U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:18-cv-03636-ELH

STAYED

Mayor and City Council Of Baltimore v. Trump et al Assigned to: Judge Ellen L. Hollander Demand: $0 Cause: 05:706 Judicial Review of Agency Action

Date Filed: 11/28/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
Mayor and City Council Of Baltimore

represented by Benjamin Seel Democracy Forward Foundation 1333 H St. NW Washington, DC 20005 2024489090 Email: bseel@democracyforward.org PRO HAC VICE ATTORNEY TO BE NOTICED

Dana Petersen Moore Office of the City Solicitor 100 N Holliday St. Ste. 101 Baltimore, MD 21202 4103963659 Email: law.danapmoore@baltimorecity.gov ATTORNEY TO BE NOTICED

Danielle Yvette Conley Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20036 2026636000 Fax: 2026636363 Email: danielle.conley@wilmerhale.com TERMINATED: 01/15/2021 PRO HAC VICE

Emily Farmer Wilmer Cutler Pickering Hale and Dorr LLP

1875 Pennsylvania Avenue NW Washington, DC 20006 202-663-6000 Email: Emily.Farmer@wilmerhale.com ATTORNEY TO BE NOTICED
Jamie Yood Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 2026636000 Fax: 2026636363 Email: jamie.yood@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jane Hannah Lewis Baltimore City Law Department 100 N Holliday Street City Hall - Room 107 Baltimore, MD 21202 410-396-0165 Email: jane.lewis@baltimorecity.gov ATTORNEY TO BE NOTICED
John T Lewis , III Democracy Forward Foundation PO Box 34553 Washington, DC 20043 2024489090 Email: jlewis@democracyforward.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Paikin Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 2026636000 Fax: 2026636363 Email: jonathan.paikin@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Karianne Jones Democracy Forward Foundation

1333 H St. NW Washington, DC 20005 2024489090 Email: kjones@democracyforward.org ATTORNEY TO BE NOTICED
Molly M Jennings Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 2026636000 Fax: 2026636363 Email: molly.jennings@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sean A Lev Democracy Forward Foundation 1333 H St. NW Washington, DC 20005 2024489090 Email: slev@democracyforward.org PRO HAC VICE ATTORNEY TO BE NOTICED
Suzanne Sangree City of Baltimore Law Department Senior Public Safety Counsel City Hall Room 109 100 N Holliday St Baltimore, MD 21202 14433882190 Fax: 14105390536 Email: suzanne.sangree2@baltimorecity.gov TERMINATED: 11/12/2020 ATTORNEY TO BE NOTICED

V.
Defendant
Donald J. Trump in his official capacity as President of the United States of America

represented by James C Luh US Department of Justice 1100 L St. NW Washington, DC 20530 2025144938 Email: James.Luh@usdoj.gov

Defendant U.S. Department of State
Defendant Michael R. Pompeo in his official capacity as U.S. Secretary of State
Amicus State of California

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C Luh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James C Luh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valerie M. Nannery 2208 Good Hope Road SE Washington, DC 20020 2025774436 Email: valerie.nannery@dc.gov TERMINATED: 10/15/2019 LEAD ATTORNEY
Brenda Ayon Verduzco California Department of Justice 1515 Clay St. Oakland, CA 94612 5108790981 Fax: 5106222270 Email: brenda.ayonverduzco@doj.ca.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Jimmy Rock District of Columbia Office of Attorney General 441 Fourth Street NW Suite 600-S Washington, DC 20001 2027410770 Email: jimmy.rock@dc.gov ATTORNEY TO BE NOTICED
Michael K Addo Office of the Attorney General for the District

of Columbia 441 Fourth St NW Washington, DC 20910 2027246539 Fax: 2027410585 Email: michael.addo@dc.gov ATTORNEY TO BE NOTICED

Amicus
Asian Americans Advancing Justice Los Angeles

represented by Robert Stanton Jones Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue NW Washington, DC 20001 202-942-5563 Fax: 202-942-5999 Email: stanton.jones@arnoldporter.com ATTORNEY TO BE NOTICED

Amicus LatinoJustice PRLDEF

represented by Robert Stanton Jones (See above for address) ATTORNEY TO BE NOTICED

Amicus Muslim Advocates

represented by Robert Stanton Jones (See above for address) ATTORNEY TO BE NOTICED

Amicus

Refugee and Immigrant Center represented by Robert Stanton Jones

for Education and Legal

(See above for address)

Services, Inc.

ATTORNEY TO BE NOTICED

Amicus
Americans for Immigrant Justice

represented by Robert Stanton Jones (See above for address) ATTORNEY TO BE NOTICED

Amicus MacArthur Justice Center

represented by Robert Stanton Jones (See above for address) ATTORNEY TO BE NOTICED

Amicus
Black Alliance for Just Immigration

represented by Robert Stanton Jones (See above for address)

ATTORNEY TO BE NOTICED

Amicus
American Immigration Council represented by Robert Stanton Jones (See above for address) ATTORNEY TO BE NOTICED

Amicus
National Immigrant Justice Center

represented by Robert Stanton Jones (See above for address) ATTORNEY TO BE NOTICED

Amicus Southern Poverty Law Center

represented by Robert Stanton Jones (See above for address) ATTORNEY TO BE NOTICED

Amicus
Montgomery County, Maryland

represented by Edward Barry Lattner Office of the County Attorney for Montgomery County MD 101 Monroe St Third Fl Rockville, MD 20850-2580 12407776735 Fax: 12407776705 Email: Edward.Lattner@MontgomeryCountyMD.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Oakland, California

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Alameda County, California

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Austin, Texas

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus

Boise, Idaho

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Los Angeles, California

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Marin County, California

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Mountain View, California

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Palm Springs, California

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Philadelphia, Pennsylvania

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Sacramento, California

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus St. Paul, Minnesota

represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus
Santa Cruz County, California represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED

Amicus Seattle, Washington

represented by Edward Barry Lattner

Amicus Stockton, California
Amicus Tucson, Arizona
Amicus West Hollywood, California
Amicus Public Justice Center 1 N Charles St Ste 200 Baltimore, MD 21201 410-625-9409

(See above for address) ATTORNEY TO BE NOTICED
represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Barry Lattner (See above for address) ATTORNEY TO BE NOTICED
represented by Ejaz Hussain Baluch , Jr. Public Justice Center 1 N Charles St. Ste. 200 Baltimore, MD 21201 4106259409 Email: baluche@publicjustice.org TERMINATED: 10/01/2019 LEAD ATTORNEY

Debra Lynn Gardner Public Justice Center 201 N Charles St Ste 1200 Baltimore, MD 21201 14106259409 Fax: 14106259423 Email: gardnerd@publicjustice.org ATTORNEY TO BE NOTICED

Amicus

Capital Area Immigrant Rights represented by Ejaz Hussain Baluch , Jr.

Coalition

(See above for address)

1612 K Street NW

TERMINATED: 10/01/2019

Suite 204

LEAD ATTORNEY

Washington, DC 20006

202-899-1412

Debra Lynn Gardner

(See above for address)

ATTORNEY TO BE NOTICED

Amicus CASA of Maryland, Inc.

represented by Ejaz Hussain Baluch , Jr. (See above for address) TERMINATED: 10/01/2019 LEAD ATTORNEY

Debra Lynn Gardner (See above for address) ATTORNEY TO BE NOTICED

Amicus
Catholic Charities of of Baltimore, Immigration Legal Services 430 S. Broadway Baltimore, MD 21231 667-600-2930

represented by Ejaz Hussain Baluch , Jr. (See above for address) TERMINATED: 10/01/2019 LEAD ATTORNEY
Debra Lynn Gardner (See above for address) ATTORNEY TO BE NOTICED

Amicus
Episcopal Refugee and Immigrant Center Alliance 4 E. University Parkway Baltimore, MD 21218 410-467-3751

represented by Ejaz Hussain Baluch , Jr. (See above for address) TERMINATED: 10/01/2019 LEAD ATTORNEY
Debra Lynn Gardner (See above for address) ATTORNEY TO BE NOTICED

Amicus US House of Representatives

represented by Adam Grogg 219 Cannon House Office Building Washington, DC 20515 2022259700 Fax: 2022261360 Email: adam.grogg@mail.house.gov TERMINATED: 10/08/2020

Douglas Letter 219 Cannon HOB Washington, DC 20515 2022259700 Fax: 2022261360 Email: douglas.letter@mail.house.gov ATTORNEY TO BE NOTICED

Amicus Cori Alonso-Yoder
Amicus

Megan Barbero 219 Cannon HOB Washington, DC 20515 2022259700 Fax: 2022261360 Email: Megan.Barbero@mail.house.gov ATTORNEY TO BE NOTICED
Rene Kathawala Orrick Herrington and Sutcliffe LLP 51 W 52nd St New York, NY 10019 2125065000 Fax: 2125065151 Email: rkathawala@orrick.com ATTORNEY TO BE NOTICED
Thomas M Bondy Orrick Herrington and Sutcliffe LLP 1152 15th St. NW Washington, DC 20005 2023398400 Fax: 2023398500 Email: tbondy@orrick.com ATTORNEY TO BE NOTICED
Todd B Tatelman 219 Cannon House Office Bldg. Washington, DC 20515 2022259700 Fax: 2022261360 Email: todd.tatelman@mail.house.gov ATTORNEY TO BE NOTICED
represented by Harry Lee Steptoe and Johnson LLP 1330 Connecticut Ave NW Washington, DC 20036 12024298112 Fax: 12024293902 Email: hlee@steptoe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy Brustin
Amicus Kristina M. Campbell
Amicus Lindsay Harris
Amicus Kevin R. Johnson
Amicus Elizabeth Keyes
Amicus Matthew Lindsay
Amicus Mariela Olivares
Amicus Michael A. Olivas

represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jayesh Rathod
Amicus Anne Schaufele
Amicus Shoba Sivaprasad Wadhia
Amicus Maureen A. Sweeney

represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harry Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/28/2018
11/28/2018 11/28/2018 11/28/2018 11/28/2018 11/28/2018

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0416-7693089.), filed by Mayor and City Council Of Baltimore. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(Sangree, Suzanne) (Entered: 11/28/2018)
2 Local Rule 103.3 Disclosure Statement by Mayor and City Council Of Baltimore (Sangree, Suzanne) (Entered: 11/28/2018)
3 MOTION to Appear Pro Hac Vice for Javier M. Guzman (Filing fee $100, receipt number 0416-7693095.) by Mayor and City Council Of Baltimore(Sangree, Suzanne) (Entered: 11/28/2018)
4 MOTION to Appear Pro Hac Vice for Karianne M. Jones (Filing fee $100, receipt number 0416-7693096.) by Mayor and City Council Of Baltimore(Sangree, Suzanne) (Entered: 11/28/2018)
5 MOTION to Appear Pro Hac Vice for John T. Lewis (Filing fee $100, receipt number 0416-7693097.) by Mayor and City Council Of Baltimore(Sangree, Suzanne) (Entered: 11/28/2018)
6 Summons Issued 60 days as to Michael R. Pompeo, Donald J. Trump, U.S.

11/30/2018
11/30/2018
12/03/2018 12/10/2018 12/11/2018 01/16/2019 01/16/2019 01/16/2019 01/16/2019 02/22/2019 02/25/2019

Department of State, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 U.S. Department of State, # 2 Pompeo, # 3 U.S. Attorney General, # 4 U.S. Attorney for MD)(hmls, Deputy Clerk) (Entered: 11/28/2018)
7 PAPERLESS ORDER granting 4 Motion to Appear Pro Hac Vice on behalf of Karianne Jones. Directing attorney Karianne Jones to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
8 PAPERLESS ORDER granting 5 Motion to Appear Pro Hac Vice on behalf of John T Lewis. Directing attorney John T Lewis to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 11/30/2018. (srds, Deputy Clerk) (Entered: 11/30/2018)
9 PAPERLESS ORDER denying 3 motion for admission pro hac vice of Javier M. Guzman. Signed by Judge Ellen L. Hollander on 11/30/2018. (srd, Deputy Clerk) (Entered: 12/03/2018)
10 SUMMONS Returned Executed by Mayor and City Council Of Baltimore. All Defendants. (Attachments: # 1 Affidavit)(Lewis, John) (Entered: 12/10/2018)
Set/Reset Deadlines: Michael R. Pompeo answer due 2/1/2019; Donald J. Trump answer due 2/1/2019; U.S. Department of State answer due 2/1/2019. (hmls, Deputy Clerk) (Entered: 12/11/2018)
11 NOTICE of Appearance by James C Luh on behalf of All Defendants (Luh, James) (Entered: 01/16/2019)
12 MOTION for Extension of Time to File Answer re 1 Complaint, , MOTION to Stay (Motion for a Stay in Light of Lapse of Appropriations) by Michael R. Pompeo, Donald J. Trump, U.S. Department of State(Luh, James) (Entered: 01/16/2019)
13 RESPONSE in Opposition re 12 MOTION for Extension of Time to File Answer re 1 Complaint, MOTION to Stay (Motion for a Stay in Light of Lapse of Appropriations) filed by Mayor and City Council Of Baltimore.(Lewis, John) (Entered: 01/16/2019)
14 ORDER DENYING 12 Motion to Stay. Signed by Judge Ellen L. Hollander on 1/16/2019. (hmls, Deputy Clerk) (Entered: 01/17/2019)
15 ORDER directing Defendants to file a responsive pleading or show cause for failing to do so by 2/28/2019. Signed by Judge Ellen L. Hollander on 2/22/19. (krs, Deputy Clerk) (Entered: 02/22/2019)
16 Consent MOTION for Leave to File Excess Pages (Unopposed Motion for Leave to File Excess Pages) by Michael R. Pompeo, Donald J. Trump,

02/25/2019
02/25/2019 02/26/2019 03/01/2019 03/05/2019
03/05/2019
03/12/2019 03/12/2019 03/15/2019

U.S. Department of State(Luh, James) (Entered: 02/25/2019)
17 MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim(Motion to Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim) by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Attachments: # 1 Memorandum in Support, # 2 Exhibit A)(Luh, James) (Entered: 02/25/2019)
18 Marginal ORDER GRANTING 16 Motion for Leave to File Excess Pages; REMINDING counsel that motions should include proposed orders. Signed by Judge Ellen L. Hollander on 2/25/2019. (hmls, Deputy Clerk) (Entered: 02/26/2019)
19 MOTION to Appear Pro Hac Vice for Benjamin Seel (Filing fee $100, receipt number 0416-7859974.) by Mayor and City Council Of Baltimore (Attachments: # 1 Text of Proposed Order)(Sangree, Suzanne) (Entered: 02/26/2019)
20 PAPERLESS ORDER granting 19 Motion to Appear Pro Hac Vice on behalf of Benjamin Seel. Directing attorney Benjamin Seel to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 3/1/2019. (srd, Deputy Clerk) (Entered: 03/01/2019)
21 MOTION for Extension of Time to File Response/Reply as to 17 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim(Motion to Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim) by Mayor and City Council Of Baltimore (Attachments: # 1 Text of Proposed Order)(Lewis, John) (Entered: 03/05/2019)
22 ORDER GRANTING 21 Motion for Extension of Time to File Response/Reply re 17 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim (Motion to Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim) to and including 3/15/2019. Signed by Judge Ellen L. Hollander on 3/5/2019. (hmls, Deputy Clerk) (Entered: 03/05/2019)
23 Consent MOTION for Leave to File Excess Pages Unopposed Motion for Leave to File Excess Pages by Mayor and City Council Of Baltimore (Attachments: # 1 Text of Proposed Order)(Lewis, John) (Entered: 03/12/2019)
24 ORDER GRANTING 23 Motion for Leave to File Excess Pages. Signed by Judge Ellen L. Hollander on 3/12/2019. (hmls, Deputy Clerk) (Entered: 03/13/2019)
25 RESPONSE in Opposition re 17 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim(Motion to

03/21/2019 03/22/2019
03/22/2019 03/22/2019 03/22/2019

Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim) filed by Mayor and City Council Of Baltimore.(Lewis, John) (Entered: 03/15/2019)
26 MOTION to Appear Pro Hac Vice for Brenda Ayon Verduzco (Filing fee $100, receipt number 0416-7905300.) by State of California. (Nannery, Valerie) Modified on 3/21/2019 (hmls, Deputy Clerk). (Entered: 03/21/2019)
27 MOTION for Leave to File Brief of Amici Curiae Civil Rights Organizations In Support of Plaintiff's Opposition to Defendants' Motion to Dismiss by Asian Americans Advancing Justice Los Angeles, LatinoJustice PRLDEF, Muslim Advocates, Refugee and Immigrant Center for Education and Legal Services, Inc., Americans for Immigrant Justice, MacArthur Justice Center, Black Alliance for Just Immigration, American Immigration Council, National Immigrant Justice Center, Southern Poverty Law Center (Attachments: # 1 Memorandum in Support Brief of Amici Curiae Civil Rights Organizations In Support of Plaintiff's Opposition to Defendants' Motion to Dismiss, # 2 Text of Proposed Order Proposed Order Granting Movants' Motion for Leave to File Brief of Amici Curiae Civil Rights Organizations In Support of Plaintiff's Opposition to Defendants' Motion to Dismiss)(Jones, Robert Stanton) (Entered: 03/22/2019)
28 MOTION for Leave to File Brief of Amici Curiae 17 Counties and Cities in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss by Montgomery County, Maryland, Oakland, California, Alameda County, California, Austin, Texas, Boise, Idaho, Los Angeles, California, Marin County, California, Mountain View, California, Palm Springs, California, Philadelphia, Pennsylvania, Sacramento, California, St. Paul, Minnesota, Santa Cruz County, California, Seattle, Washington, Stockton, California, Tucson, Arizona, West Hollywood, California (Attachments: # 1 Attachment Proposed Amici Brief)(Lattner, Edward) (Entered: 03/22/2019)
29 PAPERLESS ORDER granting 26 Motion to Appear Pro Hac Vice on behalf of Brenda Ayon Verduzco. Directing attorney Brenda Ayon Verduzco to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 3/22/2019. (srd, Deputy Clerk) (Entered: 03/22/2019)
30 Supplemental to 28 MOTION for Leave to File Brief of Amici Curiae 17 Counties and Cities in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss filed by Alameda County, California, Austin, Texas, Boise, Idaho, Los Angeles, California, Marin County, California, Montgomery County, Maryland, Mountain View, California, Oakland, California, Palm Springs, California, Philadelphia, Pennsylvania, Sacramento, California, Santa Cruz County, California, Seattle,

03/22/2019
03/22/2019 03/22/2019 03/22/2019 03/22/2019
03/22/2019 03/22/2019 03/22/2019 03/22/2019 03/22/2019
03/22/2019 03/22/2019 03/22/2019 03/22/2019 03/22/2019

Washington, St. Paul, Minnesota, Stockton, California, Tucson, Arizona, West Hollywood, California Proposed Order (Lattner, Edward) (Entered: 03/22/2019)
31 MOTION for Leave to File Brief of Amici Curiae by Public Justice Center, Capital Area Immigrant Rights Coalition, CASA of Maryland, Inc., Catholic Charities of of Baltimore, Immigration Legal Services, Episcopal Refugee and Immigrant Center Alliance (Attachments: # 1 Exhibit)(Baluch, Ejaz) (Entered: 03/22/2019)
32 Local Rule 103.3 Disclosure Statement by Public Justice Center (Baluch, Ejaz) (Entered: 03/22/2019)
33 Local Rule 103.3 Disclosure Statement by Capital Area Immigrant Rights Coalition (Baluch, Ejaz) (Entered: 03/22/2019)
34 Local Rule 103.3 Disclosure Statement by CASA of Maryland, Inc. (Baluch, Ejaz) (Entered: 03/22/2019)
35 Local Rule 103.3 Disclosure Statement by Catholic Charities of of Baltimore, Immigration Legal Services (Baluch, Ejaz) (Entered: 03/22/2019)
36 Local Rule 103.3 Disclosure Statement by Episcopal Refugee and Immigrant Center Alliance (Baluch, Ejaz) (Entered: 03/22/2019)
37 Local Rule 103.3 Disclosure Statement by Asian Americans Advancing Justice Los Angeles (Jones, Robert Stanton) (Entered: 03/22/2019)
38 Local Rule 103.3 Disclosure Statement by LatinoJustice PRLDEF (Jones, Robert Stanton) (Entered: 03/22/2019)
39 Local Rule 103.3 Disclosure Statement by Muslim Advocates (Jones, Robert Stanton) (Entered: 03/22/2019)
40 Local Rule 103.3 Disclosure Statement by Refugee and Immigrant Center for Education and Legal Services, Inc. (Jones, Robert Stanton) (Entered: 03/22/2019)
41 Local Rule 103.3 Disclosure Statement by Americans for Immigrant Justice (Jones, Robert Stanton) (Entered: 03/22/2019)
42 Local Rule 103.3 Disclosure Statement by Black Alliance for Just Immigration (Jones, Robert Stanton) (Entered: 03/22/2019)
43 Local Rule 103.3 Disclosure Statement by National Immigrant Justice Center (Jones, Robert Stanton) (Entered: 03/22/2019)
44 Local Rule 103.3 Disclosure Statement by MacArthur Justice Center (Jones, Robert Stanton) (Entered: 03/22/2019)
45 Memorandum re 17 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim(Motion to

03/23/2019 03/23/2019 03/23/2019 03/23/2019 03/23/2019 03/23/2019
03/23/2019 03/23/2019
03/25/2019

Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim) Brief of Amici States filed by State of California.(Nannery, Valerie) (Entered: 03/22/2019)
46 Local Rule 103.3 Disclosure Statement by Southern Poverty Law Center (Jones, Robert Stanton) (Entered: 03/23/2019)
47 Local Rule 103.3 Disclosure Statement by American Immigration Council (Jones, Robert Stanton) (Entered: 03/23/2019)
48 MARGINAL ORDER granting 31 Motion for Leave to File Brief of Amici Curiae. Signed by Judge Ellen L. Hollander on 3/22/2019. (dass, Deputy Clerk) (Originally filed 3/22/18) (Entered: 03/25/2019)
49 BRIEF OF AMICI CURIAE filed by Public Justice Center. Capital Area Immigrant Rights Coalition, CASA of Maryland, Inc., Catholic Charities of of Baltimore, Immigration Legal Services, and Episcopal Refugee and Immigrant Center Alliance, in support of the Plaintiff. (dass, Deputy Clerk) (Originally filed 3/22/18) (Entered: 03/25/2019)
50 ORDER granting 27 Motion for Leave to File Brief of Amici Curiae. Signed by Judge Ellen L. Hollander on 3/22/2019. (dass, Deputy Clerk) (originally filed 3/22/19) (Entered: 03/25/2019)
51 BRIEF OF AMICI CURIAE Civil Rights Organizations filed by American Immigration Council, Americans for Immigrant Justice, Asian Americans Advancing Justice Los Angeles, Black Alliance for Just Immigration, LatinoJustice PRLDEF, MacArthur Justice Center, Muslim Advocates, National Immigrant Justice Center, Refugee and Immigrant Center for Education and Legal Services, Inc., Southern Poverty Law Center, in support of Plaintiff's 25 Opposition to Defendants' 17 Motion to Dismiss. (dass, Deputy Clerk) (originally filed 3/22/19) (Entered: 03/25/2019)
52 ORDER granting 28 Motion for Leave to File Brief of Amici Curiae. Signed by Judge Ellen L. Hollander on 3/22/2019. (dass, Deputy Clerk)(originally filed 3/22/19) (Entered: 03/25/2019)
53 BRIEF OF AMICI CURIAE filed by Alameda County, California, Austin, Texas, Boise, Idaho, Los Angeles, California, Marin County, California, Montgomery County, Maryland, Mountain View, California, Oakland, California, Palm Springs, California, Philadelphia, Pennsylvania, Sacramento, California, Santa Cruz County, California, Seattle, Washington, St. Paul, Minnesota, Stockton, California, Tucson, Arizona, West Hollywood, California, in support of Plaintiff's 25 Opposition to Defendants' 17 Motion to Dismiss. (dass, Deputy Clerk) (originally filed 3/22/19) (Entered: 03/25/2019)
54 MOTION for Extension of Time to File Response/Reply as to 17 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim(Motion to Dismiss for Lack of Subject Matter

