Amicus Curiae Brief — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Texas, et al.

Supreme Court briefMar 21, 2022

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No. 21-954

IN THE

Supreme Court of the United States

JOSEPH R. BIDEN, JR., ET AL.,

Petitioners,

STATE OF TEXAS, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF BIPARTISAN FORMER OFFICIALS OF

THE DEPARTMENT OF HOMELAND SECURITY

AND THE IMMIGRATION AND NATURALIZATION

SERVICE AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

March 21, 2022

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICI CURIAE ..........................

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

Contiguous Territory Return Is a

Discretionary Policy, and No Plausible

Reading of 8 U.S.C. § 1225 Could Render

It Mandatory Under Any

Circumstances ...........................................

II. The Court Below Misconstrued the Text

of the Parole Authority in 8 U.S.C.

§ 1182(d)(5)(A) and the Manner in Which

DHS and Its Predecessor Agency Have

Utilized Parole for a Quarter Century .....

III. Congress Has Long Conferred Significant

Discretion on the Executive Branch in

Immigration Enforcement Matters,

Including for Issues Related to

Detention ...................................................

CONCLUSION .....................................................

APPENDIX ...........................................................

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Albertson’s, Inc. v. Kirkingburg,

527 U.S. 555 (1999) ................................

Anderson v. Yungkau,

329 U.S. 482 (1947) ................................

Arizona v. United States,

132 S. Ct. 2492 (2012) ............................

Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ............................

Ekiu v. United States,

142 U.S. 651 (1892) ................................

Haig v. Agee,

453 U.S. 280 (1981) ................................

In re E-R-M- & L-R-M-,

25 I. & N. Dec. 520 (BIA 2011) ..............

In re M-D-C-V-,

28 I. & N. Dec. 18 (BIA 2020) ................

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ................................

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ...................... 3, 11, 22, 23

Kaplan v. Tod,

267 U.S. 228 (1925) ................................

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) ................................

3, 11

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Leng May Ma v. Barber,

357 U.S. 185 (1958) ................................

Lichter v. United States,

334 U.S. 742 (1948) ................................

5, 27

Thompson v. Carroll,

63 U.S. 422 (1859) ..................................

Town of Castle Rock v. Gonzales,

545 U.S. 748 (2005) ................................

Trump v. Hawaii,

138 S. Ct. 2392 (2018) ............................

United States ex rel. Knauff v.

Shaughnessy,

338 U.S. 537 (1950) ................................

5, 27

United States v. Rodgers,

461 U.S. 677 (1983) ................................

Statutes and Legislative Materials

6 U.S.C. § 202(5) .......................................

8 U.S.C. § 1103(a)(3) ................................

8 U.S.C. § 1182(d)(5)(A) ............................ passim

8 U.S.C. § 1182(d)(5)(B) ............................

8 U.S.C. § 1225(b)(2)(A) ............................ passim

8 U.S.C. § 1225(b)(2)(B) ............................

4, 12

8 U.S.C. § 1225(b)(2)(C) ............................ passim

TABLE OF AUTHORITIES – cont’d

Page(s)

8 U.S.C. § 1226a(a)(5) ...............................

4, 12

8 U.S.C. § 1226(c) ......................................

8, 9

H.R. 2202, 104th Cong. (1995) .................

H.R. Rep. No. 89-945 (1965) ....................

An Examination of the Administration’s

Central America Minors Refugee/Parole

Program: Hearing Before the Sen. Comm.

on the Judiciary, Subcomm. on

Immigration and the Nat’l Interest,

114th Cong. 1-5 (2015) ...............................

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No.

104-208, 110 Stat. 3009 ........................ 10, 20

Immigration & Nationality Act of 1952,

Pub. L. No. 82-414, 66 Stat. 163 ...........

Mass. Gen. Laws Ann., ch. 266, § 30(1)

(West 2008) ............................................

Pub. L. No. 89-206, 79 Stat. 911 ..............

Refugee Act of 1980, Pub. L. No. 96-212,

94 Stat. 102 ...........................................

Other Authorities

8 C.F.R. § 212.5(a) ....................................

8 C.F.R. § 212.5(b) .................................... 5, 15, 18

TABLE OF AUTHORITIES – cont’d

Page(s)

8 C.F.R. § 212.5(b)(1)................................

8 C.F.R. § 212.5(b)(2)................................

8 C.F.R. § 212.5(b)(3)................................

8 C.F.R. § 212.5(b)(4)................................

8 C.F.R. § 212.5(b)(5)................................

62 Fed. Reg. 444 (Jan. 3, 1997) ................

Andorra Bruno, Cong. Rsch. Serv., R46570,

Immigration Parole (Oct. 15, 2020) ... 19, 20, 21

Case-by Case, Oxford English Dictionary

Online (last visited Feb. 16, 2022).............

CBP, Southwest Land Border Encounters

(Jan. 24, 2022) ............................................

Central American Minors (CAM) Parole

Program, USCIS (Sept. 14, 2021) ..............

Bo Cooper, INS Exercise of Prosecutorial

Discretion, Legal Op. No. 99-5 (INS),

2001 WL 1047687................................... 6, 8, 25

Cuban Family Reunification Parole

Program Fact Sheet (Aug. 26, 2016)..........

Jeh Charles Johnson, Sec’y of Homeland

Sec., Families of U.S. Armed Forces

Members and Enlistees (Nov. 20, 2014) ....

TABLE OF AUTHORITIES – cont’d

Page(s)

David A. Martin, A Defense of ImmigrationEnforcement Discretion: The Legal and

Policy Flaws in Kris Kobach’s Latest

Crusade,

122 Yale L.J. Online 167 (2012) ................

David A. Martin, Judicial Imperialism and

the “Remain in Mexico” Ruling,

Lawfare (Feb. 22, 2022) .............................

Doris Meissner, Exercising Prosecutorial

Discretion (Nov. 17, 2000),

2000 WL 33596819.....................................

John Morton, Dir. of ICE, Exercising

Prosecutorial Discretion Consistent with

the Civil Immigration Enforcement

Priorities of the Agency for the

Apprehension, Detention, and Removal of

Aliens (June 17, 2011) ................................

Julie L. Myers, Ass’t Sec’y of Homeland

Sec., Prosecutorial and Custody

Discretion (Nov. 7, 2007) ............................

Kirstjen M. Nielsen, Sec’y of Homeland

Sec., Guidance for Implementing Section

235(b)(2)(c) of the Immigration and

Nationality Act and the Migrant

Protection Protocols (Jan. 28, 2019),

2019 WL 365514.........................................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Kirstjen M. Nielsen, Sec’y of Homeland

Sec., Policy Guidance for Implementation

of the Migrant Protection Protocols

(Jan. 25, 2019) ............................................

