Dear Karen,

While we await a Supreme Court decision in the pivotal Biden v. Texas Remain in Mexico case, updates on other cases are below. As always, our Litigation Tracker Microsite and an archive of our past newsletters contain more information about red state efforts to continue Trump’s anti-immigrant efforts on a national scale, recently covered in this Border Report piece.

View Litigation Tracker

Updates: May 12, 2022

Title 42 Termination: TRO extended, oral argument on preliminary injunction motion tomorrow

Although the Title 42 expulsion order is still scheduled to expire on May 23rd, 21 red states are positioned to have it preliminarily enjoined (blocked) before then in the Arizona-led lawsuit, Arizona v. CDC, before Judge Summerhays in the Western District of Louisiana. As we’ve mentioned, Judge Summerhays previously issued a temporary restraining order (TRO) prohibiting the Biden Administration from preparing for the end of the Title 42 expulsion order. By rule, a TRO can only last for 14 days, but yesterday Judge Summerhays issued a two-sentence order extending his nationwide TRO until May 23 or until he rules on the pending motion for a preliminary injunction, whichever comes first. Oral argument on the states’ request for a preliminary injunction—which, unlike a TRO, is not time limited—takes place tomorrow in Lafayette, Louisiana.  

JAC Legal Director Esther Sung will be present at tomorrow’s hearing in Louisiana, as it is not being made available online. Stay tuned for updates from us afterwards.

Texas files suit challenging new asylum regulation, Texas v. Mayorkas, but venue is not yet settled

Earlier this year, the Biden Administration issued a new regulation intended to speed up processing of applications for asylum and other forms of humanitarian protection.  The new regulation (summary here) is set to go into effect on May 31. Two weeks ago, however, Texas filed a new lawsuit to challenge the regulation. Among other things, Texas alleges that it grants too much power to asylum officers and that its issuance did not adhere to the required procedures. Texas’s complaint suggests it will seek a preliminary injunction, but it has not done so yet.

Texas filed this suit in the Amarillo Division of the Northern District of Texas, with a 95% chance that the case would be assigned to Judge Kacsmaryk (and it was)—the very conservative, Trump-appointed judge who first enjoined (blocked) President Biden’s attempt to end Remain in Mexico. But the next day, the Biden Administration filed a motion to transfer the case to the District Court for the District of Columbia, arguing that it is the only district court with jurisdiction to hear the case. Briefing on the motion to transfer will conclude next week, after which Judge Kacsmaryk will decide whether to transfer or keep the case for himself. 

As Texas Attorney General Paxton crowed in an accompanying press release, Texas v. Mayorkas is the 11th immigration-related lawsuit, and the 27th overall, that Texas has filed against President Biden in the first 15 months of his presidency.

Litigation over the border wall continues to stall before the Fifth Circuit

As we previously reported, in March of this year Missouri and Texas took their effort to force the Biden Administration to build more border wall to the Fifth Circuit, requesting that it issue a preliminary injunction blocking an alleged policy against any such construction while appeal is pending. Since our last newsletter, the Fifth Circuit deferred consideration of that request but expedited the appeal. Briefing on the appeal concluded earlier this month, and oral argument was heard yesterday before Judges Higginbotham (appointed by President Reagan), Dennis (Clinton), and Graves (Obama). Based on media accounts, the judges did not seem sympathetic to the States’ arguments. 


In addition to our recently added Glossary of common legal terms, the Litigation Tracker will also soon have answers to your frequently asked questions! Have a question about federal court litigation or the cases JAC tracks? Want us to try to explain something that you’ve been wondering about? If so, please send your question to JAC Communications Coordinator Joan Agoh at [email protected].

Thanks for reading!

In solidarity,

Tasha Moro

JAC Communications Director

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