The Immigration and Nationality Act (INA) establishes procedures for inspecting and processing applicants for admission at the border and other noncitizens who are present in the United States without having been admitted.  Under 8 U.S.C. § 1225(b)(2)(C), the federal government may return certain individuals who arrive on land from a territory contiguous to the United States to that territory pending a determination of their admissibility or deportability.  In January 2019, purporting to act pursuant to this statutory authority, the Department of Homeland Security (DHS) implemented a policy called the “Migrant Protection Protocols” (MPP), which it used to return non-Mexican asylum seekers to Mexico while they awaited adjudication of their asylum applications.

A group of asylum seekers and legal services organizations—collectively, respondents in this case—challenged MPP, arguing that the policy is unlawful as applied to individuals, like the asylum-seeking respondents, who are eligible for expedited removal under 8 U.S.C. § 1225(b)(1) of the INA.  A federal district court agreed and granted a preliminary injunction against MPP, and the U.S. Court of Appeals for the Ninth Circuit affirmed.  Chad Wolf, former Acting Secretary of Homeland Security, asked the Supreme Court to hear the case, and the Court agreed to do so.  CAC filed an amicus curiae brief in support of the respondents urging the Court to affirm the ruling of the court below.

Our brief argued that MPP violated the text and history of our immigration laws by authorizing DHS to return individuals to Mexico who are expressly exempt from contiguous territory return.

Our brief first explained that the plain text of § 1225 barred the application of MPP to individuals eligible for expedited removal pursuant to § 1225(b)(1).  Section 1225 divides applicants for admission into two discrete categories: § 1225(b)(1) applicants and § 1225(b)(2) applicants.  Subsection (b)(2)(C), which authorized MPP, applies only to “an alien described in subparagraph [(b)(2)](A).”  Subsection (b)(2)(A), by its explicit terms, “shall not apply to an alien . . . to whom paragraph [(b)](1) applies.”  Thus, individuals like the individual respondents to whom § 1225(b)(1) “applies” were necessarily excluded from the scope of § 1225(b)(2)(A) and, in turn, § 1225(b)(2)(C).

To support this textual argument, our brief made three key points.  First, relying on basic principles of grammar and dictionary definitions of “apply,” our brief explained that § 1225(b)(1) “applies” to any person who is eligible for expedited removal (like many asylum seekers), not just anyone that DHS discretionarily places in expedited removal proceedings.  Second, our brief argued that “an alien described in subparagraph [(b)(2)](A),” for whom contiguous territory return is authorized, plainly incorporates the “exception” created in subparagraph (B), which exempts the individual Respondents who are eligible for expedited removal.  As our brief explained, this reading of the statute comports with the Supreme Court’s decision in Nielsen v. Preap.  Third, our brief rebutted the government’s argument that the only purpose of § 1225(b)(2)(B)(ii), the subsection of § 1225(b)(2) that creates the exception for § 1225(b)(1) applicants like the individual Respondents, is to “clarify” that such applicants are not entitled to full removal proceedings.  Because § 1225(b)(1) already makes that point clear, the only way to give § 1225(b)(2)(B)(ii) independent meaning in the statutory scheme is to read it as operating to bar contiguous territory return for § 1225(b)(1) applicants.

Finally, our brief argued that the structure and history of § 1225 support a plain reading of the statute as barring MPP for § 1225(b)(1) asylum seekers.  When Congress first authorized contiguous territory return for § 1225(b)(2) applicants, it also created special protections for asylum seekers.  Those protections highlight the special solicitude for asylum seekers embedded in our immigration laws.  Congress designed contiguous territory return to ease the burden on our country’s immigration system, but, recognizing the unique dangers faced by asylum seekers, it chose not to authorize contiguous territory return for them.

Effective January 21, 2021, the Biden Administration suspended new enrollments in MPP and began a review of the program.  Accordingly, the Supreme Court granted the parties’ request to hold further briefing in abeyance and remove the case from the February 2021 argument calendar.

On June 1, 2021, the Secretary of Homeland Security announced that DHS had completed its review and had terminated MPP.  The government then asked the Supreme Court to vacate the judgment of the Ninth Circuit as moot.  The Court agreed to do so and remanded the case to the Ninth Circuit with instructions to direct the district court to vacate as moot its order granting a preliminary injunction.