Secretaria de Relaciones Exteriores,

Position of Mexico on the Decision of the

U.S. Government to Invoke Section

235(b)(2)(C) of its Immigration and

Nationality Act (Dec. 20, 2018) .............

U.S. Immigration & Customs Enforcement,

ICE Directive No. 1102.1: Parole of

Arriving Aliens Found to Have a Credible

Fear of Persecution or Torture

(Dec. 8, 2009) ..............................................

INTEREST OF AMICI CURIAE1

Amici are former officials of the Department of

Homeland Security and the Immigration and Naturalization Service who served in both Republican and

Democratic administrations. Amici differ in their

views of the Migrant Protection Protocols as a matter

of policy, but they all agree that the conclusion of the

court below that 8 U.S.C. § 1225 mandates contiguous

territory return is at odds with the plain text of the

statute, as well as the border management policies of

every administration since the contiguous territory return provision was enacted. They also agree that the

court’s cramped interpretation of the parole statute is

at odds with its text, as well as the manner in which

the parole authority has been exercised by every administration to manage migrant flows at the border.

By depriving the executive branch of the discretion

built into the nation’s immigration laws, the decision

of the court below would produce deeply troubling consequences for the ability of the executive branch to

manage the border and shape foreign policy. Accordingly, amici have a strong interest in this case.

A full listing of amici appears in the Appendix.

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amici state that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici

or their counsel made a monetary contribution to its preparation

or submission.

INTRODUCTION AND

SUMMARY OF ARGUMENT

As amici know from their experiences serving in

the Department of Homeland Security (DHS) and the

Immigration and Naturalization Service (INS), it has

been necessary for those agencies to manage large

numbers of migrants at the southwest border over the

past several decades. Given the broad discretion that

our immigration laws give to the executive branch,

these policies have varied significantly over time, particularly as presidential administrations have

changed from one party to the other. However, no administration—Republican or Democratic—has ever

read 8 U.S.C. § 1225 to mandate the return of noncitizens to Mexico while they await adjudication of their

immigration cases simply because the federal government lacks sufficient capacity to detain them. Only

the court below reached that novel conclusion.

Through a series of interpretive missteps, the

court below reasoned that because § 1225(b)(2)(A)

states that all noncitizens seeking admission who are

not clearly admissible “shall be detained,” and DHS indisputably “lacks the resources to detain every alien

seeking admission,” Pet. App. 119a, DHS must implement contiguous territory return in order to comply

with § 1225(b)(2)(A)’s so-called “detention mandate,”

id. at 120a n.18. This interpretation ignores the plain

text, structure, and history of § 1225, misconstrues the

parole authority in 8 U.S.C. § 1182(d)(5)(A) and the

manner in which every administration since 1997 has

utilized it, and fails to respect the breadth of prosecutorial discretion the executive branch enjoys when it

implements our nation’s immigration laws. It would

require the current administration and every future

administration to continue the Migrant Protection

Protocols (MPP) indefinitely, crippling the ability of

DHS to manage the border in a manner that is responsive to changing circumstances, including the nation’s

foreign policy needs.

There are at least three distinct problems with the

decision of the court below.

1. The court below construed § 1225(b)(2)(A) as

containing an unyielding “detention mandate,” Pet.

App. 120a n.18, even though Congress has built multiple discretionary exceptions to that so-called mandate

into the Immigration and Nationality Act (INA) itself.

Indeed, § 1225(b)(2)(A) could not be a “detention mandate”—and has never been treated as one—because

Congress has never appropriated sufficient funds for

DHS or INS to detain all arriving noncitizens who are

not clearly admissible.

Moreover, even if the court below were correct that

§ 1225(b)(2)(A) contains such a mandate, the court was

still wrong to conclude that a discretionary policy like

MPP is mandatory because that interpretation ignores

the plain text of § 1225(b)(2)(C). Section 1225(b)(2)(C)

states that “the Attorney General may return [certain

noncitizens] to [a contiguous] territory pending a proceeding under section 1229a of this title.” 8 U.S.C.

§ 1225(b)(2)(C) (emphasis added). This Court has long

held that “the word ‘may’ . . . implies discretion.” Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (quoting

Kingdomware Techs., Inc. v. United States, 579 U.S.

162, 171 (2016)). Because there is no other language

in § 1225(b)(2)(C) suggesting any plausible alternative

construction, this Court should adhere to the plain

meaning of the statutory text. See Bostock v. Clayton

County, 140 S. Ct. 1731, 1749 (2020) (“[W]hen the

meaning of the statute’s terms is plain, our job is at an

end.”).

The structure of § 1225 confirms what its text

makes clear. Although the court below described contiguous territory return as a “statutory safety valve,”

Pet. App. 4a, § 1225(b)(2)(C) is in fact best viewed as

one of several discretionary exceptions to detention

pursuant to § 1225(b)(2)(A).

See, e.g., 8 U.S.C.

§ 1182(d)(5)(A) (authorizing DHS to release certain

noncitizens on parole). Tellingly, where Congress has

sought to require enforcement officers to choose one

approach or the other, it has used the mandatory formulation “shall do X or shall do Y.” E.g., id.

§ 1226a(a)(5) (“[t]he Attorney General shall place an

alien detained [as a certified terrorist] in removal proceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement

of such detention” (emphases added)). By contrast, the

so-called mandatory detention provision, id.

§ 1225(b)(2)(A), and the contiguous territory return

provision, id. § 1225(b)(2)(C), are not presented in the

disjunctive and use different verbs, “shall” and “may.”

Other aspects of the structure of § 1225 also demonstrate that Congress knew how to create a mandatory

exception or mandatory alternative to detention, see,

e.g., id. § 1225(b)(2)(B), but for contiguous territory return, it chose not to do so.

2. The court below also propounded a deeply

flawed interpretation of the parole statute, which permits applicants for admission to be temporarily released on parole “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Id.

§ 1182(d)(5)(A). If the court below had given the parole

statute its proper weight in the statutory scheme, it

would have recognized that parole is a viable alternative to detention or contiguous territory return—indeed, one that DHS and its predecessor agency have

used for decades to manage the southwest border.

The fundamental error of the court below was its

conclusion that, in the case of insufficient detention capacity (which again, has been the case during all of

amici’s tenures at INS and DHS due to limited funding

from Congress), any release of more than a small number of noncitizens on parole is necessarily an “en

masse” release, Pet. App. 120a, and thus conflicts with

the individualized evaluation § 1182(d)(5)(A) requires.

That is wrong for two reasons.

