STATE v. BIDEN

No. 21-10806.

10 F.4th 538 (2021)

STATE of Texas; State of Missouri, Plaintiffs-Appellees, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States of America; United States of America; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; United States Department of Homeland Security; Troy Miller, Acting Commissioner, U.S. Customs and Border Protection; United States Customs and Border Protection; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement; United States Immigration and Customs Enforcement; Tracy Renaud, in her official capacity as Acting Director of the United States Citizenship and Immigration Services; United States Citizenship and Immigration Services, Defendants-Appellants.

United States Court of Appeals, Fifth Circuit.

August 19, 2021.


Attorney(s) appearing for the Case

Judd Edward Stone, II , Lanora Christine Pettit , William Thomas Thompson , Assistant General Counsel, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Plaintiff-Appellee State of Texas.

Jesus Armando Osete , Dean John Sauer , Office of the Attorney General for the State of Missouri, Jefferson City, MO, for Plaintiff-Appellee State of Missouri.

Brian Christopher Ward , Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation-District Court Section, Washington, DC, Joseph Anton Darrow, Esq. , U.S. Department of Justice, Civil Division, Washington, DC, Erez Reuveni , Assistant Director, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, Brian Walters Stoltz , U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Defendants-Appellants.

Cody Wofsy , American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA, for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Texas.

Blaine Bookey , UC Hastings College of the Law, Center for Gender & Refugee Studies, San Francisco, CA, for Amici Curiae American Immigration Council, American Immigration Lawyers Association, Catholic Legal Immigration Network, Incorporated, Center for Gender & Refugee Studies, Human Rights First, Justice Action Center, National Immigration Law Center, Round Table of Former Immigration Judges, and Southern Poverty Law Center.

Thomas Molnar Fisher , Solicitor General, Office of the Attorney General for the State of Indiana, Indianapolis, IN, for Amici Curiae State of Indiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Kansas, State of Kentucky, State of Louisiana, State of Mississippi, State of Montana, State of Ohio, State of Oklahoma, State of South Carolina, and State of West Virginia.

Before Elrod, Oldham, and Wilson, Circuit Judges.


This case concerns the Migrant Protection Protocols ("MPP") created by the Secretary of the Department of Homeland Security on December 20, 2018, and purportedly rescinded by DHS in a memorandum on June 1, 2021 ("June 1 Memorandum").1 After a full bench trial and 53 pages of findings of fact and conclusions of law...

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