Hello Karen,

As fall begins and we wait for the district court to issue a decision on Remain in Mexico and for the Fifth Circuit to schedule argument in the Title 42 case, 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, our Glossary, and our FAQs

View Litigation Tracker

Updates: September 29, 2022

Judge refuses to dismiss AZ lawsuit over detention of asylum seekers 

Arizona secured a rare litigation victory in its home state last Friday when Judge Liburdi mostly denied the Biden Administration’s motion to dismiss Arizona’s claims that DHS is violating the law by not detaining as many asylum seekers as the State desires. (Florida and Indiana are litigating similar cases.) 

Arizona’s case has an unusual procedural history: it started more than a year ago as a lawsuit over federal COVID-19 vaccine mandates (one of which Judge Liburdi eventually blocked), but Arizona later filed an amended complaint to also challenge completely unrelated policies about detaining asylum seekers. Why would Arizona combine two unrelated lawsuits into one? Because it likes the (Trump-appointed) judge assigned the case.  

AZ dismisses appeal in environmental law case, fights on in district court 

Earlier this month Arizona voluntarily dismissed its appeal of a district court decision denying the State’s request to preliminarily enjoin (block) various immigration-related policies on environmental law grounds, stating that it intends to continue litigating its case at the district court. Arizona’s lawsuit claims that because immigration policies can increase the country’s population, and because an increase in population can affect the environment, the federal government was required to adhere to the National Environmental Protection Act’s extensive procedural requirements before taking the challenged actions.  

Arizona’s lawsuit is extreme, but it fits easily into the long history of anti-immigrant actors using alleged environmental concerns to greenwash bigotry. Although Arizona appears to be the only state bringing this claim, a Trump-appointed judge in the District of Columbia recently refused to dismiss a very similar case brought by an anti-immigrant group. 

Other red state cases go into discovery, mostly on standing 

Unlike earlier in the Biden Administration, most red state cases filed recently have gone directly to “discovery,” which is the (months-long) process by which litigants can obtain documents and testimony relevant to the case. In general, red states are using discovery to try to get information from the federal government to support the states’ standing—i.e., to try to prove that the challenged policy actually injures the state bringing suit. Numerous cases are currently in discovery, including the Florida and Indiana cases about detaining asylum seekers; the Texas and Arizona cases challenging an asylum-related regulation issued by DHS in March 2022; and Texas’s challenge to the Central American Minors program

As always, we’ll keep you posted and thanks for reading!

Jane Bentrott

Legal Counsel

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