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

No. 21A21

In the Supreme Court of the United States

JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED

STATES, ET. AL.,

Petitioners,

v.

STATE OF TEXAS, ET AL.,

Respondents.

On Application for a Stay of the Injunction

Issued by the United States District Court for

the Northern District of Texas and for an

Administrative Stay

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

IMMIGRATION REFORM LAW INSTITUTE

IN SUPPORT OF STATE RESPONDENTS

CHRISTOPHER J. HAJEC

MATT A. CRAPO

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 202-355-9452

ljoseph@larryjoseph.com

i

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Movant Immigration Reform Law Institute

(“IRLI”) respectfully seeks leave to file the

accompanying brief as amicus curiae in support of the

state respondents’ opposition to the stay application

filed by the federal applicants.* The federal applicants

affirmatively took no position on IRLI’s motion (i.e.,

they responded but chose not to state a position), and

the state respondents consented to its filing.

IDENTITY AND INTERESTS OF MOVANT

The Immigration Reform Law Institute (“IRLI”) is

a nonprofit 501(c)(3) public interest law firm

dedicated both to litigating immigration-related cases

in the interests of United States citizens and to

assisting courts in understanding federal immigration

law. IRLI has litigated or filed amicus curiae briefs in

a wide variety of immigration-related cases. For more

than twenty years the Board of Immigration Appeals

has solicited supplementary briefing, drafted by IRLI

staff, from the Federation for American Immigration

Reform, of which IRLI is a supporting organization.

REASONS TO GRANT LEAVE TO FILE

By analogy to this Court’s Rule 37.2(b), movant

respectfully seeks leave to file the accompanying

amicus curiae brief in support of the respondents’

Consistent with FED. R. APP. P. 29(a)(4)(E) and this Court’s

Rule 37.6, counsel for movant and amicus curiae authored this

motion and brief in whole, and no counsel for a party authored

the motion and brief in whole or in part, nor did any person or

entity, other than the movant/amicus and its counsel, make a

monetary contribution to preparation or submission of the

motion and brief.

*

ii

opposition to the stay application. Movant respectfully

submits that its proffered amicus brief brings several

relevant matters to the Court’s attention, including

the narrowness of the exception from judicial review

on which the federal applicants seek to rely and the

unlawfulness under the Immigration and Nationality

Act of the policies that the federal applicants seek to

adopt via the unexplained policy shift that they seek

to promulgate without either notice-and-comment

rulemaking or even a rational explanation.

These issues are all relevant to deciding the stay

application, and movant Immigration Reform Law

Institute respectfully submits that filing the brief will

aid the Court.

Dated: August 24, 2021

Respectfully submitted,

CHRISTOPHER J. HAJEC

MATT A. CRAPO

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 202-355-9452

ljoseph@larryjoseph.com

Counsel for Movant

iii

TABLE OF CONTENTS

Pages

Motion for Leave to File Brief Amicus Curiae ........... i

Table of Contents ...................................................... iii

Table of Authorities................................................... iv

Introduction ................................................................ 1

Interest of Amicus Curiae .......................................... 1

Standard of Review .................................................... 1

Statement of the Case ................................................ 1

Summary of Argument............................................... 3

Argument .................................................................... 4

I. The Administration fails to show a likelihood

that this Court will grant certiorari. ................... 4

II. The Administration fails to show a likelihood

that this Court would overturn the injunction. .. 6

III. Even if the case were close, the balance of

harms would counsel against a stay. ................ 10

Conclusion ................................................................ 12

iv

TABLE OF AUTHORITIES

Pages

Cases

Blatchford v. Native Vill. of Noatak,

501 U.S. 775 (1991) ............................................... 2

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) ............................................... 6

Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ............................................... 6

DHS v. Regents of the Univ. of Cal.,

140 S. Ct. 1891 (2020) ........................................... 8

Ellison v. Connor,

153 F.3d 247 (5th Cir. 1998) ................................. 6

FCC v. Fox Television Stations, Inc.,

556 U.S. 502, 515 (2009) ....................................... 6

Hollingsworth v. Perry,

558 U.S. 183, 190 (2010) ................................. 1, 10

Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29 (1983)...................... 7-8

