Administrative Closure: Supreme Court Denies Cities' Bid

The Supreme Court on Oct. 27 refused to revive the 2024 administrative closure rule. Immigration judges still cannot pause new deportation cases, and the fight moves back to the Fifth Circuit.

The Supreme Court refused on Tuesday, Oct. 27, to restore administrative closure, the tool immigration judges used for decades to take deportation cases off their calendars without deciding them. In a brief unsigned order, the justices denied a request from Baltimore, New Haven, Columbus and the legal services group Centro Legal de la Raza to suspend a Texas court judgment that erased the 2024 rule, leaving people now in immigration court with fewer ways to put a case on hold while they wait on a visa or other relief elsewhere.

The order gave no reasons, and no justice noted a dissent, according to Reuters and SCOTUSblog. The case got there by an unusual route: Texas sued over the rule in June, the Justice Department declined to defend it, and Chief Judge Reed O’Connor entered an agreed final judgment the same day that, SCOTUSblog reported, threw out the rule and barred the agency from adopting a similar one. He then found the cities lacked standing to defend it, and the Fifth Circuit refused to pause his judgment.

The cities called the arrangement “manufactured litigation” built to sidestep federal rulemaking law, Reuters reported. Texas told the Court the rule let judges “effectively grant indefinite amnesty” to people in the country unlawfully, and Solicitor General D. John Sauer argued the cities’ claimed injury, lost tax revenue if paused cases end in deportations, was too indirect to give them standing.

What the order leaves in place for people in immigration court

The largest group is the one the order does not touch. The Executive Office for Immigration Review counted 309,677 administratively closed cases in immigration courts and at the Board of Immigration Appeals as of the third quarter of fiscal 2026, down from 389,076 at the end of fiscal 2024. Those cases had been closed for an average of 6,929 days, roughly 19 years. In its Oct. 22 brief, the government told the justices the judgment “applies prospectively” and “does not require the recalendaring” of closed cases. For everyone else, the options narrow:

Cases already closed: They stay off the calendar, but they are paused, not protected. DHS can still ask a judge to put an individual case back on the docket, and nothing in the judgment stops it from doing so.
New closure requests: Judges and the Board cannot grant them while the judgment stands, including for people with pending visa petitions or criminal appeals, the classic uses Reuters described.
Continuances: Still available, but harder to win for U visa petitioners since the Board’s Matter of L. Ramirez dropped the presumption that favored postponing their hearings.
Dismissal or deferral: The government’s brief pointed to DHS motions to dismiss while a person pursues relief elsewhere, and to the EOIR director’s power under 8 C.F.R. 1003.0(b)(1)(ii) to defer adjudication of certain cases.

The last route depends on the government’s cooperation, and continuances are now harder to win. The practical effect is that a respondent waiting years for a U visa or a priority date has little to offer a judge beyond a request for more time, while any closed case DHS chooses to revive lands on an active docket already in the millions.

Why the administrative closure fight now returns to the Fifth Circuit

A denied stay is not a ruling on the merits. The cities’ appeal of O’Connor’s refusal to let them intervene is still pending in the Fifth Circuit, No. 26-10794, and the government told the justices it would not oppose a motion to speed it up. That appeal turns on standing, not on whether the 2024 rule was lawful, and the cities have lost the standing question at every level so far.

The larger issue is durability. If the judgment’s bar on a similar rule holds, a future administration that wanted closure back could not simply write a new regulation; it would first have to undo an agreed judgment from a single district court. That is the precedent the cities warned about: an agency ending a rule it dislikes by settling a friendly lawsuit rather than going through notice and comment. A similar maneuver drew criticism in 2022, when the Biden administration stopped defending the 2019 public charge rule and let a court vacatur stand; Chief Justice Roberts, joined by three colleagues, warned that the move raised questions about agencies evading notice-and-comment rulemaking through litigation.

The government’s own brief sketched another way back. It said noncitizens who would have qualified for closure “may be able to collaterally challenge” the judgment if a judge denies them closure because of it, since they have “a more direct interest” than the cities. That makes an individual respondent’s petition for review, possibly in a circuit outside Texas, a likely next test. The earlier breakdown of the opposition briefs covers the government’s other concessions.

A hypothetical: a future administration tries to bring closure back

Say an administration takes office in 2029 and wants judges to have administrative closure again. Normally it would publish a proposed rule, take public comments, and issue a final rule. That’s how the 2024 rule was made, and how any rule can later be changed.

Under the O’Connor judgment, that path is blocked, because the judgment doesn’t just vacate the 2024 rule. It also bars the agency from adopting a similar one. A new rule restoring closure would arguably violate a federal court order. So before writing anything, the administration would first have to ask O’Connor to modify or lift his own judgment, likely under Federal Rule of Civil Procedure 60(b). It would then have to win any appeal in the Fifth Circuit, where Texas would almost certainly oppose it. One district judge, ruling on a settlement no court ever tested on the merits, would effectively control future policy.

Compare that with an ordinary repeal. If the current administration had repealed the 2024 rule through notice and comment, it would have had to answer public comments and justify the change. The next administration could then reverse course the same way. The agreed judgment skips the first step and blocks the second.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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