First, the term “case-by-case” does not mean “a

small number”; rather, the term merely requires individualized application of the parole criteria to each

noncitizen being considered for release.

Second, as amici know from their experiences

serving in DHS and INS, even when capacity restraints limit the total number of arriving noncitizens

who can be detained, immigration officers still can and

do determine which noncitizens to release on a caseby-case basis. Indeed, DHS’s current regulations set

forth specific criteria for that case-by-case analysis, including ensuring that paroled noncitizens “present

neither a security risk nor a risk of absconding.” 8

C.F.R. § 212.5(b). And for years following Congress’s

enactment of the “case-by-case” requirement for parole, DHS and its predecessor agency complied with

that requirement while still exercising their discretion

to release on parole large, designated classes of noncitizens. Under the logic of the court below, every single

one of those administrations—Republican and Democratic—violated § 1225 and § 1182(d)(5)(A). That

simply is not so.

3. Finally, the court below failed to respect the

significant enforcement discretion that Congress has

long conferred on the executive branch in the realm of

immigration policy. See, e.g., United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950)

(immigration is an area that touches on the nation’s

foreign affairs in which “flexibility and the adaptation

of the congressional policy to infinitely variable conditions constitute the essence of the program” (quoting

Lichter v. United States, 334 U.S. 742, 785 (1948)).

That discretion extends to detention decisions. As

amicus former INS General Counsel Bo Cooper explained in an INS legal opinion: “As detaining aliens is

an exercise of the coercive authority of a law enforcement agency over liberty, legal concepts of enforcement discretion apply despite the fact that detention

is not a strictly ‘prosecutorial’ decision.” INS Exercise

of Prosecutorial Discretion, Legal Op. No. 99-5 (INS),

2001 WL 1047687, at *10. High-level INS and DHS

officials from both Republican and Democratic administrations, including several amici, have expressed

similar views in guidance documents issued over the

past twenty-five years.

Contiguous territory return illustrates why executive discretion in this realm is so important: it necessarily requires the United States to send noncitizens

into the territory of a foreign sovereign and thus has

the potential to have significant implications for the

nation’s foreign policy. Indeed, even the administration that first implemented MPP recognized this principle, formally implementing MPP only after negotiating certain terms of the program with Mexico and obtaining that nation’s affirmative consent.

In sum, the decision of the court below ordering

the federal government to reimplement MPP defied

statutory text, structure, and history, ignored the parole practices of every administration in recent history, and disrespected the well-established principles

of prosecutorial discretion embedded in our nation’s

immigration laws. This Court should reverse.

ARGUMENT

Contiguous Territory Return Is a

Discretionary Policy, and No Plausible

Reading of 8 U.S.C. § 1225 Could Render It

Mandatory Under Any Circumstances.

The court below concluded that contiguous territory return becomes mandatory whenever the federal

government lacks capacity to detain every noncitizen

seeking admission at the southwest border who is not

clearly admissible. The text, structure, and history of

§ 1225 plainly refute that conclusion.

A. The first interpretive error of the court of appeals was to construe 8 U.S.C. § 1225(b)(2)(A) as an

unyielding “detention mandate,” Pet. App. 120a n.18.

Under 8 U.S.C. § 1225(b)(2)(A), if an “examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to

be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” While the word

“shall” typically indicates a requirement, this Court

has long held that principles of prosecutorial discretion can affect the proper interpretation of that term.

See, e.g., Town of Castle Rock v. Gonzales, 545 U.S.

748, 760 (2005) (explaining that a “well established

tradition of police discretion has long coexisted with

apparently mandatory arrest statutes”); see also In re

E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 523 (BIA 2011)

(holding that the term “shall” in 8 U.S.C.

§ 1225(b)(1)(A)(i) incorporates principles of prosecutorial discretion, making expedited removal discretionary).

These decisions rest on the basic logic that enforcement officials cannot possibly investigate and charge

every individual who might have violated the law, notwithstanding mandatory language in the relevant

statutes. For instance, a typical petty larceny statute

reads, “Whoever steals . . . the property of another . . .

shall be guilty of larceny, and . . . if the value of the

property stolen . . . does not exceed two hundred and

fifty dollars, shall be punished by imprisonment in jail

for not more than one year or by a fine of not more than

three hundred dollars.” Mass. Gen. Laws Ann., ch.

266, § 30(1) (West 2008) (emphasis added). But “[n]o

one considers that such a law absolutely requires police to investigate or prosecutors to charge every time

they have even minimal evidence of such a theft.”

Amicus David A. Martin, A Defense of ImmigrationEnforcement Discretion: The Legal and Policy Flaws in

Kris Kobach’s Latest Crusade, 122 Yale L.J. Online

167, 182 (2012). That simply is not how law enforcement functions in the criminal or immigration context,

given resource limitations and the trust that our system of government puts in law enforcement officials to

make sound judgments about when sanction is warranted. See id. (explaining that despite the use of the

word “shall” in § 1225, the provision does not contain

a “categorical mandate”).

Those principles are especially applicable to the

so-called “detention mandate” of § 1225(b)(2)(A) because Congress did not circumscribe DHS’s authority

to later release noncitizens taken into detention pursuant to that provision. In this manner, 8 U.S.C.

§ 1225(b)(2)(A) stands in stark contrast to 8 U.S.C.

§ 1226(c), as § 1225(b)(2)(A) merely states that “the alien shall be detained” while § 1226(c) states both that

the executive “shall take into custody [certain noncitizens convicted of crimes]” and that it “may release

[those noncitizens] only if” necessary for witness protection purposes (emphasis added). See also INS Exercise of Prosecutorial Discretion, Bo Cooper, Legal Op.

No. 99-5 (INS), 2001 WL 1047687, at *11 (explaining

that “[a]n INS decision to release an alien whom the

agency otherwise might seek to detain” constitutes “an

unreviewable act of enforcement discretion under the

INA,” and that the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 removed that

discretion only “with respect to the agency’s enforcement discretion to release criminal aliens” by modifying 8 U.S.C. § 1226(c) and § 1231(a)(2) (emphasis

added)).

Moreover, where Congress both fails to appropriate sufficient funds for a federal agency to fulfill an apparent mandate and builds explicit discretionary exceptions to that mandate into the statutory scheme,

the only reasonable interpretation is that the so-called

mandate does not function as an unyielding command.

Such is the case here. For decades Congress has failed

to appropriate sufficient funds to DHS or its predecessor agency to detain every single noncitizen awaiting

removal proceedings under 8 U.S.C. § 1229a. Congress typically appropriates funds for “approximately

34,000 detention beds nationwide with some modest

fluctuation from year to year,” Pet App. 323a, yet this

past year, for instance, U.S. Customs and Border Protection (CBP) apprehended more than 1.7 million migrants along the southwest border, CBP, Southwest

Land

Border

Encounters

(Jan.