Texas v. United States,

2021 U.S. Dist. LEXIS 156642 (S.D. Tex. Aug.

19, 2021) ................................................................ 3

Texas v. United States,

2021 U.S. Dist. LEXIS 33890 (S.D. Tex. Feb.

23, 2021) ................................................................ 2

Statutes

Administrative Procedure Act,

5 U.S.C. §§ 551-706 ............................................... 7

6 U.S.C. § 202 ............................................................. 1

v

Immigration and Nationality Act,

8 U.S.C. §§ 1101-1537 .................................... 2-3, 9

8 U.S.C. § 1103(a)(5) .................................................. 1

8 U.S.C. § 1225(b)(1)(A)(i) .......................................... 9

8 U.S.C. § 1225(b)(1)(B)(ii) ......................................... 9

8 U.S.C. § 1225(b)(1)(B)(iii)(IV) ................................. 9

8 U.S.C. § 1182(d)(5)(A) ........................................ 9-10

8 U.S.C. § 1225 ........................................................... 8

8 U.S.C. § 1225(a)(1) .................................................. 9

8 U.S.C. § 1225(b)(1) .................................................. 9

8 U.S.C. § 1225(b)(2)(A) ............................................. 9

8 U.S.C. § 1225(b)(2)(C) .......................................... 7-8

8 U.S.C. § 1229a ....................................................... 10

Rules and Regulations

Executive Order 13993, 86 Fed. Reg. 7051 (Jan.

25, 2021) ................................................................ 2

Proclamation 10142, 86 Fed. Reg. 7225 (Jan. 27,

2021) ...................................................................... 2

1

INTRODUCTION

Amicus Curiae Immigration Reform Law Institute

(“IRLI”) respectfully submits that the Court should

deny the stay application.

INTEREST OF AMICUS CURIAE

The accompanying motion sets out IRLI’s interest

in this action.

STANDARD OF REVIEW

A stay pending the timely filing and ultimate

resolution of a petition for a writ of certiorari is

appropriate when there is “(1) a reasonable probability that four Justices will consider the issue

sufficiently meritorious to grant certiorari; (2) a fair

prospect that a majority of the Court will vote to

reverse the judgment below; and (3) a likelihood that

irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). For

“close cases,” the Court “will balance the equities and

weigh the relative harms to the applicant and to the

respondent.” Id.

STATEMENT OF THE CASE

Congress has charged the Department of

Homeland Security (“DHS”) with the responsibility of

securing the nation’s borders against illegal

immigration. See 6 U.S.C. § 202 (“The [DHS]

Secretary shall be responsible for … (2) [s]ecuring the

borders, territorial waters, ports, terminals,

waterways, and air, land, and sea transportation

systems of the United States ….”); 8 U.S.C. §

1103(a)(5) (the DHS Secretary “shall have the power

and duty to control and guard the boundaries and

borders of the United States against the illegal entry

2

of aliens”). In order to meet this responsibility, DHS

implemented the Migrant Protection Protocols

(“MPP”), also referred to as the “remain in Mexico”

policy in January 2019. The MPP proved effective at

reducing the number of aliens attempting to cross the

southern border, reducing the number of aliens

released into the United States, and reducing the

number of frivolous asylum claims burdening the

immigration system. See App. 43a-44a.

But on this administration’s first day in office,1 it

immediately began dismantling programs and

policies designed to secure the nation’s borders and

enforce the Immigration and Nationality Act (“INA”).

For example, Executive Order 13993, 86 Fed. Reg.

7051 (Jan. 25, 2021), revised immigration

enforcement priorities, and Proclamation 10142, 86

Fed. Reg. 7225 (Jan. 27, 2021), terminated border wall

construction. DHS also issued a memorandum

entitled “Review of and Interim Revision to Civil

Immigration Enforcement and Removal Policies and

Priorities,” in which it announced an immediate 100day pause of all removals2 and extremely narrow

immigration enforcement priorities consisting of

Although the federal applicants refer to themselves as the

“government,” the state respondents are also governments, and

they “entered the federal system with their sovereignty intact.”

Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991).

IRLI refers to the applicants as the “Administration.”

1

On January 26, 2021, a district court entered a nationwide

temporary restraining order against the 100-day stay of

removals, and on February 23, that court converted the TRO into

a preliminary injunction. See Texas v. United States, 2021 U.S.

Dist. LEXIS 33890, *9, *147-48, 2021 WL 723856 (S.D. Tex. Feb.

23, 2021).

2

3

recent arrivals, aggravated felons, terrorists, spies, or

other national security risks. See Texas v. United

States, 2021 U.S. Dist. LEXIS 156642, *18-23 (S.D.

Tex. Aug. 19, 2021) (describing DHS’s January 20,

2021, enforcement memorandum). Finally, DHS

announced the “suspension” of the MPP program. See

App. 49a.

