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On April 3, 2022, the States of Arizona, Louisiana, and Missouri filed this suit to challenge the Center for Disease Control’s announcement that it would be ending its Title 42 expulsion order as of May 23, 2022.  Under that order, most noncitizens seeking humanitarian protection have been summarily expelled, without the opportunity to apply for asylum, since March 2020, ostensibly to stop the introduction of COVID-19 into the United States.  The States allege that the termination of the Title 42 expulsion order was done without going through the proper procedures.  

On April 14, 2022, the States amended their complaint to add an additional 18 states as plaintiffs.  That same day, the States moved for a preliminary injunction, asking Judge Summerhays to enjoin (block) the termination of Title 42 while this case proceeds to the merits.  That request remains pending. On May 5, 2022, they amended their complaint yet again, this time to add 3 additional plaintiff states, for a total of 24.

Just a week after filing their motion for a preliminary injunction, the States filed an emergency motion for a temporary restraining order (TRO).  In that motion, the States alleged that, although the Title 42 expulsion order expires on May 23, 2022, the Biden Administration had taken certain steps to prepare for its expiration.  The States requested that the Court issue a TRO prohibiting the Biden Administration from “early implementation” of Title 42’s end.  Judge Summerhays held a status conference on the TRO request on April 25; during that conference, he stated that he was granting the TRO request.  Two days later, he issued a four-page opinion and order prohibiting the Biden Administration from (among other things) “reducing processing of migrants pursuant to Title 42.”  He also ordered DHS to file weekly reports.  By rule, a TRO is limited to 14 days, but on May 11, Judge Summerhays extended the TRO until May 23 or until he rules on the States’ preliminary injunction motion, whichever comes first. The TRO explicitly applies nationwide.

Meanwhile, briefing on the States’ request for a preliminary injunction (which, if granted, would not be time limited like a TRO) concluded on May 9.  Oral argument on the States’ motion occurred on May 13, 2022 in Lafayette, Louisiana.  Judge Summerhays is expected to issue an opinion on the motion for preliminary injunction no later than May 23.

Technical Summary

The States allege that the termination violated the Administrative Procedure Act’s notice and comment requirement and its prohibition on arbitrary and capricious agency action. In their motion for a preliminary injunction, the States argue that they are likely to succeed on both of their claims.

On the merits, Judge Summerhays’ TRO opinion states only the following: “The Plaintiff States have demonstrated a substantial likelihood of success on the merits with respect to their claims that the Termination Order was not issued in compliance with the Administrative Procedure Act.”  


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