Texas and Missouri v. Biden, USA, Alejandro Mayorkas, DHS, Troy Miller, US Customs and Border Protection, Tae Johnson, US Immigration and Customs Enforcement, Tracy Renaud, US Citizenship and Immigration Services

COMPLAINT

1. In the first several hours following President Biden’s inauguration, the
incoming Administration suspended the successful Migrant Protection Protocols
(“MPP”). These regulations required individuals who both lacked a legal basis to be
present in the United States and who had passed through Mexico en route to the
United States to remain in Mexico pending adjudication of their immigration claims.
Prior to the MPP, individuals passing through Mexico could enter the United States,
raise asylum claims, expect to be released into the United States in violation of
statutory requirements mandating their detention, and stay in the U.S. for years
pending the resolution of their claims—even though most were ultimately rejected in
court. MPP changed the incentives for economic migrants with weak asylum claims,
and therefore reduced the flow of aliens—including aliens who are victims of human
trafficking—to the southern border.
2. This lawsuit challenges the Administration’s unexplained and
inexplicable two-sentence statement functionally ending the MPP. The result of this
arbitrary and capricious decision has been a huge surge of Central American
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migrants, including thousands of unaccompanied minors, passing through Mexico in
order to advance meritless asylum claims at the U.S. border.
3. This migrant surge has inflicted serious costs on Texas as organized
crime and drug cartels prey on migrant communities and children through human
trafficking, violence, extortion, sexual assault, and exploitation. These crimes
directly affect Texas and its border communities, especially given Texas’s strong focus
on combating human trafficking both at the border and throughout the State. The
additional costs of housing, educating, and providing healthcare and other social
services for trafficking victims or illegal aliens further burden Texas and its
taxpayers.
4. The effects of unlawful immigration do not stop at the southern border.
Indeed, “[t]he pervasiveness of federal regulation does not diminish the importance
of immigration policy to the States[,]” which “bear[] many of the consequences of
unlawful immigration.” Arizona v. United States, 567 U.S. 387, 397 (2012). With its
intersection of major interstate highway routes, Missouri is a major destination and
hub for human trafficking. Missouri’s ongoing fight against human trafficking—
including the exploitation and trafficking of vulnerable migrants—likewise provides
it with justiciable interests that fall within the zone of interests of federal statutes on
immigration-related policy. Indeed, irresponsible border-security policies that invite
and encourage human traffickers to exploit vulnerable border-crossing victims
irreparably injure Missouri and other States.
5. Recently, Texas’s and Missouri’s interests in combating human
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trafficking have become more urgent. By dismantling the MPP, the Administration
has directly caused a massive uptick in illegal immigration through Central America,
Mexico, and to the U.S. southern border.
6. MPP is an exercise of DHS’s express authority under the Immigration
and Nationality Act, 8 U.S.C. § 1101 et seq., to return those aliens temporarily to
Mexico during the pendency of their removal proceedings.
See 8 U.S.C. § 1225(b)(2)(C). The Secretary of Homeland Security implemented MPP
to manage the large influx of aliens arriving on the southern border with no lawful
basis for admission. MPP proved to be enormously effective: it enabled DHS to avoid
detaining or releasing into the United States more than 71,000 migrants during
removal proceedings, and curtailed the number of aliens approaching or attempting
to cross the southern border.1 The program served as an indispensable tool in the
United States’ efforts, working cooperatively with the governments of Mexico and
other countries, to address the migration crisis by diminishing incentives for illegal
immigration, weakening cartels and human smugglers, and enabling DHS to better
focus its resources on legitimate asylum claims.
7. Nonetheless, the Biden Administration cast aside congressionally
enacted immigration laws and suspended new enrollments in MPP on its first day in
office. In a peremptory two-sentence, three-line memorandum, the Acting Secretary
of Homeland Security issued a directive, effective January 21, 2021, that DHS would
1 See, e.g., TRAC Immigration, Details on MPP (Remain in Mexico) Deportation
Proceedings, https://trac.syr.edu/phptools/immigration/mpp/.
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“suspend new enrollments in [MPP], pending further review of the program.” Exhibit
A (“January 20 Memorandum”). This memorandum provided no analysis or reasoned
justification for this abrupt suspension. In doing so, the Biden Administration
ignored the governing legal authority and basic requirements set forth in the
Administrative Procedure Act, 5 U.S.C. § 551 et seq., 5 U.S.C. § 701 et seq.
8. The Biden Administration’s suspension “takes off the table one of the
few congressionally authorized measures available to process” the vast numbers of
migrants arriving at the southern border on a daily basis. Innovation L. Lab v.
McAleenan, 924 F.3d 503, 510 (9th Cir. 2019) (per curiam). Before MPP, U.S. officials
encountered an average of approximately 2,000 inadmissible aliens at the southern
border each day, and the rate at which those aliens claimed fear of return to their
home countries surged exponentially.
9. That huge influx imposes enormous, avoidable burdens on the United
States’ immigration system. Most asylum claims are meritless. For example, the
Executive Office for Immigration Review (“EOIR”) reported that between FY 2008
and FY 2019, only 14 percent of aliens who claimed credible fear were granted
asylum.2 Alongside the fact that immigration courts were faced with a backlog of
over 768,000 cases at the end of FY 2018—a number that since has grown—it is clear
the asylum system was and continues to be manipulated by aliens presenting at the
2 See Executive Office for Immigration Review Adjudication Statistics, Credible
Fear and Asylum Process: Fiscal Year (FY) 2008 – FY 2019 (Oct. 23,
2019), https://www.justice.gov/eoir/file/1216991/download.
