Dear Karen,

Happy Friday, everyone! Please see below (and visit our microsite) for the latest on red state attacks on immigrant inclusive policies.

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February 10, 2023

Mexico says no to restarting RMX 3.0; effect on litigation TBD

Earlier this week, Mexico’s Ministry of Foreign Affairs announced its rejection of the Biden Administration’s request to (again) restart the “Remain in Mexico” (RMX) program (also called the “Migrant Protection Protocols,” or MPP). The Biden Administration made that request of Mexico following Judge Kacsmaryk’s December decision granting Texas’s motion to “stay” (pause) the second attempt to terminate the inhumane RMX program. 

The effect on the RMX litigation, however, is unclear, including because Judge Kacsmaryk’s order did not actually require the program to be restarted. The Biden Administration has not yet indicated whether it will appeal Judge Kacsmaryk’s decision to the Fifth Circuit—nor has it formally notified the court of Mexico’s recent rejection—but the deadline to file the notice of appeal is next week.

In Title 42 SCOTUS case, Biden Administration says it is fast tracking new Trump-ish asylum ban

Hours before Monday’s State of the Union, the Biden Administration filed a brief with the Supreme Court in the appeal that will decide whether red states should be allowed to intervene in litigation challenging Title 42’s legality. In that brief (on page 13), the Biden Administration announced that DHS will soon issue a proposed rule that would create a “presumption” against eligibility for certain migrants exercising their right to apply for asylum, thereby making it much easier and faster for the U.S. government to deport them. The proposed rule is a disastrous idea recycled from the Trump Administration, which courts found unlawful. The brief states that DHS hopes to finalize the rule by May. 

Arizona under new leadership dismisses two anti-immigrant lawsuits

Aside from Texas, no state has been more active in challenging the Biden Administration’s immigrant-inclusive policies than Arizona. Last month, however, Arizona swore in a new governor (Katie Hobbs) and a new attorney general (Kris Mayes)—both Democrats who won tight races against Republicans who campaigned on continuing the anti-immigrant attacks of their Republican predecessors (who could not run for reelection because of term limits). Since they took office, Arizona has dismissed two of its biggest lawsuits: one that tried to force the federal government to detain more asylum seekers and another that sought to weaponize environmental laws as an anti-immigrant tool.

That said, Arizona remains a party in several significant multi-state cases—including (among others) Title 42 litigation; the case challenging the new asylum rule that was issued last May; and the challenge to the Central American Minors (CAM) program—and so it may take more time to tell just how much Arizona’s new leadership will break from the state’s recent past.

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As always, we’ll keep you posted on these and other cases.

Thanks for reading,

Esther Sung

JAC Legal Director

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