24,

2022),

cbp.gov/newsroom/stats/southwest-land-border-encounters#. Detention of every one of those arriving

noncitizens is a physical impossibility—it would require Congress to increase detention funding roughly

five-fold.2

2 Or potentially even more, given that some of those approximately 34,000 detention beds need to be used for noncitizens encountered through interior enforcement, as opposed to at the border.

That, of course, is why Congress built multiple discretionary exceptions to detention for § 1225 immigrants into the statutory scheme. Contiguous territory

return is just one of those discretionary exceptions: under 8 U.S.C. § 1225(b)(2)(C), “the Attorney General

may return [certain noncitizens] to [a contiguous] territory pending a proceeding under section 1229a of

this title.” Critically, and as described in further detail

below, Congress also provided that applicants for admission may be temporarily released on parole “on a

case-by-case basis for urgent humanitarian reasons or

significant public benefit.” 8 U.S.C. § 1182(d)(5)(A).

For decades—including after Congress amended the

parole statute to add the “case-by-case basis” requirement in 1996, see Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.

No. 104-208, 110 Stat. 3009, 3009-689—the federal

government has used this authority to manage arriving noncitizens at the southwest border, releasing into

the community applicants for admission who do not

pose a danger or a flight risk, often in large numbers.

B. Moreover, even assuming arguendo that the

court below were correct that § 1225(b)(2)(A) contains

a “detention mandate,” Pet. App. 120a n.18, the inability to fulfill that mandate could not transform a discretionary policy like MPP into a mandatory one. The

statutory provision authorizing MPP uses plainly discretionary language, providing that “the Attorney

General may return [certain noncitizens] to [a contiguous] territory pending a proceeding under section

1229a of this title.” 8 U.S.C. § 1225(b)(2)(C) (emphasis

added). None of the administrations in which amici

have served ever read the “may” in § 1225(b)(2)(C) as

a “must,” even though none of those administrations

ever had sufficient funding to detain every arriving

noncitizen who was not clearly admissible.

This Court’s cases reinforce the correctness of that

interpretation. This Court has long held that “the

word ‘may’ . . . implies discretion.” Jennings, 138 S.

Ct. 844 (2018) (quoting Kingdomware Techs., 579 U.S.

at 171); see United States v. Rodgers, 461 U.S. 677, 706

(1983) (“[t]he word ‘may,’ when used in a statute, usually implies some degree of discretion”); Haig v. Agee,

453 U.S. 280, 294 n.26 (1981) (“‘may’ expressly recognizes substantial discretion”); Anderson v. Yungkau,

329 U.S. 482, 485 (1947) (the word “may” is “permissive”). And time and again, this Court has rejected invitations to read “may” as “must,” emphasizing that

“[i]t is only where it is necessary to give effect to the

clear policy and intention of the Legislature, that such

a liberty can be taken with the plain words of a statute.” Thompson v. Carroll, 63 U.S. 422, 434 (1859).

Here, the statutory history provides no basis for

taking that “liberty . . . with the plain words of [the]

statute,” id. Congress authorized contiguous territory

return in IIRIRA merely to codify a longstanding discretionary and largely ad hoc policy of returning certain arriving noncitizens to Mexico.

See In re

M-D-C-V-, 28 I. & N. Dec. 18, 26 (BIA 2020) (noting

that § 1225(b)(2)(C) was passed to codify the government’s “prior practice under previously existing statutes and regulations”); Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens;

Conduct of Removal Proceedings; Asylum Procedures,

62 Fed. Reg. 444, 445 (Jan. 3, 1997) (Supplementary

Information) (“This simply adds to statute and regulation a long-standing practice of the Service.”). Respondents do not point to any evidence in the legislative record that so much as suggests that the addition

of § 1225(b)(2)(C) to the INA, with the explicit usage of

the term “may,” somehow transformed that longstanding discretionary authority into a mandatory program.

Nor do they account for that purported change going

unnoticed by the executive without any response from

Congress for nearly twenty-five years.

C. The structure of § 1225 confirms the discretionary nature of contiguous territory return. If Congress

had intended that § 1225(b)(2)(C) serve as a “statutory

safety valve,” Pet. App. 4a.—that is, a mandatory alternative to detention pursuant to § 1225(b)(2)(A)—it

would have written those two statutory provisions in

the disjunctive as alternative but equally mandatory

options, using the verb “shall” for both. Indeed, other

subsections of the INA use precisely that formulation.

See, e.g., 8 U.S.C. § 1226a(a)(5) (“The Attorney General shall place an alien detained [as a certified terrorist] in removal proceedings, or shall charge the alien

with a criminal offense, not later than 7 days after the

commencement of such detention.” (emphases added)).

“[W]here Congress includes particular language in one

section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or exclusion.” INS v. Cardoza-Fonseca, 480

U.S. 421, 432 (1987).

Even § 1225 itself makes clear that Congress knew

how to craft a mandatory exception or mandatory alternative to § 1225(b)(2)(A)’s so-called “detention mandate” if it wanted to do so.

Nestled between

§ 1225(b)(2)(A) and § 1225(b)(2)(C) is § 1225(b)(2)(B),

which states that § 1225(b)(2)(A) “shall not apply to

[three enumerated classes of noncitizens].” 8 U.S.C.

§ 1225(b)(2)(B) (emphasis added). The language of

§ 1225(b)(2)(B) is decisively nondiscretionary—that is,

individuals described therein are not permitted to be

processed and detained pursuant to § 1225(b)(2)(A).

Certainly, if Congress invoked the “shall” formulation

in a neighboring provision to ensure certain

noncitizens were excluded from § 1225(b)(2)(A), it

could have used that same formulation to establish

contiguous territory return as a mandatory alternative

to § 1225(b)(2)(A) to be used whenever detention under

§ 1225(b)(2)(A) was not physically possible. It chose

not to do so.

D. Finally, the fact that a program like MPP necessarily requires the consent of a foreign nation also

undermines the conclusion of the court below that

Congress somehow meant “must” when it said “may”

in the contiguous territory return provision. See 8

U.S.C. § 1225(b)(2)(C). If MPP were mandatory, then

Congress apparently gave foreign nations like Mexico

the power to singlehandedly veto a mandatory U.S. immigration program. Congress does not legislate in

that fashion.