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border.3
10. MPP played a critical role in addressing this crisis. By returning
migrants to Mexico to await their asylum proceedings—in cooperation with the
Mexican Government, which has permitted these aliens to remain in Mexico—MPP
eased the strain on the United States’ immigration-detention system and reduced the
ability of inadmissible aliens to abscond into the United States. Between FY 2008
and FY 2019, 32 percent of aliens referred to EOIR absconded into the United States
and were ordered removed in absentia.4
11. MPP also discouraged aliens from attempting illegal entry or making
meritless asylum claims in the hope of staying inside the United States, thereby
permitting the government to better focus its resources on individuals who
legitimately qualify for relief or protection from removal. In February 2020, for
example, the number of aliens either apprehended or deemed inadmissible at the
southern border was down roughly 40,000 from February 2019.5 The Biden
Administration’s suspension of the MPP has imposed severe and ongoing burdens on
Texas and Missouri because the government will not process into the MPP the tens
of thousands of aliens who are resuming attempts to cross the southern border with
no legal basis for admission, and the government will process the tens of thousands
of aliens already admitted into the MPP into the United States.
3 See TRAC Immigration, Immigration Court Backlog Tool,
https://trac.syr.edu/phptools/immigration/court_backlog/.
4 See Credible Fear and Asylum Process, supra, at n.2. 5 U.S. Customs & Border Protection, Southwest Border Migration FY 2020,
https://go.usa.gov/xdhSh (last visited Apr. 9, 2020).
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12. Additionally, the Biden Administration’s suspension threatens damage
to the bilateral relationship between the United States and Mexico. Migration has
been the subject of substantial discussion between the two countries and is a key topic
of ongoing concern in their relationship.6 The unchecked flow of third-country
migrants through Mexico to the United States strains both countries’ resources and
produces significant public safety risks—not only to the citizens of Mexico and the
United States, but also to the migrants themselves, who are often targeted by
criminals for human trafficking, violence, and extortion. MPP played a key role in
joint efforts to address the crisis, but the suspension of MPP upsets those efforts and
undermines Mexican confidence in U.S. foreign policy commitments. And like Texas
and Missouri, the Mexican government intends to “crack down on migrant
trafficking.”7 But the suspension of MPP can only significantly delay those
enforcement efforts given the constant flow of migrants.
13. Texas contains more than half of the border between the United States
and Mexico, and a large share of individuals crossing into the United States to claim
asylum arrive through the Texas-Mexico border. Likewise, human traffickers and
their victims frequently arrive in Texas and either settle there, travel to one of
6 See, e.g., U.S. Department of Homeland Security, Assessment of the Migrant
Protection Protocols (MPP) (Oct. 28, 2019),
https://www.dhs.gov/sites/default/files/publications/assessment_of_the_migrant_pro
tection_protocols_mpp.pdf; Declaration of Ambassador Christopher Landau, No. 19-
15716, Doc. 92-3, ¶ 3 (9th Cir.).
7 Mark Stevenson et al., Biden tries to reset relationship with Mexican
president, ASSOCIATED PRESS (Mar. 1, 2021), https://apnews.com/article/bidenobrador-us-mexico-migration-issues-edb25cf298b7c9a83d15ff4f6c7ea95f.
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Texas’s major cities, or travel along Texas’s state highways to proceed further into
the United States.
14. Missouri is a destination and transit state for many human traffickers,
including human traffickers of migrants from Central American countries who have
crossed the border illegally. This is mainly due to the state’s substantial
transportation infrastructure and major population centers. Indeed, St. Louis and
Kansas City are major human-trafficking hubs connected by Interstate 70.
15. As a direct result of the suspension of new enrollments into the MPP,
and the corresponding increase in human-trafficking incidents involving vulnerable
Central American migrants, both Texas and Missouri will be forced to spend
significantly more resources in combating human trafficking. Thus, the Biden
Administration’s unlawful suspension of the MPP will cause both States immediate
and irreparable harm if it is not enjoined.
16. Moreover, the influx of unlawful immigrants with meritless claims of
asylum will result in additional unlawful migrants entering and remaining in Texas
and Missouri, thus forcing both States to expend more taxpayer resources on health
care, education, social services, and similar services for such migrants. There is no
monetary remedy for these increased costs and thus they constitute irreparable
injury to the State of Texas, the State of Missouri, and their taxpayers.
17. Because suspension of the MPP is invalid, it must be enjoined in its
entirety. See, e.g., United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287
(D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”); Nat’l
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Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir.
1998) (unlawful agency regulations are vacated); Gen. Chem. Corp. v. United States,
817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to vacate the agency’s
decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law[.]’ ”). Indeed, federal law contemplates a “comprehensive and
unified” immigration policy. Arizona, 567 U.S. at 401. As the Fifth Circuit has held,
“[t]he Constitution requires an uniform Rule of Naturalization; Congress has
instructed that the immigration laws of the United States should be enforced
vigorously and uniformly; and the Supreme Court has described immigration policy
as a comprehensive and unified system.” Texas v. United States, 809 F.3d 134, 187–
88 (5th Cir. 2015), aff’d, 136 S. Ct. 2271 (2016) (per curiam). Thus, “a fragmented
immigration policy would run afoul of the constitutional and statutory requirement
for uniform immigration law and policy.” Washington v. Trump, 847 F.3d 1151, 1166–
67 (9th Cir. 2017) (per curiam); see also Texas v. United States, No. 6:21-CV-00003,
2021 WL 247877, at *8 (S.D. Tex. Jan. 26, 2021) (enjoining government from
executing 100-day moratorium on the removal of aliens everywhere in the United
States).