Collectively, these Administration actions signal

to potential border crossers that the Administration is

uninterested in securing—or unwilling to secure—our

border, and these actions have resulted in the

ongoing, record-setting surge of migrants at the

southwest border. Indeed, the actions by the

Administration reflect a conscious decision to cease

effective immigration enforcement policies and to

pursue a general policy of non-enforcement. This case

arises in the context of the Executive branch’s ongoing

abdication of its duty to enforce the nation’s

immigration laws.

SUMMARY OF ARGUMENT

First, this Court is unlikely to grant certiorari in

this case because the Administration lacks the right

to administer immigration policy inconsistently with

the INA, and there is no evidence of foreign-policy

issues with Mexico (Section I).

Second, the Administration is unlikely to prevail

in reversing the injunction on the merits both because

its actions are inconsistent with the INA and because

the commitment-to-discretion exception to judicial

review is very narrow and agency rules—such as the

MPP—can provide the “law to apply” to defeat the

exception even if the statute does not (Section II).

4

Third, the Administration’s proffered harm—

having to comply with the INA—is no harm at all, but

any such harm would be outbalanced by the States’

harms from the massive influx of illegal aliens

prompted by the Administration’s lax policies (Section

III).

ARGUMENT

I. THE ADMINISTRATION FAILS TO SHOW A

LIKELIHOOD THAT THIS COURT WILL

GRANT CERTIORARI.

The Administration argues that there is a

reasonable possibility that this Court will grant

certiorari if the Fifth Circuit Court of Appeals upholds

the district court’s nationwide injunction because this

case raises “numerous issues of exceptional

importance.” Application for a Stay (“Stay App.”) at 13

(citing Sup. Ct. R. 10(a)). None of the Administration’s

arguments has merit.

First, the Administration suggests that this case

raises serious foreign policy concerns inasmuch as the

district court’s order reflects an attempt to conduct

“foreign policy by injunction,” requiring the

Administration to secure the cooperation of the

Government of Mexico in order to reinstate the MPP.

Stay App. at 13-14. But as the courts below noted,

MPP was initially instituted unilaterally, Mexico has

already committed to cooperate with MPP, and the

Administration fails to show that Mexico has

withdrawn its commitment to cooperate or that it will

do so if MPP is reinstated. App. 31a.

Next, the Administration argues that the district

court’s injunction “dramatically interferes” with

DHS’s management of border operations in a way that

5

is “inconsistent with this Administration’s priorities

and immigration-enforcement strategies.” Id. at 14.

But the Administration can only set priorities or adopt

strategies that are consistent with the laws enacted

by Congress. It is Congress’s prerogative in the first

instance to set immigration-enforcement priorities,

mandating certain enforcement actions while merely

authorizing others. Here, Congress mandates the

detention and removal of certain arriving aliens and,

in the alternative, authorizes their return to

contiguous territory in lieu of such mandated

detention. See App. at 76a-77a (describing the

relevant statutory provisions). The district court’s

injunction merely requires the Administration to

comply with these mandatory provisions or choose to

take the discretionary action. What the injunction

prohibits is the Administration’s choosing to ignore

both of these options. Thus, even if the injunction is

“inconsistent with” the Administration’s enforcement

policies (which seem to be non-enforcement of either

option), it merely requires the Administration to

comply with Congress’s enforcement strategies.

Because Congress has “never” appropriated

enough funds to detain every alien who crosses the

border and because no prior administration has fully

complied with the law, the Administration finds it

“extraordinary” that the district court concluded that

section 1225 leaves the Administration with only “two

options” with respect to certain inadmissible “aliens

seeking asylum: (1) mandatory detention; or (2)

return to a contiguous territory.” Stay App. at 14-15.

The plain meaning of the statute, however, supports

the district court’s ruling, and the mere fact that no

6

prior administration has fully complied with the law

does not affect the meaning of the law. And the lack of

congressional appropriations for detention costs are

inapposite because Congress gave the Executive

branch the ability to avoid such costs by returning

aliens to a contiguous territory as an alternative to

mandatory detention.

II. THE ADMINISTRATION FAILS TO SHOW A

LIKELIHOOD THAT THIS COURT WOULD

OVERTURN THE INJUNCTION.

The

Administration

argues

that

DHS’s

discretionary determination to return aliens to a

contiguous territory pending their removal hearing is

unreviewable because it is “committed to agency

discretion by law.” Stay App. at 17-19 (citing Lincoln

v. Vigil, 508 U.S. 182, 191 (1993); 5 U.S.C. § 701(a)).

