Dear Karen,

Here are some updates on red state litigation 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.

View Litigation Tracker

Updates: May 26, 2022

In two parallel lawsuits, red states seek preliminary injunction of asylum regulation, but won’t get one before it goes into effect

In two different cases, red states recently filed motions requesting that a new asylum regulation be primarily enjoined (blocked) while the cases proceed to final judgment. Although the states in both cases had sought to block the regulation before it goes into effect on May 31, they filed their motions far too late for that to occur. The two cases do, however, appear to be moving at markedly different paces.

In the Arizona-led lawsuit filed on behalf of 20 states, Judge Joseph of the Western District of Louisiana granted the federal government’s request for a 30-day period of discovery relating to the likely effect of the regulation on the plaintiff states. In addition, Judge Joseph ordered the states to substantiate their standing to bring suit; if and only if they are able to do so (by June 24) will the federal government be required to respond to the motion for preliminarily injunction.

In the Texas lawsuit (that we previously reported on), Judge Kacsmaryk seems inclined to proceed much more quickly, although the final schedule is still to be determined. Texas filed its motion for a preliminary injunction on Monday of this week (May 23); within hours, and even without Texas requesting him to do so, Judge Kacsmaryk ordered the federal government to respond to the preliminary injunction motion within three days (seemingly because of the May 31 effective date of the regulation). After the federal government protested that it could not possibly meet that deadline, Judge Kacsmaryk vacated the scheduling order and directed the parties to confer and suggest a schedule by the end of this week. The Biden Administration’s motion to transfer the case remains pending. We will keep you updated on both cases.

Title 42 updates: Preliminary injunction of termination appealed to Fifth Circuit, but DOJ apparently won’t seek a stay; mandate issues in Huisha-Huisha

As previously reported, the Biden Administration’s attempt to end the Title 42 expulsion policy was preliminary enjoined nationwide last Friday (May 20) by Judge Summerhays of the Western District of Louisiana. Since then, the federal government has appealed that preliminary injunction decision to the Fifth Circuit Court of Appeals—but it apparently will not seek a stay (pause) of the injunction pending the appeal, which means the injunction would stay in place at least through the months required to brief and decide the appeal. Here’s hoping that the Biden Administration will start the notice and comment process regarding the Title 42 termination as soon as possible, to remedy the alleged legal deficiency (according to the Louisiana judge) in the prior termination attempt.

Meanwhile, earlier this week the Circuit Court for the District of Columbia issued its mandate to the lower court in Huisha-Huisha, which held (as we previously reported) that even when Title 42 authorizes summary expulsions, other statutes and treaties continue to limit where migrants can be sent. With the mandate’s issuance, the district court in that case now has jurisdiction to ensure that the Court of Appeal’s directive is implemented.

Thanks fo reading, 

Esther Sung

JAC Legal Director

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