michael E. Talent, Missouri Attorney General's Office Missouri Attorney General's Office, St. Louis, MO, for Plaintiff State of Missouri.

Erez Reuveni, Brian C. Ward, Joseph Anton Darrow, U.S. Department of Justice Civil Division, Washington, DC, Brian Walters Stoltz, U.S. Attorney's Office, Dallas, TX, for Defendants.

Walter Stephen Zimolong, III, Zimolong LLC, Wayne, PA, for Amicus Advocates for Victims of Illegal Alien Crime.

Matt Austin Crapo, Pro Hac Vice, Alexandria, VA, for Amicus Immigration Reform Law Institute.

Robert S. Velevis, Amanda Crawford-Steger, Sidley Austin LLP, Dallas, TX, Tamara Frances Goodlette, Raices, San Antonio, TX, for Amicus Refugee and Immigrant Center for Education and Legal Services.

OPINION AND ORDER

MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE

This case began as a challenge to the termination of the Migrant Protection Protocols ("MPP") program in January 2021. Although the legal instruments governing the termination evolved over time by issuance of new memoranda, this case continued. Most recently, the Supreme Court remanded the case for this Court to consider Plaintiff States of Texas and Missouri's ("Plaintiffs") claims against the most recent memoranda. The Court now considers Plaintiffs' Motion to Postpone the Effective Date of Agency Action ("Motion") (ECF No. 149), filed on August 8, 2022. Plaintiffs carry their burden to show — among other things — they will likely prevail on the merits. Accordingly, the Court GRANTS the Motion and STAYS the most recent memoranda, issued on October 29, 2021, and corresponding decision to terminate MPP until the Court can resolve the merits of Plaintiffs' claims.

BACKGROUND

This action has a complex procedural history, having gone from this Court to the Fifth Circuit, to the Supreme Court, and back to this Court on remand. Or, "there and back again." See J.R.R. TOLKIEN, THE HOBBIT, OR THERE AND BACK AGAIN (1937). The Court first addresses that procedural history before more thoroughly detailing the facts relevant on remand.

A. Procedural Background

On December 20, 2019, the Department of Homeland Security ("DHS") announced MPP. DHS created the program in response to an immigration surge at the southern border of the United States and a resulting "humanitarian and border security crisis" in which federal immigration officials were encountering about 2,000 inadmissible aliens each day. ECF No. 94 at 7. MPP required DHS to return certain non-Mexican nationals arriving by land from Mexico back to Mexico to await the results of their removal proceedings under 8 U.S.C. § 1229a. The Government of Mexico agreed to temporarily cooperate in administering MPP. Id. at 8.

Congress authorized MPP in the Immigration and Nationality Act ("INA"). The INA provides: "In the case of an alien ... who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title."¹ 8 U.S.C. § 1225(b)(2)(C). A separate provision of the same INA section states: If "an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title." Id. § 1225(b)(2)(A).

DHS began implementing MPP in January 2019. ECF No. 94 at 8. President Trump's administration implemented MPP because DHS lacks the resources to detain every alien seeking admission to the United States. Id. at 43. MPP ensured "[c]ertain aliens attempting to enter the U.S. illegally or without documentation, including those who claim asylum, will no longer be released into the country, where they often fail to file an asylum application and/or disappear before an immigration judge can determine the merits of any claim." Id. at 8. By December 31, 2020, DHS had enrolled 68,039 aliens in the program. Id. at 12.

On January 20, 2021, the Acting Secretary of DHS wrote: "Effective January 21, 2021, the Department will suspend new enrollments in [MPP] pending further review of the program. Aliens who are not already enrolled in MPP should be processed under other existing legal authorities." Id. at 15 ("January Suspension"). President Biden's administration later issued Executive Order No. 14010, which directed DHS Secretary Alejandro Mayorkas to "promptly review and determine whether to terminate or modify [MPP]." 86 Fed. Reg. 8269 (2021).