03/25/2019 04/25/2019
06/04/2019 06/06/2019 09/20/2019 09/20/2019 09/23/2019
09/23/2019 09/24/2019 10/01/2019

Jurisdiction or for Failure to State a Claim) (Motion for Extension of Time to File Reply Memorandum in Support of Motion to Dismiss) by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Attachments: # 1 Text of Proposed Order)(Luh, James) (Entered: 03/25/2019)
55 ORDER GRANTING 54 Motion of Defendants for Extension of Time to File Response/Reply re 17 MOTION to Dismiss for Lack of Jurisdiction or for Failure to State a Claim. Reply due 4/25/2019. Signed by Judge Ellen L. Hollander on 3/25/2019. (hmls, Deputy Clerk) (Entered: 03/26/2019)
56 REPLY to Response to Motion re 17 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim(Motion to Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim) (Reply Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction or for Failure to State a Claim) filed by Michael R. Pompeo, Donald J. Trump, U.S. Department of State.(Luh, James) (Entered: 04/25/2019)
57 NOTICE by Mayor and City Council Of Baltimore of Supplemental Authority (Attachments: # 1 Exhibit A)(Lewis, John) (Entered: 06/04/2019)
58 RESPONSE re 57 Notice (Other) (Defendants' Response to Plaintiff's Notice of Supplemental Authority) filed by Michael R. Pompeo, Donald J. Trump, U.S. Department of State.(Luh, James) (Entered: 06/06/2019)
59 MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 9/20/2019. (hmls, Deputy Clerk) (Entered: 09/23/2019)
60 ORDER DENYING 17 Motion to Dismiss for Lack of Jurisdiction; DENYING 17 Motion to Dismiss for Failure to State a Claim; Defendants' answer due by 10/20/2019. Signed by Judge Ellen L. Hollander on 9/20/2019. (hmls, Deputy Clerk) (Entered: 09/23/2019)
61 NOTICE of Appearance by Debra Lynn Gardner on behalf of CASA of Maryland, Inc., Capital Area Immigrant Rights Coalition, Catholic Charities of of Baltimore, Immigration Legal Services, Episcopal Refugee and Immigrant Center Alliance, Public Justice Center (Gardner, Debra) (Entered: 09/23/2019)
62 MOTION to Withdraw as Attorney by CASA of Maryland, Inc., Capital Area Immigrant Rights Coalition, Catholic Charities of of Baltimore, Immigration Legal Services, Episcopal Refugee and Immigrant Center Alliance, Public Justice Center(Gardner, Debra) (Entered: 09/23/2019)
Case reassigned to Judge Stephanie A. Gallagher. Judge Ellen L. Hollander no longer assigned to the case. (cags, Deputy Clerk) (Entered: 09/24/2019)
63 ORDER granting 62 Motion to Withdraw as Attorney. Attorney Ejaz Hussain Baluch, Jr terminated. Signed by Judge Stephanie A. Gallagher on

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10/1/2019. (krs, Deputy Clerk) (Entered: 10/01/2019)
64 NOTICE by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Defendants' Notice of Regulatory Action) (Luh, James) (Entered: 10/11/2019)
65 NOTICE of Appearance by Michael K Addo on behalf of State of California (Addo, Michael) (Entered: 10/11/2019)
66 MOTION to Withdraw as Attorney by State of California (Attachments: # 1 Text of Proposed Order)(Nannery, Valerie) (Entered: 10/11/2019)
67 ORDER granting 66 Motion to Withdraw as Attorney. Attorney Valerie M. Nannery terminated. Signed by Judge Stephanie A. Gallagher on 10/15/2019. (cags, Deputy Clerk) (Entered: 10/15/2019)
68 ANSWER to 1 Complaint, by Michael R. Pompeo, Donald J. Trump, U.S. Department of State.(Luh, James) (Entered: 10/20/2019)
69 SCHEDULING ORDER: Status Report due by 3/19/2020. Signed by Judge Stephanie A. Gallagher on 11/5/2019. (krs, Deputy Clerk) (Entered: 11/05/2019)
70 NOTICE of Appearance by Emily Farmer on behalf of Mayor and City Council Of Baltimore (Farmer, Emily) (Entered: 11/14/2019)
71 MOTION to Appear Pro Hac Vice for Jonathan E. Paikin (Filing fee $100, receipt number 0416-8350479.) by Mayor and City Council Of Baltimore(Farmer, Emily) (Entered: 11/14/2019)
72 MOTION to Appear Pro Hac Vice for Danielle Y. Conley (Filing fee $100, receipt number 0416-8350486.) by Mayor and City Council Of Baltimore(Farmer, Emily) (Entered: 11/14/2019)
73 MOTION to Appear Pro Hac Vice for Molly M. Jennings (Filing fee $100, receipt number 0416-8350493.) by Mayor and City Council Of Baltimore(Farmer, Emily) (Entered: 11/14/2019)
74 MOTION to Appear Pro Hac Vice for Jamie Yood (Filing fee $100, receipt number 0416-8350494.) by Mayor and City Council Of Baltimore(Farmer, Emily) (Entered: 11/14/2019)
75 MOTION to Modify Scheduling Order re 69 Scheduling Order , MOTION to Stay Discovery Pending Resolution of Motion to Modify Scheduling Order by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Text of Proposed Order)(Luh, James) (Entered: 11/18/2019)
76 PAPERLESS ORDER granting 71 Motion to Appear Pro Hac Vice on behalf of Jonathan Paikin. Directing attorney Jonathan Paikin to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 11/18/2019. (srd, Deputy Clerk) (Entered:

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11/18/2019)
77 PAPERLESS ORDER granting 72 Motion to Appear Pro Hac Vice on behalf of Danielle Yvette Conley. Attorney Danielle Yvette Conley will receive a separate email with the previously issued CM/ECF login and password. Signed by Clerk on 11/18/2019. (srd, Deputy Clerk) (Entered: 11/18/2019)
78 PAPERLESS ORDER granting 73 Motion to Appear Pro Hac Vice on behalf of Molly M Jennings. Directing attorney Molly M Jennings to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 11/18/2019. (srd, Deputy Clerk) (Entered: 11/18/2019)
79 PAPERLESS ORDER granting 74 Motion to Appear Pro Hac Vice on behalf of Jamie Yood. Directing attorney Jamie Yood to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 11/18/2019. (srd, Deputy Clerk) (Entered: 11/18/2019)
80 STATUS REPORT Joint Status Report Including Plaintiff's Request to Modify Scheduling Order by Mayor and City Council Of Baltimore(Lewis, John) (Entered: 11/19/2019)
Case reassigned to Judge Ellen L. Hollander. Judge Stephanie A. Gallagher no longer assigned to the case. (cags, Deputy Clerk) (Entered: 11/19/2019)
81 RESPONSE in Opposition re 75 MOTION to Modify Scheduling Order re 69 Scheduling Order MOTION to Stay Discovery Pending Resolution of Motion to Modify Scheduling Order filed by Mayor and City Council Of Baltimore. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Lewis, John) (Entered: 11/26/2019)
82 REPLY to Response to Motion re 75 MOTION to Modify Scheduling Order re 69 Scheduling Order MOTION to Stay Discovery Pending Resolution of Motion to Modify Scheduling Order (Reply Memorandum in Support of Motion to Modify Scheduling Order) filed by Michael R. Pompeo, Donald J. Trump, U.S. Department of State.(Luh, James) (Entered: 12/04/2019)
83 MOTION for Extension of Time to Respond to Plaintiff's November 15, 2019, Discovery Requests by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Attachments: # 1 Text of Proposed Order)(Luh, James) (Entered: 12/11/2019)
84 ORDER GRANTING 83 Motion for Extension of Time to Respond to Plaintiff's November 15, 2019, Discovery Requests. Signed by Judge Ellen L. Hollander on 12/12/2019. (hmls, Deputy Clerk) (Entered: 12/12/2019)

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85 Request for Conference (Sangree, Suzanne) (Entered: 12/13/2019)
86 RESPONSE re 85 Request for Conference (Defendants' Response to Plaintiff's Letter Request for Hearing) filed by Michael R. Pompeo, Donald J. Trump, U.S. Department of State.(Luh, James) (Entered: 12/16/2019)
87 PAPERLESS ORDER. A telephone conference has been scheduled for December 19, 2019, at 5:00 p.m. Counsel for plaintiff is to initiate the call to defense counsel and then to chambers. Signed by Judge Ellen L. Hollander on 12/16/2019. (kw, Chambers) (Entered: 12/16/2019)
88 MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 12/19/2019. (hmls, Deputy Clerk) (Entered: 12/19/2019)
89 ORDER VACATING 69 Scheduling Order; GRANTING IN PART AND DENYING IN PART 75 Motion to Modify Scheduling Order. Signed by Judge Ellen L. Hollander on 12/19/2019. (hmls, Deputy Clerk) (Entered: 12/19/2019)
90 PAPERLESS ORDER. The telephone conference scheduled for December 19, 2019, has been cancelled. Signed by Judge Ellen L. Hollander on 12/19/2019. (kw, Chambers) (Entered: 12/19/2019)
91 NOTICE by Mayor and City Council Of Baltimore (Lewis, John) (Entered: 01/31/2020)
92 MOTION for Leave to File Supplemental Complaint by Mayor and City Council Of Baltimore (Attachments: # 1 Memorandum in Support, # 2 Exhibit)(Lewis, John) (Entered: 02/07/2020)
93 RESPONSE in Opposition re 92 MOTION for Leave to File Supplemental Complaint (Memorandum in Opposition to Motion for Leave to Supplement Complaint) filed by Michael R. Pompeo, Donald J. Trump, U.S. Department of State.(Luh, James) (Entered: 02/20/2020)
94 MEMORANDUM to Counsel re: West Publishing. Signed by Judge Ellen L. Hollander on 2/21/2020. (hmls, Deputy Clerk) (Entered: 02/21/2020)
95 MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 9/20/2019. (hmls, Deputy Clerk) (Entered: 02/21/2020)
96 REPLY to Response to Motion re 92 MOTION for Leave to File Supplemental Complaint filed by Mayor and City Council Of Baltimore.(Lewis, John) (Entered: 02/26/2020)
97 MEMORANDUM. Signed by Judge Ellen L. Hollander on 2/27/2020. (hmls, Deputy Clerk) (Entered: 02/27/2020)
98 ORDER GRANTING 92 Motion for Leave to File Supplemental Complaint; DIRECTING parties to submit a proposed scheduling order by 3/23/20. Signed by Judge Ellen L. Hollander on 2/27/2020. (hmls, Deputy

02/27/2020 03/23/2020 03/23/2020 03/27/2020 03/30/2020 05/14/2020 05/15/2020
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Clerk) (Entered: 02/27/2020)
99 SUPPLEMENTAL COMPLAINT against Michael R. Pompeo, Donald J. Trump, U.S. Department of State filed by Mayor and City Council Of Baltimore. (hmls, Deputy Clerk) (Entered: 02/27/2020)
100 STATUS REPORT by Mayor and City Council Of Baltimore (Attachments: # 1 Text of Proposed Order)(Lewis, John) (Entered: 03/23/2020)
101 SCHEDULING ORDER. Signed by Judge Ellen L. Hollander on 3/23/2020. (ols, Deputy Clerk) (Entered: 03/24/2020)
102 MOTION to Appear Pro Hac Vice for Sean A. Lev (Filing fee $100, receipt number 0416-8589962.) by Mayor and City Council Of Baltimore(Sangree, Suzanne) (Entered: 03/27/2020)
103 PAPERLESS ORDER granting 102 Motion to Appear Pro Hac Vice on behalf of Sean A Lev. Attorney Sean A Lev will receive a separate email with the previously issued CM/ECF login and password. Signed by Clerk on 3/30/2020. (srds, Deputy Clerk) (Entered: 03/30/2020)
104 NOTICE of Appearance by Dana Petersen Moore on behalf of Mayor and City Council Of Baltimore (Moore, Dana) (Entered: 05/14/2020)
105 MOTION for Summary Judgment by Mayor and City Council Of Baltimore (Attachments: # 1 Memorandum in Support of Plaintiff's Motion for Summary Judgment, # 2 Exhibit Index of Exhibits, # 3 Exhibit Ex. 1 pt. 1 - FAM AR Excerpts, # 4 Exhibit Ex. 1 pt. 2 - FAM AR Excerpts, # 5 Exhibit Ex. 1 pt. 3 - FAM AR Excerpts, # 6 Exhibit Ex. 2 - IFR AR Excerpts, # 7 Exhibit Ex. 3 - Kallick Declaration, # 8 Exhibit Ex. 4 Cenname Declaration, # 9 Exhibit Ex. 5 - Rodriguez Lima Declaration, # 10 Exhibit Ex. 6 - Freishtat Declaration, # 11 Exhibit Ex. 7 - Page Declaration, # 12 Exhibit Ex. 8 - Polk Declaration, # 13 Exhibit Ex. 9 Jennings Declaration, # 14 Text of Proposed Order Proposed Order)(Sangree, Suzanne) (Entered: 05/15/2020)
106 MOTION for Other Relief Request for Judicial Notice by Mayor and City Council Of Baltimore (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit Ex. 1 - FAM Home Page, # 3 Exhibit Ex. 2 - Public Charge Update, # 4 Exhibit Ex. 3a - FY 2002 Table XX, # 5 Exhibit Ex. 3b - FY 2003 Table XX, # 6 Exhibit Ex. 3c - FY 2004 Table XX, # 7 Exhibit Ex. 3d - FY 2005 Table XX, # 8 Exhibit Ex. 3e - FY 2006 Table XX, # 9 Exhibit Ex. 3f - FY 2007 Table XX, # 10 Exhibit Ex. 3g - FY 2008 Table XX, # 11 Exhibit Ex. 3h - FY 2009 Table XX, # 12 Exhibit Ex. 3i FY 2010 Table XX, # 13 Exhibit Ex. 3j - FY 2011 Table XX, # 14 Exhibit Ex. 3k - FY 2012 Table XX, # 15 Exhibit Ex. 3l - FY 2013 Table XX, # 16 Exhibit Ex. 3m - FY 2014 Table XX, # 17 Exhibit Ex. 3n - FY 2015 Table XX, # 18 Exhibit Ex. 3o - FY 2016 Table XX, # 19 Exhibit Ex. 3p -

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FY 2017 Table XX, # 20 Exhibit Ex. 3q - FY 2018 Table XX, # 21 Exhibit Ex. 3r - FY 2019 Table XX, # 22 Exhibit Ex. 4 - DHS Regulatory Impact Analysis, # 23 Exhibit Ex. 5 - Baltimore IFR Comment, # 24 Exhibit Ex. 6 - Baltimore DHS Comment)(Sangree, Suzanne) (Entered: 05/15/2020)
107 Memorandum re 105 MOTION for Summary Judgment (Corrected Memorandum) filed by Mayor and City Council Of Baltimore.(Sangree, Suzanne) (Entered: 05/18/2020)
108 NOTICE of Appearance by Douglas Letter on behalf of US House of Representatives (Letter, Douglas) (Entered: 05/22/2020)
109 NOTICE of Appearance by Megan Barbero on behalf of US House of Representatives (Barbero, Megan) (Entered: 05/22/2020)
110 Consent MOTION for Leave to File Amicus Brief by US House of Representatives (Attachments: # 1 Attachment BRIEF OF UNITED STATES HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT)(Letter, Douglas) (Entered: 05/22/2020)
111 Marginal ORDER APPROVING 110 Motion for Leave to File Amicus Brief. Signed by Judge Ellen L. Hollander on 5/22/2020. (hmls, Deputy Clerk) (Entered: 05/22/2020)
112 Amicus Brief re 105 MOTION for Summary Judgment filed by US House of Representatives. (hmls, Deputy Clerk) (Entered: 05/22/2020)
113 MOTION for Leave to File Brief of Amici Curiae Immigration Law Professors and Scholars (Unopposed) by Cori Alonso-Yoder, Stacy Brustin, Kristina M. Campbell, Lindsay Harris, Kevin R. Johnson, Elizabeth Keyes, Matthew Lindsay, Mariela Olivares, Michael A. Olivas, Jayesh Rathod, Anne Schaufele, Shoba Sivaprasad Wadhia, Maureen A. Sweeney (Attachments: # 1 Exhibit 1 - Proposed Amicus Brief)(Lee, Harry) (Entered: 05/22/2020)
114 Consent MOTION for Leave to File Corrected Amicus Brief by US House of Representatives (Attachments: # 1 Attachment CORRECTED BRIEF OF UNITED STATES HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT)(Letter, Douglas) (Entered: 05/22/2020)
115 Marginal ORDER Approving 114 Motion for Leave to File Corrected Amicus Brief. Signed by Judge Ellen L. Hollander on 5/26/2020. (hmls, Deputy Clerk) (Entered: 05/26/2020)
116 Corrected Amicus Brief re 105 MOTION for Summary Judgment filed by US House of Representatives. (hmls, Deputy Clerk) (Entered: 05/26/2020)
117 RESPONSE in Opposition re 106 MOTION for Other Relief Request for Judicial Notice (Defendants' Opposition to Plaintiff's Request for Judicial

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Notice) filed by Michael R. Pompeo, Donald J. Trump, U.S. Department of State.(Luh, James) (Entered: 05/26/2020)
118 NOTICE of filing Administrative Record by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Attachments: # 1 Administrative Record (Jan. 2018 FAM guidance) (1 of 10), # 2 Administrative Record (Jan. 2018 FAM guidance) (2 of 10), # 3 Administrative Record (Jan. 2018 FAM guidance) (3 of 10), # 4 Administrative Record (Jan. 2018 FAM guidance) (4 of 10), # 5 Administrative Record (Jan. 2018 FAM guidance) (5 of 10), # 6 Administrative Record (Jan. 2018 FAM guidance) (6 of 10), # 7 Administrative Record (Jan. 2018 FAM guidance) (7 of 10), # 8 Administrative Record (Jan. 2018 FAM guidance) (8 of 10), # 9 Administrative Record (Jan. 2018 FAM guidance) (9 of 10), # 10 Administrative Record (Jan. 2018 FAM guidance) (10 of 10), # 11 Administrative Record (Oct. 2019 Rule) (1 of 3), # 12 Administrative Record (Oct. 2019 Rule) (2 of 3), # 13 Administrative Record (Oct. 2019 Rule) (3 of 3))(Luh, James) (Entered: 05/26/2020)
119 ORDER Directing defendants to respond by July 1, 2020, re 105 MOTION for Summary Judgment. Signed by Judge Ellen L. Hollander on 6/9/2020. (hmls, Deputy Clerk) (Entered: 06/09/2020)
120 REPLY to Response to Motion re 106 MOTION for Other Relief Request for Judicial Notice filed by Mayor and City Council Of Baltimore.(Sangree, Suzanne) (Entered: 06/09/2020)
121 Joint MOTION for Other Relief Joint Motion for Scheduling Clarification by Mayor and City Council Of Baltimore (Attachments: # 1 Text of Proposed Order Plaintiff's Proposed Order, # 2 Text of Proposed Order Defendants' Proposed Order)(Sangree, Suzanne) (Entered: 06/10/2020)
122 NOTICE of Appearance by Adam Grogg on behalf of US House of Representatives (Grogg, Adam) (Entered: 06/11/2020)
123 NOTICE of Appearance by Todd B Tatelman on behalf of US House of Representatives (Tatelman, Todd) (Entered: 06/11/2020)
124 SCHEDULING ORDER. Signed by Judge Ellen L. Hollander on 6/11/2020. (hmls, Deputy Clerk) (Entered: 06/11/2020)
125 MOTION to Dismiss for Lack of Jurisdiction , Cross MOTION for Summary Judgment by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Attachments: # 1 Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction and Cross Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment, # 2 Text of Proposed Order)(Luh, James) (Entered: 06/12/2020)
126 NOTICE of Appearance by Rene Kathawala on behalf of US House of Representatives (Kathawala, Rene) (Entered: 06/16/2020)

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127 NOTICE of Appearance by Thomas M Bondy on behalf of US House of Representatives (Bondy, Thomas) (Entered: 06/17/2020)
128 REPLY to Response to Motion re 125 MOTION to Dismiss for Lack of Jurisdiction Cross MOTION for Summary Judgment , 105 MOTION for Summary Judgment , RESPONSE in Opposition filed by Mayor and City Council Of Baltimore. (Attachments: # 1 Supplemental Declaration of Molly M. Jennings and Exhibit)(Sangree, Suzanne) (Entered: 07/02/2020)
129 REPLY to Response to Motion re 125 MOTION to Dismiss for Lack of Jurisdiction Cross MOTION for Summary Judgment (Reply Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction and Cross Motion for Summary Judgment) filed by Michael R. Pompeo, Donald J. Trump, U.S. Department of State.(Luh, James) (Entered: 07/23/2020)
130 NOTICE by Mayor and City Council Of Baltimore of Supplemental Authority (Attachments: # 1 Exhibit MRNY v. Pompeo, # 2 Exhibit NY v. DHS)(Sangree, Suzanne) (Entered: 08/03/2020)
131 NOTICE by Mayor and City Council Of Baltimore of Supplemental Authority (Attachments: # 1 Exhibit New York v. DHS)(Sangree, Suzanne) (Entered: 08/05/2020)
132 ORDER that the parties are to submit a letter to the Court explaining the import of these recent cases, due by the close of business on August 28, 2020. Signed by Judge Ellen L. Hollander on 8/6/2020. (hmls, Deputy Clerk) (Entered: 08/06/2020)
133 NOTICE of Appearance by Jimmy Rock on behalf of State of California (Rock, Jimmy) (Entered: 08/10/2020)
134 Supplemental to 132 Order filed by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Supplemental Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction and Cross Motion for Summary Judgment) (Luh, James) (Entered: 08/28/2020)
135 Correspondence re: recent cases in response to 132 Order (Sangree, Suzanne) (Entered: 08/28/2020)
136 MOTION to Withdraw , MOTION to Withdraw as Attorney by US House of Representatives (Attachments: # 1 Text of Proposed Order)(Grogg, Adam) (Entered: 10/07/2020)
137 ORDER Granting 136 Motion to Withdraw as Attorney. Attorney Adam Grogg terminated. Signed by Judge Ellen L. Hollander on 10/7/2020. (hmls, Deputy Clerk) (Entered: 10/08/2020)
138 MOTION for Leave to Appear AttorneyJane H. Lewis by Mayor and City Council Of Baltimore(Lewis, Jane) (Entered: 11/12/2020)

