The Trump administration and Texas urged the Supreme Court on Thursday afternoon to leave in place their consent agreement abolishing a Biden-era regulation that had allowed immigration judges to suspend some deportation proceedings. U.S. Solicitor General D. John Sauer told the justices that the request from the challengers in the case – three cities, led by Baltimore, and a group that provides legal services to immigrants – to pause a federal district court’s ruling “attempts to improperly leverage a clear-cut dispute over” the challengers’ efforts to join the case “into a far-reaching attack on the merits of” the court’s approval of the agreement. For its part, Texas argued that granting the challengers’ request “would revive a rule the district court declared unlawful, renew the fiscal and sovereign injuries Texas alleged, and unsettle a final judgment accepted by the actual parties.”
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. The rule gives immigration judges the authority to suspend deportation proceedings in some scenarios – when, for example, a crime victim or witness is seeking immigration relief, such as asylum – while the immigrant’s appeal in the lower federal courts is ongoing.
Texas went to federal court in Wichita Falls, Texas, in June, arguing that the EOIR does not have the power to adopt the administrative-closure rule. The case was assigned to the only federal judge there, Chief U.S. District Judge Reed O’Connor.
On the same day that the case was filed, the U.S. Department of Justice and Texas filed a motion to have O’Connor enter a final judgment for the state. The DOJ 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, a group that provides legal services to immigrants. O’Connor denied that request, holding that the challengers 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. The U.S. Court of Appeals for the 5th Circuit declined to pause O’Connor’s decision while the challengers appealed, prompting them to come to the Supreme Court on Oct. 9.
In their application to pause O’Connor’s decision, the challengers told the justices that the consent judgment was “indefensible.” “If a judgment procured through such open collusion is allowed to remain in effect,” they argued, “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.”
In their briefs opposing the challengers’ request, both the Trump administration and Texas emphasized that the challengers do not have standing to intervene on appeal and therefore cannot challenge the consent judgment. Sauer noted that although the consent agreement throws out the administrative-closure rule, it does not require cases that have already been administratively closed to be returned to an immigration judge’s calendar. As a result, Texas said, any injury to cities would hinge on “a cascade of discretionary and unidentified events”: “an administratively closed case must be re-calendared; the alien must lose on the merits; a final removal order must issue; the Department of Homeland Security must execute it; and the person otherwise must have remained employed and paying a municipal income tax. No declaration identifies even one taxpayer for whom that chain is likely.” Any such effects on the cities “are too ‘indirect’ and ‘attenuated’ to” give them a right to sue, Sauer similarly contended.
Moreover, Texas added, “[i]f any local government could establish standing whenever federal immigration policy might eventually change the number of resident taxpayers, nearly every immigration measure would be judicially challengeable by municipalities on both sides.”