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In April 2021, Texas and Missouri sued the Biden Administration for ending a policy, created in late 2018 by the Trump Administration, under which certain asylum seekers are 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.  On the campaign trail, President Biden promised to end the "Remain in Mexico" (“RMX”) program (also referred to as the "Migrant Protection Protocols," or MPP), and the federal government began winding it down shortly after he was inaugurated.  In this lawsuit, Texas and Missouri claim that the federal government cannot legally end the “Remain in Mexico” program and that, even if it theoretically can end the program, it did not go through the proper procedures to do so.

On August 13, 2021, Judge Kacsmaryk granted judgment for Texas and Missouri, ruling both that the Biden Administration's termination of MPP failed to follow the required procedure and that, regardless of procedure, RMX cannot be lawfully terminated.  Judge Kacsmaryk ordered the federal government to restart RMX -- which it did, in December 2021.  In December 2021, the Fifth Circuit affirmed Judge Kacsmaryk’s decision and injunction of the termination of RMX.  In June 2022, however, the Supreme Court reversed, holding that the Biden Administration can end RMX, that the injunction was unlawful, and that the lower courts were wrong to ignore the Biden Administration’s second attempt to end RMX, in October 2021.  

Following that decision of the Supreme Court, the case was returned to the district court in early August 2022.  Texas and Missouri then filed a second amended complaint to challenge the October 2021 memo terminating RMX.  The States also filed a motion requesting that the termination of RMX be “postponed” (i.e., blocked) during the pendency of the case. That motion was fully briefed in September 2022. 

On December 15, 2022, Judge Kacsmaryk issued an opinion granting Texas’ motion to “stay” the termination of RMX, holding again that the federal government did not go through the required procedures.  The Biden Administration appealed that decision to the Fifth Circuit two months later, but then voluntarily dismissed the appeal (before it was briefed) in May 2023.

On July 17, 2023, Judge Kacsmaryk granted the parties’ motion to set a schedule to further brief any remaining issues in the case. Under that schedule, the parties each filed two briefs, the last in early October 2023. The parties are now just waiting for Judge Kacsmaryk to decide any issues remaining to enter final judgment (which could then be appealed again to the Fifth Circuit).

Technical Details

Texas and Missouri allege that the termination of RMX: was arbitrary and capricious, in violation of the Administrative Procedure Act; is not in accordance with mandatory detention provisions in 8 U.S.C. § 1225; violates the Take Care Clause (which requires the President to “take Care that the Laws be faithfully executed”); and breaches a highly unusual “agreement” the Trump Administration signed with Texas on December 31, 2020 (i.e., post-election and just before President Biden was inaugurated), under which the federal government purportedly agreed to “consult” with Texas before ending MPP.

Judge Kacsmaryk granted summary judgment to Texas and Missouri on their claims that the MPP termination was arbitrary and capricious and that it violated 8 U.S.C. § 1225.  Judge Kacsmaryk did not reach the Take Care claim and dismissed as moot Texas’s claim based on the putative agreement, which expired by its own terms on August 1, 2021.

Texas’s proposed Second Amended Complaint (challenging the Oct. 2021 memo) asserts only an arbitrary and capricious claim; it is modeled on Justice Alito’s dissent in Biden v. TexasThe States’ motion to postpone is under 5 U.S.C. § 705; they argue that such relief is not prohibited by U.S.C. § 1252(f)(1). Judge Kacsmaryk agreed with the States.


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