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Con gressionaI
R.fesearch Service
Supreme Court Rules That Migrant Protection
Protocols Rescission Was Not Unlawful
July 28, 2022
On June 30, 2022, the Supreme Court in a 5-4 decision held in Biden v Texas that the Department of
Homeland Security's (DHS's) rescission of the Migrant Protection Protocols (MPP) did not violate
federal immigration laws concerning the inspection and treatment of non-U.S. nationals (aliens, as the
term is used in the Immigration and Nationality Act [INA]) arriving in the United States. The MPP-also
known as the Remain in Mexico policy-began during the Trump Administration and authorized the
return of some asylum seekers arriving at the U.S. southern border to Mexico during the pendency of their
formal removal proceedings. In 2021, DHS Secretary Alejandro Mayorkas terminated the MPP,
concluding that the program's impact on reducing unlawful migration did not outweigh its costs,
particularly the potential harm faced by asylum seekers in Mexico. At the time that DHS announced its
intent to end the MPP, over 68,000 persons had been returned to Mexico under the program. Texas and
Missouri sued to challenge the MPP rescission. A federal district court issued a nationwide injunction
requiring DHS to resume the MPP, and the U.S. Court of Appeals for the Fifth Circuit affirmed.
The Supreme Court determined that DHS has the discretionary authority to rescind the MPP, and that
nothing in federal statute mandates the agency's use of that policy. Following the Court's decision in
Biden v. Texas, DHS announced plans to terminate the MPP as soon as legally permissible. The Court's
ruling will likely enable DHS to terminate the MPP, though questions may remain about the extent to
which the agency may release asylum seekers into the United States rather than detaining them while their
claims are being adjudicated.
Background
The INA establishes different avenues by which aliens can be denied entry or removed from the United
States. INA § 235(b) concerns applicants for admission, which include aliens arriving in the United States
(whether or not at a designated port of entry) and those apprehended after entering the country without
inspection by immigration authorities. Under INA § 235(b)(1), arriving aliens and recent unlawful
entrants who lack valid documentation or sought to procure their admission through fraud or
misrepresentation are generally subject to an expedited removal process without any review of a
determination that the alien should be removed from the United States. If the alien expresses an intent to
seek asylum or a fear of persecution (among other exceptions), however, the alien may obtain
Congressional Research Service
https://crsreports.congress.gov
LSB10798
CRS Legal Sidebar
Prepared for Members and
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