Federal Judge's Ruling On Remain-in-Mexico

Case 2:21-cv-00067-Z Document 94 Filed 08/13/21 Page 1 of 53 PageID 2899
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
THE STATE OF TEXAS, §

THE STATE OF MISSOURI, §
§
Plaintiffs, §
§
v. § 2:21-CV-067-Z
§
JOSEPH R. BIDEN, JR. et al., §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
The Court enters the below-listed findings of fact and conclusions of law pursuant to Rule
52(a) of the Federal Rules of Civil Procedure after a consolidated hearing and trial on the merits
on Plaintiff States Texas and Missouri’s various claims against the federal Defendants. 1 For the
reasons that follow, the Court FINDS and CONCLUDES that Plaintiffs are entitled to relief on
their APA and statutory claims against Defendants. The Court will therefore enter judgment in
favor of Plaintiffs. The Court also crafts injunctive relief to ensure Plaintiffs receive a full remedy.
I. PROCEDURAL BACKGROUND
Only four months old, this case already has a complicated procedural history. Thus, the
Court will quickly summarize the record before entering its findings of fact and conclusions of
law.
On April 13, 2021, Plaintiffs filed this suit challenging the temporary suspension of the
Migrant Protection Protocols (“MPP”). ECF No. 1. MPP was a program implemented by the
1
Defendants are the United States of America; President Biden in his official capacity; the Department of Homeland
Security (“DHS”) and DHS Secretary Mayorkas in his official capacity; the United States Customs and Border
Protection (“CBP”) and Acting Commissioner of CBP Troy Miller in his official capacity; the United States
Immigration and Customs Enforcement “ICE” and Acting ICE Director Tae Johnson; and the United States
Citizenship and Immigration Services (“CIS”) and Acting CIS Director Tracy Renaud in her official capacity.
Department of Homeland Security that returned some aliens temporarily to Mexico during the
pendency of their removal proceedings. Specifically, Plaintiffs alleged that DHS’s “two-sentence,
three-line memorandum” that suspended enrollments in the Migrant Protection Protocols pending
review of the program was a violation of the APA, 8 U.S.C § 1225, the Constitution, and a binding
agreement between Texas and the federal government. See ECF No. 1 at 4; ECF No. 45 (showing
the original administrative record to consist solely of the Secretary’s January 20 Memorandum
without any supporting documentation).
On May 3, Defendants made a motion to transfer this case to the Southern District of Texas.
ECF No. 11. On June 3, the Court denied this motion in a written order. See ECF No. 47 at 9
(“Defendants’ evidence, taken as a whole, does not establish that the convenience of the parties
and witnesses will be enhanced by transferring this case.”).
On May 14, Plaintiffs moved for a preliminary injunction. ECF No. 30. But before briefing
was concluded, DHS completed its review of MPP and issued a new memorandum (the “June 1
Memorandum”) that permanently terminated MPP. ECF No. 46. The Court concluded the June 1
Memorandum mooted Plaintiffs’ original complaint but allowed Plaintiffs to amend their
complaint and file a new motion seeking to enjoin the June 1 Memorandum. See ECF No. 52 at 3
(“[T]he January 20 Memorandum expired upon the completion of DHS’s review of the program.”).
Accordingly, Plaintiffs amended their complaint and renewed their motion for a
preliminary injunction. See ECF Nos. 48, 53. On June 22, Defendants filed the administrative
record. ECF No. 61. Three days later, Defendants filed their response to Plaintiffs’ motion. ECF
No. 63. Plaintiffs filed their reply on June 30.
But in addition to opposing Plaintiffs’ Motion, Defendants also moved to strike the entire
appendix attached to Plaintiffs’ Motion because it arguably ran afoul of the “record rule.” The
2
Court expedited briefing on this motion and denied the motion by written order for the reasons
stated in ECF No. 76.
Next, the parties agreed with the Court that this case involved mainly questions of law.
Accordingly, the parties favored consolidating the preliminary injunction hearing with the trial on
the merits pursuant to Fed. R. Civ. P. 65(a)(2). ECF No. 68. The Court ordered the consolidation,
provided notice to the parties, and allowed each party to file a supplemental brief before the
hearing. Id.
Lastly, on July 20, two days before the hearing, Defendants filed a notice of a “corrected
administrative record.” ECF No. 78. By this notice, Defendants added the 2019 DHS assessment
of MPP to the administrative record — even though Defendants knew for at least three weeks that
the document was not included in the certified administrative record. ECF No. 85 at 2. Plaintiffs
moved to strike this last-minute addendum to the administrative record. The Court denied that
motion by written order on July 21. ECF No. 85 (“The delay between the government’s acquiring
knowledge of the missing document and its filing of notice with the Court comes perilously close
to undermining the presumption of administrative regularity. But the Court finds the presumption
is not overcome in this case.”).
On July 22, the Court held a consolidated hearing and bench trial on the merits. The parties
filed their proposed findings of fact and conclusions of law on July 27. ECF Nos. 91, 92. The
parties also filed supplemental briefs on the scope of relief available to Plaintiffs. ECF Nos. 90,
93. Pursuant to Fed. R. Civ. P. 52(a), the Court may now enter its findings of facts and conclusions
of law.
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II. EVIDENTIARY OBJECTIONS 2
1. At the bench trial, Defendants made several objections to Plaintiffs’ exhibits which the
Court deferred ruling upon. Trial Tr. 8–30. The Court now overrules Defendants’ objections under
Fed. R. Evid. 401 as the exhibits are relevant to Plaintiffs’ claims and overrules Defendants’
objections under Fed. R. Evid. 403. “Rule 403 assumes a trial judge is able to discern and weigh
the improper inferences that a jury might draw from certain evidence, and then balance those
improprieties against probative value and necessity. Certainly, in a bench trial, the same judge can
also exclude those improper inferences from his mind in reaching a decision.” Gulf States Util.
Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. Unit A Jan. 1981).
2. The Court overrules Defendants’ privilege objections as to Exhibits A10 and C. The
content Defendants seek to protect has been in the public record for months. Even if Defendants
were unaware of Exhibit A10 and C at the time the exhibits were published, Defendants have been
on notice since June 8, 2021, when Plaintiffs filed their Appendix in Support. ECF No. 54. The
Court finds Defendants’ privilege objections to be untimely and moot.
3. The Court sustains Defendants’ hearsay objections under Fed. R. Evid. 802 as to Plaintiffs’
Exhibits A-7, A-9, A-11, A-12, A-13, and A-15 to the extent the information within the exhibits
is offered for the truth of the matters asserted.
4. The Court overrules Defendants’ objections under Fed. R. Evid. 702 as to Plaintiffs’
Exhibits D, E, F, F-1, G, G-1, H, H-1, and I. Defendants object to these exhibits, generally arguing
Plaintiffs impermissibly offered expert testimony. See ECF No. 92 at 28. Defendants’ objections
fail to identify with specificity which declarants and which parts of each exhibit were
2
Citations to Plaintiffs’ Appendix in Support, found at ECF No. 54, are labeled App. ###. Citations to the
administrative record, found at ECF No. 61, are labeled AR ###.
4
impermissibly offered. Further, Defendants fail to state with specificity why each declarant is
unqualified.
5. Even so, the Court reviewed each declaration and finds Defendants’ objections
unpersuasive. For example, in reviewing Plaintiffs’ Exhibit D, Declaration of Mark Morgan, the
Court noted Mark Morgan served as the Acting Commissioner of the United States Customs and
Border Patrol from 2019-2021. App. 390. Prior to that service, Mr. Morgan served as the Acting
Chief of the United States Immigration and Customs Enforcement. Id. Prior to that assignment,
Mr. Morgan served twenty years as an FBI agent. Id. The Court finds Mr. Morgan more than
sufficiently qualified to opine and present testimony in the form of a declaration regarding
immigration laws, policies, procedures, and practices.
6. Any objections not previously discussed are overruled.
III. FINDINGS OF FACT 3
1. Because the Court consolidated the hearing on the motion with a trial on the merits, the
proper standard for factual findings is the preponderance of the evidence.
A. Overview of the relevant statutory framework
2. Section 1225 of Title 8 of the United States Code establishes procedures for DHS to process
aliens who are “applicant[s] for admission” to the United States, whether they arrive at a port of
entry or cross the border unlawfully. 8 U.S.C. § 1225(a)(1).
3
In preparing this memorandum opinion and order, the Court carefully considered the trial arguments, the record, and
the admitted exhibits and applied the standard in this circuit for findings of fact and conclusions of law. See Century
Marine Inc. v. United States, 153 F.3d 225, 231 (5th Cir. 1998) (discussing standard for findings and conclusions
under Rule 52). In accordance with that standard, the Court has not set out its findings and conclusions in “punctilious
detail” or “slavishly traced the claims issue by issue and witness by witness, or indulged in exegetics, parsing or
declaiming every fact and each nuance and hypothesis.” Id. The Court instead has limited its discussion to those legal
and factual issues that form the basis for its decision. Id.
Where appropriate, any finding of fact herein that should more appropriately be regarded as a conclusion of law shall
be deemed as such, and vice versa.
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3. An immigration officer must first inspect the alien to determine whether he is entitled to
be admitted. § 1225(a)(3). Section 1225(b)(2)(A) provides that, if an immigration officer
“determines” that an “applicant for admission” is “not clearly and beyond a doubt entitled to be
admitted,” then the alien “shall be detained for a proceeding under Section 1229a of this title” to
determine whether he will be removed from the United States.
4. Alternatively, if an alien lacks valid entry documentation or misrepresents his identity, he
shall be “removed from the United States without further hearing or review unless” he “indicates
either an intention to apply for asylum . . . or a fear of persecution.” § 1225(b)(1)(A)(i). If the alien
makes such a showing, then he “shall be detained for further consideration of the application for
asylum.” § 1225(b)(1)(B)(ii). Such an alien then would also be placed in a Section 1229a full
removal proceeding. See 8 C.F.R. § 208.30(f).
5. Under either route, Section 1229a proceedings involve a hearing before an immigration
judge with potential review by the Board of Immigration Appeals. 8 U.S.C. § 1229a; 8 C.F.R. §
1003.1. In a full removal proceeding, the government may charge the alien with any applicable
ground of inadmissibility, and the alien may seek asylum or any other form of relief or protection
from removal to his home country. 8 U.S.C. § 1229a(a)(2), (c)(4).
6. Most importantly for this case, when DHS places an applicant for admission into a full
removal proceeding under Section 1229a, the alien is subject to mandatory detention during that
proceeding. § 1225(b)(2)(A) (“[I]f the examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be
detained for a proceeding under Section 1229a of this title.”) (emphasis added). DHS does retain
the discretion to parole certain aliens “for urgent humanitarian reasons or significant public
benefit.” § 1182(d)(5)(A).
6
7. But Congress allows DHS an alternative to mandatory detention in the United States: “In
the case of an alien described in [Section 1225(b)(2)(A)] who is arriving on land (whether or not
at a designated port of arrival) from a foreign territory contiguous to the United States, [DHS] may
return the alien to that territory pending a proceeding under Section 1229a of this title.”
§ 1225(b)(2)(C). This contiguous-territory-return authority enables DHS to avoid having to detain
aliens arriving on land from Mexico (or Canada), and instead allows DHS to temporarily return
those aliens to the foreign territory from which they just arrived pending their immigration
proceedings.
B. MPP was created to combat an influx of illegal aliens during the Trump
administration
8. In 2018, the southern border of the United States experienced an immigration surge and a
resulting “humanitarian and border security crisis.” AR 186; App. 005. Federal officials
encountered an approximately 2,000 inadmissible aliens each day in 2018. App. 005. By May
2019, that number had increased to 4,800 aliens crossing the border daily. AR 682.
9. The resulting influx of immigrants had “severe impacts on U.S. border security and
immigration operations.” App. 302. But most aliens lacked meritorious claims for asylum — “only
14 percent of aliens who claimed credible fear of persecution or torture were granted asylum
between Fiscal Year 2008 and Fiscal Year 2019.” App. 005. With so many “fraudulent asylum
claims,” “[t]he dramatic increase in illegal migration” was “making it harder for the U.S. to devote
appropriate resources to individuals who [were] legitimately fleeing persecution.” App. 302–03.
10. The influx did not just divert resources from legitimate asylum seekers, but illegal aliens
with meritless asylum claims were being released into the United States. “[M]any of these
individuals . . . disappeared into the country before a judge denie[d] their claim and simply
bec[a]me fugitives.” App. 303. “Between Fiscal Year 2008 and Fiscal Year 2019, 32 percent of
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aliens referred to [the Executive Office for Immigration Review] absconded into the United States
and were ordered removed in absentia.” App. 005.
11. In response, the Trump Administration implemented a program known as the Migrant
Protection Protocols. On December 20, 2018, the Secretary of Homeland Security announced the
MPP program, under which DHS would begin the process of invoking the authority provided at
§ 1225(b)(2)(C). 4 This statutory authority allows DHS to return to Mexico certain third-country
nationals — i.e., aliens who are not nationals or citizens of Mexico — arriving in the United States
from Mexico for the duration of their removal proceedings under 8 U.S.C. § 1229a. AR 151.
12. The goal of MPP was to ensure that “[c]ertain aliens attempting to enter the U.S. illegally
or without documentation, including those who claim asylum, will no longer be released into the
country, where they often fail to file an asylum application and/or disappear before an immigration
judge can determine the merits of any claim.” App. 303–04.
13. The same day, the United States obtained the Government of Mexico’s agreement to
temporarily permit “entry of certain foreign persons from within the United States who have
entered that country through a port of entry or who have been apprehended between ports of entry
and interviewed by the authorities of migration authorities of that country, and have received a
notice to attend a hearing before a judge.” AR 149.
14. On January 25, 2019, DHS issued guidance for implementation of MPP. Three days later,
DHS began implementing MPP, initially in San Diego, California, then El Paso, Texas, and
Calexico, California, and then nationwide. AR 155, 156, 684.
15. Under the issued guidance, DHS officers determined whether aliens were amenable to the
MPP process. If they were, the DHS officer could issue a Notice to Appear (NTA), place the alien
4
Section 235(b)(2)(C) of the Immigration and Nationality Act (INA)
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into a removal proceeding under Section 1229a, and then return the alien to Mexico to await
removal proceedings unless the alien affirmatively demonstrated a fear of persecution or torture in
Mexico. AR 161.
16. Certain categories of noncitizens were not amenable to MPP: unaccompanied alien
children — as defined in 6 U.S.C. § 279(g); citizens or nationals of Mexico; noncitizens processed
for expedited removal under 8 U.S.C. § 1225(b)(1); noncitizens “in special circumstances”;
returning lawful permanent residents seeking admission; noncitizens with an advance parole
document or in parole status; noncitizens with known physical or mental health issues; noncitizens
with a criminal history or a history of violence; noncitizens of interest to the Government of
Mexico or the United States; any noncitizen who demonstrated that they are more likely than not
to face persecution or torture in Mexico; and other noncitizens at the discretion of the Port Director
or Border Patrol counterpart. AR 161.
17. On February 12, 2019, U.S. Immigration and Customs Enforcement issued guidance on
MPP to its field offices, in anticipation of expansion of MPP across the border. AR 165–70. After
June 7, 2019, DHS began constructing temporary structures at the southern border in Brownsville
and Laredo, Texas, to hold immigration hearings for noncitizens subject to MPP, and notified
Congress of their completion in August 2019. These temporary facilities functioned as virtual
courtrooms, with immigration judges appearing by video connection from their courthouses within
the United States. AR 208, 684.
C. The Department of Homeland Security found MPP to be effective
18. Upon review, DHS found MPP to be effective. In its October 28, 2019, Assessment of the
Migrant Protection Protocols, DHS stated that “MPP has demonstrated operational effectiveness.”
AR 683. DHS noted that it had “returned more than 55,000 aliens to Mexico under MPP” and that
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“MPP has been an indispensable tool in addressing the ongoing crisis at the southern border and
restoring integrity to the immigration system.” Id.
19. Specifically, DHS found “[s]ince a recent peak of more than 144,000 in May 2019, total
enforcement actions . . . have decreased by 64% through September 2019.” Id. Moreover, DHS
found “[b]order encounters with Central American 5 families — who were the main driver of the
crisis and comprise a majority of MPP-amenable aliens — have decreased by approximately 80%.”
Id.
20. Additionally, DHS stated “although MPP is one among many tools that DHS employed in
response to the border crisis, DHS has observed a connection between MPP implementation and
decreasing enforcement actions at the border — including a rapid and substantial decline in
apprehensions in those areas where the most amenable aliens have been processed and returned to
Mexico pursuant to MPP.” Id.
21. In addition to finding MPP effective at deterring border encounters and decreasing the
number of illegal aliens present in the United States, DHS also found that “MPP is restoring
integrity to the [immigration] system.” Id. As examples of this restoration, DHS found that “MPP
returnees with meritorious claims can be granted relief or protection within months, rather than
remaining in limbo for years while awaiting immigration court proceedings in the United States.”
Id. at 684. And “MPP returnees who do not qualify for relief or protection are being quickly
removed from the United States. Moreover, aliens without meritorious claims — which no longer
constitute a free ticket into the United States — are beginning to voluntarily return home.” Id.
22. DHS did recognize that there were some flaws in the original implementation of MPP. On
October 25, 2019 — just three days before releasing its assessment of MPP — DHS released the
5
These countries are also sometimes referred to as the “Northern Triangle.” The Northern Triangle countries are
Guatemala, Honduras, and El Salvador.
10
Migrant Protection Protocols Red Team Report. AR 192. This report found several issues and
recommended improvements — but not termination — of MPP. Some of these improvements
included standardizing documents and protocols to ensure aliens received a fair process and
hearing on their claims. AR 192–201.
23. MPP also faced legal challenges. In Wolf v. Innovation Law Lab, a district court enjoined
the implementation of MPP. 366 F. Supp. 3d 1110 (N.D. Cal. 2019). The Ninth Circuit stayed that
injunction, but a separate panel affirmed the injunction on the merits. 951 F.3d 1073 (9th Cir.
2020). The Ninth Circuit then granted a stay as far as the district court’s injunction applied outside
the territorial limits of the Ninth Circuit but otherwise denied the government’s request for a stay.
951 F.3d 986 (9th Cir. 2020).
24. But the Supreme Court stayed the injunction in full granting the Trump Administration a
legal victory. 140 S. Ct. 1564 (Mar. 11, 2020). The Supreme Court also granted certiorari. 141
S. Ct. 617 (Oct. 19, 2020). The case was later dismissed from the merits docket as moot. Wolf,
2021 WL 2520313, at *1 (June 20, 2021) (citing United States v. Munsingwear, Inc., 340 U.S. 36
(1950)).
25. But throughout the legal challenges, DHS found MPP was meeting its intended goals.
AR 554. First, DHS found “MPP provides a streamlined pathway for aliens to defensively apply
for protection or relief from removal, while upholding non-refoulement obligations through
screenings of fear in Mexico.” Id. Second, DHS found “MPP provides a pathway for aliens to
proceed efficiently through the U.S. immigration court processes, as compared to non-detained
dockets.” Id. at 555. Third, DHS found “MPP decreases the number of aliens released into the
interior of United States for the duration of their U.S. removal proceedings.” Id. And fourth, DHS
found “MPP implementation contributes to decreasing the volume of inadmissible aliens arriving
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in the United States on land from Mexico — including those apprehended between the [ports of
entry].” Id.
26. By December 31, 2020, DHS had enrolled 68,039 aliens in the MPP program. Id. 6 DHS
concluded its review of MPP and found it to be a “cornerstone” of DHS’s efforts to restore integrity
to the immigration system:
These unprecedented [immigration] backlogs have strained DHS resources and