In fact, MPP was first implemented only after negotiations with Mexico, resulting in Mexico’s issuance

of a statement agreeing to “authorize the temporary

entrance of certain foreign individuals coming from

the United States who entered that country at a port

of entry or who were detained between ports of entry,

have been interviewed by U.S. immigration authorities, and have received a notice to appear before an immigration judge.” Secretaria de Relaciones Exteriores,

Position of Mexico on the Decision of the U.S. Government to Invoke Section 235(b)(2)(C) of its Immigration

and Nationality Act (Dec. 20, 2018); see Pet’r Br. 2627. Mexico could freely withdraw that consent, as it is

under no international law obligation to accept nonMexican nationals into its territory. See Br. of Former

DHS Sec’y Jeh C. Johnson and Former Ambassador to

Mexico Roberta S. Jacobson as Amici Curiae. If the

court below were correct that contiguous territory return is mandatory, then DHS’s ability to comply with

a statutory command would depend entirely on the actions of a foreign nation.

So far as amici are aware, nowhere else in the immigration laws has Congress mandated a policy that

relies entirely on the acquiescence of a foreign sovereign. If contiguous territory return were the one place

where Congress decided to do that, it would have used

exceedingly clear language—language that would not

go misunderstood for a quarter century by five different presidential administrations.

II. The Court Below Misconstrued the Text of

the Parole Authority in 8 U.S.C.

§ 1182(d)(5)(A) and the Manner in Which

DHS and Its Predecessor Agency Have

Utilized Parole for a Quarter Century.

In addition to misreading the text, structure, and

history of § 1225, the court below also misconstrued

the operation and scope of the parole authority in 8

U.S.C. § 1182(d)(5)(A)—a discretionary alternative to

detention or contiguous territory return that has been

used on a case-by-case basis to manage migrants at the

southwest border by every administration in which

amici served.

A. Section 1182(d)(5)(A) authorizes the release of

applicants for admission “on a case-by-case basis for

urgent humanitarian reasons or significant public

benefit.” Significantly, the statute places no cap on the

number of noncitizens that may be released pursuant

to its terms. Nor does it define the terms “urgent humanitarian reason” or “significant public benefit.”3

3 Indeed, when Congress was considering IIRIRA, it rejected a

House version of the parole provision that would have explicitly

limited the definitions of “humanitarian parole” and “public

Rather, it grants significant discretion to immigration

officials to determine as a matter of policy what constitutes an “urgent humanitarian reason[]” or “significant public benefit” and to decide “on a case-by-case

basis” whether those criteria apply, i.e., whether a factor that DHS considers to be an “urgent humanitarian

reason[]” or “significant public benefit” is present in a

particular individual’s case. 8 U.S.C. § 1182(d)(5).

Consistent with that clear statutory language,

DHS and INS have for years issued regulations describing scenarios under which release on parole

“would generally be justified,” provided the noncitizens released “present neither a security risk nor a

risk of absconding.” 8 C.F.R. § 212.5(b). Currently,

those scenarios include ones involving noncitizens

with “serious medical conditions,” id. § 212.5(b)(1),

pregnant women, id. § 212.5(b)(2), certain categories

of minors, id. § 212.5(b)(3), noncitizens who will be witnesses in official proceedings, id. § 212.5(b)(4), and

noncitizens “whose continued detention is not in the

public interest as determined by” “the Secretary or his

designees . . . in the exercise of discretion,” id.

§ 212.5(a), (b)(5). Given the broad language of the parole statute, those criteria could plausibly expand or

contract under future administrations, altering the

number of noncitizens detained pursuant to

§ 1225(b)(2)(A). But regardless of the scope of the specific criteria themselves, it is the application of those

interest parole,” instead leaving the definitions of those terms up

to the executive branch. See H.R. 2202, 104th Cong. § 524 (1995)

(limiting “humanitarian parole” to situations involving medical

emergencies, organ transplants, or the imminent death of a close

family member in the United States, and limiting “public interest

parole” to situations in which “the alien has assisted the United

States government in a matter[] such as criminal investigation,

espionage, or other similar law enforcement activity”).

criteria and evaluation of which noncitizens to release

on parole that fulfills the “case-by-case” requirement

of § 1182(d)(5)(A).

The court below acknowledged that parole is an

exception to the so-called “detention mandate” of

§ 1225(b)(2)(A), Pet. App. 120a n.18, but it reasoned

that the requirement that parole be exercised “on a

case-by-case basis” precludes the “power to parole aliens en masse,” id. at 120a. And it further concluded

that the federal government would necessarily engage

in such en masse parole in the absence of MPP due to

its insufficient detention capacity, id.

This is wrong for multiple reasons. First, the court

below mistakenly presumed that “case-by-case” parole

assessments necessarily must result in a small number of parolees. But that is not what “case-by-case”

means. Rather, “case-by-case” means “[o]n the basis

of, or according to, each individual case,” or “so as to

consider each case separately, taking into account its

individual circumstances and features.” Case-by-case,

Oxford English Dictionary, https://www-oed-com/proxygt-law.wrlc.org/view/Entry/421463?redirectedFrom=

case-by-case&print (last visited Feb. 16, 2022); see,

e.g., Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566

(1999) (statutory language “with respect to an individual” requires analysis “on a case-by-case basis”). Nothing in that definition precludes the parole of a large

volume of noncitizens so long as each noncitizen’s case

is considered individually.

The court below also mistakenly presumed that

the termination of MPP would necessarily result in automatic release on parole of the exact same noncitizens

that otherwise would have been placed in MPP,

amounting to “en masse” adjudication in violation of

the “case-by-case” requirement in § 1182(d)(5)(A). Pet.

App. 120a; see id. at 119a (stating that by terminating

MPP, DHS is “left with a class of people: aliens it apprehended at the border but whom it lacks the capacity to detain”). But that is not how parole works. Individuals do not cross the border with the label “cannot

detain.” See David A. Martin, Judicial Imperialism

and the “Remain in Mexico” Ruling, Lawfare (Feb. 22,

2022), https://www.lawfareblog.com/judicial-imperialism-and-remain-mexico-ruling.

