Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 1 of 9 PageID 3896

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

)
STATE OF TEXAS, )
STATE OF MISSOURI, )
)
Plaintiffs, )
)
v. ) Civil Action No. 2:21-cv-00067-Z
)
JOSEPH R. BIDEN, JR., )
in his official capacity as )
President of the United States, et al., )
)
Defendants. )
)

UNOPPOSED MOTION TO IMMEDIATELY VACATE THE PERMANENT

INJUNCTION

INTRODUCTION

Defendants move the Court to immediately vacate the August 13, 2021 permanent

injunction issued by the Court. The Supreme Court has reversed the bases for this Court’s

permanent injunction and held that this Court lacked jurisdiction to grant injunctive relief,

see Biden v. Texas, 142 S. Ct. 2528, 2538, 2548 (2022), and so this Court should immediately

vacate the injunction. Plaintiffs to not oppose this motion.1

BACKGROUND

This case concerns the Migrant Protection Protocols (MPP), a former Department of

Homeland Security (DHS) policy that was applied to certain nationals of foreign countries who

had transited through Mexico from a third country to reach the United States land border. In

1
Although Plaintiffs do not oppose this motion, should the Court not immediately vacate the
injunction, the government requests that the Court expedite consideration of this motion.
1
 Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 2 of 9 PageID 3897

promulgating MPP, DHS invoked its discretionary authority under 8 U.S.C. § 1225(b)(2)(C),

which provides that the Secretary “may return” certain noncitizens “arriving on land ... from a

foreign territory contiguous to the United States ... to that territory” pending resolution of their

removal proceedings. Following the change in administration, the Acting Secretary temporarily

suspended new enrollments in MPP.

On April 13, 2021, the States of Missouri and Texas filed this suit in the Northern District

of Texas, initially challenging the suspension of new enrollments in MPP. On June 1, 2021,

following a comprehensive review, the Secretary terminated MPP in a memorandum which

explained his findings and conclusions. On June 3, 2021, Plaintiffs amended their complaint to

seek injunctive relief against the Secretary’s termination of MPP.

On August 13, 2021, following a one-day bench trial, this Court “permanently enjoined

and restrained” DHS “from implementing or enforcing the June 1 Memorandum,” which it

“vacated in its entirety and remanded to DHS for further consideration.” Texas, 554 F. Supp. 3d at

857. Further, the court issued a nationwide, permanent injunction requiring DHS “to enforce and

implement MPP in good faith until such a time as it has been lawfully rescinded in compliance

with the APA and until such a time as the federal government has sufficient detention capacity to

detain all aliens subject to mandatory detention under Section [1225] without releasing any aliens

because of a lack of detention resources.” Id. (emphasis in original). The government then appealed

to the Fifth Circuit.

On October 29, 2021, while that appeal was pending, Secretary Mayorkas issued a new

memorandum terminating MPP and superseding the June 1 memorandum and all prior memoranda

implementing MPP. Based on this superseding decision, the government moved to remand to this

Court for further proceedings. On December 13, 2021, the Fifth Circuit denied that motion and

2
 Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 3 of 9 PageID 3898

upheld the injunction. Texas, 20 F.4th 928. The Fifth Circuit held that Section 1252(f) did not

apply because the district court’s injunction “restored” the operation of Section 1225(b)(2)(C)

rather than enjoined it, that Section 1225(b)(2)(C), which authorizes contiguous-territory return as

an alternative to detention under Section 1225(b)(2)(A), becomes mandatory if the government

lacks sufficient detention capacity, and that the October 29 memoranda did not constitute a new

and separately reviewable agency action. Id. at 951, 996, 1004.

On June 30, 2022, the Supreme Court reversed each of those rulings and “the judgment of

the Court of appeals and remand[ed] the case for further proceedings.” Biden v. Texas, 142 S. Ct.

2528, 2548 (2022). The Supreme Court held that “the Government’s rescission of MPP did not

violate section 1225 of the INA,” 142 S. Ct. at 2548, and that the Secretary’s October 29

memoranda had legal effect, id. at 2544-47. The Supreme Court also held that 8 U.S.C.

§ 1252(f)(1) “generally prohibits lower courts from entering injunctions that order federal officials

to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified

statutory provisions,” and that “[t]he District Court’s injunction in this case violated that

provision.” Id. at 2538 (quoting Garland v. Aleman Gonzalez, 596 U.S. ___ (2022)).

The Supreme Court handed down its judgment on August 1, 2022. Thereafter, on August

3, the Fifth Circuit remanded the case to this Court “for further proceedings consistent with the

Supreme Court’s decision.” Order, Texas v. Biden, No. 21-10806 (5th Cir Aug. 3, 2022). The

Fifth Circuit issued its mandate on August 6, 2022, returning the case to this Court. See Order,

Texas v. Biden, No. 21-10806 (5th Cir. Aug. 6, 2022, 11:14 AM).

3
 Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 4 of 9 PageID 3899

ARGUMENT

Because the Supreme Court reversed the bases for this Court’s permanent injunction, and

held that this Court lacked jurisdiction to grant injunctive relief, this Court should immediately

vacate the injunction.

I. The Court should vacate the injunction because the Supreme Court’s decision
eliminates the legal bases for the injunction.