challenged its ability to effectively execute the laws passed by Congress and deliver
appropriate immigration consequences: those with meritorious claims can wait
years for protection or relief, and those with non-meritorious claims often remain
in the country for lengthy periods of time.
This broken system has created perverse incentives, with damaging and far-
reaching consequences for both the United States and its regional partners. In Fiscal
Year 2019, certain regions in Guatemala and Honduras saw 2.5% of their
population migrate to the United States, which is an unsustainable loss for these
countries.
MPP is one among several tools DHS has employed effectively to reduce the
incentive for aliens to assert claims for relief or protection, many of which may be
meritless, as a means to enter the United States to live and work during the
pendency of multi-year immigration proceedings. Even more importantly, MPP
also provides an opportunity for those entitled to relief to obtain it within a matter
of months. MPP, therefore, is a cornerstone of DHS’s ongoing efforts to restore
integrity to the immigration system — and of the United States’ agreement with
Mexico to address the crisis at our shared border.
AR 687.
6
The COVID-19 pandemic accounted for the markedly fewer aliens enrolled in MPP in 2020. Due to the pandemic,
MPP removal proceedings began to be postponed on April 22, 2020. AR 466. Additionally, beginning in March 2020,
DHS assisted in the enforcement of Title 42 — a statutory provision not relevant to this suit — to expel certain
amenable noncitizens from Mexico and the Northern Triangle countries back to Mexico, and certain amenable
noncitizens from other countries to their countries of origin if Mexico will not accept them, with limited exceptions.
AR 621–22, 631. Title 42 expulsions accounted for 102,234 and 111,175 repatriations in 2020 and the first quarter of
2021. AR 660.
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D. During the transition period, the outgoing Trump Administration entered into
an Agreement with Texas and warned the incoming Biden Administration of the
dangers of ending MPP
1. DHS and Texas enter into an Agreement
27. Shortly before leaving office, the Trump Administration entered into a Memorandum of
Understanding (the “Agreement”) between Texas and DHS. App. 317–26. The Agreement was
finalized on January 8, 2021. Id. at 325.
28. The Agreement purportedly established “a binding and enforceable commitment between
DHS and Texas,” in which Texas agreed to “provide information and assistance to help DHS
perform its border security, legal immigration, immigration enforcement, and national security
missions.” Id. at 319. In return, DHS agreed “to consult Texas and consider its views before taking
any action, adopting or modifying a policy or procedure, or making any decision that could:
(1) reduce, redirect, reprioritize, relax, or in any way modify immigration

enforcement;
(2) decrease the number of ICE agents performing immigration enforcement

duties;
(3) pause or decrease the number of returns or removals of removable or

inadmissible aliens from the country;
(4) increase or decline to decrease the number of lawful, removable, or

