Three cities and a legal group asked the Supreme Court on Thursday to revive a Biden-era immigration rule, arguing the Justice Department and Texas colluded to eliminate it.
At issue is a 2024 rule that allowed immigration judges, who are Justice Department employees, to close deportation proceedings against people in the process of gaining lawful status.
In an application, the cities — Baltimore; Columbus, Ohio; and New Haven, Connecticut — and California-based nonprofit Centro Legal de la Raza contend the Justice Department unlawfully got rid of the regulation instead of going through the established rulemaking process.
A federal judge in Texas entered a judgment in June that halted the rule nationwide on the same day the state challenged the rule in court. Hours after Texas filed the suit, the state and Justice Department asked the court to declare the rule unlawful and bar the department from enacting similar policies in the future.
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“The government did not merely leverage a convenient loss to undo agency action, but rather, announced in advance that it would not defend a disfavored regulation and then colluded with the challenger from the moment that suit was filed,” the application says.
“The result is that a significant regulation that established certain important procedures in immigration courts was erased over the course of a single day, without meaningful judicial review, public participation, or adherence to the [Administrative Procedure Act’s] rulemaking requirements,” the application says.
The cities want the Supreme Court to stop the judgment while the legal case plays out. The rule was meant to spare victims of crimes or neglected children from having to defend themselves in immigration courts while undergoing a process to gain immigration relief from U.S. Citizenship and Immigration Services, the application states.
Some removals are permanent, such as a child qualifying for special immigrant juvenile status who is removed before a visa becomes available, the application says.
“If the judgment remains in force while Applicants’ appeal proceeds, it will stand as a working template for any administration that wishes to repeal a regulation without notice and comment,” the application says.
The Justice Department denied the claim of collusion in a September court filing.
“The Department cannot be required to defend a rule it believes is unlawful, and it must follow any orders courts entered against it,” a filing to the 5th U.S. Circuit Court of Appeals says.
Texas’ lawsuit came two months after Sirce Owen, the acting director of the Executive Office for Immigration Review, issued a memo announcing the office would not defend the rule in court.
“EOIR’s use of administrative closure, particularly between 2011 and 2017 and between 2021 and 2025, was an unmitigated disaster from a policy standpoint and strongly appears to have also been unlawful,” Owen wrote.
The cities sought to intervene in the lawsuit in the U.S. District Court for the Northern District of Texas, but a judge found they lacked the legal right to do so. The 5th Circuit declined last month to block the judgement throwing out the rule.
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