Skip to main content

In August 2021, West Virginia 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 asylum applications.  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, West Virginia claims that the federal government cannot legally end MPP and that, even if it theoretically can end the program, it did not go through the proper procedures to do so.  

In January 2022, Judge Kleeh granted the federal government’s motion to stay (pause) this case while the Supreme Court heard the Biden Administration’s appeal of the Fifth Circuit’s decision in the (extremely similar) Texas RMX case.  The Supreme Court issued an opinion in that case on June 30, 2022.

In mid-March 2023–after no activity in this case for more than a year–West Virginia filed a motion asking Judge Kleeh to preliminarily enjoin (block) the October 2021 decision to end RMX. That decision was already paused three months prior in the Texas RMX case, but West Virginia sought additional relief: an order requiring the Biden Administration to try to restart RMX (which Mexico has already rejected). 

In late April 2023, West Virginia withdrew its motion for a preliminary injunction and was granted leave to amend its complaint again after the Supreme Court decided United States v. Texas.

In early July 2023–after the Supreme Court held in United States v. Texas that Texas lacked standing–West Virginia voluntarily dismissed this case.

Technical Summary

West Virginia alleges that: the termination of RMX was arbitrary and capricious, in violation of the Administrative Procedure Act; the reimplementation of RMX was arbitrary and capricious and exceeded the federal government’s authority; both the termination of RMX and its reimplementation both violate the mandatory detention provisions in 8 U.S.C. § 1225 and the Constitution’s Take Care Clause (which requires the President to “take Care that the Laws be faithfully executed”). 

West Virginia’s motion for a preliminary injunction argued the RMX termination was arbitrary and capricious because it failed to consider how terminating RMX would affect DHS’s policing of fentanyl trafficking.​​​​​


Blue and white cloud graphic with text that says "Freedom to Welcome" Justice Action Center, RAICES and UCLA Center for Immigration Law and Policy on the bottom.


Defend Humanitarian Parole Today!