“This is a very narrow exception,” and “it is applicable

in those rare instances where statutes are drawn in

such broad terms that in a given case there is no law

to apply.” Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402, 410 (1971) (interior quotation marks

omitted). Even if a statute provides “no law to apply,”

moreover, the agency’s own regulations can supply

that law. Chrysler Corp. v. Brown, 441 U.S. 281, 318

& n.48 (1979); id. at 301 (“the appropriate inquiry is

whether

OFCCP’s

regulations

provide

the

‘authorization by law’ required by the statute”)

(alterations omitted); accord Ellison v. Connor, 153

F.3d 247, 251 (5th Cir. 1998) (“agency’s own

regulations can provide the requisite ‘law to apply’”)

(collecting cases).

So the exception is even more narrow here, where

the agency is changing its policy. When an agency

7

changes its existing policy, it “need not always provide

a more detailed justification than what would suffice

for a new policy created on a blank slate[,]” but it must

at least “display awareness that it is changing

position” and “show that there are good reasons for

the new policy.” FCC v. Fox Television Stations, Inc.,

556 U.S. 502, 515 (2009) (emphasis deleted).

Here, the statute states that DHS “may return the

alien to” a contiguous territory pending his or her

removal hearing. 8 U.S.C. § 1225(b)(2)(C). The

Administration contends that this language gives

DHS unreviewable discretion to return such aliens.

Stay App. at 17-19. The courts below concluded that

the alternative mandatory detention standards in

section 1225 cabined DHS’s discretion under

1225(b)(2)(C). See App. at 16a-17a. In other words,

DHS could decline to return aliens under (b)(2)(C), but

only if it complied with the only statutory alternative,

detention of the aliens.

But more importantly, even if the discretion to

return aliens to a contiguous territory under

1225(b)(2)(C) were committed to DHS’s discretion by

law, DHS set forth its own guidelines for how it would

exercise that discretion when it initiated the MPP. See

App. 18a (describing MPP as a government program—

replete with rules, procedures, and dedicated

infrastructure); AR 151-62 (memoranda establishing

MPP describing classes of aliens amenable to the

program and noting classes of aliens excepted from

the program). Once those guidelines were in place, the

Administrative Procedure Act (“APA”) requires that

DHS give a reasoned explanation for changing its

policy. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

8

Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency

changing its course by rescinding a rule is obligated to

supply a reasoned analysis for the change beyond that

which may be required when an agency does not act

in the first instance.”). As the court of appeals held,

the DHS Secretary failed to consider several relevant

factors, including the States’ reliance interests in the

MPP, DHS’s prior factual findings regarding the

benefits of the MPP, and alternative policy choices.

App. 20a-24a. This Court is unlikely to overturn an

agency action that fails to consider such factors.

This Court’s decision in DHS v. Regents of the

Univ. of Cal., 140 S. Ct. 1891 (2020), is fatal to the

Administration’s argument that its discretion under

section 1225(b)(2)(C) is unreviewable or its reasoning

in terminating MPP is sufficient. In Regents, this

Court acknowledged that the Deferred Action for

Childhood Arrivals (“DACA”) program was a

discretionary program unconstrained by statutory

text. See 140 S. Ct. at 1910. DACA, like MPP, set forth

guidelines for which classes of aliens would be

amenable for the program. See id. at 1901 (describing

the classes of aliens who “warranted” deferred action

under DACA). Nevertheless, this Court faulted DHS’s

action terminating DACA because it failed to consider

certain relevant factors, including reliance interests.

See id. at 1910-12. Because the courts decisions below

are consistent with, if not mandated by, Regents, it is

unlikely that the Court would rule for the

Administration on the merits.

The Administration again expresses disbelief that

the discretionary MPP program can be tied to the only

statutory alternative—mandatory detention. Stay

9

App. at 21-22. But reading section 8 U.S.C. § 1225 as

a whole makes clear that Congress intended for all

inadmissible arriving aliens to be either removed

without a hearing, detained pending adjudication of

any asylum claim, detained pending a regular

removal hearing, or returned to a contiguous territory

pending a regular removal hearing.

Section 1225(a)(1) requires that “an alien present

in the United States who has not been admitted …

shall be deemed for purposes of this chapter an

applicant for admission.” This designation triggers

section 1225(a)(3), which requires that all applicants

for admission “shall be inspected by immigration

officers.” This in turn triggers section 1225(b), which

governs inspection of applicants for admission.

Section 1225(b)(1) mandates the expedited removal of

aliens who either have no entry documents or attempt

to gain admission through misrepresentation. 8

U.S.C. § 1225(b)(1)(A)(i). If such an alien requests

asylum, the statute mandates detention of such an

alien pending consideration of an application for

asylum. 8 U.S.C. § 1225(b)(1)(B)(ii), (iii)(IV).

