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This is an appeal of a district court’s order that the Biden Administration restart the "Remain in Mexico" 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.  Upon filing the appeal, the Biden Administration asked the motions panel of the Fifth Circuit Court of Appeals to “stay” (stop) the district court’s order while the full appeal is decided; that request was denied on August 19, 2021.  Shortly thereafter, the Biden Administration made the same request (to stay the district court’s order pending the appeal) of the Supreme Court, which denied it on August 24, 2021.

After full briefing and oral argument, a different 3-judge panel of the Fifth Circuit  issued an opinion on December 13, 2021.  In that opinion, the Fifth Circuit affirmed the district court’s conclusions that the Biden Administration’s termination of the Remain in Mexico program did not follow the proper procedures and that, regardless of procedure, the program cannot be legally terminated

The Biden Administration subsequently asked the Supreme Court to review the Fifth Circuit’s decision, which the Supreme Court agreed to do in February 2022. 

On June 30, 2022, the Supreme Court reversed the lower courts, holding that RMX can be terminated and that the lower courts erred in not considering the legality of the Biden Administration’s second attempt to do so.  That opinion became final on August 1, when the Supreme Court formally sent the case back to the Fifth Circuit. Thereafter, on August 3, the Fifth Circuit itself sent the case back to the district court—but its order on that date wasn’t scheduled to  take effect until September 26, 2022. 

On August 5, the Biden Administration asked the 3-judge panel of the Fifth Circuit to reconsider its denial of the motion to immediately send the case back to the district court, and on August 6, the Fifth Circuit granted that request and immediately sent the mandate to the district court.

Technical Summary

The Fifth Circuit’s merits opinion (by Judge Oldham) holds that the termination of RMX was arbitrary and capricious, in violation of the Administrative Procedure Act, and was independently unlawful because it violates the mandatory detention provisions of 8 U.S.C. § 1225.  The Fifth Circuit also rejected a host of arguments regarding (inter alia) its jurisdiction; the reviewability of the decision to terminate RMX; the proper use and construction of the parole statute, 8 U.S.C. § 1182(d)(5); and the appropriate remedy.

The Supreme Court granted the Biden Administration’s petition for certiorari on February 18, 2022.

When the case returned to the Fifth Circuit following issuance of the Supreme Court’s judgment, the Biden Administration filed a motion–which Texas did not oppose–requesting that the mandate be issued immediately.  When instead the Fifth Circuit ordered that the mandate issue in the normal course (i.e., in 52 days), it denied without explanation the federal government’s unopposed request to issue it immediately.


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