inadmissible aliens;
(5) increase or decline to decrease the number of releases from detention;
(6) relax the standards for granting relief from return or removal, such as
asylum;
(7) relax the standards for granting release from detention;
(8) relax the standards for, or otherwise decrease the number of, apprehensions
or administrative arrests;
(9) increase, expand, extend, or in any other way change the quantity and
quality of immigration benefits or eligibility for other discretionary actions
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for aliens; or
(10) otherwise negatively impact Texas.
In case of doubt, DHS will err on the side of consulting with Texas.” Id. at 319.
29. To enable this consultation process, the Agreement requires DHS to “[p]rovide Texas with
180 days’ written notice . . . of any proposed action” subject to the consultation requirement. Id.
at 320. That would give Texas “an opportunity to consult and comment on the proposed action.”
Id. After Texas submitted its views, “DHS will in good faith consider Texas’s input and provide a
detailed written explanation of the reasoning behind any decision to reject Texas’s input before
taking any action” covered by the Agreement. Id.
30. The parties agree DHS did not follow these procedures when it issued the June 1
Memorandum. But DHS did send a letter that purported to terminate the Agreement “effective
immediately” on February 2, 2021. Id. at 347–48. Texas avers that the termination letter also did
not comply with the Agreement and chose to interpret a letter as a notice of intent to terminate.
ECF No. 53 at 21. Accordingly, even under Texas’s view, the Agreement is only “binding until
August 1, 2021.” Id.
2. The Biden Administration was warned of the consequences of terminating MPP
31. During the latter half of 2020, the Biden transition team met with career staff from DHS.
According to Mark Morgan — who is former Acting Commissioner of CBP, former Acting
Director of ICE, and Marine — CBP “career employees . . . fully briefed the Biden transition
officials on the importance of MPP and the consequences that would follow a suspension of MPP.”
App. 399. Morgan stated: “transition personnel were specifically warned that the suspension of the
MPP, along with other policies, would lead to a resurgence of illegal aliens attempting to illegally
enter our [southwest border].” Id. And officials were also “warned smuggling organizations would
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exploit the rescission and convince migrants the U.S. borders are open. They were warned the
increased volume was predictable and would overwhelm Border Patrol’s capacity and facilities,
as well as HHS facilities.” Id.
E. The Biden Administration first suspended, then terminated MPP.
32. The incoming Biden Administration (1) knew MPP had been found effective by DHS as a
matter of policy, (2) knew MPP had been successfully defended in court, and (3) had received
warnings about the consequences that would attend the repealing of MPP. But the Biden
Administration suspended new enrollments in MPP on its first day in office. On January 20, 2021,
the Acting Secretary of DHS wrote that “[e]ffective January 21, 2021, the Department will suspend
new enrollments in the Migrant Protection Protocols (MPP), pending further review of the
program. Aliens who are not already enrolled in MPP should be processed under other existing
legal authorities.” AR 581.
33. Since that day, DHS has not offered a single justification for suspending new enrollments
in the program during the period of review. Indeed, when the original administrative record was
filed prior to the June 1 Memorandum’s issuance, it contained only a single document — the
January 20 Memorandum. See ECF No. 45. There was no cost-benefit analysis or any sort of
reasoned decisionmaking for a court to review.
34. But the flaws of the January 20 Memorandum were mooted when DHS completed its
review and issued the June 1 Memorandum that terminated the MPP program. AR 1–7; ECF No.
52 at 3 (“[T]he January 20 Memorandum expired upon the completion of DHS’s review of the
program.”).
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35. In the June 1 Memorandum, DHS Secretary Mayorkas found that his “review confirmed
that MPP had mixed effectiveness in achieving several of its central goals and that the program
experienced significant challenges.” AR 3.
36. In particular, Secretary Mayorkas made several conclusions. First, the Secretary
“determined that MPP does not adequately or sustainably enhance border management in such a
way as to justify the program’s extensive operational burdens and other shortfalls.” Id.
37. Second, the Secretary was concerned that MPP did not ensure that aliens waiting in Mexico
were able to attend their immigration proceedings. “The focus on speed was not always matched
with sufficient efforts to ensure that conditions in Mexico enabled migrants to attend their
immigration proceedings.” Id. at 4. The Secretary noted that “[i]n particular, the high percentage
of cases completed through the entry of in absentia removal orders (approximately 44 percent,
based on DHS data) raises questions for me about the design and operation of the program.” Id.
38. Third, the Secretary found that MPP was “intended to reduce burdens on border security
personnel and resources, but over time the program imposed additional responsibilities that
detracted from the Department’s critically important mission sets.” Id. The Secretary also added
that “[a] number of the challenges faced by MPP have been compounded by the COVID-19
pandemic.” Id. The Secretary concluded by stating “as a result, any benefits the program may have
offered are now far outweighed by the challenges, risks, and costs that it presents.” Id.
39. The June 1 Memorandum contained no discussion or analysis of DHS’s previous
assessment that MPP removed “perverse incentives” and decreased the number of aliens
attempting to illegally cross the border.
40. The June 1 Memorandum contained no discussion or analysis regarding DHS’s ability to
fulfill its statutory obligation to detain certain classes of aliens in the absence of MPP.
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F. The termination of MPP has and will continue to increase the number of aliens
being released into the United States and has and will continue to impose harms
on Plaintiff States Texas and Missouri
1. The termination of MPP increases the number of aliens present in the United States
41. First, Defendants’ termination of MPP necessarily increases the number of aliens present
in the United States regardless of whether it increases the absolute number of would-be
immigrants. MPP authorized the return of certain aliens to Mexico. Without MPP, Defendants are
forced to release and parole aliens into the United States because Defendants simply do not have
the resources to detain aliens as mandated by statute. App. 307 (“[R]esource constraints during the
[May 2019] crisis, as well as other court-ordered limitations on the ability to detain individuals,
made many releases inevitable.”); App. 330 n.7 (“Continued detention of a migrant who has more
likely than not demonstrated credible fear is not in the interest of resource allocation.”).
42. Second, the termination of MPP has contributed to the current border surge. DHS
previously acknowledged that “MPP implementation contribute[d] to decreasing the volume of
inadmissible aliens arriving in the United States on land from Mexico.” AR 555. MPP removed
the “perverse incentives” which enticed aliens with “a free ticket into the United States.” AR 684,
687; Trial Tr. 147:23–25 (Defense counsel: “I think it’s fair to say that [MPP] probably deterred
some individuals from coming to the United States.”).
43. Since MPP’s termination, the number of enforcement encounters on the southwest border
has skyrocketed. Defendants’ data shows encounters jumping from 75,000 in January 2021, when
MPP was suspended, to about 173,000 in April 2021, when this case was filed. AR 670. Since
then, encounters have continued to increase: CBP data shows nearly 189,000 encounters occurred
in June 2021. U.S. Customs and Border Protection, Southwest Land Border Encounters, CBP
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(Aug. 3, 2021), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters; FRE
201. 7
44. Even if the termination of MPP played no role in the increasing number of migrants, the
lack of MPP as a tool to manage the influx means that more aliens will be released and paroled
into the United States as the surge continues to overwhelm DHS’s detainment capacity.
45. Texas is a border state. But Missouri also faces an increased number of aliens due to the
termination of MPP. Statistically, for every 1,000 aliens who remain unlawfully in the United
States, fifty-six end up residing in Missouri. App. 006.
2. Texas and Missouri have suffered injuries because of the increased numbers of
aliens present in their states
a. Driver’s Licenses
46. As a result of the termination of MPP, some aliens who would have otherwise been enrolled
in MPP are being released or paroled into the United States and will obtain Texas driver’s licenses.
7
Moreover, the Court takes judicial notice of the sworn statement of David Shahoulian, Assistant Secretary for Border
and Immigration Policy at DHS — filed in the District Court of the District of Columbia in Title 42 related litigation.
ECF No. 113-1 at 7–9, No. 1:21-CV-100-EGS (D.D.C. Aug. 2, 2021) (emphasis added). The Court finds David
Shahoulian is a “source[] whose accuracy cannot reasonably be questioned.” FRE 201.
In May and June 2021, for example, CBP recorded over 180,000 and 188,000 encounters,
respectively, at the southwest border . . . These constitute the highest numbers of monthly encounters
recorded by CBP in more than twenty years, including during previous surges when the Department
was not constrained by COVID-19 capacity considerations. As noted above, due to COVID-19-
related guidance, border facilities are currently expected to operate at only 25 to 50 percent capacity,
depending on individual facility infrastructure and facility type.
Based on preliminary data, the number of border encounters continued to increase in July 2021.
Over the first 29 days of July, CBP encountered an average of 6,779 individuals per day, including
616 unaccompanied children and 2,583 individuals in family units. Overall, according to
preliminary data, CBP is likely to have encountered about 210,000 individuals in July, the highest
monthly encounter number since Fiscal Year 2000. July also likely included a record number of
unaccompanied child encounters, exceeding 19,000, and the second-highest number of family unit
encounters, at around 80,000.
...
Based on current trends, the Department expects that total encounters this fiscal year are likely to
be the highest ever recorded.
18
AR555; AR587–588. Texas provides driver’s licenses to aliens so long as their presence in the
United States is authorized by the federal government. App. 426. Each additional customer seeking
a Texas driver’s license imposes a cost on Texas. App. 427.
47. Because “driving is a practical necessity in most of” Texas, “there is little doubt that many”
aliens present in Texas because of MPP’s termination would apply for driver’s licenses. Texas v.
United States, 809 F.3d 134, 156 (5th Cir. 2015). The Chief of the Texas Department of Public
Safety’s Driver License Division gave estimates of the costs of providing additional driver’s
licenses. App. 428.
48. Missouri likewise faces a cost of verifying lawful immigration status for each additional
customer seeking a Missouri driver’s license. App. 006.
b. Education
49. Some school-age child aliens who would have otherwise been enrolled in MPP are being
released or paroled into the United States. AR423; AR431; AR496; AR547; AR617. Texas
estimates that the average funding entitlement for 2021 will be $9,216 per student in attendance
for an entire school year. App. 440. For students qualifying for bilingual education services, it
would cost Texas $11,432 for education per child for attendance for an entire school year. Id. The
total costs to Texas (and Missouri) of providing public education for illegal alien children will rise
in the future as the number of illegal alien children present in the State increases. App. 442.
c. Healthcare
50. Some aliens who would have otherwise been enrolled in MPP are being released or paroled
into the United States and will use state-funded healthcare services or benefits in Texas and
Missouri. AR555; AR587–588; App. 006. Texas funds three healthcare programs that require
significant expenditures to cover illegal aliens: the Emergency Medicaid Program, the Family
19
Violence Program, and the Texas Children’s Health Insurance Program. App. 450. Texas is
required by federal law to include illegal aliens in its Emergency Medicaid Program. 42 C.F.R. §
440.255(c). Texas also incurs costs for uncompensated care provided by state public hospital
districts to illegal aliens. App. 452. The total costs to the State will increase as the number of aliens
within the state increases. Id.
51. Missouri is similarly situated. App. 006.
d. Law enforcement and correctional costs
52. Some aliens who would have otherwise been enrolled in MPP are being released or paroled
into the United States and will commit crimes in Texas and Missouri. AR555; AR587–588; App.
006; App. 362–63; App. 372; App. 388. In one year alone, the Texas Department of Criminal
Justice housed 8,951 illegal alien criminals for a total of 2,439,110 days at a cost of over $150
million, with less than $15 million reimbursed by the federal government. App. 460. “[T]o the
extent the number of aliens in [Texas Department of Criminal Justice] custody increases, TDCJ’s
unreimbursed expenses will increase as well.” App. 460.
53. Some aliens who would have otherwise been enrolled in MPP are victimized by human
traffickers in Texas. App. 406; App. 418. Aliens “are particularly susceptible to being trafficked.”
App. 419. Increasing the number of aliens “present in the United States, including those claiming
asylum, is likely to increase human trafficking.” App. 423; App. 409. Missouri is likewise a
destination and transit State for human trafficking of migrants from Central America who have
crossed the border illegally. App. 409–410.
54. Human trafficking causes fiscal harm to Texas and Missouri. App. 418–19.
20
e. Parens patriae
55. Aliens who would have otherwise been enrolled in MPP are being paroled into the United
States. App. 307; App.330 n.7; AR 183–84. Aliens paroled into the United States are eligible for
work authorization thereby increasing the supply of workers by some amount. App. 337; App.
555. Some aliens who would have otherwise been enrolled in MPP will work for employers in
Texas or Missouri. AR 555; AR 587–88; App. 362–63; App. 372; App. 388.
IV. CONCLUSIONS OF LAW
The Court’s opinion proceeds in the following order: (1) the Court finds that it has
jurisdiction and Plaintiffs have established standing; (2) the Court concludes there are no other
jurisdictional or procedural hurdles to judicial review of Plaintiffs’ claims; (3) the Court proceeds
to the merits of Plaintiffs’ APA and statutory claims; (4) and then the Court declines to address
the merits of Plaintiffs’ constitutional and Agreement-based claims.
A. Plaintiffs have standing
1. Federal courts are courts of limited jurisdiction which possess only that power authorized
by Constitution and statute. Xitronix Corp. v. KLA-Tencor Corp., 916 F.3d 429, 435 (5th Cir.
2019). “The requirement that jurisdiction be established as a threshold matter spring[s] from the
nature and limits of the judicial power of the United States and is inflexible and without exception.”
Id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998)).
2. “[T]he states have the burden of establishing standing,” Texas, 809 F.3d at 150, by showing
“(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct
complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’”
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
21
3. “Each element [of standing] must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation” Lujan v. Defender of Wildlife, 504 U.S. 555, 561 (1992).