Rather, with respect to the release on parole of

noncitizens arriving at the southwest border and

awaiting removal proceedings, CBP and Immigration

and Customs Enforcement (ICE) provide guidance to

their regional offices on how to perform case-by-case

parole assessments in various circumstances. As

amici know from their experiences serving in INS and

DHS and visiting these field offices, “[a]t any given

time, each field office has some space for detention and

a (usually) larger pool of apprehended violators,” and

each field office therefore “makes choices based on individual characteristics—in order to use wisely the detention space it does have.” Id. Indeed, “immigration

agencies have protocols and standard forms to guide

the required interview and to capture case-specific information useful in deciding whom to release.” Id.; see,

e.g., U.S. Immigration & Customs Enforcement, ICE

Directive No. 1102.1: Parole of Arriving Aliens Found

to Have a Credible Fear of Persecution or Torture, at 3

(Dec. 8, 2009), ice.gov/doclib/dro/pdf/11002.1-hd-parole_of_arriving_aliens_found_credible_fear.pdf (requiring ICE officers to conduct interviews to determine

eligibility for parole of certain arriving noncitizens and

to “uniformly document their parole decision-making

processes using the attached Record of Determination/Parole Determination Worksheet”). Collecting

this individualized information is critical—not only to

ensure compliance with § 1182(d)(5)(A), but also

because such “information can . . . help locate those

who do not appear for the hearing (or for removal, if

denied admission).” Martin, Judicial Imperialism, supra. These detailed interview and documentation

schemes do not amount to parole “en masse” of all

“overflow” noncitizens, nor do Respondents point to

any evidence suggesting that the termination of MPP

would alter these procedures in any way.

Moreover, the idea that DHS would somehow automatically parole all MPP-eligible noncitizens who it

could not detain in the absence of the program ignores

the fact that the criteria that DHS uses to determine

whom to release on parole are wholly distinct from the

criteria that it uses to determine whom to place in

MPP. For instance, before paroling any noncitizen,

DHS regulations require an evaluation of whether

that individual “present[s] . . . a security risk []or a

risk of absconding,” 8 C.F.R. § 212.5(b), but they do not

require those same determinations before placing

noncitizens in MPP.

B. The decision of the court below is not only at

odds with the text of the parole statute, but also with

decades of practice by the executive branch. Indeed,

the executive branch has exercised its discretionary

authority to release arriving noncitizens from detention pending adjudication of their right to remain in

the United States for over a century. See, e.g., Ekiu v.

United States, 142 U.S. 651, 661 (1892) (releasing

noncitizen to “a more suitable place than the steamship” pending determination of her admissibility);

Kaplan v. Tod, 267 U.S. 228, 230 (1925) (committing

Russian-born woman “to the custody of the Hebrew Society” while determining whether she was a U.S. citizen). Congress codified that practice for the first time

in the Immigration and Nationality Act of 1952, granting the Attorney General the explicit authority to

grant parole “for emergent reasons or for reasons

deemed strictly in the public interest.” Act of June 27,

1952, Pub. L. No. 82-414, 66 Stat. 163, 188; see Leng

May Ma v. Barber, 357 U.S. 185, 188 (1958) (referring

to § 1182(d)(5) as “a codification of the administrative

practice pursuant to which petitioner was paroled”).

The INA as originally enacted did not contain separate sections providing for the admission of refugees.

Thus, beginning in the 1950s, the executive branch began relying upon the parole authority to address large

numbers of refugees seeking entry. Andorra Bruno,

Cong. Rsch. Serv., R46570, Immigration Parole 2 (Oct.

15, 2020). Even after the 1965 amendments to the INA

added a “conditional entry” provision for the admission

of refugees, see Pub. L. No. 89-206, § 3, 79 Stat. 911,

913, the executive branch continued to use its parole

authority to release arriving refugees from Cuba, Vietnam, Indochina, and other areas throughout the

1960s and 1970s. H.R. Rep. No. 89-945, at 15-16

(1965).

Congress responded by passing the Refugee Act of

1980, which added a provision to the INA providing for

a separate refugee admission process and also added a

subsection to the parole statute barring the parole of

“an alien who is a refugee unless the Attorney General

determines that compelling reasons in the public interest with respect to that particular alien require that

the alien be paroled into the United States rather than

be admitted as a refugee under section 1157 of this title.” Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat.

102, 108 (codified at 8 U.S.C. § 1182(d)(5)(B)).4

4 The court below cited this amendment limiting the use of pa-

role for refugees without explanation. See Pet. App. 117a. But

this amendment is not relevant to this case. The individuals

After the enactment of the Refugee Act of 1980, the

executive largely ceased relying on the parole statute

to address refugee situations, but it continued to release from detention significant numbers of arriving

noncitizens as part of its southwest border management strategy, relying on § 1182(d)(5)(A)’s delegation

of “broad, discretionary authority,” Bruno, supra, at 1.

So too in the years following the 1996 enactment of

IIRIRA, which added the requirement that parole be

granted on a “case-by-case basis.” Pub. L. No. 104-208,

§ 601, 110 Stat. 3009-689.

Indeed, as amici know firsthand, every single administration since 1997 (when IIRIRA went into effect)

has relied upon its § 1182(d)(5)(A) authority to grant

parole on a “case-by-case basis” and release noncitizens arriving at the southwest border who meet the

standards for parole set by DHS and its predecessor

agency. This is so despite the fact that contiguous territory return was also codified in IIRIRA as another

alternative to detention pursuant to § 1225(b)(2)(A).

Indeed, contiguous territory return was never implemented on a large-scale, programmatic basis until the

introduction of MPP in January 2019. See Pet. App.

273a n.12 (“Prior to MPP, DHS and the former INS

primarily used Section 235(b)(2)(C) on an ad-hoc basis

to return certain Mexican and Canadian nationals

who were arriving at land border ports of entry.”).

The widespread use of the parole authority by

DHS and its predecessor agency to manage even large

classes of noncitizens of particular nationalities post1996 reflects the fact that “[a]lthough

parole

eligible for MPP are not refugees applying for automatic entry

from abroad based on their nationalities; they are primarily asylum seekers who are detained after crossing the border and whom

DHS may later release from detention on parole.

determinations must be made on an individualized basis, the authority has long been interpreted to allow for

designation of specific classes of aliens for whom parole should be favorably considered, so long as the parole of each alien within the class is considered on a

discretionary, case-by-case basis.” Jeh Charles Johnson, Sec’y of Homeland Sec., Families of U.S. Armed

Forces Members and Enlistees, at 1 (Nov. 20, 2014),

dhs.gov/sites/default/files/publications/14_1120_

memo_parole_in_place.pdf. This understanding of the

parole authority has been adopted by both Republican

and Democratic administrations, recognizing that the

statute’s “case-by-case” language only requires individualized evaluation, not some artificial limit on the

specific number of parolees.

For instance, in 2007, when U.S. Coast Guard apprehensions of Cuban migrants reached an all-time

high, Secretary of Homeland Security Michael

Chertoff established the Cuban Family Reunification

Parole (CFRP) program in order to discourage Cuban

nationals from undertaking dangerous journeys by sea

to the United States and to help meet the U.S. commitment on legal Cuban migration levels under the 1994

accord known as the U.S.-Cuban Migration Agreement, under which the United States agreed to permit

at least 20,000 Cuban nationals to migrate legally to

the United States each year. See Bruno, supra, at 1011; Cuban Family Reunification Parole Program Fact

Sheet (Aug. 26, 2016), uscis.gov/sites/default/files/document/fact-sheets/CFRP_Fact_Sheet_8.26.2016.pdf.

