Dear Karen,

While we are still waiting for the district court to issue a decision on Remain in Mexico (Judge Kacsmaryk has been busy with other matters), below is an update on red state challenges to immigrant inclusive policies.  As always, our Litigation Tracker Microsite contains more information about these and other cases we are tracking, as well as an archive of our past newsletters, a Glossary, and FAQs.

View Litigation Tracker

Red states complain to Title 42 district court that Biden is letting in too many Haitians

We are also still waiting for the Fifth Circuit to schedule oral argument in the appeal of the injunction requiring the Biden Administration to continue the Title 42 expulsion program, but the Plaintiff states (led by Arizona) have gone back to the district court to complain that, over the last few months, more Haitians have been allowed into the U.S. through Title 42’s humanitarian exception (which is not enjoined/blocked) than were previously. The states’ motion asks Judge Summerhays to order the Biden Administration to produce documents and to sit for depositions (oral testimony taken under oath) regarding the alleged policy change vis-à-vis Haitians; they also ask the judge to consider imposing sanctions on the federal government for the alleged “circumvention” of the injunction.

What the red states did not mention to Judge Summerhays is why more Haitians have needed humanitarian protection the last few months. Haiti is currently experiencing a humanitarian crisis with a variety of overlapping causes: political strife, gang violence, a cholera outbreak, widespread food insecurity, and a virtual absence of fuel. What’s more, federal (and international) law prohibits the U.S. government from deporting migrants back to such dangerous conditions. In context, the states’ motion is a bare power grab that (again) asks a conservative judge to allow the states to superintend the nation’s immigration policies—this time regarding the country that sends more Black migrants to the U.S. than any other.


In contrast, red states have not complained about the tens of thousands of Ukrainians who’ve been exempted from Title 42 this year.

AZ governor builds illegal border wall out of welded junk, asks judge to say it’s legal

An odd spectacle has been developing in the Arizona desert over the last several weeks: at the order of Governor Ducey, a politically-connected private company from Florida has been using stacked shipping containers, placed end-to-end, to fill gaps in the existing border wall with Mexico (gaps that the federal government is already filling, notwithstanding Biden’s campaign promise not to build more border wall). Ducey ordered this “wall” built over the objections of the Cocopah Indian Tribe and the federal government (most of it goes through the Coronado National Forest) and knowing full well that it was unlawful for a variety of reasons (e.g., it’s generally frowned upon to dump literal tons of rusted junk in a national forest without permission). At the same time the containers were being welded together, Ducey hired a private law firm to file a lawsuit, (Ducey v. Moore), on his behalf to ask a federal judge to declare his actions legal. We’ll keep you updated on how this political stunt unfolds.

As always, thanks for reading,

Laura Flores

Skadden Fellow

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