Category: Pro Bono Representation

Here’s a link to the decision:

https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf

Here’s the Syllabus by Court staff:

(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BIDEN ET AL. v. TEXAS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 21–954. Argued April 26, 2022—Decided June 30, 2022

In January 2019, the Department of Homeland Security began to implement the Migrant Protection Protocols (MPP). Under MPP, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA). MPP was implemented pursuant to a provision of the INA that applies to aliens “arriving on land . . . from a foreign territory contiguous to the United States” and provides that the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under section 1229a.” 8 U. S. C. §1225(b)(2)(C). Following a change in Presidential administrations, the Biden administration announced that it would suspend the program, and on June 1, 2021, the Secretary of Homeland Security issued a memorandum officially terminating it.

The States of Texas and Missouri (respondents) brought suit in the Northern District of Texas against the Secretary and others, asserting that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA). The District Court entered judgment for respondents. The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory re- turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be- cause the Government was unable to meet its mandatory detention obligations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic violation of section 1225 as illegal entrants were released into the United States. Second, the District Court concluded that the June 1 Memorandum was arbitrary and capricious in violation of the APA.

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The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ordering the Government 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 1225] without releasing any aliens because of a lack of detention re- sources.” Id., at 857 (emphasis in original).

While the Government’s appeal was pending, the Secretary released the October 29 Memoranda, which again announced the termination of MPP and explained anew his reasons for doing so. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum. But the Court of Appeals denied the motion and instead affirmed the District Court’s judgment in full. With respect to the INA question, the Court of Ap- peals agreed with the District Court’s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th 928, 951.

Held: The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda constituted final agency action. Pp. 8–25.

(a) Beginning with jurisdiction, the injunction that the District Court entered in this case violated 8 U. S. C. §1252(f )(1). See Garland v. Aleman Gonzalez, 596 U. S. ___, ___. But section 1252(f )(1) does not deprive this Court of jurisdiction to reach the merits of an appeal even where a lower court enters a form of relief barred by that provision. Section 1252(f )(1) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief. It does not deprive lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA.

The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. And Congress included that language in a provision whose title—“Limit on injunctive relief ”—makes clear the narrowness of its scope. Moreover, the provision contains a parenthetical that explicitly preserves this Court’s power to enter injunctive relief. If section 1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specific carveout for Supreme Court injunctive relief nugatory.

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Statutory structure likewise confirms this conclusion. Elsewhere in section 1252, where Congress intended to deny subject matter jurisdiction over a particular class of claims, it did so unambiguously. See, e.g., §1252(a)(2) (entitled “Matters not subject to judicial review”). Finally, this Court previously encountered a virtually identical situation in Nielsen v. Preap, 586 U. S. ___, and proceeded to reach the merits of the suit notwithstanding the District Court’s apparent violation of section 1252(f )(1). Pp. 8–13.

(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico. This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S. ___, ___.

Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise- discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” The contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).

The historical context in which section 1225(b)(2)(C) was adopted confirms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A).

The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And finally, the availability of parole as an

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alternative means of processing applicants for admission, see 8 U. S. C. §1182(d)(5)(A), additionally makes clear that the Court of Ap- peals erred in holding that the INA required the Government to continue implementing MPP. Pp. 13–18.

(c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th, at 951. Once the District Court vacated the June 1 Memorandum and remanded to DHS for further consideration, DHS had two options: elaborate on its original reasons for taking action or “ ‘deal with the problem afresh’ by taking new agency action.” Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The Secretary selected the second option from Regents: He accepted the District Court’s vacatur and dealt with the problem afresh. The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action: Both “mark[ed] the ‘consummation’ of the agency’s decisionmaking process” and resulted in “rights and obligations [being] determined.” Bennett v. Spear, 520 U. S. 154, 178.

The various rationales offered by respondents and the Court of Ap- peals in support of the contrary conclusion lack merit. First, the Court of Appeals erred to the extent it understood itself to be reviewing an abstract decision apart from the specific agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relatedly, the October 29 Memoranda were not a mere post hoc rationalization of the June 1 Memorandum. The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Here, the Secretary chose the second option from Re- gents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at ___. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization.

Third, respondents invoke Department of Commerce v. New York, 588 U. S. ___. But nothing in this record suggests a “significant mis- match between the decision the Secretary made and the rationale he provided.” Id., at ___. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a sufficiently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___. Finally, the Court of Appeals erred to the extent it viewed the Government’s decision to appeal the District Court’s in- junction as relevant to the question of the October 29 Memoranda’s status as final agency action. Nothing prevents an agency from under- taking new agency action while simultaneously appealing an adverse

Cite as: 597 U. S. ____ (2022) 5 Syllabus

judgment against its original action. Pp. 18–25. 20 F. 4th 928, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the first sentence.

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Credit where credit is due. At least in this particular case, Chief Justice Roberts and the much-maligned Justice Kavanaugh probably have saved many lives of already-born humans. 

Breyer’s “Last Hurrah.” I think this was Justice Breyer’s last case, fittingly a victory for reasonableness and humanity. As of noon today, he was succeeded by Justice Ketanj Brown Jackson, the first African American female Justice! Good luck to her. I hope she can convince her right-wing colleagues to “do the right thing” on at least a few cases!

Not out of the woods yet? The case now goes back to to the 5th Circuit and a Trumpy USDJ — not the best forum for asylum applicants seeking justice. 