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139 MOTION to Withdraw as Attorney Suzanne Sangree by Mayor and City Council Of Baltimore (Attachments: # 1 Text of Proposed Order)(Lewis, Jane) (Entered: 11/12/2020)
140 ORDER granting 139 Motion to Withdraw as Attorney. Attorney Suzanne Sangree terminated. Signed by Judge Ellen L. Hollander on 11/12/2020. (cags, Deputy Clerk) (Entered: 11/13/2020)
141 NOTICE by Mayor and City Council Of Baltimore of Supplemental Authority (Attachments: # 1 Exhibit CASA Rehearing Order, # 2 Exhibit San Francisco v. USCIS, # 3 Exhibit Cook County v. Wolf)(Lewis, John) (Entered: 12/07/2020)
142 STATUS REPORT ORDER. Signed by Judge Ellen L. Hollander on 1/13/2021. (hmls, Deputy Clerk) (Entered: 01/13/2021)
143 MOTION to Withdraw as Attorney by Mayor and City Council Of Baltimore(Conley, Danielle) (Entered: 01/15/2021)
144 Marginal ORDER APPROVING 143 Motion to Withdraw as Attorney. Attorney Danielle Yvette Conley terminated. Signed by Judge Ellen L. Hollander on 1/15/2021. (hmls, Deputy Clerk) (Entered: 01/15/2021)
145 STATUS REPORT (Joint Status Report in Response to January 13, 2021, Order) by Michael R. Pompeo, Donald J. Trump, U.S. Department of State(Luh, James) (Entered: 02/01/2021)
146 PAPERLESS ORDER. A telephone conference has been scheduled for February 4, 2021, at 4:30 p.m. Counsel for plaintiff is to initiate the call to defense counsel and then to Chambers. Signed by Judge Ellen L. Hollander on 2/2/2021. (kw, Chambers) (Entered: 02/02/2021)
147 NOTICE by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Notice of Recent Presidential Action) (Luh, James) (Entered: 02/03/2021)
148 PAPERLESS ORDER. In view of ECF 147, the telephone conference set for February 4, 2021 is cancelled. A status report (joint, if possible) is due by February 19, 2021. Signed by Judge Ellen L. Hollander on 2/3/2021. (kw, Chambers) (Entered: 02/03/2021)
149 Consent MOTION to Stay (Joint Status Report in Response to February 3, 2021, Order and Defendants' Unopposed Motion to Stay Proceedings) by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Attachments: # 1 Text of Proposed Order)(Luh, James) (Entered: 02/19/2021)
150 STATUS REPORT (Joint Status Report in Response to February 3, 2021, Order and Defendants' Unopposed Motion to Stay Proceedings) by Michael R. Pompeo, Donald J. Trump, U.S. Department of State (Attachments: # 1 Text of Proposed Order)(Luh, James) (Entered:

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151 ORDER GRANTING 149 Motion to Stay Proceedings; Status Report due by 5/24/21. Signed by Judge Ellen L. Hollander on 2/19/2021. (hmls, Deputy Clerk) (Entered: 02/22/2021)
152 Marginal ORDER APPROVING 113 Motion for Leave to File Brief of Amici Curiae by Immigration Law Professors and Scholars. Signed by Judge Ellen L. Hollander on 2/22/2021. (hmls, Deputy Clerk) (Entered: 02/22/2021)
153 Amicus Brief re 105 MOTION for Summary Judgment filed by Cori Alonso-Yoder, Stacy Brustin, Kristina M. Campbell, Lindsay Harris, Kevin R. Johnson, Elizabeth Keyes, Matthew Lindsay, Mariela Olivares, Michael A. Olivas, Jayesh Rathod, Anne Schaufele, Maureen A. Sweeney, Shoba Sivaprasad Wadhia. (hmls, Deputy Clerk) (Entered: 02/22/2021)

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1:18-cv03636-ELH
2.00

 
 Case 1:18-cv-03636-ELH Document 1 Filed 11/28/18 Page 1 of 74

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MAYOR AND CITY COUNCIL OF BALTIMORE
100 N. Holliday Street, Suite 101 Baltimore, MD 21202,
Plaintiff,
vs.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
1600 Pennsylvania Avenue NW Washington, DC 20500,
U.S. DEPARTMENT OF STATE, 2201 C Street NW Washington, DC 20520, and
MICHAEL R. POMPEO, in his official capacity as U.S. Secretary of State,
2201 C Street NW Washington, DC 20520,
Defendants.

Case No.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:18-cv-03636-ELH Document 1 Filed 11/28/18 Page 2 of 74
TABLE OF CONTENTS
JURISDICTION AND VENUE ..................................................................................................... 3 PARTIES ........................................................................................................................................ 3 FACTS ............................................................................................................................................ 6
I. The Consular Visa Process. .................................................................................... 6 Immigrant visa applicants. .......................................................................... 7 Nonimmigrant visa applicants. ................................................................... 9 Provisional unlawful presence waivers....................................................... 9
II. The “Public Charge” Ground of Inadmissibility. ................................................. 10 The State Department’s Foreign Affairs Manual...................................... 12 1. Prohibition on the consideration of non-cash benefits received by visa applicants and their family members. ................ 13 2. Affidavits of Support. ................................................................... 14 INS’s Notice of Proposed Rulemaking..................................................... 15 INS’s 1999 Field Guidance....................................................................... 18
III. President Trump and His Administration’s Beliefs About Immigrants................ 22 IV. The Trump Administration’s Crusade to Change the Definition of “Public
Charge.” ................................................................................................................ 28 V. The Foreign Affairs Manual Change. ................................................................... 34
The change drastically expands the scope of the FAM’s “public charge” provision. ..................................................................................... 35 1. Considering the receipt of non-cash benefits by visa applicants. . 35 2. Considering the receipt of non-cash benefits by members
of the visa applicant’s household. ................................................. 36 3. Changes to consideration of the Affidavit of Support. ................. 37 Despite the FAM change’s scope, the State Department provided virtually no notice or explanation, let alone opportunity for comment. ... 40 VI. The Foreign Affairs Manual Change Deters Immigrants, Their Family Members, And Their Sponsors From Accepting Public Benefits......................... 42 VII. Baltimore Is Harmed By The Foreign Affairs Manual Change............................ 48 The Foreign Affairs Manual change deters immigrants from accepting Baltimore’s public benefits....................................................... 50 1. Health benefits. ............................................................................. 51 2. Housing benefits. .......................................................................... 53 3. Low-income assistance programs. ................................................ 54 4. Educational benefits...................................................................... 56
ii

Case 1:18-cv-03636-ELH Document 1 Filed 11/28/18 Page 3 of 74 5. Other programs. ............................................................................ 56 The Foreign Affairs Manual change forces Baltimore to expend resources to encourage immigrants to accept public benefits................... 58 The Foreign Affairs Manual change imposes financial costs on Baltimore’s programs and the city as a whole. ......................................... 61
CLAIMS FOR RELIEF ................................................................................................................ 65 Count One (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)) ....... 65 Count Two (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)) ...... 68 Count Three (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D)) .... 68 Count Four (Violation of the Fifth Amendment – Equal Protection, U.S. Const. amend. V) .......................................................................................... 69
REQUEST FOR RELIEF ............................................................................................................. 70
iii

Case 1:18-cv-03636-ELH Document 1 Filed 11/28/18 Page 4 of 74
Plaintiff Mayor and City Council of Baltimore, Maryland hereby sues Defendants Donald J. Trump, in his official capacity as President of the United States of America, the U.S. Department of State, and Michael R. Pompeo, in his official capacity as U.S. Secretary of State, and alleges as follows:
1. This case concerns President Trump’s ongoing, unlawful attempts to make it harder for underprivileged immigrants—from countries he has vilified—to come to the United States. Since President Trump took office, his administration has repeatedly tried to alter the longstanding rules regarding public charge, a provision of immigration law intended to prevent those who may become primarily dependent on public assistance from entering the country. The Trump Administration has done so despite expressly recognizing, as have past administrations and multiple federal agencies, that expanding the meaning of public charge threatens to deter immigrants, millions of whom are lawfully present in the United States or are naturalized citizens, from obtaining food, housing, medical care, and other necessities for which they and their families are indisputably eligible through public programs.
2. In particular, the Trump Administration recently began to enforce a set of changes it made to the State Department’s Foreign Affairs Manual (“FAM”) in January 2018, a set of instructions which dictate how consular officers are to determine whether a visa applicant is likely to become a public charge if admitted to the United States. The Trump Administration’s changes to the FAM put a thumb on the scale in favor of barring immigrants from the country if they have used any of a host of federal, state, or local programs—making it much harder for immigrants to reunite with their families. Specifically, those changes dramatically expand the range of benefits that may be considered by consular officials, referring to “public assistance of any kind”; they permit consular officers to look at the receipt of those benefits by the applicant’s

