Bench Memos
Judicial Winning: Judge Oldham Calls Out the Biden Administration’s Immigration Gamesmanship
On December 13, a panel of the Court of Appeals for the Fifth Circuit affirmed a district court order enjoining the Biden administration’s termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico.” The court’s opinion, by Judge Andy Oldham, is one of the strongest judicial rebukes to the Biden administration to date.
Some background: In January 2019, Secretary of Homeland Security Kirstjen Nielsen created the protocols in order to return illegal immigrants apprehended at the border with Mexico. Nielsen intended the MPP to “address the urgent humanitarian and security crisis at the Southern border” and “end the exploitation of our generous immigration laws.”
Joe Biden criticized the protocols on the campaign trail and, just days after his inauguration, new enrollments in MPP were suspended. Texas and Missouri challenged President Biden’s suspension of MPP in federal court. While that case was pending, the new DHS secretary, Alejandro Mayorkas, issued a memo terminating MPP. A few months later, the district court reviewing the states’ lawsuit issued an order enjoining Mayorkas’s termination for its failure to comply with the Administrative Procedure Act (APA). The Fifth Circuit denied the Biden administration’s request for a stay pending appeal. Undeterred, the administration requested relief from the Supreme Court. Its request was denied, with Justices Breyer, Sotomayor, and Kagan dissenting.
Three days before the Fifth Circuit’s scheduled oral argument in the states’ appeal, Mayorkas issued a new memo terminating the MPP. The government contended that this latest memo superseded and rescinded his initial termination memo—and that therefore continuing litigation was pointless. At oral argument, one of the members of the panel, Judge Kurt Engelhardt, said it was “suspicious and disappointing” that the Biden administration had issued a new memorandum. “Why is it an Oct. 29 memo and not an Oct. 1 memo or a Sept. 15 memo?” he asked. “The motion comes with some suspicion of gamesmanship.”
The panel, in an exacting 117-page opinion written by Judge Oldham, is the judicial equivalent of a smackdown. “DHS’s proposed approach is as unlawful as it is illogical,” Oldham asserted. “Under Supreme Court and Fifth Circuit precedent, this case is nowhere near moot. And in any event, the vacatur DHS requests is an equitable remedy, which is unavailable to parties with unclean hands. The Government’s litigation tactics disqualify it from such equitable relief.” Mayorkas’ second termination memo “did not reopen the actionable Termination Decision” and could not “render a final agency action retroactively nonfinal.” The termination decision was “analogous to the judgment of a court, and its memos . . . analogous to a court’s opinion explicating its judgment. A judgment, not the opinion announcing that judgment, has a binding effect that settles the dispute before the court.”
Oldham also made clear that the objecting states had standing to bring the case because of their increased fiscal costs associated with an influx of illegal migrants resulting from MPP’s termination. As to the merits of the case, the panel held that the initial termination was “arbitrary and capricious” in violation of the APA and contrary to section 235 of the Immigration and Nationality Act (INA). There were a number of “relevant factors” that DHS failed to consider in making the termination decision. Among these were the plaintiff states’ “legitimate reliance interests” in the continuance of MPP, the benefits of MPP, alternatives to MPP, and what the court termed “the legal implications of terminating MPP.”
Oldham’s textualist analysis was remarkably thorough. Despite the administration’s recognition that the four statutory alternatives in the INA—detention under section 235; return under section 235(b)(2)(C); parole in accordance with section 212(d)(5); and bond or conditional parole under the limitations in section 236(a)—were “exhaustive,” its “Termination Decision nonetheless purported to arrogate to DHS a fifth alternative that Congress did not provide.” Oldham stoutly rejected as both “dangerous” and “limitless” the administration’s assertion that “DHS can ignore Congress’s limits on immigration parole and that Supreme Court precedent makes everyone (including the plaintiff States and the federal courts) powerless to say anything about it.”
For anyone thinking that Oldham and the other panel members were mounting a politically motivated attack on the current administration, it is worth noting that their opinion repeatedly cited the Court’s 2020 decision in Department of Homeland Security v. Regents of the University of California, where the Court struck down the Trump administration’s attempt to use similar tactics to end the Deferred Action for Childhood Arrivals program (DACA).
Oldham was spot on in treating the Biden administration’s termination of the MPP not as discretionary “nonenforcement,” but rather as “misenforcement” in clear violation of the APA. He also called out the clear attempt to suspend congressional mandates and limitations found in the INA. In short, he made it abundantly clear that the administration’s tricky attempt to terminate MPP could not stand. And he did so, moreover, in a devastating piece of legal analysis that will not be quickly forgotten.