“And at the final stage, those facts (if controverted) must be ‘supported adequately by the evidence
adduced at trial.’” Id. (quoting Gladstone, Relators v. Village of Brentwood, 441 U.S. 91, 115 n.
31 (1979)).
4. Here, the Court consolidated the preliminary injunction hearing with trial on the merits, so
the preponderance of evidence standard applies. Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil
Corp., 968 F.3d 357, 367 (5th Cir. 2020).
1. Texas and Missouri have suffered harms that are concrete, non-speculative, and
are traceable to Defendants’ conduct — and are redressable.
5. First, Texas and Missouri have both shown that they have suffered and will continue to
suffer “concrete and particularized” injuries attributable to Defendants’ actions. Massachusetts v.
EPA, 549 U.S. 497, 517 (2007).
6. Plaintiffs have established that the termination of MPP will increase the cost of providing
driver’s licenses to aliens released and paroled into the United States, inflicting on the States an
actual and imminent injury. See Texas, 809 F.3d at 155 (“[L]icenses issued to beneficiaries would
necessarily be at a financial loss.”).
7. Second, Plaintiffs’ injuries are fairly traceable to the actions of Defendants. As stated
above, the termination of MPP necessarily increases the number of aliens released and paroled into
the United States and the Plaintiff States specifically.
8. Paroled and released aliens seeking to obtain driver’s licenses is the “the predictable effect
of Government action on the decisions of third parties.” Dep’t of Commerce v. New York, 139 S.
22
Ct. 2551, 2566 (2019); Texas, 809 F.3d at 156 (“[T]here is little doubt that many [aliens] would
[apply for driver’s licenses] because driving is a practical necessity in most of the state.”).
9. Third, the Court has the power to redress Plaintiffs’ injuries. The APA allows the Court to
“set aside agency action . . . [that is] arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706. Additionally, injunctive relief authorizing DHS officers
to return aliens to Mexico via the MPP program pending the resolution of their asylum claims
would decrease the number of aliens paroled and released into the United States and into Plaintiff
States specifically. Consequently, the amount of fiscal injury suffered by Plaintiffs would decrease.
10. Accordingly, the Court finds Plaintiffs have more likely than not established Article III
standing under the driver’s license theory of injury approved by applicable Fifth Circuit
precedent. 8
11. The same line of reasoning applies to the increased healthcare costs, education costs, and
enforcement and correctional costs that Plaintiffs will suffer because of the termination of MPP.
2. Plaintiffs have not established parens patriae standing
12. Texas and Missouri have not established by a preponderance of the evidence that they are
entitled to parens patriae standing.
13. Parens patriae is a type of standing that allows a state to sue a defendant to protect the
interests of its citizens. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,
600 (1982).
8
Even if Missouri has failed to establish standing, it does not prevent the Court from proceedings to the merits because
Texas has standing. See, e.g., Texas v. United States, No. 1:18-CV-00068, 2021 WL 3025857, at *18 (S.D. Tex. July
16, 2021) (Hanen, J.) (“Texas has standing. Since one of the Plaintiff States has standing, this Court need not analyze
the standing of any other plaintiff.”); Massachusetts, 549 U.S. at 518.
23
14. Preliminarily, in Alfred L. Snapp, the Supreme Court stated “[a] State does not have
standing as parens patriae to bring an action against the Federal Government.” Id. at 610 n. 16
(citing Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923)). This so-called Mellon bar does
not sweep as widely as it may seem. In Massachusetts v. EPA, the Supreme Court crafted a
distinction: “There is a critical difference between allowing a State ‘to protect her citizens from
the operation of federal statutes’ (which is what Mellon prohibits) and allowing a State to assert
its rights under federal law (which it has standing to do).” 549 U.S. at 520 n. 17 (citing Georgia v.
Pennsylvania R. Co., 324 U.S. 439, 447 (1945)).
15. Here, Texas is asserting rights under the INA rather than attempting to protect its citizens
from the operation of the INA. Accordingly, the Mellon bar does not apply. See, e.g., Texas v.
United States, 328 F. Supp. 3d 662, 694–98 (S.D. Tex. 2018).
16. “To have [parens patriae], standing the State must assert an injury to what has been
characterized as a ‘quasi-sovereign’ interest, which is a judicial construct that does not lend itself
to a simple or exact definition.” Alfred L. Snapp, 262 U.S. at 601. The Supreme Court then
articulated two general categories of “quasi-sovereign” interests: a state has an interest “in the
health and well-being — both physical and economic — of its residents in general” and a state has
an “interest in not being discriminatorily denied its rightful status within the federal system.” Id.
at 607.
17. Plaintiffs aver that they have standing under the first category because they allege the
termination of MPP forces their citizens to compete in distorted labor markets in which it is more
difficult to obtain a job. ECF No. 53 at 27–28. The Court finds this is a valid “quasi-sovereign”
interest. Texas, 328 F. Supp. 3d at 698.
24
18. Plaintiffs fail, however, to prove by a preponderance of the evidence that the termination
of MPP caused or will cause a distorted labor market. Plaintiffs’ entire argument rests on the
proposition that “the basic economic law of supply and demand applies to the labor market, so an
increase in the supply of illegal aliens authorized to work will harm the employment prospects of
Texans and Missourians competing with them.” ECF No. 53 at 28. There are no citations to studies,
articles, analyses, or anything else that would allow the Court to conclude that the termination of
MPP has distorted Texas’s or Missouri’s labor markets. See, e.g., Texas v. United States, No. 1:18-
CV-068, 2021 WL 3025857, at *15 (S.D. Tex. July 16, 2021) (discussing the addition of 114,000
work-eligible individuals who “Texas employers are financially incentivized under the
[Affordable Care Act] to hire.”).
19. Plaintiffs’ simple invocation of the law of supply and demand is not enough for the Court
to conclude that Plaintiffs carried their burden at the merits stage.
3. Plaintiffs are entitled to special solicitude
20. Texas and Missouri are entitled to special solicitude because “States are not normal
litigants for the purposes of invoking federal jurisdiction.” Massachusetts v. EPA, 549 at 518.
21. The Fifth Circuit has identified two additional factors that must be present in a case for
States to be entitled to special solicitude: the presence of a procedural right to challenge agency
action and the invasion of a “quasi-sovereign” interest. Texas, 809 F.3d at 152–53.
22. First, the Fifth Circuit has already held that the APA provides Texas the procedural right
needed for special solicitude. Id. at 152 (“The Clean Air Act’s review provision is more specific
than the APA’s, but the latter is easily adequate to justify ‘special solicitude’ here.”).
23. Second, the termination of MPP “affects the states’ ‘quasi-sovereign’ interests by imposing
substantial pressure on them to change their laws, which provide for issuing driver's licenses to
25
some aliens and subsidizing those licenses.” Id. at 153. As the Supreme Court noted: “When a
State enters the Union, it surrenders certain sovereign prerogatives.” Massachusetts v. EPA, 549
at 519. Like Massachusetts, Texas and Missouri surrendered their power over immigration when
they joined the Union. See Arizona v. United States, 567 U.S. 387, 394–400 (2012). Plaintiffs
States, like Massachusetts, “now rely on the federal government to protect their interests.” Texas,
809 F.3d at 154.
24. Accordingly, “[t]hese parallels confirm that [the termination of MPP] affects the states
‘quasi-sovereign’ interests.” Id.
25. As a result, although unnecessary to the Court’s finding of standing, the Court finds Texas
and Missouri are entitled to special solicitude in its standing analysis.
B. There are no jurisdiction or procedural hurdles to judicial review
1. The termination of MPP is final agency action
26. The APA states that “final agency action for which there is no other adequate remedy in a
court [is] subject to judicial review.” 5 U.S.C. § 704. In the Fifth Circuit, “whether an agency
action is final is a jurisdictional issue, not a merits question.” Peoples Nat’l Bank v. Office of the
Comptroller of the Currency of the U.S., 362 F.3d 333, 336 (5th Cir. 2004). “The Supreme Court
has long taken a pragmatic approach to finality.” Texas v. EEOC, 933 F.3d 433, 441 (5th Cir.
2019) (internal marks omitted).
27. Agency action is “final” only if it both (1) “consummate[es] the agency’s decisionmaking
process” and (2) determines “rights or obligations” or produces “legal consequences.” Bennett v.
Spear, 520 U.S. 154, 178 (1997).
28. The June 1 Memorandum meets both Bennett standards and is thus an action amenable to
judicial review.
26
29. First, the parties do not contest that the June 1 Memorandum marks the consummation of
the decisionmaking process. AR 002 (The June 1 Memorandum was published after the Secretary
“completed the further review undertaken pursuant to Executive Order 14010.”).
30. Second, the June 1 Memorandum produces legal consequences and determines rights and
obligations. EEOC, 933 F.3d at 445 (“[W]hether the agency action binds the agency indicates
whether legal consequences flow from that action.”).
31. The June 1 Memorandum had the immediate legal consequence of “terminating the MPP
program.” AR 002.
32. The June 1 Memorandum had the immediate legal consequence of rescinding “the
Memorandum issued by Secretary Nielsen dated January 25, 2019 entitled ‘Policy Guidance for
Implementation of the Migrant Protection Protocols,’ and the Memorandum issued by Acting
Secretary Pekoske dated January 20, 2021 entitled ‘Suspension of Enrollment in the Migrant
Protection Protocols Program.’” AR 007.
33. The June 1 Memorandum directed “DHS personnel, effective immediately, to take all
appropriate actions to terminate MPP, including taking all steps necessary to rescind implementing
guidance and other directives issued to carry out MPP.” Id. (emphasis added).
34. Moreover, the June 1 Memorandum determined rights and obligations. The June 1
Memorandum prevents DHS line officers from using MPP, a tool that was previously available to
them. “Where agency action withdraws an entity’s previously-held discretion, that action alters
the legal regime, binds the entity, and thus qualifies as final agency action.” EEOC, 933 F.3d at
442 (quoting Scenic Am., Inc. v. U.S. Dep’t of Transp., 836 F.3d 42, 56 (D.C. Cir. 2016)).
35. Accordingly, the June 1 Memorandum constitutes final agency action.
27
2. No statute precludes judicial review
36. Judicial review is presumptively available under the APA “except to the extent that statutes
preclude judicial review.” 5 U.S.C 701(a)(1); Texas, 809 F.3d at 163 (“[T]here is a ‘well-settled
presumption favoring interpretations of statutes that allow judicial review of administrative
action,’ and we will accordingly find an intent to preclude such review only if presented with ‘clear
and convincing evidence.’”) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64
(1993)).
37. “Whether and to what extent a particular statute precludes judicial review is determined
not only from its express language, but also from the structure of the statutory scheme, its
objectives, its legislative history, and the nature of the administrative action involved.” Id. at 164
(quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984)).
38. First, 8 U.S.C. § 1252(g) does not preclude judicial review.
39. Section 1252(g) states that “no court shall have jurisdiction to hear any cause or claim by
or on behalf of any alien arising from the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”
40. Texas and Missouri are not bringing this case on “behalf of any alien.” Dep’t of Homeland
Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020) (“We have previously rejected
as ‘implausible’ the Government's suggestion that § 1252(g) covers ‘all claims arising from
deportation proceedings’ or imposes ‘a general jurisdictional limitation.’”) (quoting Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999)). This is further confirmed
by the fact that the remedy ordered by the Court in this case does not affect the status of any alien
or immigration proceeding.
41. Second, 8 U.S.C. § 1252(b)(9) does not preclude judicial review.
28
42. Section 1252(b)(9) states: “Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from the United States under this subchapter shall
be available only in judicial review of a final order under this Section.” (emphasis added). This
Section functions as a limit on where aliens can seek judicial review of their immigration
proceedings.
43. But the Supreme Court has recently stated: “As we have said before, § 1252(b)(9) does not
present a jurisdictional bar where those bringing suit are not asking for review of an order of
removal, the decision to seek removal, or the process by which removability will be determined.”
Regents, 140 S. Ct. at 1907 (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 841, 875–76 (2018)
(plurality opinion) (internal marks omitted)). “And it is certainly not a bar where, as here, the
parties are not challenging any removal proceedings.” Id.
44. Third, 8 U.S.C. § 1252(f)(1) does not preclude judicial review.
45. Section 1252(f)(1) states: “No court (other than the Supreme Court) shall have jurisdiction
or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter.”
46. But this section does not apply because Plaintiffs are not seeking to restrain Defendants
from enforcing Section 1225. Plaintiffs are attempting to make Defendants comply with Section
1225.
47. Fourth, 8 U.S.C. § 1252(a)(2)(B)(ii) does not preclude judicial review.
48. Section 1252(a)(2)(B)(ii) states: “no court shall have jurisdiction to review . . . any other
decision or action of the Attorney General or the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the discretion of the Attorney General or the
29
Secretary of Homeland Security, other than the granting of relief under Section 1158(a) of this
title.”
49. But Plaintiffs are not challenging the substantive exercise of the Attorney General’s
discretion. Instead, they are challenging whether the government complied with its legal
obligations under the APA in terminating MPP. See e.g., Nora v. Wolf, No. 20-0993, 2020 WL
3469670, at *7 (D.D.C. June 25, 2020) (“But Claim One does not take on the individual decisions
made to return each plaintiff to Mexico; it is directed at an agency decision – the decision to
“expand” MPP implementation to Tamaulipas.”); E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec.,
950 F.3d 177, 191 (3d Cir. 2020) (same); Cruz v. Dep’t of Homeland Sec., No. 19-CV-2727, 2019
WL 8139805, at *4 (D.D.C. Nov. 21, 2019) (same).
50. This reading of the statute is further confirmed by Section 1252(a)(2)(B)(ii)’s title:
“Denials of discretionary relief.” This title indicates the objective of the statute is to prevent
aliens from challenging the federal government’s refusal to grant discretionary relief. Texas, 809
F.3d at 164.
51. Lastly, the overall structure of the INA does not evidence a clear intent by Congress to
preclude judicial review. Texas, 809 F.3d at 163. Congress’s choice to expressly preclude certain
types of claims does not show by “clear and convincing evidence” that Congress also meant to
implicitly preclude all other types of claims. Id.; see Jennings v. Rodriguez, 138 S. Ct. 830, 844
(2018) (An “express exception . . . implies that there are no other[s]”); ANTONIN SCALIA & BRYAN
A. GARNER, Reading Law 107 (2012) (“Negative-Implication Canon[:] The expression of one
thing implies the exclusion of others (expressio unius est exclusio alterius).”).
52. Accordingly, no statute or statutory scheme precludes judicial review of Plaintiffs’ APA
claim.
30
3. The termination of MPP is not an agency action committed to agency discretion