Section 1225(b)(2)(A), which applies to all

applicants for admission, mandates that “if the

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.” Section 1229a governs regular removal

proceedings before an immigration judge. Tellingly,

nowhere does the INA authorize the simple release of

illegal aliens into the United States pending removal

proceedings. The only potential avenue for release

10

into the United States is parole under 8 U.S.C.

§ 1182(d)(5)(A), which allows DHS to parole aliens

into the country only “on a case-by-case basis for

urgent humanitarian reasons or significant public

benefit.” 8 U.S.C. § 1182(d)(5)(A).

III. EVEN IF THE CASE WERE CLOSE, THE

BALANCE OF HARMS WOULD COUNSEL

AGAINST A STAY.

At the outset, this Court need not consider the

harm that the Administration claims because the

Administration is unlikely to prevail on the merits.

But even if the case were close enough to warrant

balancing of harms, Hollingsworth, 558 U.S. at 190,

the balance of harms counsels against a stay.

The Administration argues that the “denial of a

stay will result in serious and irreparable harm to the

government,” while suggesting that respondents’

harms are “entirely speculative” and “insufficient to

overcome the government’s interests.” Stay App. at

35. (internal quotations omitted). The Administration

also asserts that the district court’s injunction would

require that the Administration “immediately

negotiate with Mexico to reinstate MPP.” Id. The

Administration’s arguments amount to hyperbole.

Although the memorandum terminating MPP

discussed the bilateral relationship with Mexico and

suggested that “MPP played an outsized role in the

Department’s engagement with Mexico” over the past

two-and-a-half years, nowhere in the memorandum

does the Secretary suggest that reinstating the thensuspended MPP would require renegotiation with

Mexico. AR 6. Tellingly, Mexico had already agreed to

cooperate with respect to the MPP program, and the

11

Administration points to no evidence that Mexico

would no longer honor that agreement. See App. 12a

(noting that nothing in the record suggests Mexico has

since retracted consent to cooperate with DHS with

respect to MPP).

The Administration also faults the court of

appeals for concluding that the harms to the

Administration “do not count” because they are “selfinflicted.” Stay App. at 38 (citing App. 29a). According

to the Administration, “the court of appeals’ argument

is hard to take seriously, as it would effectively

require the Administration to treat all pending

lawsuits as de facto injunctions, thereby severely

constricting

the

Executive’s

statutory

and

constitutional authority.” Id. at 39. Yet DHS

arbitrarily “suspended” MPP on January 20, 2021,

with absolutely no explanation, and only belatedly

provided an explanation for the “termination” of MPP

after respondents had filed suit and fully briefed a

request for a preliminary injunction. Further, as the

district court noted, DHS started dismantling the

MPP program well before it “terminated” the program

on June 1. App. 81a-82a. Avoiding the self-inflicted

harms that resulted from these unlawful actions was

required by law, not by a pending lawsuit.

Next, the Administration absurdly claims that it

is mere “speculation that the rescission of MPP would

increase the number of aliens present within the

plaintiff States,” Stay App. at 39, even though they

acknowledge that “tens of thousands” of aliens had

been returned to Mexico under MPP during the

“short-lived” program. See Stay App. at 8; see also 43a

(noting that more than 55,000 aliens had been

12

returned to Mexico under the MPP between lateJanuary 2019, when the MPP was initiated, and lateOctober 2019, when DHS issued its assessment of the

program). In addition, the current number of aliens

crossing

the

southwest

border

since

the

suspension/termination of the MPP is at record levels.

Finally, to the extent the injunction causes the

Administration to incur additional detention costs,

such detention costs are mandated by statute and

should not be weighed against the harm plaintiff

States are suffering due to the Administration’s nonenforcement policies.

In sum, from its first day in office, the Biden

administration has taken almost every step

imaginable to minimize immigration enforcement. It

“suspended” the MPP, instituted a 100-day “pause” on

all removals, and narrowed enforcement priorities to

an unacceptable degree (focusing mainly on terrorists,

spies, and aggravated felons). As a result, we are

witnessing today record-level border crossings that

impose costs on America as a whole, but border States

in particular. Because the balance of harms weighs

against a stay pending appeal and certiorari, the

Court should deny the application.

CONCLUSION

This Court should deny the Administration’s stay

application.

13

Dated: August 24, 2021

Respectfully submitted,

CHRISTOPHER J. HAJEC

MATT A. CRAPO

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 202-355-9452

ljoseph@larryjoseph.com

Counsel for Amicus Curiae