IMMIGRATIONAL NATIONALITY ACT-RETURN POLICY

Biden v. Texas, 2022 U.S. LEXIS 3269 (S. Ct. June 30, 2022) (Roberts, C.J.)  In January 2019, the Department of Homeland Security—under the administration of President Trump—established the Migrant Protection Protocols. That program provided for the return to Mexico of non-Mexican aliens who had been detained attempting to enter the United States illegally from Mexico. On Inauguration Day 2021, the new administration of President Biden announced that the program would be suspended the next day, and later that year sought to terminate it. The District Court and the Court of Appeals, however, held that doing so would violate the Immigration and Nationality Act, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The District Court also held that the attempted rescission of the program was inadequately explained in violation of the Administrative Procedure Act. While its appeal was pending, the Government took new action to terminate the policy with a more detailed explanation. But the Court of Appeals held that this new action was not separately reviewable final agency action under the Administrative Procedure Act.  The questions presented are whether the Government’s rescission of the Migrant Protection Protocols violated the Immigration and Nationality Act and whether the Government’s second termination of the policy was a valid final agency action. In sum, 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). To reiterate: we need not and do not resolve the parties’ arguments regarding whether section 1225(b)(2)(A) must be read in light of traditional principles of law enforcement discretion, and whether the Government is lawfully exercising its parole authorities pursuant to sections 1182(d)(5) and 1226(a). We merely hold that section 1225(b)(2)(C) means what it says: “may” means “may,” and the INA itself does not require the Secretary to continue exercising his discretionary authority under these circumstances.  We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.  On remand, the District Court should consider in the first instance of whether the October 29 Memoranda comply with section 706 of the APA.  See State Farm, 463 U.S. at 46-57.