by law
53. The APA precludes review “of certain categories of administrative decisions that courts
traditionally have regarded as ‘committed to agency discretion.’” Texas, 809 F.3d at 165 (quoting
Lincoln v. Vigil, 508 U.S. 182, 191 (1993)); 5 U.S.C. § 701(a)(2).
54. Section 1225(b)(2)(c) states: “In the case of an alien described in subparagraph (A) who is
arriving on land . . . from a foreign territory contiguous to the United States, [DHS] may return the
alien to that territory pending a proceeding under Section 1229a of this title.” (emphasis added).
But the mere presence of the word “may” does not place the agency’s actions outside of the ambit
of judicial review. Regents, 140 S. Ct. at 1905 (“The dispute before the Court is not whether DHS
may rescind DACA. All parties agree that it may. The dispute is instead primarily about the
procedure the agency followed in doing so.”).
55. Rather, “[t]o honor the presumption of review, [courts] read the exception in § 701(a)(2)
quite narrowly, confining it to those rare administrative decisions traditionally left to agency
discretion.” Id. (internal citations omitted).
56. First, this limited category of unreviewable actions includes an agency’s decision not to
institute enforcement proceedings. Id. (citing Heckler v. Chaney, 470 U.S. 821, 831–32 (1985)).
But the decision to terminate MPP “is more than a non-enforcement policy.” Regents, 140 S. Ct.
at 1907. Although the termination of MPP itself does not confer affirmative benefits, the
interaction between the termination of MPP and the lack of detention capacity necessarily means
more aliens will be released and paroled into the Plaintiff States. And parole does create affirmative
benefits for aliens such as work authorization. App. 337; Texas, 809 F.3d at 167 (“Likewise, to be
reviewable agency action, DAPA need not directly confer public benefits.”) (emphasis added).
31
57. Moreover, the MPP program is not about enforcement proceedings at all. Any alien eligible
for MPP has already been placed into enforcement proceedings under Section 1229a. The only
question MPP answers is where the alien will be while the federal government pursues removal
— in the United States or in Mexico.
58. Second, under Fifth Circuit precedent, agency decisions are “completely unreviewable
under the committed to ‘agency discretion by law’ exception” if “the statutory scheme, taken
together with other relevant materials, provides absolutely no guidance as to how that discretion
is to be exercised.” Texas, 809 F.3d at 168.
59. The INA provides guidance as to how DHS should exercise its discretion “according to the
general requirements of reasoned agency decisionmaking.” New York, 139 S. Ct. at 2569. Section
1225 imposes mandatory-detention obligations on Defendants. § 1225(b)(2)(A) (“[T]he alien shall
be detained”); AR 682 (“The law provides for mandatory detention of aliens who unlawfully enter
the United States between ports of entry if they are placed in expedited removal proceedings.”).
To avoid violating Section 1225’s obligations, DHS must use its authority to return aliens to
Mexico when an influx of aliens exceeds DHS’s detention capacity. These statutory obligations
provide courts guidance on how DHS’s contiguous-territory-return authority should be exercised.
60. DHS does not have to use this authority; it could always detain every alien required by
Section 1225. But if it is incapable of detaining such a large number, then the statute implicitly
demands, or, at the very least, directs DHS use its authority to return certain aliens to Mexico.
61. Accordingly, the decision to terminate MPP is “not one of those areas traditionally
committed to agency discretion.” New York, 139 S. Ct. at 2568.
32
4. Plaintiffs are within the zone of interests of the INA
62. “Because the states are suing under the APA, they ‘must satisfy not only Article III's
standing requirements, but an additional test: The interest they assert must be arguably within the
zone of interests to be protected or regulated by the statute that they say was violated.’” Texas, 809
F.3d at 162 (quoting Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, 132
S. Ct. 2199, 2210 (2012) (internal marks omitted)).
63. “That ‘test . . . is not meant to be especially demanding’ and is applied ‘in keeping with
Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively
reviewable.’” Id. “The Supreme Court ‘has always conspicuously included the word ‘arguably’ in
the test to indicate that the benefit of any doubt goes to the plaintiff.’” Id. “The test forecloses suit
only when a plaintiff's ‘interests are so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the
suit.’” Id.
64. First, the Court concludes that the proper scope of the zone-of-interest inquiry is the
entirety of the INA. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401 (1987) (“In considering whether
the “zone of interest” test provides or denies standing in these cases, we first observe that the
Comptroller’s argument focuses too narrowly on 12 U.S.C. § 36, and does not adequately place
§ 36 in the overall context of the National Bank Act.”). The Court is “not limited to considering
the statute under which respondents sued, but may consider any provision that helps us to
understand Congress’ overall purposes.” Id. And, historically, the Fifth Circuit’s “treatment of
APA claims in the immigration context [] considers the INA as a whole.” Texas v. United States,
No. 6:21-CV-003, 2021 WL 2096669, at *22 (S.D. Tex. Feb. 23, 2021); Texas, 809 F.3d at 193 n.
80.
33
65. Here, Plaintiffs are seeking to require the Secretary to engage in reasoned decisionmaking
under the APA before the Secretary terminates MPP requiring the state to choose between
“spending millions of dollars to subsidize driver’s licenses or changing its statutes.” Id.
66. The INA and Section 1225 in particular protect the states’ interest by mandating the
detention or return to Mexico of aliens who would otherwise impose costs on the states.
67. Accordingly, “[t]he interests the states seek to protect fall within the zone of interests of
the INA.” Texas, 809 F.3d at 193.
C. The termination of MPP violated the APA
68. The APA prohibits agency actions that are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This means “[f]ederal administrative
agencies are required to engage in reasoned decisionmaking.” Michigan v. EPA, 576 U.S. 743, 750
(2015) (internal marks omitted). To do so, “the agency must examine the relevant data and
articulate a satisfactory explanation for its action including a ‘rational connection between the facts
found and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)). “Normally, an agency rule would be arbitrary and capricious if the agency has relied on
factors which Congress has not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Id. at 43.
69. Review under the APA’s arbitrary and capricious standard is “highly deferential.”
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir. 1983). District courts
must “accord the agency’s decision a presumption of regularity” and “are prohibited from
34
substituting [the court’s] judgment for that of the agency.” United States v. Garner, 767 F.2d 104,
116 (5th Cir. 1985).
70. “Because the central focus of the arbitrary and capricious standard is on the rationality of
the agency’s ‘decisionmaking,’ rather than its actual decision, ‘[i]t is well-established that an
agency’s action must be upheld, if at all, on the basis articulated by the agency itself.’” Garner,
767 F.2d at 116 (quoting State Farm, 463 U.S. at 50). This “record rule” normally dictates that
“the grounds upon which an administrative order must be judged are those upon which the record
discloses that its action was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).
71. But courts allow extra-record evidence when it is necessary to determine whether the
agency “considered all the relevant factors.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 285
(D.C. Cir. 1981). 9
72. If a court finds that an administrative agency failed to engage in reasoned decisionmaking,
the reviewing court “shall hold unlawful and set aside” such “agency action, findings, and
conclusions” as arbitrary and capricious. 5 U.S.C. § 706(2)(A).
1. DHS ignored critical factors
73. “Agency action is lawful only if it rests on a consideration of the relevant factors.”
Michigan, 576 U.S. at 750 (internal marks omitted). Although the June 1 Memorandum claims
that Defendants “reviewed all relevant evidence and weighed the costs and benefits of” their
decision, AR 006, an agency merely “[s]tating that a factor was considered, however, is not a
substitute for considering it.” Getty v. Fed. Sav. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C.
Cir. 1986). Courts “do not defer to the agency’s conclusory or unsupported suppositions.” United
Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 562 (D.C. Cir. 2010). Rather, the Court “must
9
See ECF No. 76 at 11–12. There, the Court discussed the applicable exceptions to the “record rule” and found that
Plaintiffs may submit extra-record evidence on its APA claims.
35
make a “searching and careful” inquiry to determine if [DHS] actually did consider [the relevant
factors]. Getty, 805 F.3d at 155 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 416 (1971)) (emphasis in original).
74. Defendants failed to consider several critical factors.
75. First, the Secretary failed to consider several of the main benefits of MPP. As the Court
stated above in the findings of fact, DHS had previously found that “aliens without meritorious
claims — which no longer constitute[d] a free ticket into the United States — [were] beginning to
voluntarily return home.” AR 684. DHS also found that MPP addressed the “perverse incentives”
created by allowing “those with non-meritorious claims . . . [to] remain in the country for lengthy
periods of time.” AR 687.
76. The June 1 Memorandum never once mentions these benefits. At the very least, the
Secretary was required to show a reasoned decision for discounting the benefits of MPP. Instead,
the June 1 Memorandum does not address the problems created by false claims of asylum or how
MPP addressed those problems. Likewise, it does not address the fact that DHS previously found
that “approximately 9 out of 10 asylum claims from Northern Triangle countries are ultimately
found non-meritorious by federal immigration judges,” App. 303, and that MPP discouraged such
aliens from traveling and attempting to cross the border in the first place. AR 687.
77. To be sure, DHS could have determined, “in the particular context before it, that other
interests and policy concerns outweigh[ed] any [benefits MPP had]. Making that difficult decision
was the agency’s job, but the agency failed to do it.” Regents, 140 S. Ct. at 1914.
78. By ignoring its own previous assessment on the importance of deterring meritless asylum
applications without “a reasoned analysis for the change,” Defendants acted arbitrarily and
capriciously. State Farm, 463 U.S. at 42.
36
79. Second, the Secretary also failed to consider the warnings by career DHS personnel that
“the suspension of the MPP, along with other policies, would lead to a resurgence of illegal aliens
attempting to illegally” cross the border. App. 399. 10 This is all the more important because the
Secretary had the opportunity to see if the warnings were predictive because the Secretary suspended
enrollments in MPP on January 20, 2021. From that date until June 1, 2021 when MPP was permanently
terminated, the Secretary had the opportunity to observe the ever-increasing number of border encounters.
U.S. Customs and Border Protection, Southwest Land Border Encounters, CBP (Aug. 3, 2021),
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters. But the Secretary never
discussed the rise in border encounters in the June 1 Memorandum or discussed why the warnings by career
DHS personnel were misguided or incorrect even as the data appeared to show that the career officials
were, in fact, prescient.
80. Third, the Secretary failed to consider the costs to Plaintiffs and Plaintiffs’ reliance interests
in the proper enforcement of federal immigration law. The Court has already found that the states
face fiscal harm from the termination of MPP. But the fact that Plaintiffs suffer fiscal injuries does
not indicate the June 1 Memorandum is arbitrary and capricious. Rather, it is the fact that the
agency did not consider the costs to the States at all.
81. Fiscal burdens on states are “one factor to consider” — even if the agency could conclude
that “other interests and policy concerns outweigh” those costs. Regents, 140 S. Ct. at 1914 (listing
possible valid reliance interests, including damage to a state’s coffers; “State and local
governments could lose $1.25 billion.”). But once again, even though “[m]aking that difficult
decision was the agency’s job, [] the agency failed to do it.” Id.
10
The briefing materials from the career officials were not part of the administrative record.
37
82. Moreover, the Secretary failed to address whether the States had any “reliance interests”
in the ongoing implementation of MPP. “When an agency changes course, as DHS did here, it
must ‘be cognizant that longstanding policies may have engendered serious reliance interests that
must be taken into account.’” Id. at 1913 (Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,
2126 (2016)). “It would be arbitrary and capricious to ignore such matters.” Id. (quoting Encino
Motorcars, 136 S. Ct. at 1800).
83. Fourth, the Secretary also failed to meaningfully consider more limited policies than the
total termination of MPP. “When an agency rescinds a prior policy its reasoned analysis must
consider the alternatives that are within the ambit of the existing policy.” Regents, 140 S. Ct. at
1913 (quoting State Farm, 463 U.S. at 51) (internal marks omitted). The entirety of the Secretary’s
reasoning in not modifying MPP is contained in a single sentence: “I also considered whether the
program could be modified in some fashion, but I believe that addressing the deficiencies identified
in my review would require a total redesign that would involve significant additional investments
in personnel and resources.” AR 005. The Secretary does not identify a single example of what a
modified MPP would look like or what kind of investment would be needed to modify or scale
back MPP. Courts “do not defer to the agency’s conclusory or unsupported suppositions.” United
Techs. Corp., 601 F.3d at 562.
2. DHS’s given reasons were arbitrary
84. On the other hand, one of the key reasons the Secretary gave for terminating for MPP is
arbitrary. In discounting the expeditious pace at which MPP completed removal proceedings, the
Secretary stated:
38
It is certainly true that some removal proceedings conducted pursuant to MPP were
completed more expeditiously than is typical for non-detained cases, but this came
with certain significant drawbacks that are cause for concern. The focus on speed
was not always matched with sufficient efforts to ensure that conditions in Mexico
enabled migrants to attend their immigration proceedings. In particular, the high
percentage of cases completed through the entry of in absentia removal orders
(approximately 44 percent, based on DHS data) raises questions for me about the
design and operation of the program.
AR 004 (emphasis added).
85. Certainly, the June 1 Memorandum was concerned about the rate of in absentia removals,
which were around 44 percent under MPP. And that concern was a key factor in the Secretary’s
decision to terminate MPP.
86. But the June 1 Memorandum never provides any reason why DHS determined that in
absentia removals resulted from aliens abandoning meritorious asylum claims when DHS
previously concluded that in absentia removals were a result of aliens abandoning meritless
claims. AR 684 (“Moreover, aliens without meritorious claims . . . are beginning to voluntarily
return home.”). Instead, the June 1 Memorandum states only that this data “raises questions.” AR
004. But it is the Secretary’s job to answer such questions. Regents, 140 S. Ct. at 1914.
87. It is true that “the APA “imposes no general obligation on agencies to conduct or
commission their own empirical or statistical studies.” Fed. Commc’ns Comm’n v. Prometheus
Radio Project, 141 S. Ct. 1150, 1160 (2021). But it is also true that the agency must actually reach
some sort of conclusion. State Farm, 463 U.S. at 52 ((“Rescission of [agency action] would not be
arbitrary and capricious simply because there was no evidence in direct support of the agency’s
conclusion . . . the agency must then exercise its judgment in moving from the facts and
probabilities on the record to a policy conclusion.”) (emphasis added).
88. Merely noting the presence of “questions” provides no “justification for rescinding [MPP]
before engaging in a search for further evidence” that could answer those questions. Id.; see also
39
Whitman-Walker Clinic, Inc. v. HHS, 485 F. Supp. 3d 1, 44 (D.C. Cir. 2020) (finding agency action
arbitrary when the agency “took no position whatsoever on the actual effects that a [policy change]
would have”).
89. Besides assuming without evidence that the 44% in absentia rate was attributable to MPP,
the Secretary never explained why 44% is itself an unacceptably high number. The June 1
Memorandum does not consider any relevant comparator for determining whether the rate of in
absentia removal orders under MPP was unusually high. See State Farm, 463 U.S. at 43 (“[T]he
agency must examine the relevant data.”).
90. The federal government’s data shows similarly high rates of in absentia removals prior to
implementation of MPP. Executive Office for Immigration Review, Adjudication Statistics:
Comparison of In Absentia Rates, https://www.justice,gov/eoir/page/file/1153866/download. For
example, the in absentia rate was 42% in 2015 and 43% in 2017. Id. Failing to exam the relevant
data is arbitrary and capricious. Again, “the agency must examine the relevant data.” State Farm,
463 U.S. at 43.
91. In their briefing, Defendants posit a new theory not mentioned in the June 1 Memorandum.
ECF No. 63 at 32–33; but see Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1014 (5th Cir. 2019) (A
court “may uphold agency action only on the grounds that the agency invoked when it took the
action.”). Defendants argue that 44 percent of MPP cases resulted in in absentia removal orders,
while only 11 percent of non-MPP cases resulted in in absentia orders during the same time period.
Id. at 33. And the disparity between MPP and non-MPP in absentia removal orders is evidence of
the ineffectiveness of the program in deterring fraudulent claims. Id.
92. But even if the Court considered this argument, it is not persuasive. A higher rate of in
absentia removal is consistent with DHS’s findings that MPP reduced the “perverse incentives” to
40
pursue meritless asylum applications. There is nothing in the record that provides any analysis or
reasoning explaining how higher in absentia removals resulted from aliens abandoning
meritorious, rather than unmeritorious, asylum claims as DHS had previously found. AR 684
(“Moreover, aliens without meritorious claims — which no longer constitute a free ticket into the
United States — are beginning to voluntarily return home.”); FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515–16 (2009) (“If the “new policy rests upon factual findings that contradict
those which underlay its prior policy,” the agency must offer “a reasoned explanation . . . for
disregarding facts and circumstances that underlay . . . the prior policy.”).
93. Another of the Secretary’s stated conclusions is arbitrary. In the June 1 Memorandum, the
Secretary justified, in part, terminating MPP because of the court closures caused by the COVID-
19 pandemic:
As immigration courts designated to hear MPP cases were closed for public health
reasons between March 2020 and April 2021, DHS spent millions of dollars each
month to maintain facilities incapable of serving their intended purpose.
Throughout this time, of course, tens of thousands of MPP enrollees were living
with uncertainty in Mexico as court hearings were postponed indefinitely. As a
result, any benefits the program may have offered are now far outweighed by the
challenges, risks, and costs that it presents.
94. The Secretary’s reasoning is without any merit. Even according to the June 1
Memorandum, immigration courts were reopened by the end of April 2021. Past problems with
past closures are irrelevant to the decision to prospectively terminate MPP in June 2021. This is
especially true when the Secretary admits DHS had maintained the facilities during the pandemic.
3. DHS failed to consider or acknowledge the effect terminating MPP would have on
its compliance with Section 1225
95. As detailed more below, the June 1 Memorandum failed to consider the effect terminating
MPP would have on DHS’s ability to detain aliens subject to mandatory detention under
Section 1225.
41
96. DHS had previously recognized that “[t]he law provides for mandatory detention of aliens
who unlawfully enter the United States between ports of entry if they are placed in expedited
removal proceedings.” AR 682. But “resource constraints during the crisis, as well as other court-
ordered limitations on the ability to detain individuals, made many releases inevitable.” Id.
97. MPP addressed the resource problem by reducing the number of aliens DHS would have
to detain by returning certain aliens to Mexico. Id.; AR 687. In terminating MPP, the Secretary
was required to consider whether DHS could meet its statutory obligation to detain aliens seeking
asylum without MPP as a tool. This the Secretary did not do.
98. Not once did the June 1 Memorandum discuss DHS’s mandatory-detention obligation. In
fact, a perusal of the entire administrative record shows zero evidence of DHS’s detention
capacity. Trial Tr. 114 (DHS counsel: “the [administrative] record doesn’t contain any information
about detention capacity.”) (emphasis added). By “fail[ing] to consider an important aspect of the
problem,” the Secretary acted arbitrarily and capriciously. State Farm, 463 U.S. at 43.
99. For the above stated reasons, Defendants’ termination of MPP was arbitrary and capricious
and in violation of the APA. Accordingly, the Court concludes that Plaintiffs’ APA claim is
meritorious.
D. The termination of MPP causes Defendants to violate Section 1225
100. The Court begins by quickly re-summarizing the relevant statutory framework.
101. Section 1225 provides that if an immigration officer determines that an alien subject to
expedited removal does not have a credible fear of persecution, the alien “shall be detained
pending a final determination of credible fear of persecution and, if found not to have such a fear,
until removed.” 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (emphasis added).
42
102. An alien subject to expedited removal and determined by an immigration officer to have a
credible fear of persecution “shall be detained for further consideration of the application for
asylum.” § 1225(b)(1)(B)(ii) (emphasis added).
103. An alien seeking admission and not subject to expedited removal, whom an examining
immigration officer determines is not clearly and beyond a doubt entitled to be admitted, “shall be
detained” for removal proceedings. § 1225(b)(2)(A) (emphasis added).
104. Aliens who are not subject to expedited removal and arrive on land from a foreign territory
contiguous to the United States may be returned by the government to that territory pending asylum
proceedings as an alternative to detention. § 1225(b)(2)(C); AR 682.
105. MPP used this statutory authority to return aliens to Mexico pending their removal
proceedings. AR 682.
106. Accordingly, Section 1225 provides the government two options vis-à-vis aliens seeking
asylum: (1) mandatory detention; or (2) return to a contiguous territory. Failing to detain or return
aliens pending their immigration proceedings violates Section 1225. 11
107. Without MPP, Defendants only remaining option under Section 1225 is mandatory
detention. But DHS admits it does not have the capacity to meet its detention obligations under
Section 1225 because of “resource constraints.” AR 682; App. 330 n. 7 (“Continued detention of
11
DHS does have the discretion to parole some aliens. But parole is available “only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Nor is parole intended “to replace
established refugee processing channels.” App. 336. By enacting the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Congress “specifically narrowed the executive’s discretion” to grant parole due to
“concern that parole . . . was being used by the executive to circumvent congressionally established immigration
policy.” Cruz-Miguel v. Holder, 650 F.3d 189, 199 & n.15 (2d Cir. 2011). Any class-wide parole scheme that paroled
aliens into the United States simply because DHS does not have the detention capacity would be a violation of the
narrowly prescribed parole scheme in section 1182 which allows parole “only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A) (emphasis added). See also AR 184
(“The number of asylum seekers who will remain in potentially indefinite detention pending disposition of their cases
will be almost entirely a question of DHS’s detention capacity, and not whether the individual circumstances of
individual cases warrant release or detention,’ [according to UT law professor Steve] Vladeck.”) (emphasis added).
43
a migrant who has more likely than not demonstrated credible fear is not in the interest of resource
allocation or justice.”).
108. Under these particular circumstances, where Defendants cannot meet their detention
obligations, terminating MPP necessarily leads to the systemic violation of Section 1225 as aliens
are released into the United States because Defendants are unable to detain them.
109. Accordingly, the Court concludes that Plaintiffs’ statutory claim is meritorious as well.
E. The Court does not need to decide Plaintiffs’ Take Care Clause claim
110. Because the Court will grant Plaintiffs full relief on their APA and statutory claims, there
is no further relief related to the June 1 Memorandum that the Court can grant.
111. Where the Court has made a full disposition of the case without addressing a constitutional
claim, it will not address the issue. See Matal v. Tam, 137 S. Ct. 1744, 1755 (“We have often
stressed that it is important to avoid the premature adjudication of constitutional questions and that
we ought not to pass on questions of constitutionality unless such adjudication is unavoidable.”)
(internal marks and citations omitted).
F. The Agreement with Texas has expired and is therefore moot.
112. Because the Court will grant Plaintiffs full relief on their APA and statutory claims, there
is no further relief related to the June 1 Memorandum that the Court can grant.
113. Any further agency action responsive to this opinion shall take place after August 1, 2021,
which is when Texas agrees the Agreement was terminated. Therefore, the Agreement will not
apply to any new agency action either.
114. The Court accordingly dismisses this claim as moot.
44
V. REMEDIES
115. Having found Plaintiffs’ APA and statutory claims are meritorious, it is the Court’s
remaining task to craft to proper relief.
A. Vacatur and Remand
116. The APA provides that “[t]he reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (emphasis added).
117. As a textual matter, 12 the mandatory language of the APA has led courts to make remand
and vacatur the default remedy for agency action that violates the APA. United Steel v. Mine Safety
and Health Admin., 925 F.3d 1279, 1287 (D.C. 2019); Franciscan All., Inc. v. Azar, 414 F.
Supp. 3d 928, 945 (N.D. Tex. 2019) (“[D]istrict courts have a duty to vacate unlawful agency
actions.”). Remand, without vacatur, is only “generally appropriate when there is at least a serious
possibility that the agency will be able to substantiate its decision given an opportunity to do so.”
Tex. Assoc. of Mfrs. v. US Consumer Prod. Safety Comm’n, 989 F.3d 368, 389–90.
118. The D.C. Circuit considers two factors when deciding whether to remand without vacatur:
“(1) the seriousness of the deficiencies of the action, that is, how likely it is the agency will be able
to justify its decision on remand; and (2) the disruptive consequences of vacatur.” United Steel,
12
Defendants aver that “nothing in section 706(2)’s text specifies whether a rule, if found invalid, should be set side
on its face or as applied to the challenger.” ECF No. 93 at 11. And Defendants further argue the Court should adopt
the narrower “as-applied” reading of the statute and only set aside agency action as to the named Plaintiffs. But that
argument is in error. “The APA empowers courts to determine rule validity, not just whether the application of the
rule is valid.” Mila Sohoni, The Power to Vacate a Rule, 88 GEO. WASH. L. R. 1120, 1133 (2019); see also Jonathan
F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA. L. REV. 933, 1012 (2018) (“T]he APA and these organic statutes
go further by empowering the judiciary to act directly against the challenged agency action. This statutory power to
‘set aside’ agency action is more than a mere non-enforcement remedy. It is a veto-like power that enables the judiciary
to formally revoke an agency’s rules, orders, findings, or conclusions — in the same way that an appellate court
