Dear Karen,

Here are some updates on red state litigation challenging the wind-down of the Title 42 expulsion policy. As always, our Litigation Tracker Microsite contains more information about these and other cases we are tracking, as well as a new Glossary of common legal terms and an archive of our past newsletters.

Updates: April 29, 2022

TRO Granted in AZ v. CDC; Two Motions for Preliminary Injunction Now Pending in Challenges to Title 42 Rescission

As we mentioned in our April 12th newsletter, Arizona, Louisiana, and Missouri promptly filed a lawsuit on April 3^rd, challenging the validity of a CDC order announcing the wind-down of Title 42.  Despite asking the court on April 14^th for a preliminary injunction that would prevent the CDC order from going into effect, Arizona also moved separately for a temporary restraining order (TRO) on April 21^st, arguing to the court that the federal government had impermissibly and prematurely begun taking steps to implement the CDC order. The district court granted the TRO on April 27^th. Texas has also filed a new lawsuit challenging the CDC order, and motions for a preliminary injunction are currently pending in both the Arizona and Texas cases.

Arizona v. CDC

Because the CDC order calls for border officials to stop enforcing the Title 42 policy on May 23^rd, 2022, litigation in the red state challenges has moved quickly. On April 14^th, 18 additional states joined the Arizona lawsuit through an amended complaint, for a total of 21 states challenging the wind-down of Title 42. On the same day, the 21 plaintiff states moved for a preliminary injunction of the CDC order, which would prevent it from going into effect on May 23^rd. Briefing on the motion will conclude on May 9^th and the motion will be heard on May 13^th, well ahead of the expected May 23^rd effective date of the CDC order.

On April 21^st, however, Arizona and the other plaintiff states filed a new motion for a TRO, citing an April 20^th Fox News report that DHS has begun partially implementing the CDC order and has slowed or stopped using Title 42 to summarily expel individuals from Guatemala, Honduras, and El Salvador. The states’ motion requested a TRO preventing any implementation of the CDC order before May 23^rd, as well as a court order requiring the federal government to submit to onerous information requests designed to  reveal whether the government has taken any steps to begin winding down Title 42.

The court subsequently issued a nationwide TRO on Wednesday, April 27^th, ordering the federal government to refrain from taking any steps to implement the CDC order and to otherwise maintain the same level of processing of migrants under Title 42 as it had before the CDC issued its rescission order. The court also ordered the federal government to provide weekly reports on its processing of migrants under Title 42 for the entire time the TRO remains in effect. The court’s TRO gives extraordinary power to the plaintiff states, stating that if the federal government’s reporting leads the states to conclude that the federal government is acting inappropriately by processing migrants under Title 8 (the general immigration provisions of the INA) rather than under Title 42, “Plaintiffs may require DHS to return to the pre-Termination Order benchmark [for Title 42 processing].”

Texas v. Walensky

Not to be outdone, on Friday, April 22^nd, Texas filed its own lawsuit challenging the CDC order and wind-down of the Title 42 policy – this time in Victoria, Texas.

Texas was forced to file a new case in Victoria County because Judge Pittman in Fort Worth rejected Texas’s request to amend its already pending lawsuit, which challenged exemptions under Title 42 made for unaccompanied children and families, to add new claims challenging the CDC order. The Victoria lawsuit is yet another example of Texas’s blatant forum-shopping (i.e., suing selectively to increase the likelihood of getting a favorable judge): all civil cases filed in Victoria are automatically assigned to Trump-appointed Judge Tipton, who has already enjoined (blocked) the Biden administration’s early deportation moratorium and immigration enforcement priorities.

In addition to its complaint, Texas filed a motion for a preliminary injunction that largely mirrors the same claims and arguments made in the Arizona suit ( i.e., that the CDC order should have been subject to a public “notice-and-comment” rulemaking process through which the CDC should have allowed members of the public to comment on the proposed course of action; and that the CDC order is “arbitrary and capricious” under the APA because it wasn’t sufficiently reasoned and did not account for the financial costs that the end of the Title 42 Policy would inflict on Texas, purportedly in the form of increased law enforcement, healthcare, and social service costs). Texas subsequently filed a motion for a TRO on April 24^th, but Judge Tipton terminated the motion as duplicative on April 26^th, once it became clear that a TRO was likely to issue in the Arizona v. CDC suit. Texas has asked Judge Tipton to expedite his consideration of the preliminary injunction motion and issue a decision before May 23^rd, but in a status conference held on April 26^th, the federal government asked Judge Tipton to stay (put on hold) the Texas case because of the similar and earlier-filed lawsuit filed by 21 states pending in Louisiana. It is not yet clear whether Texas’s preliminary injunction motion will move forward.

Congress Members Attempt to Block Title 42 Wind-Down

Meanwhile, politicians on both sides of the aisle are attempting to extend Title 42 through legislation—but especially given red state litigation which seems to be following in the footsteps of the Biden v. Texas Remain in Mexico case the Supreme Court heard on Tuesday—they should stand down. As we know, Title 42 was unnecessary and harmful from the minute the Trump administration invoked it to apply it to asylum seekers at the border, running afoul of our domestic and international obligations to protect the right to asylum. Any attempts to extend Title 42 is a blatant attack on this right.

We will keep you all abreast of updates in these two cases via forthcoming newsletters. In the meantime, continue to follow our Litigation Tracker microsite for more details on these and other red state challenges to immigrant inclusive policies.

Thanks for reading!

--kt