During the Trump administration, the Department of Homeland Security (DHS) implemented what it called the Migrant Protection Protocols (MPP), which required people arriving by land at the Southwest border to return to Mexico while their applications for admission into the United States were pending. The Biden administration suspended MPP and, in June 2021, DHS terminated the program. Texas and Missouri filed a lawsuit in federal district court in Texas to challenge the suspension and then the termination of MPP. The district court held that the termination of MPP was arbitrary and capricious, and inconsistent with the immigration laws. The court vacated the rescission and remanded to DHS, and it ordered DHS to implement MPP until certain conditions were met. DHS appealed.
In October 2021, while the appeal was pending, DHS issued a new decision, again terminating MPP. The court of appeals for the Fifth Circuit, later affirmed the district court’s decision invalidating DHS’s June termination of MPP and held that the October 2021 termination did not constitute final agency action and had no legal effect. DHS sought Supreme Court review.
Public Citizen filed an amicus brief in the Supreme Court supporting DHS. The brief explains that DHS’s October decision was final agency action because, after the district court vacated the June 2021 termination and reinstated MPP, the October decision terminating MPP was a new action that resulted in a policy change. As the brief explains, agencies should not have to choose between appealing adverse court decisions and taking new action; any such rule would have the harmful effect of making agencies less responsive to the public and the courts. After oral argument, the Court requested briefing on three additional issues, and Public Citizen filed a supplemental amicus brief on one of the issues: whether section 1252(f)(1) of the Immigration and Nationality Act poses a barrier to entry of relief under section 706 of the Administrative Procedure Act. The supplemental brief explains that section 1252(f)(1) poses no barrier to entry of relief under section 706.