Supreme Court Leaves in Place a Same-Day Deal That Erased the Immigration Judge Case-Closure Rule

Immigration judges no longer have a regulation that expressly lets them suspend a deportation case so a crime victim or witness can seek relief from a separate agency, and on Tuesday, October 27, the Supreme Court declined to bring it back while the fight over how it was removed continues. In a brief, unsigned order, the justices denied a request from Baltimore, New Haven, Columbus and a legal-services group to pause the agreement that wiped the rule out.

What the rule let a judge do

The Executive Office for Immigration Review, the Justice Department unit that runs the immigration courts, finalized the rule on May 29, 2024, with an effective date of July 29, 2024. According to the Federal Register text, it defined administrative closure as a "temporary suspension of a case" that stays pending on the docket until a party moves to put it back on the calendar. A judge could close a case only on a party's motion, never on the judge's own initiative, and had to weigh factors that included why closure was sought, whether a party opposed it, how long it would last and how likely the outside relief was to succeed.

The rule finalized a September 2023 proposal and replaced a 2020 version that a federal court had enjoined. In other words, it went through notice-and-comment rulemaking, the public process the law requires before an agency writes or rewrites a regulation.

How it disappeared in one day

Texas sued in June in Wichita Falls, where the case landed before Chief U.S. District Judge Reed O'Connor, the only federal judge in that division. The state argued that the immigration review office had no power to write the rule, because federal law tells an immigration judge to "decide whether an alien is removable," as SCOTUSblog quoted the complaint. Within hours of the filing, the Justice Department and Texas jointly asked O'Connor for a final judgment in the state's favor. The department also asked him to bar the office from adopting a similar rule later. According to SCOTUSblog, he granted both requests the same day.

On August 7, Baltimore, New Haven, Columbus and Centro Legal de la Raza moved to join the case so they could defend the rule on appeal, since neither Texas nor the federal government would. O'Connor denied the motion for lack of standing and rejected the cities' argument that deportations would cost them income-tax revenue. The 5th Circuit then refused to block the judgment while the appeal went forward, and the challengers reached the Supreme Court on October 9.

The two arguments

Joshua Salzman of Democracy Forward, who represents the challengers, told the justices the consent judgment was the product of "egregious collusion." His concern runs past this rule. If the judgment stands, he wrote, any agency can undo a regulation it dislikes by declining to defend it and then immediately accepting nationwide relief. He added that five years ago the Court agreed to decide whether states may step in to defend a rule the federal government abandons, then dismissed that case without answering.

“advertising its unwillingness to defend a disfavored regulation and by immediately acquiescing to nationwide relief”

Solicitor General D. John Sauer answered that the application tried to turn a narrow dispute over whether the cities could join the case into a broad attack on the judgment itself. He also pointed out that the consent agreement throws out the rule but does not require cases that were already administratively closed to be returned to a judge's calendar. Texas built its standing argument on that point. For the cities to lose a taxpayer, it said, a closed case would have to be recalendared, the person would have to lose on the merits, a removal order would have to issue, the Department of Homeland Security would have to carry it out, and that person would have to have been employed and paying municipal income tax.

“a cascade of discretionary and unidentified events”

What is still unknown

The denial came four days after the briefing finished, and the order gave no reasoning, so the justices have not said whether they doubt the cities' standing, the merits, or the need for emergency relief. I could not find a verified count of how many cases are currently administratively closed, which is the number that would show how much practical weight the rule carried. I also could not find a base rate for how often a federal rule has been struck through a same-day consent judgment, so there is nothing here to say whether this is routine or an outlier.

The practical stakes are narrow today and wider later. Judges lose the written authority to pause a case for a victim or witness waiting on another agency, and the question the challengers raised, whether a rule built through public comment can be undone in a day by agreement between a state and the agency that wrote it, goes back to the 5th Circuit unanswered.