Texas and the Trump administration are urging the U.S. Supreme Court to reject an emergency request to pause their consent agreement eliminating a Biden-era rule that let immigration judges suspend some deportation proceedings.
Baltimore, Maryland; New Haven, Connecticut; Columbus, Ohio; and Centro Legal de la Raza, a legal services group for immigrants, are challenging Chief U.S. District Judge Reed O’Connor’s consent judgment abolishing a Biden-era rule that allowed immigration judges to suspend some deportation proceedings.
The Supreme Court request comes after the Fifth Circuit Court of Appeals declined to pause O’Connor’s decision while the challengers’ appeal proceeds.
The Executive Office for Immigration Review (EOIR) adopted the “administrative closure” rule in 2024, authorizing immigration judges to indefinitely suspend certain deportation proceedings such as when a crime victim or witness was seeking another form of immigration relief.
In June, Texas argued in federal court that the EOIR does not have the power to adopt the administrative-closure rule.
Rather than defend the rule, the Justice Department joined Texas in asking O’Connor to throw it out. With both parties in agreement, no one in the case was arguing to keep the rule in place.
Judge O’Connor of the Northern District of Texas found the rule unlawful and entered a consent judgment vacating it.
The three cities and Centro Legal attempted to join the case to appeal the administrative closure consent judgment.
However, O’Connor determined that the challengers did not have standing to sue. He rejected the cities’ argument that eliminating the rule would cost them money because their taxpayers are likely to be deported.
After the U.S. Court of Appeals for the Fifth Circuit declined to pause the consent judgment, the challengers requested the Supreme Court pause the order on October 9.
In their application, the cities and Centro Legal called the consent judgment “indefensible.” They argued that if “a judgment procured through such open collusion is allowed to remain in effect,” any federal agency could get around the law governing agency rules “by advertising its unwillingness to defend a disfavored regulation and by immediately acquiescing to nationwide relief.”
U.S. Solicitor General D. John Sauer on behalf of the Trump administration argued that the applicants lack standing to intervene.
Sauer told the justices the challengers were attempting to “improperly leverage a clear-cut dispute over” their efforts to join the case “into a far-reaching attack on the merits” of the agreement.
According to SCOTUSblog’s Amy Howe, “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.”
Texas’ opposition to the appeal stated that any injury to cities would depend on “a cascade of discretionary and unidentified events.”
Such injury would require “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.”
Texas’ attorneys argued, “a stay 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.”
Texas also warned that “[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.”
The challengers’ appeal remains pending before the Fifth Circuit. For now, the Supreme Court is deciding only whether to pause the judgment while that appeal continues.
The application went to Justice Samuel Alito, who handles emergency matters from the Fifth Circuit. He can rule on it himself or refer it to the full court. If the request is denied, the rule stays vacated while the appeal moves forward.