formally revokes an erroneous trial-court judgment.”). The question of whether courts should extend relief beyond the
named litigants in the APA context is a question of severability, not a question of whether the APA authorizes such
relief — it does. Mitchell, supra, at 1013.
45
925 F.3d at 1287; accord Cent. & S. W. Servs., Inc. v. E.P.A., 220 F.3d 683, 692 n.6 (5th Cir. 2000)
(“EPA gave ample reasons for its application of the Rule to the members of the regulated
community in general. It simply failed to explain why it refused to grant the national variance to
the electric utilities. We conclude that it would be disruptive to vacate application of the Rule to
other segments of the industry.”).
119. Under the first prong, the Court finds that the deficiencies in the June 1 Memorandum are
serious and are unlikely to be resolved on a simple remand. As the Court has found, Defendants
failed to consider the main benefits of MPP: (1) MPP deterred aliens, especially from the Northern
Triangle, from attempting to illegally cross the border, (2) MPP allowed DHS to avoid systemic
violation of Section 1225’s detention requirements, and (3) MPP reduced the burden on states
caused by tens of thousands of aliens being released.
120. Moreover, DHS knew of these failings when it issued the June 1 Memorandum because
Plaintiffs first brought suit on April 13, 2021 — nearly two months earlier. DHS had the
opportunity to consider Plaintiffs’ suit and engage in reasoned decisionmaking to avoid the flaws
the Court has identified in this opinion.
121. Additionally, the June 1 Memorandum is not only arbitrary and capricious for a lack of
reasoned decisionmaking, but it is also substantively unlawful because, in these circumstances,
termination of MPP causes Defendants to systemically violate Section 1225. It will continue to be
unlawful to terminate MPP until DHS has the capacity and willingness to detain immigrants
claiming asylum under Section 1225.
122. Under the second prong, the Court finds vacatur will not be unduly disruptive. In their
supplemental briefs addressing remedies, Defendants emphasizes the “chaos” and “disruptive
consequences” that would follow vacatur of the June 1 Memorandum. ECF Nos. 70, 93 at 4–7
46
(“An order interfering with DHS’s termination of MPP, or otherwise requiring DHS to reinstitute
the program, would wreak havoc on the Administration’s approach to managing migration in the
region, including by undermining the Government’s ability to engage in the delicate bilateral (and
multilateral) discussions and negotiations required to achieve a comprehensive solution.”). The
government further states “restarting MPP would ‘come at tremendous opportunity cost,’ ‘draw
resources from other efforts,’ ‘create doubt about the reliability of the United States as a
negotiating partner,’ ‘hamstring the Federal Government’s ability to conduct the foreign policy
discussions’ necessary to manage migration, and ‘have significant resource implications and be
damaging to our national and economic security.’” Id.
123. But these problems are entirely self-inflicted. “Such inconveniences are common
incidental effects of injunctions, and the government could have avoided them by delaying
preparatory work until the litigation was resolved.” Texas, 809 F.3d at 187. Here, Texas filed suit
challenging the suspension of enrollments in MPP on April 13, 2021, which is nearly two months
before DHS purported to terminate the program entirely in the June 1 Memorandum. DHS “could
have avoided” any disruptions by simply informing Mexico that termination of MPP would be
subject to judicial review “until the litigation was resolved.” Id. 13 Mexico is capable of
understanding that DHS is required to follow the laws of the United States which includes the APA
and INA.
124. And, as evidenced by Defendants’ briefs, DHS seemingly relies on the premise that it
actually terminated MPP back in January 2021 and has been dismantling the program ever since
13
The Court notes that only slightly more than two months has passed between the issuance of the June 1
Memorandum and the Court’s final disposition of this case on the merits.
47
then, even though the January 20 Memorandum only purported to suspend the enrollment of aliens
in MPP. 14
125. DHS argues, in a brief dated July 7, 2021, that it began acting “to unwind MPP and its
infrastructure,” before the June 1 Memorandum terminating MPP, which is only two months old.
ECF No. 70 at 8 (“[N]ew initiatives” to replace MPP have been “in place for nearly six months.”).
Similarly, in the same brief, Defendants stated that re-implementing MPP would be difficult
because MPP “had been terminated for some time.” Id. at 9 (emphasis added)
126. Again, in the same brief, Defendants argues that “Mexico had already begun taking action
to redeploy resources.” Id. at 9. But Defendants’ citation shows that Mexico was redeploying
resources already by April 28, a month before DHS issued the June 1 Memorandum. ECF No. 64
at 14. In another portion, Defendants state MPP began being wound down on “February 11, 2021.”
Id. at 17–18. Defendants also state that vacatur would nullify “more than four months of
diplomatic and programmatic engagement,” ECF No. 70 at 11, even though MPP had only been
terminated for one month when that brief was submitted.
127. In other words, DHS’s apparent argument is that MPP has been in the process of
termination for months, far preceeding the actual issuance of the June 1 Memorandum, and it is
simply too late for a court to vacate their actions. But if the decision to terminate MPP was made
far in advance of the June 1 Memorandum, that reduces the entire June 1 Memorandum into post
hoc arguments for a decision that was already made. Compare ECF No. 64 at 5 (“Upon completion
of the required review, the Secretary announced his decision to terminate MPP [on June 1, 2021.]”)
with id. at 17 (“[T]he U.S. government announced the wind-down of the MPP policy on February
11, 2021.”).
14
There is no question that the January 20, 2021 Memorandum would have been found to be arbitrary and capricious
as there is no administrative record or any stated basis for agency action for the Court to review. See ECF No. 45.
48
128. Additionally, DHS’s arguments also only relate to the effect vacatur would have on its
diplomatic engagements with foreign countries. 15 ECF No. 70 at 7–11.
129. DHS’s reliance on the effects of foreign affairs is unpersuasive. DHS’s first duty is to
uphold American law. It cannot just point at diplomatic efforts as an excuse to not follow the APA
or fulfill its statutory obligations.
130. Accordingly, Plaintiffs are entitled to vacatur and remand because the June 1 Memorandum
violates the APA and is in substantive violation of Section 1225.
B. Injunctive Relief is warranted
131. “According to well-established principles of equity, a plaintiff seeking a permanent
injunction must satisfy a four-factor test before a court may grant such relief. eBay Inc. v.
MercExchange, LLC., 547 U.S. 388, 391 (2006). The four factors are: “(1) that [Plaintiffs have]
suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would
not be disserved by a permanent injunction.” Id.
132. Regarding the first factor, as discussed in the Section on standing, supra § IV.A.1,
Plaintiffs have shown that they are suffering ongoing and future injuries as a result of the
termination of MPP.
15
At various points, Defendants argue that the Court is unable to redress Plaintiffs’ injuries because any relief would
be dependent on Mexico’s cooperation. See, e.g., ECF No. 913 at 10–11. This is not correct. The United States
initiated MPP unilaterally pursuant to U.S. law, not pursuant to bilateral agreement or treaty with Mexico. App. 307.
The program was then “implemented and expanded . . . through ongoing discussions with Mexico.” Id. In other words,
MPP was adopted and launched unilaterally, just as it was later terminated unilaterally. App.307; see also App.303.
And even if Mexico’s cooperation may be required to return an alien who has already been admitted, nothing prevents
DHS from refusing to admit asylum applicants at ports of entry in the first place — before they ever enter the United
States.
49
133. Regarding the second factor, Texas and Missouri are unable to recover the additional
expenditures from the federal government. Texas, 2021 WL 2096669, at *48 (“[N]o Party has
suggested that Texas could recover any of its likely financial injury here, and the Court cannot
conceive of any path for Texas to pierce the federal government’s usual sovereign immunity or
contrive a remedial cause of action sufficient to recover from its budgetary harm.”); see also Texas,
328 F. Supp. 3d at 737 (deeming an injury irreparable because “there [was] no source of
recompense”).
134. Regarding the third and fourth factors, 16 the ongoing and future injuries sustained by
Plaintiffs outweigh any harms to Defendants as Defendants have no “interest in the perpetuation
of unlawful agency action.” League of Women Voters of United States, v. Newby, 838 F.3d 1, 12
(D.C. Cir. 2016). Rather, there is a “public interest in having governmental agencies abide by the
federal laws that govern their existence and operations.” Washington v. Reno, 35 F.3d 1093, 1103
(6th Cir. 1994).
135. Moreover, the public interest favors Plaintiffs because the public has an “interest in
stemming the flow of illegal immigration.” United States v. Escobar, No. 2:17-CR-529, 2017 WL
5749620 at *2 (S.D. Tex. Nov. 28, 2017) (citing United States v. Martinez–Fuerte, 428 U.S. 543,
556–58 (1976)). And the public has interest in the enforcement of immigration laws, including
Section 1225. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 115, 100 Stat
3359, 3384 (1986) (“[T]he immigration laws of the United States should be enforced vigorously
and uniformly.”)
16
Federal courts may consider the third and fourth together as they overlap considerably. Texas, 809 F.3d at 187;
Nken v. Holder, 556 U.S. 418, 435 (2009) (“Once an applicant satisfies the first two factors [for a stay of an alien's
removal pending judicial review], the traditional stay inquiry calls for assessing the harm to the opposing party and
weighing the public interest. These factors merge when the Government is the opposing party.”).
50
136. Lastly, the Supreme Court has cautioned that a district court vacating an agency action
under the APA should not issue an injunction unless an injunction would “have [a] meaningful
practical effect independent of its vacatur.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
165 (2010).
137. Here, an injunction is warranted for two reasons. First, an injunction is needed to prevent
the continued systemic violation of Section 1225. Second, Defendants have indicated that, even if
the June 1 Memorandum were declared invalid, they would not necessarily return any aliens to
Mexico. ECF No. 63 at 9 (“Reinstating MPP would not require DHS to return anyone to Mexico.”)
(emphasis in original). ECF No. 92 at 47 (“DHS retains discretion to . . . release all noncitizens
inspected for admission under Section 1225(b)(2)(A) or arrested while present in the United States
under Section 1226.”) (emphasis added).
138. Defendants are correct in stating that this Court does not have the power to tell a DHS line
officer which individual aliens are amenable to MPP and must be enrolled. But Defendants are
incorrect in arguing this Court has no power to enjoin a “blanket policy” that removes all discretion
from line officers to utilize MPP. Texas, 2021 WL 2096669, at *51 (“But this injunction does not
enjoin individual removal decisions. As described above, it enjoins a blanket policy that is contrary
to law. The Government makes much of its discretion in individual matters . . .. But nothing in this
preliminary injunction changes that.”); ECF No. 63 at 9 (“Reinstating MPP . . . would merely
authorize line-level officers to [return aliens to Mexico] in their discretion.”).
139. Lastly, Fifth Circuit precedent dictates that, in immigration related cases, proper relief
includes nationwide injunctions. A geographically limited injunction would be improper because
federal immigration law must be uniform. Texas, 809 F.3d at 187–88; see also Texas, 2021 WL
2096669, at *52; Texas, 2021 WL 247877, at *7–8. Furthermore, a geographically limited
51
injunction would likely “be ineffective because [aliens] would be free to move among states.” Id.
at 188.
140. Accordingly, the Court will grant the narrowest injunction possible that afford Plaintiffs
full relief on their claims.
VI. CONCLUSION
For the reason stated above, the Court finds that Plaintiffs have proven their APA and
statutory claims by the preponderance of the evidence. Accordingly, it is ORDERED:
1. Defendants and all their respective officers, agents, servants, employees, attorneys, and
other persons who are in active concert or participation with them are hereby
PERMANENTLY ENJOINED and RESTRAINED from implementing or enforcing
the June 1 Memorandum.
2. The June 1 Memorandum is VACATED in its entirety and REMANDED to DHS for
further consideration.
3. Defendants are ORDERED to enforce and implement MPP in good faith until such a time
as it has been lawfully rescinded in compliance with the APA and until such a time as the
federal government has sufficient detention capacity to detain all aliens subject to
mandatory detention under Section 1255 without releasing any aliens because of a lack of
detention resources.
4. To ensure compliance with this order, starting September 15th, 2021, the Government must
file with the Court on the 15th of each month, a report stating (1) the total monthly number
of encounters at the southwest border; (2) the total monthly number of aliens expelled
under Title 42, Section 1225, or under any other statute; (3) Defendants’ total detention
capacity as well as current usage rate; (4) the total monthly number of “applicants for
52
admission” under Section 1225; (5) the total monthly number of “applicants for admission”
under Section 1225 paroled into the United States; and (6) the total monthly number of
“applicants for admission” under Section 1225 released into the United States, paroled or
otherwise.
5. This injunction is granted on a nationwide basis.
6. Nothing in this injunction requires DHS to take any immigration or removal action nor
withhold its statutory discretion towards any individual that it would not otherwise take.
7. The Court retains jurisdiction of this matter for purposes of construction, modification, and
enforcement of this permanent injunction.
8. The Court STAYS the applicability of this opinion and order for 7 days to allow the federal
government time to seek emergency relief at the appellate level.
SO ORDERED.
August 13, 2021.

