- Court: United States Supreme Court
- Area(s) of Law: Immigration
- Date Filed: June 30, 2022
- Case #: 21-954
- Judge(s)/Court Below: 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.
- Full Text Opinion
Secretary Mayorkas issued a June 1 Memorandum, rescinding the Migrant Protection Protocols
(MPP), which returned aliens to Mexico who were detained while attempting to enter the United
States illegally from Mexico. Respondents sued the Government, asserting its June 1
Memorandum violated the Immigration and Nationality Act (INA) and the Administrative
Procedure Act (APA). The District Court entered judgment for Respondents, imposing an
injunction ordering the Government to reimplement the MPP. Pending appeal, the Government
released an October 29 Memorandum, again terminating the MPP and moved to vacate the
injunction. The Court of Appeals denied the motion, affirmed the District Court’s judgment, and
held the October 29 Memorandum did not constitute a new “final agency action.” Respondents
argued, because 8 U.S.C. § 1225(b)(2)(A) makes detention mandatory, the otherwise-
discretionary return authority in 8 U.S.C. § 1225(b)(2)(C) becomes mandatory when the
Secretary violates that detention mandate. Further, Respondents contended the October 29
Memorandum was a post hoc rationalization of the June 1 Memorandum under DHS v. Regents
of Univ. of Cal. The Supreme Court reasoned 8 U.S.C. § 1225(b)(2)(C)’s use of the word “may”
clearly denotes discretion to the Secretary in returning aliens to Mexico. The Court explained
that Regents allows the Government’s October 29 Memorandum to be the agency’s final action
because the Secretary provided “new reasons absent from” the June 1 Memorandum. The
Court held the Government did not violate 8 U.S.C. § 1225 when it rescinded the MPP; further,
its October 29 Memoranda constituted final agency action. Reversed and remanded.