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entire household; and they decrease the weight a consular officer is permitted to give to a financial sponsor’s agreement to support the applicant. With respect to all of these changes, Defendants offered virtually no explanation for discarding the decades-old understanding of public charge.
3. Simultaneously, the Trump Administration has initiated a parallel rulemaking at the Department of Homeland Security (“DHS”) to change the definition of public charge for other immigration determinations. That proposed rule has yet to take effect; recognizing the significance of these changes, DHS provided the public with notice, an explanation, and an opportunity for comment, as the law requires.
4. In contrast, Defendants met none of those requirements for the FAM changes. Defendants barely even alerted the public once the changes had been implemented. Yet those changes are in effect right now—directing how consular officers make visa decisions across the globe. That is the essence of procedurally infirm, arbitrary and capricious agency action. It is also unconstitutional: the Trump Administration’s demonstrated hostility toward the immigrants affected by the FAM change, and the discriminatory effects of that change, constitute a violation of the U.S. Constitution’s equal protection guarantees.
5. Defendants’ unlawful changes to the FAM have harmed cities across the country, including Plaintiff Mayor and City Council of Baltimore, Maryland (“Baltimore”). Baltimore strives to be a welcoming city to the immigrants who have chosen to live there, providing them with access to the same programs and services it provides to all of its residents. As multiple federal agencies have repeatedly recognized, interpreting and applying public charge rules more stringently will deter, and in fact, is deterring, immigrants from accepting the public benefits Baltimore makes available to all of its residents. That dynamic frustrates an essential component
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of Baltimore’s mission; it forces Baltimore to devote additional resources to managing its programs; and it paradoxically encourages immigrants to consume other city services as they are deterred from enrolling in more appropriate federal programs. And the FAM change is counterproductive to boot: public benefits often put immigrants and their families on the path to self-sufficiency and success. Ultimately, the FAM change hurts the entire community; Baltimore’s residents, immigrant and not, will be less healthy and less well-off as a consequence of Defendants’ unlawful actions.
6. For these reasons, the Court should hold unlawful and set aside Defendants’ changes to the FAM.
JURISDICTION AND VENUE 7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under federal law. 8. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) because Defendants are agencies and officers of the United States and Plaintiff Mayor and City Council of Baltimore, Maryland is located in Maryland.
PARTIES 9. Plaintiff Mayor and City Council of Baltimore, Maryland (“Baltimore”) is a municipal corporation, organized pursuant to Articles XI and XI-A of the Maryland Constitution, and entrusted with all of the powers of local self-government and home rule afforded by those articles. Baltimore is the largest city in Maryland and the thirtieth largest city in the United States, with a population of over 600,000, according to 2016 Census estimates.
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10. “Over the course of the 20th century, Baltimore has welcomed many immigrants from all around the world.”1 More recently, Baltimore has become yet another “story of large influxes of immigrants bringing new vibrancy to America’s storied, yet aging cities.”2 As of 2016, more than 48,000 foreign-born immigrants called Baltimore home,3 with over half of that population arriving since 2000.4 Specifically, Baltimore maintains large Latin American and Asian immigrant populations throughout the city.5
11. Baltimore views it as “crucial that the City recognizes, expands, and develops
new strategies to welcome immigrants and help facilitate an easy transition to life as Baltimoreans so these immigrants choose to make Baltimore their permanent home.”6 Especially
given their high rates of education (41.6% of immigrants in Baltimore had a Bachelor’s degree or
higher in 2016) and entrepreneurship (7.2% of all immigrants in the city of Baltimore were entrepreneurs in 2016),7 “attracting additional immigrants to the city would make a significant difference in the city’s future economic prospects.”8
12. Baltimore strives to show these communities that it is a welcoming city by
promoting community wellbeing, economic development, and the integration of immigrant
1 The Role of Immigrants in Growing Baltimore, City of Baltimore 4 (Sept. 2014) [hereinafter The Role of Immigrants], https://www.abell.org/sites/default/files/publications/cdroleimmigrants914.pdf. 2 Id. 3 Selected Characteristics of the Native and Foreign-Born Populations, 2012-2016 American Community Survey 5-Year Estimates, U.S. Census Bureau, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk. 4 The Role of Immigrants, at 5. 5 Id. 6 Id. 7 NAE Cities Index, New Am. Econ. 11, http://www.newamericaneconomy.org/wpcontent/uploads/2018/09/NAE-Cities-Index-Complete-Data.pdf. 8 The Role of Immigrants, at 6.
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communities. Baltimore does so by facilitating the development and progress of immigrants in the workforce and increasing their access to entrepreneurial opportunities, thereby meeting the needs of employers and promoting the growth of the city at the same time. In addition, as a welcoming city, Baltimore seeks to enhance the service capacity and receptivity of City agencies, nonprofits, and community-based organizations to better address the needs of immigrants and facilitate inclusion and mutual understanding among immigrant communities, service providers, and receiving communities.
13. Baltimore is particularly aware that immigrants may not choose to accept public benefits and services—even if they need them—if they fear immigration consequences. In 2012, then-Mayor Stephanie Rawlings-Blake issued an executive order stating that “[t]he City of Baltimore remains committed to ensuring public safety, public health, and vital services on which the entire community depends.”9 For that reason, she directed that “[n]o City Department, agency, officer or employee shall condition the provision of City services or benefits on the immigration status of the individual seeking those services or benefits unless such conditions are lawfully imposed by federal or state law.”10
14. For its efforts, Baltimore received the second-highest score in the country in one study of the integration of immigrants into local communities.11
15. Defendant Donald J. Trump is sued in his official capacity as President of the United States of America.
9 Baltimore City Executive Order: Advancing Public Safety and Access to City Services, City of Baltimore 1, https://content.govdelivery.com/attachments/MDBALT/2012/03/01/file_attachments/97683/exec 001.pdf. 10 Id. at 2. 11 NAE Cities Index, New Am. Econ., https://www.newamericaneconomy.org/interactiveindex/.
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16. Defendant the U.S. Department of State is a federal agency headquartered in Washington, D.C., at 2201 C Street NW, Washington, DC 20520.
17. Defendant Michael R. Pompeo is sued in his official capacity as U.S. Secretary of State.
FACTS I. The Consular Visa Process.
18. This case involves the process by which non-citizens may apply for a visa to enter the United States, and the Trump Administration’s attempts to restrict that process for noncitizens who may use public benefits.
19. There are two general categories of visas: immigrant visas, for non-citizens who intend to become permanent residents in, and potentially citizens of, the United States, and nonimmigrant visas, for those that do not seek to reside in the United States permanently. For both categories of visas, a determination that an individual is a “public charge” generally renders the individual inadmissible and ineligible to receive a visa.
20. The vast majority of foreign nationals seeking either immigrant or nonimmigrant visas, including nearly all individuals abroad seeking immigrant visas, all individuals abroad seeking nonimmigrant visas, and many individuals already present in the United States seeking immigrant visas, must go to a U.S. consulate to apply for a visa—a process known as “consular processing.”12
12 Only certain individuals seeking immigrant visas who are already present in the United States on a valid visa, or who entered with inspection and are immediate relatives of a United States citizen, can use the procedure known as “adjustment of status,” whereby they may remain in the United States and attend a green card interview at a USCIS office without having to submit to consular processing.
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21. Consular processing involves submitting all necessary forms and supporting documentation to a U.S. consulate abroad, presenting for biometric and any required medical screening, and, in most instances, attending an interview at that consulate. Visa applicants may only enter the United States once the U.S. consulate has processed and approved their applications and granted their visas.
22. As explained below, the nature of consular processing depends on whether the applicant seeks an immigrant or a nonimmigrant visa. Moreover, an immigrant who has resided in the United States unlawfully for some time—referred to as “accruing unlawful presence”—is subject to additional requirements before they may obtain a visa.
Immigrant visa applicants. 23. Individuals seeking immigrant visas must be the beneficiaries of either an approved family-based visa petition, filed by a relative; an approved employment-based visa petition, filed by a U.S. employer; or a winning diversity visa application, selected in the diversity visa lottery. 24. Once the National Visa Center has received the immigrant visa application, processed the fees, and reviewed financial and other documentary submissions, the Center transfers the visa applicant’s file to the appropriate consulate abroad for consular processing. 25. During consular processing, visa applicants must fill out additional forms and paperwork and undergo a medical exam. Visa applicants who are the beneficiaries of familybased petitions must have a family member sponsor who completes and signs an Affidavit of Support, labeled Form I-864, which provides information about a sponsor’s, and in some cases a
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joint sponsor’s or sponsors’, ability to financially support the visa applicant in question.13 An Affidavit of Support may only be filed by a lawful permanent resident or a U.S. citizen.
26. The information provided on the Affidavit of Support is intended to allow the consular official to determine whether the visa applicant has adequate means of financial support in the United States. The form itself is considered a contract between the visa applicant and the sponsor, as well as between the sponsor and the United States government, in which the sponsor promises to support the applicant if he or she is unable to do so on his or her own. That promise is essential; an immigrant who can depend on a reliable source of support from a sponsor is dramatically less likely to need any public benefits.
27. If an individual sponsor’s income is less than 125% of the federal poverty line for the relevant household, then two joint sponsors whose income meets the threshold may submit Affidavits of Support. Any joint sponsors will be held jointly liable with the main sponsor for support of the applicant. Neither the Affidavit of Support form, nor the relevant regulations, requires a joint sponsor to be related to the petitioning sponsor or the applicant.
28. The final step in consular processing for an immigrant visa applicant is to attend a consular interview, during which a consular officer will verify the contents of an individual’s application and check the individual’s medical, criminal, and financial records to determine whether the individual is inadmissible to the United States.
29. Visa applicants who are already present in the United States, but who are required to undergo consular processing abroad, must leave the country. The applicant must then be prepared to remain outside the United States for as long as the consulate requires to interview the
13 Individuals who are the beneficiaries of approved employment-based immigrant visa petitions must also submit an Affidavit of Support if a family member owns five percent or more of the entity that filed the visa petition.
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applicant and process the application—a process that can take weeks or even months. Indeed, such applicants must also be prepared to remain outside the United States indefinitely in the event that their visa applications are denied or put into administrative processing.
Nonimmigrant visa applicants. 30. Individuals abroad seeking nonimmigrant visas first fill out the Nonimmigrant Visa Application, Form DS-160. The relevant requirements for a nonimmigrant visa will depend on which nonimmigrant visa the individual seeks, but generally involve additional forms and documentation to establish the individual’s eligibility to obtain the visa. 31. After submitting the application, visa applicants must similarly go through consular processing: they must contact the embassy or consulate at which they wish to apply to confirm whether they need to be interviewed by a consular officer and to schedule an interview if necessary. If an interview is required, the visa application process will not be completed until the visa applicant appears for the interview with a consular office.
Provisional unlawful presence waivers. 32. Under federal law, non-citizens who have been unlawfully present in the United States who seek admission again are presumptively barred from the country for a set period of time, depending on the length of their unlawful presence. 8 U.S.C. § 1182(a)(9)(B)(i). However, the Attorney General (or his designee) may waive the non-citizen’s unlawful presence if he or she finds that “refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.” Id. § 1182(a)(9)(B)(v). 33. Of course, a non-citizen who presents at a consulate abroad for consular processing to apply for a visa might not know in advance whether his or her unlawful presence will be waived—potentially leaving him or her stuck outside the United States. Even if the
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individual eventually obtains a waiver, the process alone prolongs their separation from their relatives.
34. Instead of taking that risk, a non-citizen may file an Application for Provisional Unlawful Presence Waiver, Form I-601A, which allows such individuals to request a provisional waiver of the unlawful presence ground of inadmissibility before they leave the United States to appear at a consulate abroad.
35. The availability of a provisional waiver was intended to provide a visa applicant with some level of assurance that if he or she was otherwise admissible and eligible for lawful permanent resident status, he or she would be able to leave the country to attend the consular interview and return without being barred from reentry due to the accrual of unlawful presence. Permitting non-citizens to obtain a provisional waiver in advance, rather than putting the process on hold while the non-citizen applies for a waiver at the consulate, is also more efficient for the agency.14 II. The “Public Charge” Ground of Inadmissibility.
36. In determining whether an applicant is eligible for a visa, consular officers apply the grounds of inadmissibility specified in the Immigration and Nationality Act. See 8 U.S.C. § 1182. In particular, the INA stipulates that “[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A).
14 Letter from Am. Immigration Lawyers Ass’n et al. to David Newman, Director, Office of Legal Affairs, U.S. Dep’t of State, at 6 (Aug. 28, 2018) [hereinafter “Letter to David Newman”], https://www.aila.org/File/DownloadEmbeddedFile/77213.
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37. In assessing whether a non-citizen is likely to become a public charge, the INA directs the adjudicator to consider the applicant’s (1) age, (2) health, (3) family status, (4) assets, resources and financial status, and (5) education and skills. Id. § 1182(a)(4)(B)(i); see also 22 C.F.R. § 40.41(a) (“Any determination that an alien is ineligible under INA 212(a)(4) must be predicated upon circumstances indicating that … the alien is likely to become a public charge after admission.”). As previously described by DHS, this inquiry amounts to a “totality of the circumstances” test, see, e.g., 8 C.F.R. § 245a.4(b)(1)(iv)(B)—a description likewise adopted by the State Department in the FAM’s public charge provisions. See infra ¶ 47.
38. The INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), also provides that a consular officer or the Attorney General “may consider any affidavit of support” for purposes of the public charge ground of inadmissibility. 8 U.S.C. § 1182(a)(4)(B)(ii).
39. Although the phrase “public charge” is not defined by statute, the State Department, the Immigration and Nationality Service (“INS”),15 and the Department of Homeland Security have historically interpreted “public charge” to mean a person likely to become “primarily dependent” on cash-based benefits for income maintenance or likely to require long-term institutionalization. In other words, simply receiving a public benefit of some form at some point in time has not historically meant that a non-citizen is automatically inadmissible on public charge grounds.
15 The Immigration and Naturalization Service ceased to exist under that name as of March 1, 2003 when most of the Service’s functions were transferred to U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and U.S. Customs and Border Protection (“CBP”) within the newly created Department of Homeland Security.
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40. Over the last several decades, these agencies have all similarly concluded that the past, current, or anticipated future receipt of non-cash benefits, such as the Supplemental Nutrition Assistance Program (“SNAP,” commonly referred to as “food stamps”), the Special Supplemental Program for Women, Infants, and Children (“WIC”), and Medicaid, by the noncitizen or a member of the non-citizen’s household, shall not be considered for purposes of the public charge determination—reasoning that such an approach bolsters overall public health, nutrition, and economic growth. Similarly, these agencies have agreed that the past, current, or anticipated future receipt of non-cash based benefits by affiants, or members of their household, does not disqualify or render irrelevant an otherwise validly-filed affidavit of support.
41. Both the State Department and the INS have detailed their interpretations of the public charge ground of inadmissibility in several official documents, each discussed below.
The State Department’s Foreign Affairs Manual. 42. The FAM is “a single, comprehensive, and authoritative source for the Department’s organization structure, policies, and procedures that govern the operation of the State Department, the Foreign Service, and, when applicable, other federal agencies.”16 The FAM “convey[s] codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive, and Department mandates.”17 Scholars have described the FAM as representing “the official policies of the Department of State” and constituting “binding authority on consulates, as well as on all other agencies within the Department of State.”18
16 Foreign Affairs Manual and Handbook, U.S. Dep’t of State, http://fam.state.gov/. 17 Id. 18 Victoria Degtyareva, Defining Family in Immigration Law: Accounting for Nontraditional Families in Citizenship by Descent, 120 Yale L.J. 862, 872 (2011).
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43. The FAM has long codified several requirements for consular officers assessing whether an individual is or is likely to become a public charge.
1. Prohibition on the consideration of non-cash benefits received by visa applicants and their family members.
44. For decades, and until January 3, 2018, the FAM had defined “public charge” to mean a non-citizen who “is likely to become primarily dependent on the U.S. Government for subsistence” either from “[r]eceipt of public cash assistance for income maintenance” or “[i]nstitutionalization for long-term care.” 9 FAM § 302.8-2(B)(1). The FAM explicitly prohibited consular officers from considering a visa applicant’s past, current, or future use of non-cash benefits: “Neither the past nor possible future receipt of such non-cash or supplemental assistance may be considered in determining whether an alien is likely to become a public charge.” See id.
45. The FAM provided a non-exclusive list of non-cash benefit programs that should be excluded from consideration. That list includes:
a. The Food Stamp Program; b. The Medicaid Program (other than payments under Medicaid for long-
term institutional care); c. The Child Health Insurance Program (“CHIP”); d. Emergency medical services; e. The Women, Infants and Children Program; f. Other nutrition and food assistance programs; g. Other health and medical benefits; h. Child-care benefits; i. Foster care;
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j. Transportation vouchers; k. Job training programs; l. Energy assistance, such as the low-income home energy assistance
program; m. Educational assistance, such as Head Start or aid for elementary,
secondary, or higher education; n. Job training; o. In-kind emergency community services, such as soup kitchens and crisis
counseling; p. State and local programs that serve the same purposes as the Federal in-
kind programs listed above; and q. Any other Federal, State, or local programs in which benefits are paid in-
kind, by voucher or by any means other than payment of cash benefits to the eligible person for income maintenance. Id. 46. Because the FAM prohibited any consideration of the receipt of non-cash benefits, consular officers also could not consider the past, current, or anticipated future receipt of non-cash benefits by family members in the visa applicant’s household. Id. 2. Affidavits of Support. 47. The FAM also clarified how consular officers were required to weigh a sponsor’s receipt of certain benefits against his or her otherwise valid Affidavit of Support. For decades, the FAM instructed that “[a] properly filed, non-fraudulent Form I-864 in those cases where it is
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required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the totality of the circumstances analysis.” 9 FAM § 302.8-2(B)(3).19
48. While consular officers were initially required to consider the sponsor’s use of means-tested20 benefit programs (as well as his or her family’s use of such programs) for the purpose of excluding them from the sponsor’s household income, using those programs did not disqualify or render irrelevant an otherwise valid Affidavit of Support, given that it remained a contract obligating the sponsor to provide for the non-citizen’s support. See id. § 302.8-2(B)(3).
49. The FAM also clarified, in keeping with both the text of the INA and DHS regulations, that a joint sponsor “can be a friend or a non-relative who does not reside in and is not necessarily financially connected with the sponsor’s household.” 9 FAM § 302.8-2(C)(7); cf. 8 U.S.C. § 1183a (defining the requirements of a “sponsor” but not including a requirement that a joint sponsor have a familial relationship to the alien); 8 C.F.R. § 213a.2 (same).
INS’s Notice of Proposed Rulemaking. 50. In 1999, INS published in the Federal Register a Notice of Proposed Rulemaking (the “1999 NPRM”) to define the public charge ground of inadmissibility. Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676, 28,676 (May 26, 1999).
19 See also Letter to David Newman at 1. 20 A “means-tested public benefit” is not defined in the INA. DHS regulations define “meanstested public benefit” as “either a Federal means-tested public benefit, which is any public benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds has determined to be a Federal means-tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104–193, or a State means-tested public benefit, which is any public benefit for which no Federal funds are provided that a State, State agency, or political subdivision of a State has determined to be a means-tested public benefit.” 8 C.F.R. § 213a.1. More generally, a “means-tested” benefit refers to a benefit that is only available to individuals below a certain income level. See Amelia Josephson, What Does “Means Tested” Mean, SmartAsset (Aug. 20, 2018), https://smartasset.com/insights/what-does-means-tested-mean.
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51. Long before the 1999 NPRM, the text of the INA and longstanding practice had
established that the term “public charge” did not include the episodic use of non-cash benefits.
However, INS determined that the 1999 NPRM was necessary to reduce public confusion about
the meaning of public charge in the wake of the 1996 welfare reform laws and subsequent abuse
by federal and state agencies, noting that it had been contacted by “many State and local
officials, Members of Congress, immigrant assistance organizations, and health care providers
who are unable to give reliable guidance to their constituents and clients on this issue.” Id. As the
INS explained,
Although Congress has determined that certain aliens remain eligible for some forms of medical, nutrition, and child care services, and other public assistance, numerous legal immigrants and other aliens are choosing not to apply for these benefits because they fear the negative immigration consequences of potentially being deemed a “public charge.” This tension between the immigration and welfare laws is exacerbated by the fact that “public charge” has never been defined in statute or regulation. Without a clear definition of the term, aliens have no way of knowing which benefits they may safely access without risking deportation or inadmissibility.
Id.
52. Moreover, INS stressed that when non-citizens are deterred or prevented from
using a wide array of public benefits, local communities bear the costs. It explained:
According to Federal and State benefit-granting agencies, this growing confusion is creating significant, negative public health consequences across the country. This situation is becoming particularly acute with respect to the provision of emergency and other medical assistance, children’s immunizations, and basic nutrition programs, as well as the treatment of communicable diseases. Immigrants’ fears of obtaining these necessary medical and other benefits are not only causing them considerable harm, but are also jeopardizing the general public. For example, infectious diseases may spread as the numbers of immigrants who decline immunization services increase. Concern over the public charge issue is further preventing aliens from applying for available supplemental benefits, such as child care and transportation vouchers, that are designed to aid individuals in gaining and maintaining employment.
Id. at 28,676-77.
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53. INS thus concluded that the rulemaking was necessary because, “[i]n short, the absence of a clear public charge definition is undermining the Government’s policies of increasing access to health care and helping people to become self-sufficient.” Id.
54. INS proposed to define “public charge” to mean an individual “who is likely to become … primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” Id. at 28,677. That definition was consistent with how the FAM had historically defined public charge as well. See supra ¶ 44.
55. INS based this interpretation on the definition of “charge,” which is commonly understood to mean “‘a person or thing committed or entrusted to the care, custody, management, or support of another.’” Id. (quoting Webster’s Third New Int’l Dictionary of the English Language 377 (1986)). In other words, someone who received a small benefit on a single occasion plainly would not have been understood as “entrusted to the care” of the government. Indeed, “[t]his primary dependence model of public assistance was the backdrop against which the ‘public charge’ concept in immigration law developed in the late 1800s.” Id.
56. INS further determined that this definition was “consistent with the facts found in the deportation and admissibility cases.” Id. (citing In re C-R-, 7 I. & N. Dec. 124 (BIA 1956) (deportation based on public mental hospital institutionalization); In re Harutunian, 14 I. & N. Dec. 583 (R.C. Int. Dec. 1974) (receipt of old age assistance for principal financial support was an important factor in denying admission)).
57. Finally, INS concluded that its definition was consistent with the advice provided by federal benefit-granting agencies, including the U.S. Department of Health and Human Services (“HHS”), the U.S. Department of Agriculture, and the Social Security Administration.
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Id. Each concurred that “receipt of cash assistance for income maintenance is the best evidence of primary dependence on the Government” because “non-cash benefits generally provide supplementary support … to low-income working families to sustain and improve their ability to remain self-sufficient.” Id. at 28,677-78.
58. INS never finalized the 1999 NPRM. INS’s 1999 Field Guidance.
59. In addition to publishing the 1999 NPRM, INS also published its “Field Guidance” on the public charge issue, “which both summarize[d] longstanding law with respect to public charge and provide[d] new guidance on public charge determinations.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (May 26, 1999).
60. The Field Guidance was published alongside the 1999 NPRM to “help alleviate public confusion over the meaning of the term ‘public charge’ in immigration law and its relationship to the receipt of Federal, State, and local public benefits” and to “provide aliens with better guidance as to the types of public benefits that will and will not be considered in public charge determinations.” Id. In promulgating the Field Guidance, INS intended to adopt its definition of public charge “immediately, while allowing the public an opportunity to comment on the proposed rule.” Id.
61. To that end, the Field Guidance adopted the same definition of public charge proposed in the NPRM. Specifically, INS defined a “public charge” as “an alien who has become … or who is likely to become … primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Id. INS promulgated the same
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definition in both documents to ensure the “accurate and uniform application of law and policy in this area.” Id.
62. In publishing the 1999 NPRM and the Field Guidance, INS expressly took “into account the law and public policy decisions concerning alien eligibility for public benefits and public health considerations, as well as past practice by the Service and the Department of State.” Id. at 28,692. Moreover, INS specifically acknowledged that its definition of public charge conformed to the policy “codif[ied] … in the Foreign Affairs Manual,” and described it as “taking a similar approach.” Id. Once again, INS defended its parallel interpretations as adopting “uniform standards.” Id.
63. INS also clarified that “[i]t has never been Service policy that any receipt of services or benefits paid for in whole or in part from public funds renders an alien a public charge, or indicates that the alien is likely to become a public charge.” Id. Instead, INS stressed that “[t]he nature of the public program must be considered.” Id. “For instance, attending public schools, taking advantage of school lunch or other supplemental nutrition programs, or receiving emergency medical care would not make an alien inadmissible as a public charge, despite the use of public funds.” Id.
64. INS gave four reasons for deciding to adopt the definition of public charge in both the 1999 NPRM and the Field Guidance:
a. First, INS noted that “confusion about the relationship between the receipt of public benefits and the concept of ‘public charge’” had “deterred eligible aliens and their families, including U.S. citizen children, from seeking important health and nutrition benefits that they are legally entitled to receive.” Id. As INS explained, this “reluctance to access
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benefits has an adverse impact not just on the potential recipients, but on public health and the general welfare.” Id. b. Second, INS observed that non-cash benefits “are by their nature supplemental and do not, alone or in combination, provide sufficient resources to support an individual or family.” Id. Thus, by focusing only on cash assistance for income maintenance, the Service could “identify those who are primarily dependent on the government for subsistence without inhibiting access to non-cash benefits that serve important public interests.” Id. c. Third, INS acknowledged that “federal, state, and local benefits are increasingly being made available to families with incomes far above the poverty level, reflecting broad public policy decisions about improving general public health and nutrition, promoting education, and assisting working-poor families in the process of becoming self-sufficient.” Id. INS therefore concluded that “participation in such non-cash programs is not evidence of poverty or dependence.” Id. d. Fourth, INS observed that in light of the “complex” rules governing eligibility for federal, state, and local public benefits, “INS Officers are not expected to know the substantive eligibility rules for different public benefit programs.” Id. Limiting the types of programs considered for public charge purposes would therefore produce “simpler and more uniform” public charge determinations, “while simultaneously providing greater predictability to the public.” Id.
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65. INS did not anticipate that adopting the NPRM’s definition of “public charge” would “substantially change the number of aliens who will be found deportable or inadmissible as public charges” primarily because “under the stricter eligibility rules of the welfare reform laws, many legal aliens are no longer eligible to receive certain types of public benefits.” Id.
66. INS directed officers to “not initiate or pursue public charge deportation cases against aliens who have not received public cash benefits for income maintenance or who have not been institutionalized for long-term care.” Id. at 26,869. INS further instructed officers to “not place any weight on the receipt of non-cash public benefits (other than institutionalization) or the receipt of cash benefits for purposes other than for income maintenance with respect to determinations of admissibility or eligibility for adjustment on public charge grounds.” Id.
67. INS then provided a non-exclusive list of non-cash benefit programs and stated in no uncertain terms that “past, current, or future receipt of these benefits should not be considered in determining whether an alien is or is likely to become a public charge.” Id. at 28,693. That list includes the same benefit programs previously identified in the FAM as excluded from consideration for purposes of the public charge determination. Compare id. with supra ¶ 45.
68. As for the Affidavit of Support, INS acknowledged that the Form I-864 “asks whether the sponsor or a member of the sponsor’s household has received means-tested benefits within the past 3 years.” 64 Fed. Reg. at 28,693. INS clarified, however, that “[t]he purpose of this question is not to determine whether the sponsor is or is likely to become a public charge, but to ensure that the adjudicating officer has access to all facts that may be relevant in determining whether the 125-percent annual income test is met.” Id. INS therefore specified that “[a]ny cash benefits received by the sponsor cannot be counted toward meeting the 125-percent
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income threshold,” but that the “receipt of other means-tested benefits, such as Medicaid, is not disqualifying for sponsorship purposes.” Id. III. President Trump and His Administration’s Beliefs About Immigrants.
69. Throughout his campaign and time in office, President Trump has made clear his intent to limit the number of immigrants from Latin American, African, and Asian countries. Most notably, President Trump asked, “Why do we want all these people from ‘shithole countries’ coming here?,”21 a remark Senator Lindsey Graham described as “incredibly disappointing.”22 Similarly, Trump has described immigrants from those countries as “infesting” the United States.23
70. President Trump’s view on limiting immigration from “shithole countries” is in turn based on his discriminatory belief that immigrants from such countries are poorer and consequently drain taxpayer resources. During a meeting in the Oval Office, Trump complained that immigrants from Haiti “all have AIDS” and that once immigrants from Nigeria had seen the United States, they would never “go back to their huts.”24 At the same time, Trump “suggested that the United States should instead bring more people from countries such as Norway,” while
21 Eli Watkins & Abby Phillip, Trump Decries Immigrants from ‘Shithole Countries’ Coming to US, CNN (Jan. 12, 2018), https://www.cnn.com/2018/01/11/politics/immigrants-shitholecountries-trump/index.html. 22 Emma Dumain, A Day Later, Lindsey Graham Breaks Public Silence on Trump’s ‘Shithole’ Remarks, McClatchy (Jan. 12, 2018), https://www.mcclatchydc.com/news/politicsgovernment/congress/article194434204.html. 23 Donald J. Trump (@realDonaldTrump), Twitter (June 19, 2018, 9:52 AM), https://twitter.com/realDonaldTrump/status/1009071403918864385. 24 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html?_r=0.
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he was “open” to immigrants from some Asian countries thought to be economically

beneficial.25

71. Trump has made no secret of his views that immigrants drain public resources.

Just weeks before the filing of this Complaint, Trump promoted an article titled “Shock report:

US paying more for illegal immigrant births than Trump’s wall.”26 Trump has also stated:

e.

“ObamaCare gives free insurance to illegal immigrants.”27

f. “Your tax dollars well spent. Over 1.295M ObamaCare enrollees will also

be illegal immigrants.”28

g. “It’s a national embarrassment that an illegal immigrant can walk across

the border and receive free health care.”29

h. “We will soon be at a point with our incompetent politicians where we will be treating illegal immigrants better than our veterans.”30

