Three cities and a group that provides legal services to immigrants came to the Supreme Court, asking the justices to pause an agreement between Texas and the Department of Justice that they described as the product of “egregious collusion.” A ruling in the challengers’ favor would temporarily restore a Biden-era regulation, adopted through notice-and-comment rulemaking, that allows immigration judges to suspend some deportation proceedings – when, for example, a crime victim or witness is seeking immigration relief, such as asylum – while the challengers’ appeal in the lower federal courts is ongoing.
The Executive Office for Immigration Review, which is part of the Department of Justice, adopted the regulation at the center of the dispute, which provides what is known as “administrative closure,” in 2024.
In 2026, Texas filed a lawsuit in the Wichita Falls division of the Northern District of Texas, where it alleged that the EOIR does not have the power to adopt the administrative-closure rule. The case was assigned to the only federal judge in that division, Chief U.S. District Judge Reed O’Connor.
Within hours after the case was filed, the U.S. Department of Justice and Texas filed a motion to have O’Connor enter a final judgment in the state’s favor. The federal government also asked O’Connor both to throw out the rule altogether and to issue an order making clear that the EOIR could not adopt a similar rule in the future. O’Connor granted those requests.
Three cities with substantial immigrant populations – Baltimore, Maryland; New Haven, Connecticut; and Columbus, Ohio – sought to join the case to defend the administrative-closure rule on appeal, along with Centro Legal de la Raza, which provides legal services to immigrants. O’Connor denied their request on the ground that they lacked a legal right to sue, known as standing. In particular, he rejected the cities’ contention that the elimination of the rule would cost them money because their taxpayers are likely to be deported.
After the U.S. Court of Appeals for the 5th Circuit turned down their request to block the consent judgment between Texas and the Department of Justice and thereby reinstate the administrative-closure rule while their appeal continued, the challengers came to the Supreme Court, asking the justices to intervene.
Lawyer Joshua Salzman of Democracy Forward, representing the challengers, called the consent judgment “indefensible.” “If a judgment procured through such open collusion is allowed to remain in effect,” he wrote, “any agency can avoid the strictures of the” federal law governing administrative agencies “by advertising its unwillingness to defend a disfavored regulation and by immediately acquiescing to nationwide relief.”
Salzman noted that five years ago, the Supreme Court had granted review to decide a related question – whether states should be allowed to intervene to defend a rule when the federal government has opted not to do so – but ultimately never weighed in on that issue, instead dismissing the case without deciding it. “There is a substantial continuing need,” he said, “for this Court to address whether litigation tactics can be substituted for the … requirement that a federal regulation adopted through notice-and-comment rulemaking may be rescinded only through notice-and-comment rulemaking.”