Supreme Court Reverses Fifth Circuit, Enabling Biden Administration to End Migrant “Remain in Mexico” Policy

The U.S. Supreme Court reversed the Fifth Circuit’s decision prohibiting the Biden administration’s termination of the “Migrant Protection Protocols” (MPP), also called the “Remain in Mexico Policy,” that required migrants entering the United States at the Mexican border to remain in Mexico pending resolution of their U.S. immigration proceedings. The Fifth Circuit had held that the immigration laws required the United States to maintain MPP.

Paul, Weiss filed an amicus brief on behalf of former Department of Homeland Security Secretary Jeh Johnson and former Ambassador to Mexico Roberta Jacobson arguing that the immigration laws cannot be read to require MPP because it would interfere with the executive branch’s ability to conduct foreign policy, an argument that the majority opinion adopted. Drawing on their personal experience, they explained in their brief that MPP requires the agreement of Mexico, since the United States cannot force Mexico to accept non-Mexican migrants without Mexico’s consent, and that consent can only be obtained through diplomatic negotiations. The Fifth Circuit’s interpretation of the immigration laws would, therefore, impose a significant burden on the executive branch’s ability to conduct diplomatic relations with Mexico, which Congress never intended.

In an opinion by Chief Judge John Roberts, the Court by a 5-4 majority rejected the Fifth Circuit’s interpretation and held that MPP is not required by the immigration laws. Justices Breyer, Sotomayor, Kagan and Kavanaugh joined the opinion. In dissent, Justice Barrett said that she agreed with the majority on the merits but did not think the Court should reach the merits for procedural reasons.

Notably, the majority opinion and a concurring opinion by Justice Kavanaugh relied on the foreign policy considerations that Secretary Johnson and Ambassador Jacobson raised in our amicus brief.

The Paul, Weiss team was led by Secretary Johnson and included litigation of counsel Moses Silverman, partner Geoffrey Chepiga, associates Sarah Prostko, Miguel Zamora, Elizabeth Norford and Jennifer Kim, and pro bono attorney Tanaz Moghadam.