Hello Karen,

Below are recent updates 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, our Glossary, and our FAQs

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Updates: August 4, 2022

Fifth Circuit thumbs nose at SCOTUS and rule of law by delaying the mandate in RMX case 

Unlike federal district courts, opinions of the Supreme Court or a federal Court of Appeals typically do not go into effect until weeks later, when the clerk of the higher court formally transfers the case back to the lower court via (electronic) paperwork (typically called a “mandate” and/or “judgment”). The delay between the opinion and the transfer provides an opportunity for the parties to request reconsideration or for the appellate court to do so on its own initiative. 

On August 1, the Supreme Court sent the certified judgment in the Remain in Mexico case to the Fifth Circuit. The following day, the Department of Justice requested that the Fifth Circuit transfer the case back to the district court by issuing the mandate immediately. Notably, Texas did not oppose the Biden Administration’s request. 

Nonetheless, on August 3, the same three judges the Supreme Court reversed decided not to immediately send the mandate to the district court—which legally must occur before the district court has jurisdiction to lift the injunction—and instead maneuvered so that the mandate will not issue until September 26. In other words, these three judges intentionally (and without explanation) required the injunction prohibiting the Biden Administration from ending RMX to stay in place for nearly eight more weeks. 


If not further challenged by the Biden Administration, this petulant decision by the panel will mean thousands of additional asylum seekers will be subjected to the dangers of RMX via an injunction that every single Justice of the Supreme Court agreed (9-0) is unlawful. Let’s hope the Biden Administration continues to fight for immediate issuance of the mandate—and a speedy and final end to RMX.

Red states withdraw requests to enjoin asylum regulation; discovery on their standing extended  

As previously reported, red states in two different lawsuits sought to preliminarily enjoin (block) a regulation on the asylum adjudication process, but have been bogged down by strong arguments that they don’t have standing to sue over the regulation (which went into effect on May 31). 

Since then, the red states have been forced to step back further: on the same day in late July, the plaintiffs in both cases withdrew their motion for a preliminary injunction and said that they will not seek an injunction of the regulation in the future (they still seek other remedies, like vacatur). In addition, the parties asked for more time to complete discovery on standing. In Texas’s case, Judge Kacsmaryk set a schedule that has discovery concluding in late September and the Biden Administration’s motion to dismiss on standing fully briefed by the end of the year. Judge Joseph seems likely to do something similar in the Arizona-led case, after the states amend their complaint.  

Note that essentially the same question regarding state standing will be considered by the Supreme Court in USA v. Texas, concerning a challenge to ICE enforcement guidance. Amicus briefs in support of the Biden Administration’s defense of the ICE enforcement guidance are due to the Supreme Court by September 12, 2022. 

Thanks for reading!

Adela de la Torre

Deputy Director

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