Similarly, in 2014, Secretary of Homeland Security Jeh Johnson established a class-based parole program known as the Central American Minors (CAM)

program for certain minor children from El Salvador,

Guatemala, and Honduras who were found ineligible

for refugee status. See Central American Minors

(CAM) Parole Program, USCIS (Sept. 14, 2021),

uscis.gov/CAM. Under the program, in order to grant

parole, U.S. Citizenship and Immigration Services

(USCIS) was required to “find that the individual

[was] at risk of harm in his or her country and that the

applicant merit[ed] a favorable exercise of discretion.”

An Examination of the Administration’s Central America Minors Refugee/Parole Program: Hearing Before

the Sen. Comm. on the Judiciary, Subcomm. on Immigration and the Nat’l Interest, 114th Cong. 1-5 (2015)

(written testimony of Joseph Langlois, Assoc. Dir., Refugee, Asylum and Int’l Operations, USCIS).

Thus, even these class-based parole programs for

individuals outside of the United States—distinct from

the discretionary paroling of arriving noncitizens held

in detention pending removal proceedings—specifically provided for the implementation of case-by-case

assessments under IIRIRA’s amendments.

C. Neither Respondents nor the court below point

to any evidence that the 1996 amendment to the parole

statute deprived the executive branch of its longstanding discretion to parole people covered by § 1225, thus

requiring the implementation of MPP. The best Respondents can muster is a series of cherry-picked lines

from Jennings v. Rodriguez stating that “[r]ead most

naturally, §§ 1225(b)(1) and 1225(b)(2) . . . mandate detention of applicants for admission until certain proceedings have concluded.” BIO 25 (quoting Jennings,

138 S. Ct. at 842 (emphasis added by Respondents));

see id. (“[Section 1225(b)(1) and (b)(2) . . . unequivocally mandate that aliens falling within their scope

‘shall’ be detained.” (quoting Jennings, 138 S. Ct. at

844 (emphasis added by Respondents)). But Jennings

was emphasizing the “mandatory” nature of detention

under § 1225 only for purposes of concluding that the

statute does not give noncitizens detained pursuant to

§ 1225 the right to bond hearings during the course of

their detention. Jennings, 138 S. Ct. at 848. If those

statements in Jennings were taken as absolutes, even

MPP itself would be a violation of § 1225 because contiguous territory return, of course, is distinct from detention.

More to the point, Jennings explicitly

acknowledged the parole authority in § 1182(d)(5)(A)

as an “express exception to detention” pursuant to

§ 1225. Id. at 844. This statement is conspicuously

absent from Respondents’ brief in opposition to certiorari and the decision of the court below.

In sum, the court below was wrong to assume that

“case-by-case” determinations of parole cannot be

made in the face of insufficient detention capacity,

leaving MPP as the only legal alternative to

§ 1225(b)(2)(A)’s so-called “detention mandate.” Not

only does that interpretation defy the statutory text, it

also runs counter to the longstanding usage of parole

and the border management policies of all of the administrations in which amici served.

III. Congress Has Long Conferred Significant

Discretion on the Executive Branch in

Immigration Enforcement Matters,

Including for Issues Related to Detention.

The court below also failed to respect the significant enforcement discretion that Congress has long

conferred on the executive branch in the realm of immigration. The court’s transformation of a discretionary option into a mandatory policy frustrates that congressional plan and makes it exceedingly difficult for

presidents to make changes in immigration and foreign policy, even as circumstances on the ground

might warrant it.

By giving the executive the authority to establish

“national immigration enforcement policies and

priorities,” 6 U.S.C. § 202(5), and the power to “perform such other acts as he deems necessary for carrying out his authority” under the immigration laws, 8

U.S.C. § 1103(a)(3), Congress has ensured that the executive branch will have the discretion necessary to effectively implement the nation’s immigration laws. As

this Court has recognized, “[a] principal feature of the

removal system is the broad discretion exercised by

immigration officials.” Arizona v. United States, 132

S. Ct. 2492, 2499 (2012). Indeed, because Congress

has made a substantial number of noncitizens deportable but has never appropriated sufficient funds to

make removal on such a scale possible, the executive

branch necessarily must exercise this discretion.

The same goes for the detention authority: Congress has stated that a substantial number of noncitizens “shall be detained” under § 1225(b)(2)(A), but as

discussed above, in the past quarter century, it has

never appropriated sufficient funds for DHS to detain

every single applicant for admission who is covered by

that statutory provision. Thus, the immigration

scheme put in place by Congress fundamentally depends upon the executive branch to exercise its discretion and to make decisions about where the nation

should focus its limited resources. A critical exercise

of that discretion in the detention context is making

decisions about when and how to use the broad discretionary exceptions to detention requirements—exceptions like the parole authority and contiguous territory

return itself—that Congress has created.

The court below ignored these principles of discretion. It reasoned that the termination of MPP constituted “misenforcement,” Pet. App. 122a, rather than

an exercise of enforcement discretion. But that is

simply wrong. Although noncitizens released on parole rather than returned to Mexico are still involved

in immigration enforcement proceedings—i.e., the adjudication process outlined in 8 U.S.C. § 1229a—enforcement discretion by its nature involves more than

just the decision whether or not to remove someone. It

also includes decisions about how to effectuate a person’s removal, including whether or not to detain that

person during the pendency of proceedings.

DHS and INS officials from both Republican and

Democratic administrations have long recognized that

prosecutorial discretion in the immigration context includes the discretion to make detention decisions. For

instance, amicus former INS General Counsel Bo

Cooper explained in a 2001 legal memorandum to the

Commissioner of INS: “As detaining aliens is an exercise of the coercive authority of a law enforcement

agency over liberty, legal concepts of enforcement discretion apply despite the fact that detention is not a

strictly ‘prosecutorial’ decision.” INS Exercise of Prosecutorial Discretion, Legal Op. No. 99-5 (INS), 2001

WL 1047687, at *10. Amicus and former INS Commissioner Doris Meissner made a similar point: “In the immigration context, the term [‘prosecutorial discretion’]

applies not only to the decision to issue, serve, or file a

Notice to Appear (NTA), but also to a broad range of

other discretionary enforcement decisions, including

. . . maintaining an alien in custody.” Exercising Prosecutorial Discretion (Nov. 17, 2000), 2000 WL

33596819, at *1; see also, e.g., Amicus Julie L. Myers,

Ass’t Sec’y of Homeland Sec., Prosecutorial and Custody Discretion, at 1 (Nov. 7, 2007), ice.gov/doclib/foia/prosecutorial-discretion/custody-pd.pdf (highlighting “the importance of exercising prosecutorial

discretion when making administrative arrest and

custody determinations for aliens who are nursing

mothers”); John Morton, Dir. of ICE, Exercising Prosecutorial Discretion Consistent with the Civil

Immigration Enforcement Priorities of the Agency for

the Apprehension, Detention, and Removal of Aliens, at

2 (June 17, 2011), ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf (“In the

civil immigration enforcement context, the term ‘prosecutorial discretion’ applies to a broad range of discretionary enforcement decisions, including but not limited to . . . deciding whom to detain or to release on

bond, supervision, personal recognizance, or other condition.”).

