Immigration and Citizenship

RELEASE: Bipartisan Former DHS, INS Officials Say to SCOTUS: Fifth Circuit Got It Wrong on MPP

WASHINGTON – Earlier today, Constitutional Accountability Center (CAC) filed a brief in the U.S. Supreme Court in Biden v. Texas on behalf of former officials of the Department of Homeland Security and the Immigration and Naturalization Service, who served in Republican and Democratic administrations. The brief explains why a December 2021 ruling by the U.S. Court of Appeals for the Fifth Circuit—ordering the Biden Administration to reinstate former President Trump’s Migrant Protection Protocols (or “Remain in Mexico” policy)—was wrong. CAC Chief Counsel Brianne Gorod said:

The former DHS and INS officials we represent—officials who served in both Republican and Democratic administrations—differ in their views of the MPP as a matter of policy. But they all agree that the Supreme Court should reverse the Fifth Circuit’s ruling because it is at odds with the plain text of the relevant statutes, the border management policies of multiple administrations of both parties, and the way that the parole authority has been exercised by every administration to manage migrant flows at the border.

As we explained in our brief, “no administration—Republican or Democratic—has ever read 8 U.S.C. § 1225 to mandate the return of noncitizens to Mexico while they await adjudication of their immigration cases simply because the federal government lacks sufficient capacity to detain them. Only the court below reached that novel conclusion.”

Letting the Fifth Circuit’s decision stand would frustrate Congress’s plan to give executive officials an array of different tools to manage our nation’s borders, and it would weaken the ability of not only the current administration, but also future administrations, to manage our borders in a capable and responsive manner.

CAC’s brief makes three main points. First, it demonstrates why the Fifth Circuit erred in construing 8 U.S.C. § 1225 as containing an unyielding “detention mandate.” Second, it argues that the Fifth Circuit should have recognized parole as a viable discretionary alternative to detention or what is known as “contiguous territory return.” Third, it explains that by converting a discretionary option into a mandate, the Fifth Circuit failed to respect the significant enforcement discretion that Congress has long conferred on the executive branch in the realm of immigration policy.



CAC case page in Biden v. Texas, with link to brief filed on behalf of former officials who served in Republican and Democratic administrations:


Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at


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