On June 1, 2021, Secretary Mayorkas issued a memorandum officially ending MPP. See Memorandum from Alejandro N. Mayorkas, Sec'y of Homeland Security, Termination of the Migrant Protection Protocols Program (June 1, 2021) ("June 1 Memorandum"). In doing so, Secretary Mayorkas "direct[ed] DHS personnel to take all appropriate actions to terminate MPP, including taking all steps necessary to rescind implementing guidance and other directives or policy guidance issued to implement the program." ECF No. 54-2 at 172.

On April 13, 2021, Plaintiffs initiated this litigation challenging President Biden's administration's termination of MPP. See generally ECF No. 1. Plaintiffs' initial Complaint challenged the January Suspension that paused new enrollments in MPP. Following the June 1 Memorandum, Plaintiffs amended their Complaint to challenge the termination of the entire program. See generally ECF No. 48. Plaintiffs' First Amended Complaint asserted the June 1 Memorandum violated the INA and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and sought preliminary and permanent injunctive relief, declaratory relief, and vacatur of the termination under the APA. See id.

After a consolidated hearing and a trial on the merits under Federal Rule of Civil Procedure 65(a)(2), the Court vacated the June 1 Memorandum and enjoined Defendants to continue to implement MPP "in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1225 without releasing any aliens because of a lack of detention resources." ECF No. 94 at 52-53. Defendants sought a stay of that order, which the Fifth Circuit denied. State v. Biden, 10 F.4th 538, 543-61 (2021) (per curiam). The Supreme Court also denied Defendants' stay request because Defendants "had failed to show a likelihood of success on the claim that the [June 1 Memorandum] was not arbitrary and capricious." Biden v. Texas, — U.S. —, 142 S. Ct. 926, 926, 210 L.Ed.2d 1014 (2021) (mem. op.).

On the cusp of oral argument in the Fifth Circuit, DHS issued two memoranda ("October 29 Memoranda") declaring that it had made a new decision terminating MPP. See ECF No. 162 at 19-61, Termination of the Migrant Protection Protocols ("Termination Memorandum") and Explanation of the Decision to Terminate the Migrant Protection Protocols ("Explanation Memorandum"). At the same time, Defendants asked the Fifth Circuit to hold the case moot, to vacate this Court's judgment and permanent injunction, and to remand the case for further proceedings. Texas v. Biden, 20 F.4th 928, 946 (5th Cir. 2021) ("Biden II"). The Fifth Circuit declined. It instead held that the October 29 Memoranda did not moot or have any legal effect on the appeal. Id. at 956-66, 998-1000. The Fifth Circuit then affirmed this Court on the merits. See generally id.

On June 30, 2022, the Supreme Court reversed the Fifth Circuit. See generally Biden v. Texas, — U.S. —, 142 S. Ct. 2528, 213 L.Ed.2d 956 (2022) ("Biden II"). First, the Supreme Court determined 8 U.S.C. § 1252(f)(1) barred this Court's injunction, though that provision does not deprive this Court of subject-matter jurisdiction over this action. See id. at 2538-39. The Supreme Court also held the termination of MPP did not itself violate the mandatory-detention requirement of Section 1225(b)(2)(A), although the Supreme Court "assume[d] arguendo ... that the dissent's interpretation of section 1225(b)(2)(A) is correct, and that the Government is currently violating its obligations under that provision." Id. at 2542. Biden III did not disturb any of the holdings of this Court or the Fifth Circuit on issues of standing or reviewability to challenge a termination of MPP, the limits on parole authority, or the mandatory nature of the detention requirements of Section 1225.

Although the Supreme Court determined the October 29 Memoranda constitute final agency action that suspended the June 1 Memorandum, the Supreme Court did not answer whether the October 29 Memoranda are arbitrary and capricious under the APA. That task, the Supreme Court stated, is for this Court. See id. at 2548 ("On remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA." (citing Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983))), 2549 (Kavanaugh, J., concurring) ("The question of whether DHS's October 29 decision satisfies the State Farm standard is not before this Court at this time. The Court today therefore properly leaves the State Farm issue for consideration on remand."), 2559 (Alito, J., dissenting) ("I agree with the majority that the District Court on remand should consider in the first instance whether the October 29 Memoranda complied with § 706 of the APA."). Plaintiffs now challenge the October 29 Memorand...