25 Josh Dawsey, Trump Derides Protections for Immigrants from “Shithole” Countries, Wash. Post (Jan. 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-forimmigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e791af-31ac729add94_story.html?noredirect=on&utm_term=.bd24836c5250. 26 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 22, 2018, 1:52 PM), https://twitter.com/realDonaldTrump/status/1054430376557535232. 27 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 28, 2012, 2:08 PM), https://twitter.com/realDonaldTrump/status/174571702091644928. 28 Donald J. Trump (@realDonaldTrump), Twitter (July 7, 2014, 3:54 PM), https://twitter.com/realDonaldTrump/status/486236729083719680. 29 Donald J. Trump (@realDonaldTrump), Twitter (July 18, 2015, 2:16 PM), https://twitter.com/realDonaldTrump/status/622469994220273664. 30 Donald J. Trump (@realDonaldTrump), Twitter (July 20, 2015, 10:25 AM), https://twitter.com/realDonaldTrump/status/623136748718137344.
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i. “How crazy - 7.5% of all births in U.S. are to illegal immigrants, over 300,000 babies per year. This must stop. Unaffordable and not right!”31
j. “Notice that illegal immigrants will be given ObamaCare and free college tuition but nothing has been mentioned about our VETERANS #DemDebate.”32
k. “Do you believe that Hillary Clinton now wants Obamacare for illegal immigrants? She should spend more time taking care of our great Vets!”33
l. “When illegal immigrant households receive far more in federal welfare benefits - than []native American households - there is something CLEARLY WRONG with the system!”34
m. “According to the National Academy of Sciences, our current immigration system costs America’s taxpayers many billions of dollars a year.”35
n. “We also believe that those seeking to immigrate into our country should be able to support themselves financially and should not be able to use
31 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 21, 2015, 9:56 AM), https://twitter.com/realDonaldTrump/status/634725641972248576. 32 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 13, 2015, 10:33 PM), https://twitter.com/realDonaldTrump/status/486236729083719680. 33 Donald J. Trump (@realDonaldTrump), Twitter (Mar. 18, 2016, 8:40 PM), https://twitter.com/realDonaldTrump/status/486236729083719680. 34 Trump: I'll Fix Welfare System that Helps Illegal Immigrants More than Americans, Fox News Insider (May 11, 2016), http://insider.foxnews.com/2016/05/11/trump-rips-welfaresystem-gives-illegal-immigrants-more-americans. 35 Michelle Ye Hee Lee, Trump’s Claim that Immigrants Cost Taxpayers “Many Billions of Dollars a Year,” Wash. Post (Mar. 7, 2017), https://www.washingtonpost.com/news/factchecker/wp/2017/03/07/trumps-claim-that-immigrants-cost-taxpayers-many-billions-of-dollarsa-year/?utm_term=.ede94af91a0f.
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welfare for themselves or the household for a period of at least five years.”36
o. “The RAISE Act prevents new migrants and new immigrants from
collecting welfare … They’re not going to come in and just immediately
go and collect welfare. That doesn’t happen under the RAISE Act. They can’t do that.” 37
p. “Current immigration policy imposes as much as $300 billion annually in net fiscal costs on U.S. taxpayers.”38
q. “According to the Center for Immigration Studies, the $18 billion wall
will pay for itself by curbing the importation of crime, drugs, and illegal immigrants who tend to go on the federal dole.”39 r. “[T]hey’re not sending their finest. We’re sending them the hell back.”40
s. “That’s why Democrats want to give illegal aliens free welfare, free health
care and free education.” “Give them a driver’s license, next thing you
36 Michelle Ye Hee Lee, President Trump’s Claim About Immigrants ‘Immediately’ Collecting ‘Welfare,’ Wash. Post (Aug. 24, 2017), https://www.washingtonpost.com/news/factchecker/wp/2017/08/04/president-trumps-claim-about-immigrants-immediately-collectingwelfare/?noredirect=on&utm_term=.f0522d2868b4 (quoting a July 5, 2017 speech in Youngstown, Ohio). 37 Id. (quoting an Aug. 2, 2017 press conference). 38 Miriam Valverde, Do Immigrants Cost U.S. Taxpayers $300 Billion Annually?, PolitiFact (Jan. 23, 2018), https://www.politifact.com/truth-o-meter/statements/2018/jan/23/donaldtrump/does-immigration-policy-impose-300-billion-annuall/. 39 Donald J. Trump (@realDonaldTrump), Twitter (Mar. 13, 2018, 11:24 AM), https://twitter.com/realDonaldTrump/status/973580538358374402. 40 Trump: ‘We’re Sending Them the Hell Back,’ NBC News (June 20, 2018), https://www.nbcnews.com/video/trump-we-re-sending-them-the-hell-back1260491331685?v=raila&.
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know, they’ll want to buy them a car. Then they’ll say the car’s not good enough—how about a Rolls Royce.”41 t. “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other.”42 u. “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits.”43 v. “Hundreds of thousands of children born to illegal immigrants are made automatic citizens of the United States every year, … [a]nd they’re all made instantly eligible for every privilege and benefit of American citizenship. … They’re full citizens. And it’s costing us many, many billions of dollars a year.”44 72. Similarly, one of President Trump’s senior advisors on immigration policy, Stephen Miller, has misleadingly claimed that America’s current immigration system “cost[s] taxpayers enormously because roughly half of immigrant head of households in the United States
41 Jonathan Allen, Trump: ‘Anybody Who Votes for A Democrat Now Is Crazy,’ NBC News (Oct. 19, 2018), https://www.nbcnews.com/politics/politics-news/trump-anybody-who-votesdemocrat-now-crazy-n922361. 42 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 31, 2018, 9:25 AM), https://twitter.com/realDonaldTrump/status/1057624553478897665. 43 Jonathan Swan & Stef W. Kight, Exclusive: Trump Targeting Birthright Citizenship with Executive Order, Axios (Oct. 30, 2018), https://www.axios.com/trump-birthright-citizenshipexecutive-order-0cf4285a-16c6-48f2-a933-bd71fd72ea82.html (omission in original). 44 Greg Sargent, Trump Floats a New Absurdity to Support His Latest Hate Narrative, Wash. Post (Nov. 2, 2018), https://www.washingtonpost.com/blogs/plum-line/wp/2018/11/02/trumpfloats-a-new-absurdity-to-support-his-latest-hate-narrative/?utm_term=.1fbd08d12b69.
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receive some type of welfare benefit,” and that “a recent study said that as much as $300 billion
a year may be lost as a result of our current immigration system in terms of folks drawing more public benefits than they’re paying in.”45 When Miller discovered that an agency had drafted a
report describing the benefits of refugees to the economy, he “swiftly intervened,” and the report
was “shelved in favor of a three-page list of all the federal assistance programs that refugees used.”46 Within the Trump Administration, Miller has forcefully advocated for expanding the
definition of public charge, even directing federal agencies to “prioritize” those changes over “other efforts.”47
73. Former Attorney General Jeff Sessions—the Attorney General during many of the
Trump Administration’s public charge efforts, including the FAM change—had also voiced
concerns over immigrants using public benefits, asserting that “[n]o great and prosperous nation
can have both a generous welfare system and open borders. Such a policy is both radical and dangerous.”48 As a senator, Sessions “obsessed over immigrants using the safety net,” and argued that “[e]ncouraging self-sufficiency must be a bedrock for our immigration policy.”49
45 Press Briefing by Press Secretary Sarah Sanders and Senior Policy Advisor Stephen Miller, The White House (Aug. 2, 2017), https://www.whitehouse.gov/briefings-statements/pressbriefing-press-secretary-sarah-sanders-senior-policy-advisor-stephen-miller-080217/. 46 Shear & Davis, Stoking Fears. 47 Tal Kopan, Sources: Stephen Miller Pushing Policy to Make It Harder for Immigrants Who Received Benefits to Earn Citizenship, CNN (Aug. 7, 2018), https://www.cnn.com/2018/08/07/politics/stephen-miller-immigrants-penalizebenefits/index.html. 48 Attorney General Sessions Delivers Remarks to the Largest Class of Immigration Judges in History for the Executive Office for Immigration Review (EOIR), U.S. Dep’t of Justice (Sept. 10, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-largestclass-immigration-judges-history. 49 Arthur Delaney, Trump Considering Crackdown On Welfare for Legal Immigrants, HuffPost (Feb. 2, 2017), https://www.huffingtonpost.com/entry/trump-immigrationwelfare_us_58938368e4b06f344e409174.
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74. Upon information and belief, these incorrect or misleading statements reveal the Trump Administration’s animus toward immigrants, particularly those from Latin American, Asian, and African countries, and those who accept public benefits. Indeed, the Ninth Circuit recently concluded that the plaintiffs challenging the Trump Administration’s decision to rescind the Deferred Action for Childhood Arrivals Program had sufficiently “allege[d] a history of animus toward persons of Hispanic descent evidenced by both pre-presidential and postpresidential statements by President Trump.” Regents of the Univ. of California v. U.S. Dep't of Homeland Sec., No. 18-15068, 2018 WL 5833232, at *30 (9th Cir. Nov. 8, 2018). Judge Owens, concurring, even concluded that the “litany of statements by the President and high-ranking members of his Administration that plausibly indicate animus toward undocumented immigrants from Central America” meant that the plaintiffs were likely to succeed on their claims on the merits. Id. at *34.50
75. That same hostility animates much of the Trump Administration’s individual immigration policies, including its changes to the definition of public charge contained in the Foreign Affairs Manual. IV. The Trump Administration’s Crusade to Change the Definition of “Public Charge.”
76. In keeping with these views, President Trump and his administration, including the other Defendants, have strived to vastly expand the longstanding definition of “public charge” as set forth in the FAM, the INS 1999 NPRM, and the INS Field Guidance, in order to
50 Moreover, “[o]ne of the individuals who helped craft Trump’s expanded public-charge regulation, policy analyst Ian Smith, was forced to resign from the Department of Homeland Security because of his ties to white nationalists.” Chris Richardson, Trump Has Found a New Way to Make Immigrant Families Suffer, Nation (Oct. 26, 2018), https://www.thenation.com/article/trump-public-charge-abolish/.
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make it harder for immigrants who use any of a wide swath of public benefits to obtain legal
status.
77. Shortly after President Trump’s inauguration in January 2017, a draft of an
Executive Order entitled “Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility” was obtained by the media.51
The Executive Order instructed DHS to “rescind any field guidance” and “propose for notice and
comment a rule that provides standards for determining which aliens are inadmissible or
deportable on public charge grounds”—i.e., if a non-citizen is “likely to receive” or does receive non-cash public benefits.52 The Order also directed the State Department “to amend the Foreign
Affairs Manual to ensure that its public-charge provisions are consistent with the goals of this Order.”53 The draft Executive Order was never released or signed by President Trump.
78. Even though the draft Executive Order was never released, it had a palpable
chilling effect on immigrant families’ use of public benefits and health care services. Shortly after news of the leaked Executive Order was reported, many health care clinics, food pantries,
and other service providers reported missed appointments by patients and a drop in participation in their programs.54 Many immigrants were unsure whether the proposed changes to the public
charge test were already being implemented, or anticipated that they would be, and therefore
51 See Memorandum from Andrew Bremberg Regarding Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility (Jan. 23, 2017), https://www.nafsa.org/uploadedFiles/NAFSA_Dojo/Professional_Resources/Browse_by_Interest /International_Students_and_Scholars/DraftEOtaxprograms.pdf. 52 Id. at 3. 53 Id. at 4. 54 See, e.g., J.B. Wogan, Trump’s Leaked Immigration Rule Already Having Impacts, Governing (Mar. 2, 2018) [hereinafter Wogan, Trump’s Leaked Immigration Rule], http://www.governing.com/topics/public-justice-safety/gov-leaked-immigration-trumpbenefits.html.
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decided against using benefits that might affect their ability to adjust their status and remain or reunite with their family members.
79. In December 2017, DHS listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions—which identifies an agency’s regulatory priorities for the upcoming year—notice of its intent to publish a Notice for Public Rulemaking (“NPRM”) regarding the public charge ground of inadmissibility. The Agenda specifically indicated that DHS planned to publish new regulations on public charge in July 2018. It did not describe any potential changes by State to the definition of “public charge” contained in the Foreign Affairs Manual.
80. In February 2018, Reuters reported on,55 and Vox News published, the text of a draft of a new public charge NPRM. Under that draft, immigrants would be considered likely to become a public charge if they depend not only on “any government assistance in the form of cash, checks, or other forms of money transfers, or instrument,” but also on “non-cash government assistance in the form of aid, service, or other relief.”56 In other words, the draft public charge NPRM proposed to expand the types of public assistance programs that could be considered in the public charge test, including non-cash benefits like SNAP, WIC, and Medicaid. The rule described in the draft public charge NPRM therefore represented a significant departure from the INS 1999 NPRM and Field Guidance.
55 Yeganeh Torbati, Exclusive: Trump Administration May Target Immigrants Who Use Food Aid, Other Benefits, Reuters (Feb. 8, 2018), https://www.reuters.com/article/us-usa-immigrationservices-exclusive/exclusive-trump-administration-may-target-immigrants-who-use-food-aidother-benefits-idUSKBN1FS2ZK. 56 Staff-Level Draft: Inadmissibility on Public Charge Grounds, U.S. Dep’t of Homeland Security 233 (Feb. 2018), https://cdn.voxcdn.com/uploads/chorus_asset/file/10188201/DRAFT_NPRM_public_charge.0.pdf.
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81. In March 2018, a more detailed version of the draft public charge NPRM was published by the media.57 This version mirrored the February draft in many ways, but also included an almost 200-page preamble that outlined DHS’s purported rationale for proposing changes to the public charge test. That preamble specifically noted that the changes would limit the number of immigrants who could obtain lawful resident status in the United States.58 Experts estimated at the time that the rule change would have a sweeping impact, affecting up to 20 million children in immigrant families.59
82. The proposed public charge rule was sent to the Office of Information and Regulatory Affairs (“OIRA”) within the Office of Management and Budget (“OMB”) in March 2018. That proposal was sent back to the agency in June 2018.
83. Just four months later, on October 10, 2018, the DHS published a notice of proposed rulemaking in the Federal Register titled Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018) (the “DHS Proposed Rule”).
84. The DHS Proposed Rule, which will be administered by the U.S. Citizenship and Immigration Service (“USCIS”), applies to individuals who are seeking admission to the United States, an extension of their approved period of stay, a change of their visa status, or an adjustment of status to lawful permanent resident. Id. at 51,118.
57 Read the Trump Administration’s Draft Proposal Penalizing Immigrants Who Accept Almost Any Public Benefit, Wash. Post (Mar. 2018), http://apps.washingtonpost.com/g/documents/world/read-the-trump-administrations-draftproposal-penalizing-immigrants-who-accept-almost-any-public-benefit/2841/. 58 Id. at 13-14 [tbl. 1] (“DHS anticipates a likely increase in the number of denials for adjustment of status applicants based on public charge determinations[.]”). 59 See, e.g., Samantha Artiga & Anthony Damico, Nearly 20 Million Children Live in Immigrant Families that Could Be Affected by Evolving Immigrant Families, Kaiser Family Found. (Apr. 18, 2018), https://www.kff.org/disparities-policy/issue-brief/nearly-20-millionchildren-live-in-immigrant-families-that-could-be-affected-by-evolving-immigration-policies/.
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85. In large measure, the DHS Proposed Rule does three things: it (1) proposes a new definition of “public charge” under the INA; (2) proposes a new definition for “the types of public benefits that are considered in public charge inadmissibility determinations”; and (3) rescinds the INS’s 1999 NPRM. Id. at 51,114.
86. Under the DHS Proposed Rule, “public charge” is redefined as “an alien who receives one or more public benefits.” Id. at 51,157. This constitutes a radical departure from the INS’s 1999 NPRM and Field Guidance—one that would greatly expand the definition of “public charge” beyond the longstanding meaning of that term as one who is likely to become “primarily dependent” on public benefits. See id. at 51,163.
87. The DHS Proposed Rule also seeks to define “public benefit.” Consistent with the 1999 NPRM and Field Guidance, the DHS Proposed Rule defines “public benefit” to include direct cash benefits, whether provided by federal, state, local, or tribal governments. Id. at 51,158-59. But the DHS Proposed Rule also sharply departs from that past understanding by proposing to “incorporate consideration of a limited list of non-cash benefits in the public charge inadmissibility determination context.” Id. at 51,159-60. This “limited list” includes the following:
a. Nonemergency Medicaid; b. Premium and Cost Sharing Subsidies for Medicare Part D; c. Supplemental Nutrition Assistance Program (SNAP); d. Benefits provided for institutionalization for long-term care at government
expense; and e. Housing programs, including Section 8 Housing Assistance under the
Housing Choice Voucher Program, Section 8 Project-Based Rental
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Assistance (including Moderate Rehabilitation), and Subsidized Public Housing. Id. 88. Under the DHS Proposed Rule, non-cash benefits are relevant to the “public charge” assessment in the following situations: (1) where the benefits can be monetized, and therefore assigned a cash value, and the use of such benefits exceeds 15 percent of the Federal Poverty Guidelines (“FPG”);60 (2) where the benefits are not of a kind that can be monetized, and those benefits are used “for more than 12 months in the aggregate within a 36-month period”; (3) where an individual’s use of monetizable non-cash benefits stops short of the 15 percent FPG threshold, but they have also used non-monetizable non-cash benefits for at least 9 months, in the aggregate, within a 36-month period. Id. at 51,158. 89. As in the past, DHS will also consider an “Affidavit of Support,” which it reiterated is “a contract between the alien’s sponsor and the U.S. Government that imposes on the sponsor a legally enforceable obligation to support the alien.” Id. at 51,220. The submission of an Affidavit of Support is required in certain cases, and for those cases, failure to submit an affidavit is fatal to the non-citizen’s application. Id. at 51,198. But under the proposed rule, the presence of a sufficient affidavit “does not eliminate the need to consider all of the mandatory factors in the totality of the circumstances.” Id. at 51,198. 90. Although the DHS Proposed Rule speculates that “it is likely that [the State Department] will amend its guidance” (id. at 51,135), the State Department has not announced any plans to amend the FAM. Unless and until it does, individuals who must seek approval from
60 Based on 15 percent of the FPG “for a household of one within a period of 12 consecutive months based on the per-month FPG for the months during which the benefits are received.” Id. at 51158.
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both USCIS and a State Department consular affairs office abroad, will need to satisfy differing standards. This is potentially a massive number of people:
Nearly sixty percent of the 2.7 million immediate relatives, family-sponsored, employment-based, and diversity visa-based immigrants who obtained lawful permanent resident status in the United States between fiscal years 2014 and 2016 consular processed immigrant visa applications overseas prior to being admitted to the United States as lawful permanent residents at a port-of-entry. Fifty-one percent of immediate relatives, ninety-two percent of family-sponsored immigrants, and ninety-eight percent of diversity visa immigrants obtained an immigrant visa at a consular post overseas before securing admission as a lawful permanent resident at a port-of-entry between fiscal years 2014 and 2016. Id. at 51,134. 91. The DHS Proposed Rule is currently open for public comment until December 10, 2018. Id. at 51,114. V. The Foreign Affairs Manual Change. 92. Despite the ongoing rulemaking process at DHS, the State Department on January 3, 2018 published an amendment to the FAM (the “FAM change”) that radically expanded the meaning of “public charge” to be applied by consular officers in multiple ways. While the DHS Proposed Rule is somewhat narrower than the earlier leaked drafts, the FAM change remains broad—in some respects, going even farther than the DHS Proposed Rule, without any of the required rulemaking procedures. 93. Specifically, for visa applicants and members of their households, the FAM now directs consular officers to look for any past or current use of any benefit programs, including non-cash benefit programs, as evidence that the applicant will likely become a “public charge” in the future. For affiants and members of their household, the FAM similarly now instructs consular officers to consider past, current, or anticipated future receipt of means-tested public benefits—including several non-cash benefit programs—as disqualifying, rendering an otherwise
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validly-filed affidavit of support irrelevant. In addition, Defendants changed the weight given to a properly filed Affidavit of Support, and have imposed new requirements on joint sponsors.
94. None of these alterations were made with proper notice, explanation, or opportunity for comment to the public.61 Cf. State of N.J., Dep’t of Envtl. Prot. v. U.S. Envtl. Prot. Agency, 626 F.2d 1038, 1045 (D.C. Cir. 1980) (“[N]otice-and-comment rule-making is a primary method of assuring that an agency’s decisions will be informed and responsive.”).
The change drastically expands the scope of the FAM’s “public charge” provision. 95. A redline comparison of the FAM’s public charge provisions before and after the January 3, 2018 amendments is attached as an exhibit to this Complaint. See Ex. 1. Specific changes are detailed below. 1. Considering the receipt of non-cash benefits by visa applicants. 96. Under the FAM change, the State Department now requires consular offices to consider a visa applicant’s receipt of non-cash benefits as part of the totality of the circumstances test. 97. The FAM previously stated: “There are many forms of U.S. Government assistance that an alien may have accepted in the past, or that you may reasonably believe, an alien might receive after admission to the United States that are of a non-cash and/or supplementary nature and would not create an inadmissibility under INA 212(a)(4).” Ex. 1 at 34. The provision went on: “Certain programs are funded with public funds for the general good, such as public education and child vaccination programs, etc., and are not considered to be benefits for the purposes of INA 212(a)(4).” Id.
61 See Letter to David Newman.
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98. That same provision now reads: “There are many forms of public assistance that an applicant may have accepted in the past, or that you may reasonably believe, an alien might receive after admission to the United States that are of a non-cash and/or supplementary nature and should not be considered to be benefits when examining the applicant under INA 212(a)(4), and may only be considered as part of the totality of the applicant’s circumstances in determining whether an applicant is likely to become a public charge.” Id. (emphasis added). In other words, while the ultimate inquiry continues to focus on whether an applicant is likely to use cash benefits, the FAM now directs consular officers to consider, as part of that inquiry, their current or past use of non-cash benefits.
99. The next provision previously read: “Although the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 prohibit aliens from receiving many kinds of public benefits, it specifically exempts from this prohibition several of the public benefits indicated below. Neither the past nor possible future receipt of such non cash or supplemental assistance may be considered in determining whether an alien is likely to become a public charge.” Id. at 4.
100. In the revised provision, the State Department struck the second sentence. Id. 2. Considering the receipt of non-cash benefits by members of the visa applicant’s household.
101. Under the FAM change, the State Department also now requires consular officers to consider the receipt of non-cash benefits by family members of the visa applicant.
102. The FAM previously stated: “Past or current receipt of cash benefits for income maintenance by a family member of the visa applicant may be factored into the applicant’s case only when such benefits also constitute(d) the primary means of subsistence of the applicant. Past or current receipt of other types of benefits … must not be considered.” Id. at 23.
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103. The revised provision now states: “Past or current receipt of public assistance of any type by the visa applicant or a family member in the visa applicant’s household is relevant to determining whether the applicant is likely to become a public charge in the future.” Id. at 8 (emphasis added).
104. The revised FAM also added a provision to underscore the importance of the use of public benefits by an applicant’s dependents to the public charge determination, stating that “[a] dependent family member’s receipt of public benefits is a heavily negative factor in the totality of the circumstances.” Id. at 9.
3. Changes to consideration of the Affidavit of Support. 105. Defendants also made several changes to the way consular officers are required to weigh and consider Affidavits of Support. The FAM now instructs that a properly filed Affidavit of Support is only considered a “positive,” as opposed to a determinative, factor in the public charge analysis. See 9 FAM § 302.8-2(B). State Department officials have “confirmed that the I864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors.”62 106. Moreover, upon information and belief, the State Department now considers the past or current receipt of non-cash, means-tested benefits by sponsors or their family members to be disqualifying.
62 Cyrus Mehta, State Department’s Change to Public Charge Guidance in Foreign Affairs Manual Will Result in Many More Visa Refusals, The Insightful Immigration Blog (May 29, 2018) [hereinafter Mehta, State Department’s Change], http://blog.cyrusmehta.com/2018/05/state-departments-change-to-public-charge-guidance-inforeign-affiars-manual-will-result-in-many-more-visa-refusals.html; see also Letter to David Newman at 1.
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107. In contrast, for decades the FAM made clear that “[t]here is no provision in the law to indicate that the receipt of means-tested benefits by the sponsor would, in itself, result in a finding of inadmissibility for the applicant under INA 212(a)(4).” See Ex. 1 at 23. The FAM simply stated that such use would be “an important factor in considering whether the applicant might have to become a public charge.” Id. The FAM thus previously instructed that “[i]f the sponsor or any member of his or her household has received public means-tested benefits within the past three years, you must review fully the sponsor’s current ability to provide the requisite level of support, taking into consideration the kind of assistance provided and the dates received.” Id. at 23-24.
108. However, the revised provisions related to the Affidavit of Support no longer acknowledges that “[t]here is no provision in the law to indicate that the receipt of means-tested benefits by the sponsor would, in itself, result” in a public charge finding for the applicant. Id. at 23. On information and belief, that change in language reflects the State Department’s changed treatment of Affidavits of Support.
* * * 109. Together, these changes reflect a stark shift in the State Department’s approach to the public charge ground of inadmissibility—a shift which has had an immediate and binding effect on the immigrant community. 110. Unlike the DHS Proposed Rule, the FAM change has “already gone into effect, and practitioners are starting to see more visa denials based on public charge inadmissibility at the consular interview.”63 Practitioners have seen results including a “[f]inding of public charge
63 Ariel Brown, Consular Processing Practice Alert on Public Charge and Affidavit of Support Issues, Immigrant Legal Resource Ctr. 1 (July 2018) [hereinafter Brown, Consular Processing
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inadmissibility notwithstanding a qualifying Affidavit of Support”; a “[f]inding of public charge inadmissibility notwithstanding a qualifying Joint Sponsor Affidavit of Support”; and/or the “[r]evocation of a previously approved Provisional Unlawful Presence Waiver.”64
111. Upon information and belief, consular officers have relied on the FAM’s public charge amendments to deny visa applications because of the past or current receipt of non-cash benefits by visa applicants and members of their households.
112. Upon information and belief, consular officers have relied on these amendments to the public charge provisions of the FAM to deny visa applications because of the past or current receipt of non-cash, means-tested benefits by U.S. citizens or lawful permanent residents, and members of their households, who file an Affidavit of Support.
113. Upon information and belief, the rate of visa denials based on the public charge ground of inadmissibility is significantly higher this year, after the FAM amendments took effect, than in years prior.
114. According to multiple sources, practitioners have specifically observed “an increase in denials on public charge grounds … out of Ciudad Juarez (CDJ), which processes all of the immigrant visas in Mexico”65—a major source of Hispanic immigration. Practitioners have also reported increased denials for disabled immigrants.
Practice Alert], https://www.ilrc.org/sites/default/files/resources/consul_process_pract_alert_pub_charge_affid20180702.pdf. 64 Id.; see also Mehta, State Department’s Change (“Those who already got approved I-601A provisional waivers … are now finding themselves being found inadmissible for likely becoming a public charge under INA 212(a)(4).”). 65 Lindsay Gray, Keeping Families Apart: Trump’s Update to the Public Charge Provision, Whitlock & Gray Immigration Law Blog (May 24, 2018) [hereinafter Gray, Keeping Families Apart], http://www.whitlockgray.com/2018/05/24/public-charge/; Arelis R. Hernández, A Mexican Businesswoman Went to Visit Her Parents in Maryland. Border Agents Confiscated
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Despite the FAM change’s scope, the State Department provided virtually no notice or explanation, let alone opportunity for comment. 115. The State Department announced the public charge changes in a memorandum posted on the agency website on January 4, 2018. 116. The State Department removed the memorandum within weeks of first posting it. 117. The State Department has never re-posted the memorandum on its website, nor issued any other press release or public statement about the changes to the FAM’s provisions regarding the public charge ground of inadmissibility. 118. In the memorandum, the State Department provided nothing more than a bare description of only two of the changes it made to the FAM’s public charge provisions: (1) that a consular officer “may consider ‘past or current receipt of public assistance of any type’ in determining whether an applicant is likely to become a public charge,” and (2) that an Affidavit of Support “by itself may not satisfy the INA 212(a)(4) public charge requirement.”66 119. But what the memorandum left out is striking: a. The memorandum did not address the fact that the revised FAM now
requires consular officers to consider the use of non-cash benefits by the visa applicant, his or her family members, and his or her sponsor’s family.
Her Visa, Wash. Post (Aug 14, 2018), https://www.washingtonpost.com/local/social-issues/amexican-business-executive-went-to-visit-her-parents-in-md-border-agents-confiscated-hervisa/2018/08/14/321c4136-9cc7-11e8-843b-36e177f3081c_story.html (“The American Immigration Lawyers Association says it has seen a spike since April in visa application denials citing public-charge grounds at the U.S. Consulate in Juarez, Mexico.”). 66 See Memorandum from U.S. Dep’t of State Regarding Update to 9 FAM 302.8 Public Charge-INA 212(A)(4) (Jan. 4, 2018), https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/posts/39public-charge-39-update-to-9-fam-302-8-jan-4-2018.
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b. The memorandum omits the fact that the revised FAM provisions will apply retroactively, even though the revisions specifically require consideration of past use of non-cash benefits.
c. The memorandum failed to acknowledge that the changes to the FAM’s public charge provisions amounted to a reversal of the decades-old understanding of the public charge ground of inadmissibility, codified in prior versions of the FAM and by INS in the 1999 NPRM and Field Guidance.
d. The memorandum did not acknowledge that the State Department’s approach to public charge diverged from the way DHS was continuing in January 2018 to approach the public charge determination for adjustmentof-status applications (or that applicants would have to navigate between differing agency standards).
e. The memorandum failed to disclose that DHS would be proposing for public comment similar changes to the public charge determination, in recognition of the fact that the changes marked such a substantial shift in settled law that they could not legally be effectuated in sub-regulatory guidance.
f. And the memorandum failed to provide any explanation as to why the State Department was changing its policy and approach to the public charge ground of inadmissibility, nor reasons for the new approach.
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120. In sum, the State Department provided no notice, acknowledgment, or explanation of the sweeping changes it was making to the public charge determination for visa applications. VI. The Foreign Affairs Manual Change Deters Immigrants, Their Family Members,
And Their Sponsors From Accepting Public Benefits. 121. Like all of the Trump Administration’s efforts to change the longstanding meaning of public charge, the FAM change deters immigrants, their family members, and their sponsors from accepting public benefits—benefits for which they are legally eligible and which are designed to promote public health and economic self-sufficiency. “Many immigrants … believe that receiving public benefits will lead to a ‘public charge’ label that could affect their ability to gain lawful permanent residency status, become citizens, or sponsor new immigrants.”67 The FAM change is no less of a deterrent than the DHS rule, which “almost certainly would convince large numbers of immigrants here lawfully and their children, many of them U.S. citizens, to forgo benefits or tax credits for which they’re eligible.”68 122. The Administration has already admitted as much: in the DHS Proposed Rule, DHS recognized that barring immigrants from the country for taking public benefits would lead to “the disenrollment or foregone enrollment of individuals in public benefits programs.” 83 Fed. Reg. at 51,260. As DHS explained, “[r]esearch shows that when eligibility rules change for public benefits programs there is evidence of a ‘chilling effect’ that discourages immigrants from
67 Kinsey Alden Dinan, Federal Policies Restrict Immigrant Children’s Access to Key Public Benefits, Nat’l Ctr. for Children in Poverty 7 (Oct. 2005), http://www.ailadownloads.org/advo/CenterForChildrenInPoverty-FederalPoliciesRestricting.pdf. 68 Robert Greenstein, Trump Rule Would Threaten Low-Wage Legal Immigrants in the U.S. if Their Families Receive Any of Wide Array of Benefits, Including Earned Income Tax Credit, Ctr. on Budget & Pol’y Priorities (May 1, 2018) [hereinafter Greenstein, Trump Rule], https://www.cbpp.org/research/poverty-and-inequality/trump-rule-would-threaten-low-wagelegal-immigrants-in-the-us-if.
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using public benefits programs for which they are still eligible.” Id. at 51,266. And DHS
recognized that “there may also be additional reductions in transfer payments from states to
individuals who may choose to disenroll from or forego enrollment in a public benefits
program”—or from local governments, as is the case here. Id. at 51,268.
123. In reaching that conclusion, DHS relied on studies conducted after Congress
enacted the Personal Responsibility and Work Opportunity Act in 1996 (“PRWORA”). Id. at
51,266. While the Act principally rendered many legal immigrants ineligible for certain benefits,
the Act also deterred “many immigrants entitled to public benefits and services from using them
due to confusion about eligibility criteria and fears that users would be unable to sponsor family members in the future.”69 As a result, “benefits-use rates fell sharply even among groups such as … U.S.-citizen children whose eligibility was unchanged.”70 A U.S. Department of Agriculture
study found that the number of children living with legal immigrant parents claiming food stamps fell by 37 percent, versus 15 percent for children living with native-born parents.71
Similarly, an Urban Institute study found that “the steeper declines in noncitizens’ than citizens’
69 Jeanne Batalova et al., Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefits Use, Migration Pol’y Inst. 14 (June 2018) [hereinafter Batalova et al., Chilling Effects] (emphasis added), https://www.migrationpolicy.org/research/chilling-effects-expected-public-charge-rule-impactlegal-immigrant-families; see also Sharon Parrott et al., Trump “Public Charge” Rule Would Prove Particularly Harsh for Pregnant Women and Children, Ctr. on Budget & Pol’y Priorities 2 (May 1, 2018) [hereinafter Parrott et al., Trump “Public Charge” Rule], https://www.cbpp.org/sites/default/files/atoms/files/5-1-18pov2.pdf (“In the late 1990s, widespread confusion and fear about how public charge rules could impact families’ ability to adjust their status among immigrants with children eligible for and in need of federal benefits such as SNAP and Medicaid resulted in many being deterred from applying for benefits.”). 70 Batalova et al., Chilling Effects, at 2. 71 Office of Analysis, Nutrition, and Educ., Who Is Leaving the Food Stamp Program? An Analysis of Caseload Changes from 1994 to 1997, U.S. Dep’t of Agric. 3 (Mar. 1999), https://fns-prod.azureedge.net/sites/default/files/cdr.pdf.
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use of welfare, food stamps, and Medicaid owe more to the ‘chilling effect’ of welfare reform.”72 These studies demonstrate that, unsurprisingly, efforts to impose consequences on immigrants who seek to use public benefits deter them from doing so.
124. These studies also corroborate the findings advanced by INS in its 1999 NPRM and Field Guidance regarding public charge. As explained above, INS concluded that immigrants choose not to apply for public benefits when they “fear the negative immigration consequences of potentially being deemed a ‘public charge.’” 64 Fed. Reg. at 28,676; see supra ¶¶ 50-68.
125. Based on these studies and others, DHS concluded that its proposed public charge rule could deter hundreds of thousands of individuals, including U.S. citizens, from taking federal public benefits. 83 Fed. Reg. at 51,268. Other studies have concluded that the effect is likely to be far higher, and that the DHS Proposed Rule could result in “a decline of between 20 percent and 60 percent” in immigrants using federal benefits.73 While the rate of decline may be less steep, the FAM change undeniably produces a similar deterrent effect and, consequently, a similar reduction in immigrants’ willingness to take public benefits.74
126. The chilling effects of the Trump Administration’s public charge policies have already been observed nationwide—and the FAM change is, to date, the only change to public
72 Michael E. Fix & Jeffrey S. Passel, Trends In Noncitizens’ and Citizens’ Use of Public Benefits Following Welfare Reform, 1994-97, Urban Inst. 4 (Mar. 1, 1999), https://www.urban.org/sites/default/files/publication/69781/408086-Trends-in-Noncitizens-andCitizens-Use-of-Public-Benefits-Following-Welfare-Reform.pdf. 73 Batalova et al., Chilling Effects, at 4. 74 Courts, too, have recognized that fear of immigration consequences deters immigrants from accessing necessary public benefits and services. See, e.g., City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 297-300, 341 (E.D. Pa. 2018) (accepting testimony that “immigrants would be less likely to avail themselves of City services, such as substance abuse and treatment services, if they feared that their immigration status would be revealed to ICE”); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 862 (N.D. Ill. 2018) (recognizing Chicago’s “longstanding City policy of ensuring access to essential city services regardless of a resident’s citizenship status”).
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charge to take effect. Service providers report that “[f]amilies are already choosing to opt out of
benefits for their children,” including SNAP, WIC, Medicaid, and other forms of public
assistance.75 “Statistics on participation in state and local efforts show fewer people are using an
array of food programs, including [WIC] as well as [SNAP], formerly known as food stamps[,]
and food banks.”76 One analyst noted “stories of women returning breast pumps to WIC … and
disenrolling from Medicaid for cancer treatments.”77 And the Center for Law and Social Policy
found that “[e]arly childhood education programs reported drops in attendance and applications
as well as reduced participation from immigrant parents in classrooms and at events,” alongside
“an uptick in missed appointments at health care clinics.”78
127. Providers are observing chilling effects in Baltimore specifically, where
immigrant patients “are not willing to risk having their families stay together for food stamps.”79
75 Victoria Pelham, Generation of Sicker Kids Feared Under Immigration Proposal, Bloomberg Law (Aug. 30, 2018), https://news.bloomberglaw.com/health-law-andbusiness/generation-of-sicker-kids-feared-under-immigration-proposal/. 76 Emily Baumgaertner, Spooked by Trump Proposals, Immigrants Abandon Public Nutrition Services, N.Y. Times (Mar. 6, 2018) [hereinafter Baumgaertner, Spooked by Trump Proposals], https://www.nytimes.com/2018/03/06/us/politics/trump-immigrants-public-nutritionservices.html; see also Helena Bottemiller Evich, Immigrant Families Appear to Be Dropping Out of Food Stamps, Politico (Nov. 14, 2018), https://www.politico.com/story/2018/11/14/immigrant-families-dropping-out-food-stamps966256 (“Immigrant households legally eligible for food-stamp benefits stopped participating in the program at a higher-than-normal rate in the first half of this year, a preliminary study released this week indicates.”). 77 Natasha Lennard, Trump’s Plan to Deny Green Cards to People on Medicaid or Food Stamps Is a Full-Blown Attack on the Immigrant Poor, Intercept (Sept. 26, 2018), https://theintercept.com/2018/09/26/public-charge-immigration-green-card/. 78 Wogan, Trump’s Leaked Immigration Rule. 79 Kathleen Page, Cutting Off Immigrants from Public Benefits Means American Children Will Pay the Price, Baltimore Sun (Sept. 25, 2018), http://www.baltimoresun.com/news/opinion/oped/bs-ed-op-0926-public-charge-20180924story.html.
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One Maryland health clinic operator reported “seeing three to four people a week who are not applying for WIC and are canceling their appointments to re-enroll in Medicaid.”80 Because
Baltimore has an especially large immigrant population, it is no surprise that the deterrent effect
of the FAM change would hit Baltimore especially hard.
128. The impact of the Administration’s public charge efforts, including the FAM
change, is “broadly felt across the two largest racial/ethnic groups among immigrants in the
United States,” Hispanic and Asian American and Pacific Islander immigrants, and in states, like Maryland, with “large immigrant populations and … generous benefits policies.”81 By
comparison, analysts estimate that the DHS Proposed Rule —and, by extension, the FAM
change—would “have disproportionate effects based on national origin and ethnicity, blocking
71% of applicants from Mexico and Central America, 69% from Africa, and 52% from Asia— but only 36% from Europe, Canada, and Oceania.”82 In other words, the FAM change, like other
changes to public charge rules, makes it “more likely that the U.S. government would deny admission of immigrants from the developing world, including Latin America and Asia.”83
80 Christina Jewett et al., Under a Trump Proposal, Lawful Immigrants Might Shun Medical Care, Nat’l Pub. Radio (May 10, 2018) [hereinafter Jewett et al., Under a Trump Proposal], https://www.npr.org/sections/health-shots/2018/05/10/609758169/under-a-trump-proposallawful-immigrants-might-shun-medical-care. 81 Id. at 5; see also id. at 29 (listing Maryland among the states with the highest immigrant populations). 82 The Public Charge Rule, Explained, Boundless (Sept. 23, 2018), https://www.boundless.com/blog/public-charge-rule-explained/; see also Randy Capps et al., Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. Immigration, Migration Pol’y Inst. 9 (Nov. 2018), https://www.migrationpolicy.org/research/impact-dhs-public-chargerule-immigration (explaining that the DHS Proposed Rule would “likely place individuals from Mexico and Central America at a higher risk of denial,” over twice as high as immigrants from Europe, Canada, Australia, and New Zealand). 83 Kevin R. Johnson, Immigration and Civil Rights in the Trump Administration: Law and Policy Making by Executive Order, 57 Santa Clara L. Rev. 611, 657 (2017).