Even the administration that first implemented

MPP recognized that detention determinations pursuant to § 1225(b)(2)(A) fall squarely within the prosecutorial discretion of DHS. In a guidance document implementing MPP, Secretary Kirstjen M. Nielsen explained that following an assessment by USCIS of

“whether the alien, if returned to Mexico, would be

more likely than not persecuted in Mexico on account

of a protected ground,” USCIS should convey the outcome of that assessment to ICE, “when appropriate,

. . . for purposes of [aiding ICE in] making discretionary custody determinations for aliens who are subject

to detention and may be taken into custody pending

removal proceedings.” Guidance for Implementing

Section 235(b)(2)(c) of the Immigration and Nationality Act and the Migrant Protection Protocols (Jan. 28,

2019), 2019 WL 365514, at *2-3 (emphasis added).

Moreover, that same DHS also tailored MPP to apply only to certain arriving noncitizens (not just anyone for whom the government lacked a detention bed)

and repeatedly referred to its decision “whether to return the alien to the contiguous country from which he

or she is arriving” as an “exercise[e] [of] prosecutorial

discretion.” Kirstjen M. Nielsen, Sec’y of Homeland

Sec., Policy Guidance for Implementation of the Migrant Protection Protocols, at 3 (Jan. 25, 2019),

dhs.gov/sites/default/files/publications/19_0129_OPA_

migrant-protection-protocols-policy-guidance.pdf.

Thus, by the logic of the court below, MPP itself—the

very program that the court concluded was “mandatory”—violates § 1225 because it does not result in the

automatic return to Mexico of every noncitizen who

cannot be detained.

The refusal of the court below to honor principles

of executive discretion in § 1225 also poses a threat to

the federal government’s ability to capably manage

foreign affairs. As amici know from their experiences

in INS and DHS, immigration is an area that touches

on the nation’s diplomatic relations and thus must

adapt to frequently changing conditions on the

ground—it is a field in which “flexibility and the adaptation of the congressional policy to infinitely variable

conditions constitute the essence of the program.”

Knauff, 338 U.S. at 543 (quoting Lichter, 334 U.S. at

785); see Trump v. Hawaii, 138 S. Ct. 2392, 2418

(2018) (noting that immigration policy is “vitally and

intricately interwoven with contemporaneous policies

in regard to the conduct of foreign relations and the

war power” (alterations adopted and quotation marks

omitted)). Contiguous territory return illustrates why

such flexibility is so important: it necessarily requires

the United States to send noncitizens into the territory

of a foreign sovereign.

Significantly, Mexico could withdraw its consent

to accept non-Mexican nationals from the United

States at any point. If this Court were to mandate the

implementation of MPP, it would essentially elevate

MPP above all other diplomatic objectives with Mexico. The same would be true for Canada. This would

significantly hamper the ability of the executive

branch to achieve its objectives, tying the hands of the

very officials to whom Congress explicitly granted

significant leeway through the discretionary language

of the contiguous territory return provision and the

broader tradition of executive discretion in matters of

foreign affairs.

***

In sum, the decision of the court below defied statutory text, structure, and history, ignored the parole

practices of every administration in recent history, and

disregarded the principles of prosecutorial discretion

embedded in our nation’s immigration laws. Letting

that decision stand would frustrate Congress’s plan to

give executive officials an array of different tools to

manage the southwest border and would cripple the

ability of the current administration—and future administrations—to manage that border in a capable and

responsive manner.

CONCLUSION

For the foregoing reasons, this Court should reverse the judgment of the court below.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

March 21, 2022

* Counsel of Record

APPENDIX:

LIST OF AMICI

Bo Cooper

Partner, Fragomen, Del Rey, Bernsen & Loewy,

LLP

General Counsel, INS, 1999-2003

Seth Grossman

Vice President of People and External Affairs &

Counselor to the President, American University

Counselor to the Secretary of Homeland Security,

DHS, 2013; Deputy General Counsel, DHS, 20112013; Chief of Staff to the General Counsel, DHS,

2010-2011

Stephen H. Legomsky

John S. Lehmann University Professor Emeritus,

Washington University School of Law

Senior Counselor to the Secretary of Homeland

Security, DHS, 2015; Chief Counsel, USCIS, DHS,

2011-2013; Advisor to the Commissioner of INS

and Chair of the Commissioner’s Policy

Advisory Group, 1990-1993

David A. Martin

Warner-Booker Distinguished Professor of

International Law Emeritus, University of Virginia

School of Law

Homeland Security Advisory Council, DHS, 20152018; Principal Deputy General Counsel, DHS,

2009-2010; General Counsel, INS, 1995-1998

(list continued on next page)

Doris Meissner

Senior Fellow and Director, U.S. Immigration Policy

Program, Migration Policy Institute

Commissioner of INS, 1993-2000; Executive

Associate Commissioner of INS, 1981-1986; Acting

Commissioner of INS, 1981-1982

Lynden Melmed

Partner, Berry Appleman & Leiden LLP

Chief Counsel, USCIS, DHS, 2007-2009

Julie Myers Wood

CEO, Guidepost Solutions

Assistant Secretary of Homeland Security, ICE,

DHS, 2006-2008

Leon Rodriguez

Partner, Seyfarth Shaw LLP

Director, USCIS, DHS, 2014-2017

C. Stewart Verdery

CEO & Founder, Monument Advocacy, LLC

Assistant Secretary of Homeland Security, Border

& Transportation Security Policy and Planning,

DHS, 2003-2005

Paul Virtue

Partner, Mayer Brown LLP; Adjunct Professor of

Law, Howard University School of Law

General Counsel, INS, 1998-1999; Executive

Associate Commissioner for Programs, INS, 19971998; Deupty General Counsel, INS, 1988-1997

† Current institutional affiliations are listed for identification purposes only.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.