The Supreme Court has conclusively resolved the statutory claims presented in this case in

the government’s favor and eliminated any basis for maintaining the injunction on statutory

grounds. The Court also reversed the Fifth Circuit’s conclusion that, because the October 29

memorandum lacked any legal effect, the injunction could be affirmed based on Texas’ APA

challenge to the June 1 memorandum.

The Supreme Court reversed this Court’s statutory ruling that the government must

implement MPP because the contiguous-territory return provision in Section 1225(b)(2)(C)

becomes mandatory if the government lacks sufficient detention capacity to detain all noncitizens

subject to detention under Section 1225. The Supreme Court held that Section 1225(b)(2)(C)’s use

of “may” “clearly connotes” that this provision is discretionary, explaining that, “[i]f Congress

had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the

Government’s detention obligations, it would not have conveyed that intention through an

unspoken inference in conflict with the unambiguous, express term ‘may.’ It would surely instead

have coupled that grant of discretion with some indication of its sometimes-mandatory nature.”

Texas, 142 S. Ct. at 2541. The Supreme Court also noted that the “historical context in which the

provision was adopted,” the “novelty” of interpreting this section as mandatory when “every

Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary” in the

26 years since it was enacted, and the fact that “Congressional funding has consistently fallen well

4
 Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 5 of 9 PageID 3900

short of the amount needed to detain all land-arriving inadmissible aliens at the border” during that

timeframe all support the conclusion that the provision is discretionary. Id. at 2542-43.

The Supreme Court also explained that “the foreign affairs consequences of mandating the

exercise of contiguous-territory return likewise confirm that the Court of Appeals erred.” Id. at

2543. “By interpreting section 1225(b)(2)(C) as a mandate, the Court of Appeals imposed a

significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico,” a

“stark consequence” that “confirms … Congress did not intend section 1225(b)(2)(C) to tie the

hands of the Executive in this manner.” Id. And the Court emphasized that the availability of parole

as an option for DHS to process applicants for admission “additionally makes clear that the Court

of Appeals erred in holding that the INA required the Government to continue implementing

MPP.” Id. at 2543-44.

The Supreme Court also reversed the Fifth Circuit’s holding that because the October 29

memorandum lacked any legal effect, the injunction could be affirmed based on Texas’ APA

challenge to the June 1 memorandum. The Supreme Court held that the superseding October 29

memoranda had legal effect and that the Secretary’s decision to end MPP must be judged under

the APA based on those memoranda as a result. Id. at 2544-47.

The Supreme Court’s decision leaves no doubt: this Court should immediately vacate the

permanent injunction. Both the statutory and the APA grounds for the permanent injunction are

now inoperative.

II. The Court must vacate the injunction because the Court lacked jurisdiction to
enter it.

Even if all legal bases for the injunction had not been reversed, the injunction would still

have to be vacated because this Court lacked jurisdiction to enjoin the operation of 8 U.S.C.

§ 1225.

5
 Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 6 of 9 PageID 3901

Section 1252(f)(1) provides that: “Regardless of the nature of the action or claim or of the

identity of the party or parties bringing the action, no court (other than the Supreme Court) shall

have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this

subchapter … other than with respect to the application of such provisions to an individual alien

against whom proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1). The

Supreme Court held that Section 1252(f)(1) “generally prohibits lower courts from entering

injunctions that order federal officials to take or to refrain from taking actions to enforce,

implement, or otherwise carry out the specified statutory provisions.” 142 S. Ct. at 2538 (quoting

Garland v. Aleman Gonzalez, 596 U.S. ___ (2022)). Section 1225(b)(2)(C) is one of the statutory

provisions covered by Section 1252(f)(1), so “[t]he District Court's injunction in this case violated

that provision.” Id.

Section 1252(f)(1) thus eliminates the Court’s authority—and the authority of any court

other than the Supreme Court—to grant injunctive relief with respect to Section 1225.

Accordingly, the injunction must be vacated.

CONCLUSION

For these reasons, the Court should immediately vacate the permanent injunction.

//

//

6
 Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 7 of 9 PageID 3902

August 8, 2022 Respectfully submitted,

BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General

WILLIAM C. PEACHEY
Director

/s/ Erez Reuveni

EREZ REUVENI
Assistant Director
U.S. Department of Justice, Civil Division
Office of Immigration Litigation,
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 307-4293
Email: erez.r.reuveni@usdoj.gov

BRIAN C. WARD
Senior Litigation Counsel

JOSEPH A. DARROW
Trial Attorney

Counsel for Defendants

7
 Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 8 of 9 PageID 3903

CERTIFICATE OF CONFERENCE

I hereby certify that on August 7 and 8, 2022, I conferred with counsel for Plaintiffs

about the relief requested in this motion. Plaintiffs do not oppose this request.

/s/ Erez Reuveni

EREZ REUVENI
U.S. Department of Justice

8
 Case 2:21-cv-00067-Z Document 146 Filed 08/08/22 Page 9 of 9 PageID 3904

CERTIFICATE OF SERVICE

I hereby certify that on August 8, 2022, I electronically filed this motion with the Clerk of

the Court for the United States District Court for the Northern District of Texas by using the

CM/ECF system. Counsel in the case are registered CM/ECF users and service will be

accomplished by the CM/ECF system.

/s/ Erez Reuveni

EREZ REUVENI
United States Department of Justice