Dear Karen,

With vacations over and schools restarted, activity in the courts is starting to pick back up, and it looks like the last quarter of the year could bring several significant decisions in extremist challenges to immigrant-inclusive policies. See below for our fall preview of what to expect next, in roughly chronological order. [Note that these are forecasts—judges are not required to issue decisions within any particular amount of time—and that briefing schedules can sometimes get extended.]  

Notably, all six of the cases covered below are brought by Texas in U.S. district courts in Texas. The State of Texas does occasionally lose in Texas district courts: for example, on Wednesday a district judge ordered Texas to remove the inhumane “floating barrier” it dumped in the Rio Grande—but that’s not typical—and nor is that judge typical for a Texas case; that judge sat on the District of Hawai’i for 30+ years and is sitting in Texas temporarily to help with its workload.  

September 8, 2023

Any day now. Decisions could come at any time in the litigation over DACA and Texas’s challenge to funding for the Alternatives to Detention (ATD) program. There is a lot at stake in each: although the forthcoming DACA decision shouldn’t change the status quo (as we’ve explained), its contents will play a large role in the rest of the litigation over DACA’s legality; and the ATD case seeks to block a $1.7 trillion appropriations law. 

A little further out, but maybe by Halloween. Next week, Texas and Missouri’s request to preliminarily enjoin (block) the Biden Administration’s (alleged) decision not to use funds appropriated to construct border walls will be fully briefed—and now it is before a new judge. After the Fifth Circuit reversed Judge Alvarez’s prior decision to dismiss the States’ claims (and ordered the preliminary injunction motion be decided “expeditiously”), the case returned to the district court and was reassigned—with the consent of both judges, but without explanation or request of a party—to Judge Tipton (who had the case originally). Although the Fifth Circuit decision implied that the panel of judges believed the preliminary injunction should be granted, Judge Tipton will have to decide whether their decision can be reconciled with the Supreme Court opinion issued just a few days later that rejected Texas’s standing in the ICE Priorities case. 

Meanwhile, Judge Kacsymaryk will soon need to decide how to enter final judgment in the MPP/RMX case—briefing concludes on October 6—which has turned into something of a zombie. The biggest question here is whether Judge Kacsymaryk can order any meaningful relief for Texas, even assuming it wins on the merits; his order to “stay” the RMX winddown last December remains in effect, but it has seemingly changed nothing as a practical matter (and shouldn’t have, to be clear). 

Maybe November/December. Judge Tipton (subject of this interesting recent profile) will have a busy rest of the year: in addition to the border wall case above, he will also soon need to decide how to enter final judgment in the CHNV parole and public charge cases. Late last month, JAC along with RAICES and the Center for Immigration Law and Policy at UCLA School of Law went to district court Victoria, TX to represent our seven intervenor defendants at trial. Post-trial briefing is set to conclude Oct. 27; a decision is possible any time after that. Meanwhile, a decision in the public charge case—which Judge Tipton recently refused to dismiss, including for improper venue, in a 5-page opinion—could issue any time after its briefing closes on Nov. 17. 

As always, we’ll keep you posted on this and other cases.  

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Thanks for reading,

Joan Agoh

Communications Coordinator