Texas and Washington Tell Supreme Court Out-of-State Cities Cannot Revive Immigration Rule

Texas and the U.S. Department of Justice told the Supreme Court on Thursday that three out-of-state cities have no right to bring back a federal rule that let immigration judges set deportation cases aside indefinitely, a rule a Texas federal court struck down in June.

Both responses were filed Thursday, the deadline Justice Samuel Alito set. Baltimore, Columbus and New Haven, joined by Centro Legal de la Raza, an Oakland, California, legal-services nonprofit, have asked the justices to suspend the judgment while they appeal.

Texas: the cities are not parties

“Applicants ask this Court to suspend a district court judgment to which they are not parties,” Texas told the Court. The trial court refused to let the cities into the case, and the U.S. Court of Appeals for the Fifth Circuit refused to pause the judgment. The cities’ appeal of that refusal is still pending.

Texas argued that the cities’ claimed harm, lost municipal tax revenue, depends on a long chain of events: a closed case must be put back on the calendar, the immigrant must lose, a removal order must issue, the Department of Homeland Security must carry it out, and the person must otherwise have kept working and paying city taxes. “No declaration identifies even one taxpayer for whom that chain is likely,” the state wrote.

A stay, Texas said, “would revive a rule that has been vacated since June 22” and “renew the fiscal and sovereign injuries Texas alleged.” The state’s response was filed by the Office of the Attorney General of Texas with the America First Legal Foundation.

Washington: the judgment looks forward

The Justice Department, through Solicitor General D. John Sauer, asked the Court not to “allow applicants to put the cart before the horse.” Because the cities lack standing to join the case, it argued, they cannot challenge the judgment at all.

The department also said the cities misread what the judgment does. It “does not require the recalendaring of cases that are currently administratively closed,” the brief says. “Rather, the consent judgment applies prospectively to prevent immigration judges from administratively closing new cases.”

The brief describes how the practice grew. Citing the immigration court system’s own figures, it says administratively closed cases rose from nearly 172,000 in January 2013 to more than 268,000 in January 2017, and that a closure lasts an average of 15 years before an immigration judge and about 29 years before the Board of Immigration Appeals.

In the four months since the judgment, the department wrote, the cities “have not pointed to any case that has been recalendared or any removal order that has issued in a case that was previously administratively closed.”

How the case got here

Texas sued in the Wichita Falls Division of the Northern District of Texas on June 22, challenging the 2024 rule. The Justice Department had already said it would not defend the rule, and the two sides asked for a consent judgment. Chief U.S. District Judge Reed O’Connor entered it the same day, vacating the rule and barring a similar one without an express basis in law.

The cities moved to intervene in August to appeal. They argue that an agency should not be able to undo a regulation by declining to defend it in court. Justice Alito can rule on the application himself or refer it to the full Court.