Will they do better? Ending the toxic, inhumane, and ineffective “Remain in Mexico Program” is one thing. Replacing it with a viable asylum adjudication system that will actually efficiently grant protection to the many refugees at our border who have been victims of a biased, anti-asylum, non-expert decision-making process is quite another. It starts with tossing the BIA and the many EOIR Judges who aren’t following asylum law and aren’t able to grant asylum and replacing them with real expert judges who can get the job done, positively guide Asylum Officers, and make sure they follow proper legal interpretations. To date, that’s been something that Garland and the Administration have been unwilling and/or unable to do — at least to the extent required to make due process, fundamental fairness, and the rule of law functional at our borders.

Glimmer of hope (maybe)? In her dissent, Justice Amy Coney Barrett went to great lengths to come up with reasons not to take jurisdiction over this “life or death” matter in its current posture. But, unlike the other three dissenters, she stated that she agreed with the majority “on the merits” of the case. That makes it at least possible that there could be as many as six potential votes for fair and humane treatment of asylum applicants by the Administration if the jurisdictional hurdle can be overcome. No guarantees. But something to think about — particularly in light of Alito’s snarky, White Nationalist nonsense and anti-immigrant myths reflected in his separate dissenting opinion. 

Alioto defines “rock bottom” judicial performance. For example, in the first paragraph of his dissent, Alito says this:

In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border.1 When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?

First he mis-states the law. By no means are all individuals who come to the border or are apprehended in the vicinity thereof entitled to “hearings” on admissibility. All of those without entry documents are subject to summary removal by a DHS Enforcement Agent. Only those who claim a fear of return to their home countries are entitled to an expeditious review of their claims by a (supposedly) well-trained Asylum Officer. Further, only those who establish the necessary “credible fear” of harm (or in some cases a “reasonable fear”) are entitled to have their cases for asylum determined on the merits by either an Asylum Officer or an EOIR Immigration Judge (or both). So, many of those appearing at the border are summarily removed without any hearings at all.

Thousands of those who pass credible fear and are awaiting “merits hearings” are imprisoned in DHS facilities in conditions that probably would fail constitutional scrutiny if applied to convicted felons. Those poor conditions are intended, at least in part, to demoralize and coerce individuals into abandoning claims for protection. They also exponentially decrease the chances of receiving competent pro bono representation and documenting and presenting their cases for life-preserving protection. This is significant, because they too often face EOIR judges with questionable expert judicial qualifications who are essentially “programmed to deny asylum.” Indeed, a “Garland gimmick” for recent arrivals — so-called “expedited dockets” — produced nearly 100% asylum denials as compared with the nationwide rate of 67%. For years, ICE detention centers, many of them operated by private contractors, have been notorious as places “where asylum cases go to die.” 

Contrary to the bogus implication of Alito’s statement that one has to “hope” that individuals show up for hearings, many have immigration bonds — some punatively high. When given a chance to obtain qualified representation, and thereby to understand the system and their obligations thereunder, the vast majority of asylum applicants voluntarily appear at their hearings (some many times due to the EOIR practice of  “Aimless Docket Reshuffling”), win or lose. And, perhaps not surprisingly, they succeed in winning their cases at rates that are many times higher than those forced to proceed without representation.

Indeed, a government actually interested in making the legal system work, rather than ginning up nativist myths about asylum seekers, would cut the “cruel and inhumane gimmicks” like “Remain in Mexico” and detention in the “New American Gulag” (NAG”) and instead invest in training competent pro bono or “low bono” representatives, temporarily resettling applicants to those jurisdictions with good NGOs and where the Immigration Judges are known to be scholarly and fair in evaluating asylum cases, and replacing poorly qualified Immigration Judges with experts able to competently perform these life or death functions at the “retail level” of our justice system in a fair and efficient matter consistent with due process.

Alito also repeats, apparently for prejudicial dramatic effect, the oft-used but potentially misleading figure of 1.7 million “encounters” by CBP. But, since the legal asylum system at our border was improperly dismantled by the Trump Administration, many of these represent the same individual or individuals, repeatedly encountered and illegally returned without any process whatsoever, who seek only the legal forum to present their claim to authorities to which they are entitled under both domestic and international law. This right has been systematically denied to them by both the Trump and Biden Administrations and by mal-functioning Federal Judges, at all levels, who have failed to uphold the rule of law as it applies to the most vulnerable among us. Additionally, a knowledgeable jurist would take any statistics furnished by the notoriously unreliable DHS with a “grain of salt.”

The lack of understanding of how immigration law operates, the nativist-driven misinterpretations by the Trump Administration embodied in this dissent, and the lack of intellectual integrity in furthering nativist myths and intentional exaggerations to describe a group of individuals who merely seek legal justice under both our laws and international standards is a graphic illustration of who does not belong on our highest Court. If we are really committed to equal justice and fundamental fairness in the American justice system, we should insist that all of those nominated for our Supreme Court demonstrate significant experience representing individual foreign nationals in the Immigration Courts — the “life or death retail level” of our justice system. 

Right now, those so-called “courts” are an embarrassing and dysfunctional “parody of justice” to which neither Justice Alito nor any of his colleagues would want to submit their own lives and futures or those of anyone they truly cared about. That’s the very definition of dehumanization and “Dred Scottification of the other” that Justice Alito seems so curiously eager to advance. Perhaps, that’s because he lacks the necessary empathy and perspective to see life from “the other side of the bench” as the rest of humanity does. 

I’d like to think that Alito is capable of change and growth. Most, if not all, humans are. After all, he’s appointed for life, so he isn’t going anywhere soon. But, I won’t hold my breath.

🇺🇸Due Process Forever!

PWS

06-29-30