Dear Karen,

Welcome to our penultimate newsletter of the year! For more information about these and other red state challenges to immigrant inclusive policies, see our Litigation Tracker Microsite, which includes an archive of our past newsletters, our Glossary, and our FAQs.

View Litigation Tracker

December 15, 2022

DC Circuit to rule on red states’ request to keep T42 in place; SCOTUS could be next 

As reported in our last newsletter, the red states are racing to stay (pause) the vacatur (nullification) of the inhumane Title 42 expulsion policy before it takes effect on December 21. After their stay request was denied by the district (trial) court, the red states made the same request of the Court of Appeals for the D.C. Circuit; that request is now pending. The D.C. Circuit is expected to issue a decision on the stay request this week—likely tomorrow. If the stay request is denied (as it should be), the states will surely then request one from the Supreme Court and will ask that SCOTUS act before the vacatur of T42 is set to take effect next Wednesday.  

In their court filings, the red states have dropped all pretense that their desire to keep Title 42 in place has anything to do with COVID-19 (even though the entire so-called legal and factual basis for the expulsion policy has always been the pandemic). Instead, the states argue that the courts should order the expulsion policy maintained because otherwise more migrants will be allowed to apply for asylum—as is required by U.S. immigration law, and as it has been for decades—and the red states just don’t want these (mostly brown and Black) migrants here, regardless of the persecution and violence they face in their home countries. In other words: this is a bare, lawless, and inhumane power grab by the red states. 

Florida lawsuit seeking more detention of asylum seekers goes to trial next month 

Last month a Trump-appointed judge in Florida (T. Kent Wetherell, II) denied (in a remarkably short opinion) the federal government’s request to throw out a lawsuit brought by the State of Florida over the detention of asylum seekers (notice a theme?). The Biden Administration has detained tens of thousands of asylum seekers, and even those who have passed the credible fear screening process languish in detention for months (as of earlier this year, for more than 10 months, on average)—but Florida argues that the law requires detaining even more asylum seekers, and for longer.   

Unfortunately, Judge Wetherell has thus far handed down rulings allowing Florida’s suit to proceed; in fact, he has scheduled the case for a 4-day bench (non-jury) trial starting in less than a month (on January 9). If Judge Wetherell rules for Florida after trial, the consequences for asylum seekers could be severe. 

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As always, we’ll keep you posted on these and other cases. If you’ve found these newsletters helpful over the year, please help us keep it going by making a tax-deductible gift to JAC this holiday season!  

With gratitude, 


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