Hello Karen,

As summer comes to a close, the pace of judicial decisions has slowed, so below is a roundup of what is on the horizon in 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: September 9, 2022

DHS issues regulation codifying DACA, parties brief effect on appeal; decision in appeal could come soon, or not 

Late last month, the Biden Administration issued a rule codifying the Deferred Action for Childhood Arrivals (DACA) program—which was created in 2012 in an agency memorandum—as an agency regulation, principally to strengthen the legal defense of the program.  As a practical matter, the rule changes virtually nothing about DACA: it has the same name, forms, application process, eligibility criteria, and cost as it did before.  After the rule was announced, the Fifth Circuit ordered the parties to brief its effect on the appeal of a Texas district court’s decision declaring DACA unlawful and enjoining the program, except for renewals which are permitted for now.  The parties’ briefs presented the Fifth Circuit with a range of proposals, from the Fifth Circuit now deciding DACA’s legality on the basis of the new regulation to it instead remanding the case back to the district court for it to consider in the first instance how the rule impacts DACA’s legality.  The Fifth Circuit already heard argument in the appeal, and therefore it could theoretically issue a decision at any time; on the other hand, the panel of judges also has the discretion to wait until after the regulation takes effect (on October 31) or even later to issue a decision. 

Briefing concludes in the latest red state attempt to forcibly resuscitate Remain in Mexico  

A decision could come soon on Texas and Missouri’s request that a Texas district court “postpone the effective date” of the Biden Administration’s termination of the inhumane Remain in Mexico program; briefing on that request concludes today, and Judge Kacsmaryk has not scheduled oral argument on it (suggesting that he may not have argument on the motion before deciding it).  That said, argument could still be scheduled, and regardless, drafting an opinion on the many issues implicated by the states’ request could take considerable time—so here too there is a wide range of possible timelines for a decision.  

New “public charge” rule codifies decades-old interpretation, red states likely to challenge anyway 

DHS announced yesterday that it has finalized a regulation regarding the Immigration and Nationality Act provision making noncitizens likely to become a “public charge” inadmissible to the United States. The regulation codifies the historical interpretation of “public charge” that had governed for decades prior to President Trump’s attempt to dramatically expand that ground of inadmissibility in order to keep out of the United States as many poor migrants and migrants of color as possible.  Notwithstanding its solid legal foundation and historical precedent, red states (which unsuccessfully sought to intervene in litigation over the Trump public charge rule) seem likely to challenge the new rule before it goes into effect on December 23, and would likely file suit in Texas or Louisiana (both in the Fifth Circuit).

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

Jane Bentrott

Legal Counsel

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