________________________________
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE
53

Federal Judge's Ruling On Remain-in-Mexico

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Case 2:21-cv-00067-Z Document 94 Filed 08/13/21 Page 1 of 53 PageID 2899

IN THE UNITED STATES DISTRICT COURT

THE STATE OF TEXAS, §

MEMORANDUM OPINION AND ORDER

without any supporting documentation).

and witnesses will be enhanced by transferring this case.”).

No. 63. Plaintiffs filed their reply on June 30.

stated in ECF No. 76.

is not overcome in this case.”).

II. EVIDENTIARY OBJECTIONS 2

Court finds Defendants’ privilege objections to be untimely and moot.

is offered for the truth of the matters asserted.

immigration laws, policies, procedures, and practices.

6. Any objections not previously discussed are overruled.

III. FINDINGS OF FACT 3

proper standard for factual findings is the preponderance of the evidence.

A. Overview of the relevant statutory framework

entry or cross the border unlawfully. 8 U.S.C. § 1225(a)(1).

be admitted. § 1225(a)(3). Section 1225(b)(2)(A) provides that, if an immigration officer

determine whether he will be removed from the United States.

4. Alternatively, if an alien lacks valid entry documentation or misrepresents his identity, he

removal proceeding. See 8 C.F.R. § 208.30(f).

from removal to his home country. 8 U.S.C. § 1229a(a)(2), (c)(4).

§ 1225(b)(2)(C). This contiguous-territory-return authority enables DHS to avoid having to detain

and were ordered removed in absentia.” App. 005.

judge can determine the merits of any claim.” App. 303–04.

notice to attend a hearing before a judge.” AR 149.

Calexico, California, and then nationwide. AR 155, 156, 684.

children — as defined in 6 U.S.C. § 279(g); citizens or nationals of Mexico; noncitizens processed

with a criminal history or a history of violence; noncitizens of interest to the Government of

or Border Patrol counterpart. AR 161.

the United States. AR 208, 684.

C. The Department of Homeland Security found MPP to be effective

restoring integrity to the immigration system.” Id.

Mexico pursuant to MPP.” Id.

recommended improvements — but not termination — of MPP. Some of these improvements

hearing on their claims. AR 192–201.

951 F.3d 986 (9th Cir. 2020).

to the immigration system:

These unprecedented [immigration] backlogs have strained DHS resources and

1. DHS and Texas enter into an Agreement

finalized on January 8, 2021. Id. at 325.

(1) reduce, redirect, reprioritize, relax, or in any way modify immigration

(2) decrease the number of ICE agents performing immigration enforcement

(3) pause or decrease the number of returns or removals of removable or

(4) increase or decline to decrease the number of lawful, removable, or

(5) increase or decline to decrease the number of releases from detention;

(7) relax the standards for granting release from detention;

(10) otherwise negatively impact Texas.

taking any action” covered by the Agreement. Id.

August 1, 2021.” Id.

2. The Biden Administration was warned of the consequences of terminating MPP

as well as HHS facilities.” Id.

E. The Biden Administration first suspended, then terminated MPP.

legal authorities.” AR 581.

reasoned decisionmaking for a court to review.

experienced significant challenges.” AR 3.

39. The June 1 Memorandum contained no discussion or analysis of DHS’s previous

attempting to illegally cross the border.