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129. Immigration practitioners have therefore been obligated to advise their clients of the potential immigration consequences of accepting public benefits.84 Because of that advice and other public reporting regarding the FAM change, affected communities are necessarily aware of the change and are adapting their behavior accordingly. As one practitioner put it, “[a]ll of these policies as a whole have created massive fear in the immigrant community for interacting with any government official and that has all types of implications”—with clients even voicing that “they are hesitant to enroll their children in public school.”85
130. At present, the FAM change is the only regulatory action that has yet taken effect. The leaked draft executive order was never formally issued. The DHS Proposed Rule has yet to take effect, and even when it does, it does not apply retroactively86—meaning that it, too, could not deter immigrants from taking public benefits at this point in time. Moreover, although the FAM change applies to a smaller group of immigrants, it applies to a far broader list of public benefits—encompassing any “public assistance” an immigrant, their child, their sponsor, or their sponsor’s child might receive. See supra ¶¶ 98, 103, 108. In any event, because “the
84 See, e.g., Brown, Consular Processing Practice Alert; Gray, Keeping Families Apart; Van. R. Ngo, New “Public Charge” Guidance Will Lead to More Visa Denials, U.S. Consultancy Group, LLC (Feb. 8, 2018), https://uscg.attorneyngo.com/blog/new-public-charge-guidance-willlead-to-more-visa-denials/. 85 Bob Hennelly, Warn U.S. Immigration Crackdown May Yield Greater Health Risks, The Chief (Aug. 20, 2018), http://thechiefleader.com/news/news_of_the_week/warn-u-simmigration-crackdown-may-yield-greater-health-risks/article_513da722-a22a-11e8-b2d8474316eb8b97.html. 86 See 83 Fed. Reg. at 51,206 (excluding from consideration receipt of “public benefits … that were previously excluded under the 1999 Interim Field Guidance if received before effective date of the final rule”).
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administration has failed to harmonize DHS’s new rule” with the FAM change, the resulting “discord would create chaos in the legal immigration system.”87
131. The FAM change also deters immigrants from traveling abroad to complete their adjustment-of-status applications through consular processing because they are unwilling to take the risk that they will be stuck abroad if a consular officer finds them to be a public charge. That chilling effect will leave more immigrants in unlawful status, afraid to deal with government agencies or engage fully in the community.
132. For these reasons, the FAM change “places at higher risk the many U.S. citizen children who have one or both parents seeking or hoping to seek lawful immigration status in the United States,” “essentially forc[ing] millions of American families to choose between seeking lawful immigration status and going without necessary food, shelter, healthcare, and education services for their U.S. citizen children.”88 VII. Baltimore Is Harmed By The Foreign Affairs Manual Change.
133. As a major city that provides benefits to thousands of its immigrant residents, Baltimore is harmed by the Foreign Affairs Manual change. The FAM change contributes to profound confusion about the immigration consequences of accepting Baltimore’s public benefits, not to mention federal and state benefits, leaving immigrants unable to discern whether accepting one benefit or another will jeopardize their status in the United States. That lack of clarity discourages immigrants from taking necessary public benefits, frustrating Baltimore’s
87 David Bier, The $1/Day Standard & Other Problems With DHS’s Public Charge Rule, Cato at Liberty (Apr. 19, 2018), https://www.cato.org/blog/1day-standard-other-problems-dhsspublic-charge-rule. 88 Jennifer Howard, Another Brick in the Wall: New Public Charge Guidance Bodes Ill for American Families and Communities, Joseph Law Firm (June 27, 2018), https://www.immigrationissues.com/immigration-news/brick-wall-public-charge-guidancebodes-ill-american-families-communities.
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programs and, paradoxically, draining Baltimore’s budget as immigrants are forced off of more appropriate federal and state programs. Baltimore is left to sort through the mess Defendants have made.
134. Take Medicaid, for example. If an immigrant fears that enrolling in Medicaid will jeopardize their ability to stay in the United States, they may use Baltimore’s free or reducedcost public health clinics as a substitute, imposing additional costs on the city. More likely, however, immigrants may worry that even going to Baltimore’s health clinics will yield a conclusion that they are a public charge—and, instead, go without health care at all. While doing so may decrease Baltimore’s costs in the short term (by, for example, reducing consumption of preventive healthcare), it frustrates a core component of Baltimore’s mission, and makes Baltimore sicker and less wealthy as a city.
135. Ultimately, Baltimore’s primary interest is in ensuring that its residents can access the benefits and services they need. If an immigrant is eligible for Medicaid, the city would prefer that they enroll in Medicaid, rather than drain the resources of Baltimore’s health clinics. But if an immigrant is ineligible for Medicaid, Baltimore would vastly prefer that they seek care at the city’s facilities, rather than decline services entirely and risk further harm to themselves and others. Examples abound: city residents with communicable diseases will go untreated, the city’s children will go unvaccinated, and health problems will become more severe in the absence of treatment, imposing further costs down the line. In other words, the FAM change hurts Baltimore by making it immensely more difficult for Baltimore residents to access the services necessary and appropriate for them.
136. As outlined below, the FAM change harms Baltimore in three distinct ways. It obstructs Baltimore’s attempts to provide benefits and social services to its immigrant residents;
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it forces Baltimore to devote time and money to adapting its programs and reaching out to immigrant communities; and it imposes significant downstream costs on Baltimore’s budget and on the city as a whole. A decision invalidating the FAM change and enjoining its continued application would redress all of these harms.
The Foreign Affairs Manual change deters immigrants from accepting Baltimore’s public benefits. 137. Most importantly, the Foreign Affairs Manual change harms Baltimore’s right and responsibility to act as a welcoming city: a city that provides benefits to its residents without regard to their immigration status and that enables those residents to function as healthy, productive members of the community. 138. Courts have long recognized that providing for the health and safety of its residents is an essential aspect of a city’s mission. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (explaining that state and local governments possess “great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons”); Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (“[H]ealth and safety are primarily, and historically, matters of local concern.”) (cleaned up); Stieberger v. Heckler, 615 F. Supp. 1315, 1338 (S.D.N.Y. 1985) (noting “the unique and legitimate interest of such localities in insuring the appropriate and lawful administration” of benefits programs). 139. “By making the receipt of a wider range of federal, state, and local benefits potentially disqualifying factors in immigration decision-making,” the FAM change is “fundamentally at odds with the right of state and local governments to determine the investments they make in their own residents.”89 Nobody would dispute that a law that banned
89 Batalova et al., Chilling Effects, at 30.
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Baltimore from offering benefits to its residents would profoundly interfere with the city’s prerogatives. The obstruction is no less powerful because Defendants have elected to carry it out by imposing serious consequences on immigrants and others who decide to take those benefits.
140. Indeed, Baltimore provides a number of benefits that might potentially fall within the FAM change’s broad focus on “public assistance”—and which the FAM change thereby deters immigrants, their sponsors, and their families from taking.
1. Health benefits. 141. The Baltimore City Health Department operates a number of programs for uninsured and indigent residents, including immigrants. Specifically, it operates specialty clinics out of two principal facilities, including clinics for reproductive health, sexually transmitted diseases, dental and oral health care, and immunizations.90 The Department also subsidizes a Men’s Health Center, which operates out of space provided at one of the Department’s own facilities.91 Baltimore’s public schools also provide a robust range of health programs, like vision and dental screenings, to Baltimore students.92 142. Aside from clinics, the Department funds a visiting-nurse program that makes house calls for individuals who tend to use ambulance services frequently, including those with chronic health conditions like diabetes, hypertension, asthma, and mental health disorders. The Department also funds a number of other programs focused on specific health conditions, including a Community Asthma Program, a Tuberculosis Control Program, a Childhood Lead
90 Health Clinics & Services, Baltimore City Health Department, https://health.baltimorecity.gov/programs/health-clinics-services. 91 Men’s Health Center, Baltimore City Health Department, https://health.baltimorecity.gov/health-clinics-services/mens-health-center. 92 Student Health Services, Baltimore City Public Schools, https://www.baltimorecityschools.org//site/Default.aspx?PageID=25226.
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Poisoning Prevention Program, and programs for substance abuse.93 And the Department
subsidizes a number of other entities that provide services to Baltimore residents, including the
Baltimore Family League and Health Care Access Maryland. Finally, the Baltimore City Fire
Department provides ambulance services to all individuals, including immigrants, whether or not
they are able to pay.94
143. However, “[e]ven before the publication of th[e] [DHS] rule, there have been
reports of immigrants avoiding health care for concern of being considered a public charge.”95
Like the DHS rule, the FAM change “could convince immigrants to forgo health coverage or
nutrition assistance for themselves or for their infants, preschoolers, and school-age children and
families to forgo tax credits like the EITC for which they are eligible.”96 By the same token,
immigrants have likely decided not to use Baltimore’s health clinics or services given fear of the
immigration consequences.
93 See, e.g., Asthma, Baltimore City Health Department, https://health.baltimorecity.gov/node/454; Health Clinics & Services, Baltimore City Health Department, https://health.baltimorecity.gov/programs/health-clinics-services; Lead Poisoning, Baltimore City Health Department, https://health.baltimorecity.gov/lead/lead-poisoning; Substance Use and Misuse, Baltimore City Health Department, https://health.baltimorecity.gov/programs/substance-abuse; Tuberculosis, Baltimore City Health Department, https://health.baltimorecity.gov/node/164. 94 See Welcome to the Baltimore City Fire Department, Baltimore City Fire Department, https://fire.baltimorecity.gov/bcfd-mission-and-vision. 95 Mitchell H. Katz & Dave A. Chokshi, The “Public Charge” Proposal and Public Health: Implications for Patients and Clinicians, J. Am. Med. Ass’n Viewpoint 3 (Oct. 1, 2018), https://jamanetwork.com/journals/jama/fullarticle/2705813. 96 Parrott et al., Trump “Public Charge” Rule, at 3; see also Samantha Artiga et al., Potential Effects of Public Charge Changes on Health Coverage for Citizen Children, Kaiser Family Found. 5 (May 2018), http://files.kff.org/attachment/Issue-Brief-Potential-Effects-of-PublicCharge-Changes-on-Health-Coverage-for-Citizen-Children (“Due to increased fears, it is likely that fewer eligible individuals would enroll themselves and their children in health coverage and individuals currently enrolled in programs would disenroll themselves and their children despite remaining eligible for coverage.”).
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2. Housing benefits. 144. Three separate Baltimore City entities provide housing benefits and services to Baltimore residents, including immigrants. Specifically, the Baltimore City Department of Housing and Community Development focuses on “vitalizing and redeveloping communities and ensuring access to adequate and affordable housing opportunities in safe, livable and decent neighborhoods.”97 The Department’s Leading Innovation for a Green and Healthy Tomorrow (“LIGHT”) Program conducts assessments of residents and their homes to ascertain the programs for which they might be eligible from a range of over 200 federal, state, and local programs.98 LIGHT employees have seen clients come in to start the application process and voice concern over the potential immigration consequences of doing so. 145. The Department administers and/or funds a number of programs used by immigrants, including a new Down Payment and Closing Cost Assistance Program, a Lead Hazard Reduction Program, a range of Energy Conservation Services programs, and a weatherization program, which also addresses heating issues.99 And the Department’s Office of Rehabilitation also operates seven distinct programs aimed at helping city residents make necessary improvements to their homes or redress code violations.100 These programs typically prioritize elderly or disabled residents when allocating resources.
97 About Us, Baltimore City Dep’t of Hous. & Cmty. Dev., http://dhcd.baltimorehousing.org/about_dhcd. 98 LIGHT Program, Baltimore City Dep’t of Hous. & Cmty. Dev., http://dhcd.baltimorehousing.org/ghsh_light. 99 Division of Green, Healthy and Sustainable Programs, Baltimore City Dep’t of Hous. & Cmty. Dev., http://dhcd.baltimorehousing.org/ghsh. 100 Rehabilitation Services, Baltimore City Dep’t of Hous. & Cmty. Dev., http://dhcd.baltimorehousing.org/rehabilitation.
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146. Moreover, the Baltimore Mayor’s Office of Human Services operates a Homeless Services Program, which “works to implement federal, state, and local policy and best practices in addition to administering and monitoring homeless services grants” for the benefit of over 25,000 individuals and families.101 For individuals at risk for homelessness, including immigrants, the city offers street outreach programs, emergency shelters, transitional housing, rapid rehousing, permanent supportive housing, housing opportunities for persons with HIV/AIDS, and meal programs.102
147. Finally, the Housing Authority of Baltimore City aims to “create and provide quality affordable housing opportunities in sustainable neighborhoods for the people we serve.”103 To that end, it manages 9,134 public housing units in fifteen developments. It also administers the Housing Choice Voucher Program, HUD’s Rental Assistance Demonstration Program, and other rental assistance programs.104 While the Housing Authority was created by state law and is federally funded, the mayor of Baltimore retains the authority to appoint members of the Board of Commissioners and the Housing Authority’s director.
3. Low-income assistance programs. 148. The City operates a Community Action Partnership, run by the Mayor’s Office of Human Services, which works “to reduce poverty by offering opportunities for low-income households through education, financial empowerment, housing and energy services, food
101 Homeless Services Program, Mayor’s Office of Human Servs., https://humanservices.baltimorecity.gov/homeless-services. 102 See id. 103 About the Housing Authority of Baltimore City (HABC), Hous. Auth. of Baltimore City, http://habc.baltimorehousing.org/about_habc. 104 Id.
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resources and capacity building.”105 Specifically, the Partnership offers multiple programs that help city residents defray the costs of various utilities and other necessities, including a Low Income Water Assistance Program, a Low Income Senior Citizen Water Discount Program, Home Energy Programs, an oil assistance program, and a program designed to help elderly residents retrofit their homes. To help city residents with budgeting and planning, the Partnership also administers workshops and counseling programs, as well as a VITA tax assistance program. And the City offers “Eat Healthy, Shop Smart” workshops to assist residents in making healthy and budget-conscious eating decisions.106
149. The Baltimore City Department of Housing and Community Development also administers a Summer Food Service Program, available to all city minors regardless of immigration status.107 Many of the Baltimore’s public schools also act as School Food Pantries, through a partnership with the Maryland Food Bank.108
150. Many of these services are akin to other services immigrants are known to be avoiding in the wake of the Trump Administration’s public charge efforts, like the food and income assistance programs described above. See supra ¶¶ 126-27. It is therefore reasonable to infer that immigrants have been similarly unwilling to pursue these programs as well.
105 Programs, Mayor’s Office of Human Servs., https://humanservices.baltimorecity.gov/community-action-partnerships/programs. 106 Id. 107 Summer Food Service, Baltimore City Dep’t of Housing & Cmty. Dev., http://dhcd.baltimorehousing.org/food/. 108 School Food Pantries, Baltimore City Public Schools, https://www.baltimorecityschools.org//site/Default.aspx?PageID=24454.
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4. Educational benefits. 151. Baltimore operates Head Start programs using federal funding, which are available to immigrants.109 Enrollment in those programs has decreased, even sharply decreased, among immigrants; for example, enrollment has virtually ceased among the city’s African immigrant population in the last few months. Of course, Baltimore also has a robust public school system, available to all of the city’s children regardless of their immigration status. Those schools also offer after-school programs without regard to immigration status. While Baltimore’s school system is run by a separate agency, Baltimore City Public Schools, the Mayor retains authority to appoint members of its Board of School Commissioners, and the city provides funding for the agency, especially when it faces budget shortfalls. And for secondary education, Baltimore offers in-state tuition rates to undocumented immigrants in the city’s separatelyadministered community college system.
5. Other programs. 152. Baltimore facilitates a number of other programs as well. As part of the SAFE Cities Network, Baltimore subsidizes legal assistance for immigrants facing deportation.110 Paradoxically, therefore, immigrants may fear the very consequences those legal services are intended to avert. The Baltimore City Department of Social Services, a branch of Maryland state government, also provides a number of state-administered benefits. While Baltimore does not
109 Head Start, Mayor’s Office of Human Servs., https://human-services.baltimorecity.gov/headstart. 110 Talia Richman, Baltimore Among 11 Jurisdictions that Will Provide Legal Help for Immigrants in Deportation Cases, Baltimore Sun (Nov. 9, 2017), http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-safe-city-20171109story.html.
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provide those benefits directly, it appoints the Director of the City Department, and therefore has an interest in the proper administration of those benefits.
153. Baltimore also has a Department of Public Works that provides access to water, wastewater treatment, and trash removal services.111 It offers senior citizen and hardship discounts in connection with water services. The department also provides rat reduction, mowing (for vacant properties), illegal dumping, and water testing programs for city residents. Finally, the Office of Sustainable Energy provides grants to organizations that provide food, shelter, health care, and community centers to Baltimore residents, including immigrants.
154. Of course, like any other city, Baltimore also maintains police and fire services, as well as a 311 number that residents can call to report code violations and other hazards. Defendants presumably do not consider these services to count as “public assistance,” even though the language of the FAM change does not contain any such express limitation. Regardless, immigrants may understandably be concerned that using such services could result in adverse immigration consequences, and decide instead to play it safe. While Defendants’ definition of public charge may not be clear, the danger it presents to Baltimore and its residents is abundantly so.
* * * 155. In sum, the FAM change has chilled immigrants from accepting Baltimore’s public benefits, profoundly frustrating and interfering with the city’s mission. It is difficult to discern the full magnitude of the FAM change’s effects on Baltimore given how onerous and time-consuming it would be to track the number of immigrants who use every city program.
111 Baltimore City Department of Public Works, City of Baltimore, https://publicworks.baltimorecity.gov/.
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Indeed, given the Trump Administration’s repeated demands for immigration information from cities across the country,112 Baltimore is reluctant to do so. Even in cases where Baltimore tracks usage numbers, “[i]mmigrants who have withdrawn from these services are reluctant to speak out about their plight owing to fears that identifying themselves publicly could result in legal repercussions.”113 Thus, the programs and effects described above provide only a glimpse of the harm the FAM change is inflicting upon Baltimore.
The Foreign Affairs Manual change forces Baltimore to expend resources to encourage immigrants to accept public benefits. 156. In managing the programs listed above, Baltimore also has spent or will soon be forced to spend time and money addressing the effects and legal ramifications of the FAM change. Those effects include, but are not limited to, familiarizing city officials with the FAM change, training staff and promulgating guidance, engaging in outreach to immigrant communities, and advising immigrants about the potential consequences of taking benefits. 157. To start, Baltimore has devoted substantial time and energy to analyzing the FAM change and understanding how it may affect Baltimore’s programs. The DHS Proposed Rule itself acknowledges the cost of “familiarization with the rule for those entities that are not directly regulated but still want to understand the changes in federal and state transfer payments.” 83 Fed. Reg. at 51,260. For example, entities “might choose to read the rule in order to provide information to those foreign-born non-citizens and associated households that might be impacted by a reduction in federal transfer payments.” Id. at 51,270. Specifically, Baltimore
112 Justice Department Demands Documents and Threatens to Subpoena 23 Jurisdictions as Part of 8 U.S.C. 1373 Compliance Review, U.S. Dep’t of Justice (Jan. 24, 2018), https://www.justice.gov/opa/pr/justice-department-demands-documents-and-threatens-subpoena23-jurisdictions-part-8-usc-1373. 113 Baumgaertner, Spooked by Trump Proposals.
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has had to ascertain which city benefits and services might be encompassed within the FAM change, which immigrant populations might be affected, and what changes it might have to make to its programs in response. When Baltimore considers new programs, it must also assess whether the FAM change and similar public charge changes will decrease usage. Each of these complex, time-intensive inquiries has drained Baltimore’s resources.
158. Baltimore must also provide guidance and training to city employees, as well as any partners and contractors, to ensure that staff are aware of the potential ramifications of the FAM change. These, again, are costs that the DHS Proposed Rule recognized, noting that local governments “may need to update and rewrite guidance documents or would need to update forms used,” and that “it will also be necessary to prepare training materials and retrain staff”— all of which “will require staff time and have associated costs.” Id. at 51,270. Baltimore is not unique in this regard: across the country, “local agencies have begun planning training to help their staff navigate what could be ahead: interactions with immigration enforcement agents, increasingly anxious clients and final regulations.”114 These observations are equally true of the FAM change, which has already gone into effect and forced the city to advise its staff.
159. Given that immigrants are, understandably, worried about the potential effects of the FAM change, Baltimore must also devote additional staff time and resources to encouraging those immigrants, their sponsors, and their families to take public benefits and services where such benefits and services are not encompassed within the FAM change. See Philadelphia v. Sessions, 280 F. Supp. 3d 579, 606 (E.D. Pa. 2017) (recognizing that cities “specifically perform outreach to immigrant communities” to encourage them to accept benefits).
114 Baumgaertner, Spooked by Trump Proposals.
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160. Reaching out to affected communities is, and has always been, a priority for Baltimore. Baltimore maintains a Mayor’s Office of Immigrant Affairs, recommended by the city’s New Americans Task Force, which acts “to promote community wellbeing, economic development, and the integration of immigrant communities by identifying needs and opportunities that immigrants bring to our city, while developing public-private partnerships to strengthen the development of these communities.”115 Among other things, that office provides a guide titled Welcome to Baltimore: A Guide for New Americans, “designed to help New Americans (immigrants & refugees) in Baltimore City access critical resources.”116 The city also has a Mayor’s Office on Disabilities, charged with providing assistance to people with disabilities117—another population particularly affected by changes in public charge rules.
161. Finally, Baltimore may also need to “communicate additional information to potential benefits recipients about the new, expanded liabilities associated with using the public benefits programs they administer.”118 When immigrants ask whether taking a given benefit will expose them to potential immigration consequences as a result of the FAM change, city officials and staff will have to consider what to say. Ultimately, Baltimore may not be able to reassure city residents that their use of public benefits will not result in immigration consequences. These decisions may present still more drains on the city’s resources and the time of its employees.
115 Mayor’s Office of Immigrant Affairs, City of Baltimore, https://mima.baltimorecity.gov/. 116 Welcome to Baltimore: A Guide for New Americans, City of Baltimore, https://mima.baltimorecity.gov/wg. 117 Mayor’s Office on Disabilities, City of Baltimore, https://mcd.baltimorecity.gov/. 118 Batalova et al., Chilling Effects, at 30.
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The Foreign Affairs Manual change imposes financial costs on Baltimore’s programs and the city as a whole. 162. Aside from the cost of adapting its programs in response to the FAM change, Baltimore faces a number of downstream financial costs and consequences that do significant harm to the city. Those harms principally include increased demands on city programs not encompassed within the FAM change, including the city’s health, housing, food, education, and other programs. But they also include the general cost of managing a population that is increasingly unhealthy, hungry, and less stable and secure. 163. As discussed above, there is a tremendous amount of confusion about whether particular programs are encompassed within the FAM change. However, to the extent immigrants believe that certain city programs will not result in immigration consequences, those programs can expect to see increased demand. That demand will impose greater drains on the City’s budget. As the DHS Proposed Rule recognizes, changes to public charge rules impose “costs to various entities that the rule does not directly regulate, such as hospital systems, state agencies, and other organizations that provide public assistance to aliens and their households.” 83 Fed. Reg. at 51,260. Those costs necessarily include costs to cities like Baltimore that provide a robust array of social services and benefits to their residents. 164. This phenomenon is most visible in the context of health care. Analysts have recognized that “[i]mmigrants’ withdrawal from subsidized health insurance programs could lead to higher levels of unsubsidized care and higher unreimbursed costs.”119 “[H]ealth care providers such as federally qualified health centers and public hospitals” would be hit especially hard.120
119 Batalova et al., Chilling Effects, at 31. 120 Krista M. Perreira et al., A New Threat to Immigrants’ Health – The Public-Charge Rule, 901 New Eng. J. Med. 903, 903 (Sept. 12, 2018).
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“[T]he financial health and viability of many hospitals” would suffer “due to the significant increase [the DHS Proposed Rule] would produce in people who lack health insurance and come to emergency rooms for their medical care.”121 “Such dramatic increase in the number of uninsured children and families would negatively impact the financial stability of families as well as local governments and services.”122
165. As explained above, Baltimore maintains a number of health services for the uninsured population that may, paradoxically, be facing increased demand as a result of the FAM change. See supra ¶¶ 141-43. Each of these clinics or programs provides services on a free or reduced-fee scale and therefore serves as an essential resource for the uninsured and underinsured populations.123 By increasing the number of immigrants, families, and sponsors that lack health coverage, the FAM change will necessarily result in costs that the city would not otherwise have borne.
166. The same is true of many of Baltimore’s other programs, given the profound fear and confusion in the immigrant community created by the Trump Administration’s public charge efforts, including the FAM change. If an immigrant is afraid to take SNAP, WIC, or [Temporary Assistance for Needy Families (“TANF”)], then he or she may instead look to Baltimore’s summer food services program or its public school-administered pantries. If an immigrant is afraid to take a Section 8 housing voucher, then he or she may instead become reliant on
121 Greenstein, Trump Rule; see also Jewett et al., Under a Trump Proposal (“Health advocates say such a policy could frighten a far broader group of immigrants into avoiding governmentsupported health coverage, creating public health problems that could be dire in the long run — for those patients and for U.S. hospitals.”). 122 Change in “Public Charge” May Impact Immigrant Families, Intercmty. Justice & Peace Ctr. (June 11, 2018), https://ijpccincinnati.org/featured/public-charge/. 123 See, e.g., Family Planning & Reproductive Health Clinic, Baltimore City Health Department, https://health.baltimorecity.gov/health-clinics-services/family-planning-reproductive-health.
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Baltimore’s homeless services programs. Or an immigrant may choose to defray the hit to their budget from losing one source of public assistance by consuming another service provided by Baltimore. In other words, by forcing immigrants off of federal or other programs, the FAM change effectively forces them onto programs administered by Baltimore, increasing Baltimore’s costs.
167. More broadly, the FAM change does significant harm to Baltimore as a community. As the DHS Proposed Rule notes, “reductions in federal and state transfers under federal benefit programs may have downstream and upstream impacts on state and local economies, large and small businesses, and individuals.” 83 Fed. Reg. at 51,118. So too with the FAM change. “For individuals, families, and local communities, reduced program participation could result in higher poverty levels, reduced access to health care, and an increase in severe and chronic health issues.”124 In other words, Baltimore’s immigrant population will increasingly be poorer and less healthy as a result of the FAM change. See Philadelphia, 309 F. Supp. 3d at 341 (recognizing the “potential risks to public health if immigrants did not feel safe seeking care at City clinics”).
168. Indeed, the Trump Administration described exactly these harms of the FAM change in the DHS Proposed Rule when discussing the effect of changing public charge rules:
• Worse health outcomes, including increased prevalence of obesity and malnutrition, especially for pregnant or breastfeeding women, infants, or children, and reduced prescription adherence;
• Increased use of emergency rooms and emergent care as a method of primary health care due to delayed treatment;
• Increased prevalence of communicable diseases, including among members of the U.S. citizen population who are not vaccinated;
124 Batalova et al., Chilling Effects, at 5.
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• Increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient;
• Increased rates of poverty and housing instability; and • Reduced productivity and educational attainment. 83 Fed. Reg. at 51,270. By similarly sowing confusion and fear in the immigrant community, the FAM change has precisely the same effects. Baltimore and its residents will have to cope with all these problems in the years to come. 169. These harms, in turn, “may make it harder to achieve self-sufficiency” for the immigrants and others affected by the FAM change.125 Indeed, as noted above, the INS’s Field Guidance specifically recognized that public benefits can help individuals become self-sufficient. See supra ¶ 64. Specifically, “public assistance can make someone less likely to rely on government in the future” because “temporary use of public benefits can stabilize immigrants and families, putting them on a track to long-term financial stability and health.”126 Thus, while the Trump Administration believes that expanding the definition of public charge will discourage immigrants from taking public benefits, the long-term effect could be the exact opposite—with consequences for Baltimore as a whole. 170. The effects upon Baltimore’s children will be especially dire. “For citizen children in mixed status and non-citizen households, the poverty rate could increase by more than a quarter and the deep poverty rate could increase by more than half in the absence of SNAP
125 Id. at 31. 126 Matthew La Corte, The New ‘Public Charge’ Rule Will Harm the Rule of Law, Economic Growth, and Public Health, Niskanen Ctr. (Aug. 28, 2018) [hereinafter La Corte, The New ‘Public Charge’ Rule], https://niskanencenter.org/blog/the-new-public-charge-rule-will-harmthe-rule-of-law-economic-growth-and-public-health/.
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and WIC.”127 Research similarly indicates that children receiving EITC and SNAP “do better in school, graduate high school and attend college at higher rates, and likely work more and earn more as adults.”128 Even the unborn are affected: “the lack of prenatal care and nutrition assistance for their mothers could affect their birth and early health outcomes, and extend decades into the future, diminishing their opportunity to thrive in tangible and entirely preventable ways.”129 In other words, “[t]he demographic hit hardest will be children and pregnant women.”130 Baltimore as a whole will suffer.
CLAIMS FOR RELIEF Count One
(Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)) 171. Plaintiff repeats and incorporates by reference each of the foregoing allegations as if fully set forth herein. 172. The public charge amendment to the FAM constitutes “final agency action for which there is no other adequate remedy in court” and is “subject to judicial review.” 5 U.S.C. § 704; see id. § 702. 173. Under the Administrative Procedure Act, a “reviewing court shall … hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
127 Laird et al., Forgoing Food Assistance, at 2-3. 128 Greenstein, Trump Rule. 129 Parrott et al., Trump “Public Charge” Rule, at 3; see also La Corte, The New ‘Public Charge’ Rule (“There exists an enormous peer-reviewed literature on the importance and benefit of ensuring that pregnant women and children receive adequate health care and nutritional food.”). 130 Id.
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174. As detailed above, Defendant State Department failed to acknowledge that in amending the FAM, the Department was departing from how it had interpreted the public charge ground of inadmissibility for decades, and from practice and policy reaching back longer still. See supra ¶¶ 115-20. Specifically, the State Department failed to acknowledge, let alone provide adequate reason for, the following changes:
a. Permitting consular officers to consider a visa applicant’s use of non-cash benefits.
b. Permitting consular officers to consider the use of public benefits of any kind by an applicant’s family members.
c. Ascribing decreased weight to an otherwise valid affidavit of support, including by requiring joint sponsors to be related to the applicant and by discounting affidavits executed by sponsors that have previously taken public benefits.
These unexplained changes violate the maxim that when an agency changes position, it must at a minimum “provide reasoned explanation for its action,” “display awareness that it is changing position,” and “show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009) (emphasis omitted).
175. Although Defendant State Department provided no reason for these changes, they appear to be based on “factual findings that contradict those which underlay its prior policy” (id. at 515), i.e., a different understanding of how immigrants will react to the imposition of immigration consequences for using public benefits and/or a different assessment of the odds that an immigrant who uses non-cash benefits is likely to use cash benefits as well. Defendant
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State Department was therefore obligated to “provide a more detailed justification than what would suffice for a new policy created on a blank slate.” Id.
176. Similarly, Defendant State Department provided no reason for overriding the “serious reliance interests” engendered by its decades-long understanding of public charge (id.)—a rule which has allowed immigrants, their families, and their sponsors to use non-cash benefits without fear of adverse immigration consequences. Those interests are particularly important given that the FAM changes do not disclaim retroactive application. These interests, too, obligated Defendant State Department to provide a more fulsome explanation.
177. Accordingly, the FAM change is arbitrary and capricious, and must be held unlawful and set aside.
178. The interests Baltimore seeks to protect in this lawsuit are, at the very least, “arguably within the zone of interests” protected by the INA. Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1303 (2017) (quoting Assoc. of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970)). The INA contains a detailed set of provisions that permit the admission of non-citizens into the United States, recognizing the benefit that immigrants can provide if they are allowed to become fully functioning members of American society. 8 U.S.C. §§ 1153, 1184. Moreover, the public charge provisions of the INA recognize that an immigrant’s acceptance of public benefits is only one factor in the balance, and that immigrants can therefore contribute to local communities, in the here and now and over the long term, even if they require assistance. Id. §§ 1182, 1183a. Thus, courts have frequently recognized that governments fall within the INA’s zone of interests. See, e.g., Texas v. United States, 809 F.3d 134, 163 (5th Cir. 2015); Hawaii v. Trump, 878 F.3d 662, 682 (9th Cir. 2017), rev’d and remanded, 138 S. Ct. 2392 (2018).
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Count Two (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)) 179. Plaintiff repeats and incorporates by reference each of the foregoing allegations as if fully set forth herein. 180. As written, the FAM change appears to apply retroactively, directing consular officers to consider the past use of non-cash benefits by visa applicants and their family members, and by U.S. citizens and lawful permanent residents, and their family members, who file Affidavits of Support. 181. However, “a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (cleaned up). “Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant.” Id. at 208-09. No such statutory grant exists for the FAM change. 182. Accordingly, the FAM change, to the extent it applies retroactively, is arbitrary and capricious, and not in accordance with law, and must be held unlawful and set aside.
Count Three (Violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D)) 183. Plaintiff repeats and incorporates by reference each of the foregoing allegations as if fully set forth herein. 184. The Administrative Procedure Act requires that agencies provide the public notice of, and the opportunity to comment on, legislative rules before their promulgation. 5 U.S.C. § 553. 185. As detailed above, the FAM provisions related to public charge were amended without notice and comment—in effect, as an end-run around the DHS rulemaking process.
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186. Accordingly, the FAM change was promulgated “without observance of procedure required by law” (5 U.S.C. § 706(2)(D)), and must be held unlawful and set aside.
Count Four (Violation of the Fifth Amendment – Equal Protection, U.S. Const. amend. V) 187. Plaintiff repeats and incorporates by reference each of the foregoing allegations as if fully set forth herein. 188. The Due Process Clause of the Fifth Amendment prohibits Defendants from denying any person the equal protection of the laws, including on the basis of race, national origin, nationality, income, or receipt of public benefits. 189. The FAM change discriminates on the basis of race, national origin, nationality, income, or receipt of public benefits, and was motivated by animus and a desire to effect such discrimination. Moreover, the FAM change was motivated by discriminatory and baseless stereotypes concerning the receipt of public benefits by immigrants, particularly immigrants from Latin American, African, and Asian countries. Defendants’ statements provide direct evidence of their discriminatory motives in enacting the FAM change. 190. Additionally, the FAM change effectively differentiates between persons on the basis of national origin and nationality, and is accordingly subject to strict scrutiny. 191. The FAM change also differentiates between persons on the basis of income or receipt of public benefits, imposing immigration consequences on immigrants, their families, and their sponsors for taking essential public benefits. Cf. Plyler v. Doe, 457 U.S. 202, 223 (1982). 192. The FAM change fails strict scrutiny because its broad focus on the receipt of “public assistance” by immigrants, their families, and their sponsors, and the diminished role of the affidavit of support, are not narrowly tailored to the goal of preventing immigrants from becoming primarily dependent upon public benefits.
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193. Alternatively, and for the same reasons, the FAM change furthers no substantial state interest when weighed against the harm to immigrants, their families, and their sponsors. Nor is the FAM change rationally related to any legitimate state interest.
194. Through the actions described in this Complaint, Defendants have violated the equal protection guarantee of the Fifth Amendment’s Due Process Clause.
195. Baltimore may assert the equal protection claims of its immigrant residents, their families, and their sponsors. Baltimore is injured by the FAM change, as described above. See supra ¶¶ 133-70.
196. Baltimore also has a close relationship with those who take Baltimore’s public benefits, including its medical, legal, educational, food, and housing services. Because Baltimore is better off when all of its residents can access the public benefits to which they are entitled, regardless of immigration status, Baltimore will serve as an especially effective advocate for their equal protection claims.
197. Finally, Baltimore’s immigrant residents, their families, and their sponsors face impediments to bringing their claims in their own names because they fear the potential immigration consequences of coming forward, suffer from language-related and other barriers, and cannot bear the significant economic and logistical burdens of participating in litigation. Cf. Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 732 (S.D. Ind.), aff’d, 838 F.3d 902 (7th Cir. 2016) (concluding that social services organization could assert equal protection claims of its refugee clients).
REQUEST FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
1. declare the FAM change arbitrary and capricious, procedurally infirm, and unconstitutional;
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2. vacate the FAM change; 3. enjoin Defendants, their officers, their employees, and their agents from adjudicating visas on the basis of the heightened standards implemented through the FAM change, and instead apply the FAM “public charge” provision as it stood in December 2017; 4. award Plaintiff its costs, attorneys’ fees, and other disbursements for this action; and 5. grant any other relief this Court deems appropriate.

