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Summary

Long horizontal graphic describing the stakes of Biden v. Texas, the case on Remain in Mexico currently before the Supreme Court.

Long horizontal graphic, continued from above graphic, explaining the what led up to Biden v. Texas being heard at the Supreme Court.

On February 18, 2022, the Supreme Court granted the Biden Administration's request to review the decision of the Fifth Circuit holding that the federal government must restart and maintain the "Remain in Mexico" (“RMX”) program (also referred to as the "Migrant Protection Protocols," or MPP), a Trump-era policy requiring certain asylum seekers to be returned to Mexico and forced to wait there for the months or years required for the U.S. government to process their applications for humanitarian protection. 

This case was argued before the Supreme Court on April 26, 2022.  On June 30, 2022, the Court issued an opinion reversing the Fifth Circuit.  The majority opinion (written by Chief Justice Roberts) held that the lower courts: (1) erred in holding that the Immigration and Nationality Act requires the RMX program; (2) erred in refusing to consider the Biden Administration’s second attempt to end RMX; and (3) did not have jurisdiction to enter the injunction that the district court issued and the Fifth Circuit affirmed.  Four other Justices (Breyer, Sotomayor, Kagan, and Kavanagh) joined the majority opinion in full, while a fifth (Justice Barrett) agreed with its conclusions on the merits.  Justices Thomas, Alito, and Gorsuch disagreed with the majority on the merits, but they too would have reversed the Fifth Circuit’s decision to affirm the injunction (making it 9-0 on that issue).

Technical Summary

The Biden Administration sought certiorari on two questions:  (1) Whether 8 U.S.C. § 1225 requires the federal government to continue implementing RMX; and (2) whether the Fifth Circuit erred in concluding that the Biden Administration’s more recent decision terminating RMX (issued on October 29, 2021) had no legal effect.

The order that issued on May 2, 2022 directed the parties to brief three issues: (1) Whether 8 U.S.C. § 1252(f)(1) imposes any jurisdictional or remedial limitations on the entry of injunctive relief, declaratory relief, or relief under 5 U.S.C. § 706. (2) Whether such limitations are subject to forfeiture. (3) Whether this Court has jurisdiction to consider the merits of the questions presented in this case.  The majority opinion addressed the first issue but explicitly declined to reach the other two.
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