Litigation Tracker: Conflict continues over TX razor wire; OA on FL detention suits 

It’s already February and we’re still waiting for big decisions regarding the CHNV parole program, the public charge regulation, and Texas’s challenge to a few trillion in federal spending, but we did get a decision this week adding to Kris Kobach’s long losing streak, and here’s hoping it signals new reasonableness on the part of federal court judges in Texas. See below for the latest developments regarding Texas’s razor wire and an update on Florida’s lawsuits seeking to force the Biden Administration to unnecessarily detain more asylum seekers . As always, you can check our microsite for the latest updates on extremist litigation challenging immigrant-inclusive policies.   

SCOTUS vacates injunction regarding TX razor wire after it killed a mother and her children  

Since our last report, a lot has happened related to Texas’s lawsuit to block Border Patrol from cutting its razor wire fencing, including a tragedy directly traceable to Texas’s attempts to wrest control of the border. On January 12, three migrants—Victerma de la Sancha Cerros (33) and her two children, Yorlei (10) and Jonathan (8)—drowned after soldiers of the Texas Military Department reportedly stopped Border Patrol agents (who were also prevented access by razor wire) from assisting. Ten days later, the Supreme Court finally granted the federal government’s request to vacate (nullify) the preliminary injunction, imposed by the Fifth Circuit, generally prohibiting Border Patrol from cutting Texas’s razor wire. The Supreme Court gave no explanation for its decision, which was by a shockingly thin 5-4 margin. 

In the ordinary course, the appeal would have continued to be fully decided by the Fifth Circuit, but on January 26, it decided sua sponte (i.e., without being asked by a party) to remand the case back to the district court for it to further develop the factual record—including about “matters arising after the motion panel’s injunction.” Since then, Chief Judge Moses scheduled a 2-day evidentiary hearing starting on March 5 in Del Rio. After additional factfinding, the case will return to the same Fifth Circuit panel—two of whom were also on the motions panel that ordered the now-vacated injunction. 

Eleventh Circuit hears argument on Florida lawsuits over detention of asylum seekers 

The Biden Administration’s appeals of injunctions of two different policies about detention of asylum seekers were argued last week in Atlanta (audio available here). Predictably, much of the argument concerned Florida’s standing to challenge the policies, particularly in light of the Supreme Court’s USA v. Texas decision, which came out after the district court issued the injunctions on appeal. Reading the tea leaves, the appeals could come down to Judge Britt Grant, a former Justice Kavanagh clerk who was appointed to the Eleventh Circuit by President Trump. 

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

Thanks for reading,  

Vanessa Rivas-Bernardy 


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