Dated: November 28, 2018
Democracy Forward Foundation Javier M. Guzman (D.C. Bar No. 462679)
(pro hac vice motion forthcoming) Legal Director
Karianne Jones (D.C. Bar. No. 187783) (pro hac vice motion forthcoming)
Counsel
John Lewis (D.C. Bar No. 1033826) (pro hac vice motion forthcoming)
Counsel
1333 H St. NW Washington, DC 20005 (202) 448-9090 jguzman@democracyforward.org kjones@democracyforward.org jlewis@democracyforward.org

Respectfully submitted,
Mayor and City Council of Baltimore Andre M. Davis #00362 City Solicitor
/s/ Suzanne Sangree Suzanne Sangree #26130 Senior Counsel for Public Safety & Director of Affirmative Litigation
Elizabeth R. Martinez #29394 Assistant Solicitor, Litigation
City of Baltimore Department of Law City Hall, Room 109 100 N. Holliday Street Baltimore, MD 21202 443-388-2190 Andre.Davis@baltimorecity.gov suzanne.sangree2@baltimorecity.gov Gabriel.Auteri@baltimorecity.gov liz.martinez@baltimorecity.gov
Counsel for Plaintiff

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 Case 1:18-cv-03636-SAG Document 59 Filed 09/20/19 Page 1 of 82

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MAYOR AND CITY COUNCIL OF BALTIMORE,
Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants.

Civil Action No. ELH-18-3636

MEMORANDUM OPINION This Memorandum Opinion concerns a challenge to recent amendments to the State Department’s Foreign Affairs Manual (the “FAM” or “Manual”). The amendments pertain to the determination of “public charge” for purposes of an immigrant visa application. Among other things, the FAM sets forth the criteria that consular officers must consider to determine whether a visa applicant is likely to be a “public charge”—a person dependent on the government for subsistence—if admitted to the United States. See ECF 1, ¶ 92. Under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., enacted in 1952, an applicant deemed “likely . . . to become a public charge” is “inadmissible” for entry into the United States. Id. § 1182(a)(4)(A). The Mayor and City Council of Baltimore (the “City”) filed a 70-page lawsuit against Donald J. Trump, in his official capacity as President of the United States; the United States Department of State (“State Department”); and Michael R. Pompeo, in his official capacity as United States Secretary of State, seeking to enjoin defendants from using the revised Manual to process immigrant visas applications. ECF 1 (“Complaint”). Appended to the City’s Complaint is a redlined copy of the FAM. See ECF 1-1.

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The Complaint contains three counts under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”), and one count asserting an equal protection violation under the Due Process Clause of the Fifth Amendment to the United States Constitution. According to the City, the amendments to the FAM’s public charge provisions impose financial costs on the City and disrupt its social services. The City also contends that the amendments harm the health and well-being of Baltimore’s immigrant communities, which include family members who may be citizens. In turn, it asserts that “Baltimore as a whole will suffer.” ECF 1, ¶ 170.
Defendants (sometimes collectively referred to as the “government”) have moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction, and under Fed. R. Civ. P. 12(b)(6), for failure to state a claim. ECF 17. The motion is supported by a memorandum of law (ECF 17-1) (collectively, the “Motion”) and a copy of the Manual. ECF 17-2. According to the government, the claims are not ripe and the City lacks standing to pursue them. Further, defendants maintain that even if the City can overcome these jurisdictional obstacles, the City has failed to plausibly allege that the FAM violates either the APA or the Due Process Clause. The City opposes the Motion. ECF 25. Defendants have replied. ECF 56.
Numerous amici curiae have filed memoranda in support of the City. ECF 49; ECF 51; ECF 53.1
1 The Public Justice Center; Capital Area Immigrant Rights Coalition; CASA of Maryland, Inc.; Catholic Charities of Baltimore’s Immigration Legal Services; and Episcopal Refugee and Immigrant Center Alliance, jointly filed a memorandum in support of plaintiff, docketed at ECF 49.
American Immigration Council; Americans for Immigrant Justice; Asian Americans Advancing Justice Los Angeles; Black Alliance for Just Immigration; LatinoJustice PRLDEF; MacArthur Justice Center; Muslim Advocates; National Immigrant Justice Center; Refugee and Immigrant Center for Education and Legal Services, Inc.; and Southern Poverty Law Center jointly filed a memorandum in support of plaintiff, docketed at ECF 51.
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No hearing is necessary to resolve the Motion. Local Rule 105.6. For the reasons that
follow, I shall deny the Motion.
I. Background2
A. The Public Charge Statute
The INA contains ten grounds that render a visa applicant inadmissible. 8 U.S.C.
§ 1182(a). This case concerns one of them: the public charge ground. The statute provides: “Any
alien who, in the opinion of the consular officer at the time of application for a visa, or in the
opinion of the Attorney General at the time of application for admission or adjustment of status, is
likely at any time to become a public charge is inadmissible.” Id. § 1182(a)(4)(A). Thus, under
the statute,3 individuals deemed a public charge are “ineligible to receive visas and ineligible to be
admitted to the United States.” Id. § 1182(a).
And, Alameda County, California; Austin, Texas; Boise, Idaho; Los Angeles, California; Marin County, California; Montgomery County, Maryland; Mountain View, California; Oakland, California; Palm Springs, California; Philadelphia, Pennsylvania; Sacramento, California; Santa Cruz County, California; Seattle, Washington; St. Paul, Minnesota; Stockton, California; Tucson, Arizona; and West Hollywood, California jointly filed a memorandum in support of plaintiff. It is docketed at ECF 53.
2 As discussed, infra, at this juncture the facts alleged in the suit are taken as true. See, e.g., Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Further, the Court “may take judicial notice of ‘matters of public record’ and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015).
3 The term “public charge” has a sordid heritage. See ECF 51 at 2-6 (recounting the history of the public charge rule). It first appeared in 1847, when New York, facing a surge of impoverished Irish immigrants, created a commission to prevent the entrance of “any lunatic, idiot, deaf and dumb, blind or infirm persons, not members of emigrating families, and who . . . are likely to become permanently a public charge,” unless the shipmaster would post a bond for the passenger. Torrie Hester et al., Historians’ Comment: DHS Notice of Proposed Rule “Inadmissibility on Public Charge Grounds” FR 2018-21106, at 2 (Oct. 5, 2018) (citation omitted). Other states took similar action. See HIDETAKE HIROTA, EXPELLING THE POOR: ATLANTIC SEABOARD STATES & THE ORIGINS OF AMERICAN IMMIGRATION POLICY 41-70 (2017).
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The INA does not define the term “public charge.” Rather, the INA directs that the
government “shall at a minimum consider the alien’s—(I) age; (II) health; (III) family status; (IV)
assets, resources, and financial status; and (V) education and skills.” Id. § 1182(a)(4)(B)(i). In
making public charge determinations, the government “may also consider any Affidavit of
Support[.]” Id. § 1182(a)(4)(B)(ii).
Visa applicants in the United States are processed by U.S. Citizenship and Immigration
Services (“USCIS”), which is part of the Department of Homeland Security (“DHS”). ECF 1,
¶ 84. Visa applicants abroad are processed by the State Department through consular offices. Id.
¶ 21. Both DHS and the State Department consider whether a visa applicant is likely to become a
“public charge.” Id. ¶ 39.
B. Visa Application Process
The Consular Visa Process is the process by which non-citizens apply for a visa to enter
the United States. Id. ¶ 18. There are two primary types of visas: (1) immigrant visas, for
When the Supreme Court invalidated New York’s law on Commerce Clause grounds in 1875, see Henderson v. Mayor of City of New York, 92 U.S. 259, 274-75 (1875), Congress took up the mantle. HIROTA, EXPELLING THE POOR, supra, at 184-85. In 1882, Congress passed two laws restricting immigration. In May 1882, Congress prohibited the entry of “Chinese laborers.” Chinese Exclusion Act, ch. 126, 22 Stat. 58. (1882). Three months later, it enacted the first general immigration law “with immigrant exclusion and deportation at its core.” HIROTA, EXPELLING THE POOR, supra, at 191. Among other things, the Act prohibited the entry into the United States of “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” An Act to Regulate Immigration, ch. 376, § 2, 22 Stat. 214 (1882). Throughout the early Twentieth Century, the federal government employed the public charge rule to exclude immigrant groups deemed undesirable, such as South Asians, Jews, and Hispanics. See Hester et al., Historians’ Comment, supra, at 3-4; see also ECF 51 at 5.
When Congress enacted the INA in 1952 to modernize the nation’s immigration system, it included the public charge rule as a basis for inadmissibility. See Pub. L. No. 414, ch. 2, § 212(a)(15), 66 Stat. 163, 183 (1952) (codified at 8 U.S.C. § 1182(a)(4)). The public charge provision was last amended in 1996. See Pub. L. 104-208, Div. C, 110 Stat. 3009-674, § 531(a)(4)(B) (1996).
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individuals who seek to become permanent residents of the United States; and (2) nonimmigrant visas, for individuals seeking a temporary stay in the United States. Id. ¶ 19; see also 8 U.S.C. §§ 1181(a); 1182(a)(7).
The “vast majority” of foreign nationals must travel to a U.S. consulate to apply for a visa. ECF 1, ¶ 20. “Consular processing” requires the visa applicant to submit various documents, undergo a medical screening, and be interviewed in person by a consular officer. Id. ¶ 21; see also 8 U.S.C. §§ 1202(a), (e); 22 C.F.R. § 42.62. During the interview, the consular officer reviews the applicant’s criminal, financial, and medical records to decide if the applicant is admissible to the United States. ECF 1, ¶ 28.
The applicant bears the burden to demonstrate “to the satisfaction of the consular officer” that he or she is eligible for the type of visa for which the applicant has applied. 8 U.S.C. § 1361. No visa “shall be issued to an alien” if “it appears to the consular officer” from the application papers “that such alien is ineligible to receive a visa” or if “the consular officer knows or has reason to believe” that the alien is ineligible. Id. § 1201(g); see 22 C.F.R. § 40.6 (explaining that the term “‘reason to believe’ . . . shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa”).4
An individual illegally residing in the United States must satisfy additional requirements to obtain a visa. ECF 1, ¶ 22. Those individuals must leave the country and undergo consular
4 Although a visa normally is necessary for admission, it does not guarantee admission; a visa holder still must be found admissible upon inspection at a port of entry. See 8 U.S.C. §§ 1201(h), 1185(d), 1225(a); see also id. § 1101(a)(4) (specifying that an application for a visa is distinct from an application for admission).
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processing abroad in order to obtain a visa. Id. ¶ 29.5 The individual must remain abroad while the consulate processes his or her application. This can take weeks or months or may last indefinitely if the individual’s visa is denied or put into administrative processing. Id.
Individuals may obtain an immigrant visa through three channels. First, a United States employer may file for an employment-based visa for the immigrant. Id. ¶ 23. Second, an individual may submit a diversity visa application to the diversity visa lottery. Id. Third, a lawful permanent resident or United States citizen may file on behalf of a relative for a family-based visa. Id. ¶¶ 23, 25. Where an applicant files for a family-based visa, the family member sponsor must submit an Affidavit of Support (Form I-864) on the applicant’s behalf. Id. ¶ 25. Consular officials use the Affidavit to determine whether a visa applicant will have sufficient financial support should he or she receive a visa. Id. ¶ 26. The Affidavit also serves as a contract between the visa applicant, the sponsor, and the federal government, in which the sponsor pledges to support the applicant if he or she is not self-sufficient.6 Id. According to the City, “an immigrant who can depend on a reliable source of support from a sponsor is dramatically less likely to need any public benefits.” Id.
C. The Foreign Affairs Manual The State Department’s website describes the FAM as “a single, comprehensive, and authoritative source for the Department’s organization structure, policies, and procedures that govern the operation of the State Department, the Foreign Service, and, when applicable, other
5 In contrast, individuals already in the United States on a valid visa who wish to extend their visa, change their visa status, or apply for permanent residency must petition USCIS. See ECF 1, ¶¶ 20 n.12, 84.
6 If a sponsor has a household income of less than 125% of the federal poverty limit, the sponsor must co-sponsor the applicant with another individual such that their joint income exceeds that threshold. ECF 1, ¶ 27. However, the joint sponsor need not be related to the applicant. Id.
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federal agencies.” Id. ¶ 42 (quoting Foreign Affairs Manual and Handbook, U.S. Dep’t of State, http://fam.state.gov/). Along with the State Department’s handbooks, the Manual “convey[s] codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive, and Department mandates.” Id.; see also Sheikh v. U.S. Dep’t of Homeland Sec., 685 F. Supp. 2d 1076, 1090 (C.D. Cal. 2009) (“FAM contains the functional statements, organizational responsibilities, and authorities of each of the major components of the U.S. Department of State, including Consular Officers.”).
1. The Prior FAM Public Charge Rule Volume Nine of the Manual contains instructions that consular officers are to follow when assessing whether a visa applicant is a public charge. Prior to January 3, 2018, the FAM defined “public charge” as a non-citizen “likely to become primarily dependent on the U.S. Government for subsistence.” ECF 1, ¶ 44; ECF 17-2 (9 FAM § 302.8 (2017)) at 3. This occurred either from “[r]eceipt of public cash assistance for income maintenance” or “[i]nstitutionalization for longterm care at U.S. Government expense.” ECF 1, ¶ 44; ECF 17-2 at 3. “When considering the likelihood of an applicant becoming such a ‘public charge,’ [the consular officer] must take into account, the totality of the alien’s circumstances at the time of visa application.” ECF 17-2 at 3. However, the FAM clarified that the officer “must assess only the ‘totality of the circumstances’ existing at the time of visa application.” Id. at 11. In other words, the officer “may not refuse a visa on the basis of ‘what if’ type considerations.” Id. Notably, the Manual excluded the visa applicant’s past, current, or future receipt of noncash benefits from this holistic review. ECF 1, ¶ 44. It stated, ECF 17-2 at 4 (emphasis added):
There are many forms of U.S. Government assistance that an alien may have accepted in the past, or that you may reasonably believe an alien might receive after admission to the United States, that are of a noncash and/or supplemental nature and would not create an inadmissibility under INA 212(a)(4). Certain programs are
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funded with public funds for the general good, such as public education and child vaccination programs, etc., and are not considered to be benefits for the purposes of INA 212(a)(4). Although the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 prohibit aliens from receiving many kinds of public benefits, it specifically exempts from this prohibition several of the public benefits indicated below. Neither the past nor possible future receipt of such non-cash or supplemental assistance may be considered in determining whether an alien is likely to become a public charge.
The FAM provided a non-exhaustive list of non-cash benefits “that are not to be considered
as public cash assistance or income . . . .” Id. The list included:
1. The Food Stamp Program;
2. The Medicaid Program (other than payments under Medicaid for long-term institutional care);
3. The Child Health Insurance Program (CHIP); 4. Emergency medical services; 5. The Women, Infants and Children (WIC) Program; 6. Other nutrition and food assistance programs; 7. Other health and medical benefits; 8. Child-care benefits; 9. Foster care 10. Transportation vouchers; 11. Job training programs; 12. Energy assistance, such as the low-income home energy assistance program
(LIHEAP); 13. Educational assistance, such as Head Start or aid for elementary, secondary, or
higher education; 14. Job training; 15. In-kind emergency community services, such as soup kitchens and crisis
counseling; 16. State and local programs that serve the same purposes as the Federal in-kind
programs listed above; and
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17. Any other Federal, State, or local programs in which benefits are paid in-kind, by voucher or by any means other than payment of cash benefits to the eligible person for income maintenance.
ECF 1, ¶ 45; ECF 17-2 at 4-5. Further, the Manual limited the relevance of benefits used by the visa applicant’s family
members. It stated: “Past or current receipt of cash benefits for income maintenance by a family member of the visa applicant may be factored into the applicant’s case only when such benefits also constitute(d) the primary means of subsistence of the applicant.” ECF 1, ¶ 102; ECF 17-2 at 10 (alteration in original). The Manual also provided: “Past or current receipt of other types of benefits, . . . must not be considered.” ECF 1, ¶ 102; ECF 17-2 at 101.
In regard to an Affidavit of Support, the FAM instructed that “[a] properly filed, nonfraudulent Form I-864 should normally be considered sufficient to overcome the INA 212(a)(4) requirements.” ECF 1, ¶ 47; ECF 17-2 at 7. “If the sponsor or any member of his or her household has received public means-tested benefits within the past three years,” the FAM required the consular officer to “review fully the sponsor’s current ability to provide the requisite level of support, taking into consideration the kind of assistance provided and the dates received.” ECF 1, ¶ 48; ECF 17-2 at 11-12. Nonetheless, the Manual stated: “There is no provision in the law to indicate that the receipt of means-tested benefits by the sponsor would, in itself, result in a finding of inadmissibility for the applicant . . . .” ECF 1, ¶ 107; ECF 17-2 at 11.
2. The Amended FAM Public Charge Rule Without prior notice, the State Department issued amendments to Volume Nine of the Manual on January 3, 2018. ECF 1, ¶ 92. The State Department posted a memorandum on its website on January 4, 2018, announcing the changes. Id. ¶ 115. In three significant ways, the revisions alter how consular officers conduct public charge determinations.
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First, the FAM previously prohibited consular officers from considering the applicant’s past or potential future use of non-cash public assistance. ECF 1, ¶ 97. But, the Manual now requires consular officers to consider a visa applicant’s receipt of non-cash benefits as part of the public charge determination. Id. ¶ 96. Specifically, the FAM states: “There are many forms of public assistance that an applicant may have accepted in the past, or that you may reasonably believe, an alien might receive after admission to the United States that are of a non-cash and/or supplementary nature and should not be considered to be benefits when examining the applicant under INA 212(a)(4), and may only be considered as part of the totality of the applicant’s circumstances in determining whether an applicant is likely to become a public charge.” Id. ¶ 98; ECF 1-1 at 5 (emphasis added). Furthermore, the State Department dropped the FAM’s directive that “[n]either the past nor possible future receipt of such non-cash or supplemental assistance may be considered in determining whether an alien is likely to become a public charge.” ECF 1, ¶¶ 99100; ECF 1-1 at 5.
Second, under the earlier version of the FAM, consular officers were not permitted to consider the use of non-cash benefits by the applicant’s family members; the receipt of cash assistance was relevant only if the benefits were the applicant’s primary source of income. ECF 1, ¶ 102. However, the FAM now includes the receipt of non-cash benefits by the visa applicant’s family members as a part of the totality-of-the-circumstances test. Id. ¶ 101. The relevant provision now states: “Past or current receipt of public assistance of any type by the visa applicant or a family member in the visa applicant’s household is relevant to determining whether the applicant is likely to become a public charge in the future[.]” ECF 1, ¶ 103; ECF 1-1 at 9 (emphasis added). Further, the FAM instructs consular officers to treat “[a] dependent family member’s receipt of public benefits” as “a heavily negative factor in the totality of the circumstances unless
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the applicant can demonstrate that his or her prospective income and assets with the income and assets of the others in the family will be sufficient for the family to overcome the poverty income guideline for the family.” ECF 1, ¶ 104; ECF 1-1 at 10 (emphasis added).
Third, whereas the FAM once taught that an Affidavit of Support from the applicant’s sponsor was “normally . . . sufficient” to satisfy the public charge inquiry, the revised Manual diminishes the Affidavit’s weight, instructing that it is merely one factor among many that the consular officer should consider. ECF 1, ¶¶ 105-08. Currently, the consular officer may treat the Affidavit as a “positive” factor, whereas it was previously “sufficient” in most cases. Id. ¶ 105; ECF 1-1 at 7.
According to the City, the State Department “now considers the past or current receipt of non-cash, means-tested benefits by sponsors or their family members to be disqualifying.” ECF 1, ¶ 106. For support, plaintiff notes that the new Manual no longer contains the qualifier that “[t]here is no provision in the law to indicate that the receipt of means-tested benefits by the sponsor would, in itself, result in a finding of inadmissibility . . . .” Id. ¶ 108; ECF 1-1 at 24.
The City contends that the memorandum posted by the State Department on January 4, 2018, concerning the revisions to the FAM, did not mention many of the changes made to the FAM. ECF 1, ¶ 119(a). In particular, it “failed to acknowledge that the changes to the FAM’s public charge provisions amounted to a reversal of the decades-old understanding of the public charge ground of inadmissibility, codified in prior versions of the FAM and by INS in the 1999 NPRM and Field Guidance.” Id. ¶ 119(c). Moreover, it did not “disclose that DHS would be proposing for public comment similar changes to the public charge determination . . . .” Id. ¶ 119(e). And it “failed to provide any explanation as to why the State Department was changing
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its policy and approach to the public charge ground of inadmissibility, nor reasons for the new approach.” Id. ¶119(f) (emphasis in original).
The State Department removed the memorandum from its website several weeks after it was posted. Id. ¶ 116. Since then, the State Department has neither reposted the memorandum nor issued any other public statement about the revisions to the FAM’s public charge provisions. But, the amendments to the FAM remain in effect.
3. The Effect of the FAM’s New Public Charge Rule The City alleges that “the FAM change deters immigrants, their family members, and their sponsors from accepting public benefits—benefits for which they are legally eligible and which are designed to promote public health and economic self-sufficiency.” Id. ¶ 121. It points to media stories detailing a steep drop in the receipt of non-cash benefits by immigrants. Id. ¶ 126; see infra Part III.A(2). And, the City notes that healthcare providers throughout Maryland have observed that immigrants are foregoing health benefits like WIC or Medicare for fear of immigration consequences. Id. ¶ 127. According to the City, the changes to the FAM’s public charge provisions will be felt most acutely by non-white immigrants. Id. ¶ 128. For support, plaintiffs turn to an analysis of DHS’s proposed rule pertaining to the definition of public charge, which found that the rule, if implemented, would “have disproportionate effects based on national origin and ethnicity, blocking 71% of applicants from Mexico and Central America, 69% from Africa, and 52% from Asia—but only 36% from Europe, Canada, and Oceania.” Id. (quoting The Public Charge Rule, Explained, Boundless (Sept. 23, 2018), https://www.boundless.com/ blog/public-charge-ruleexplained). Thus, the City posits that the FAM change will disproportionately affect immigrants from developing countries. Id.
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The City and Amici also note in their briefs that visa denials due to public charge inadmissibility have surged since the State Department issued the amended FAM. See ECF 25 at 19-20; ECF 49 at 5; ECF 53 at 3-4. In 2015, the State Department denied 897 visa applications on public charge grounds. U.S. Dep’t of State, Ann. Rep. Table XX (2015), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15 AnnualReport-TableXX.pdf. There were 3,237 such denials in 2017. U.S. Dep’t of State, Ann. Rep. Table XX (2017), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/ FY2017AnnualReport/FY17AnnualReport-TableXX.pdf. In contrast, during the 2018 fiscal year, the number of visa applications denied on public charge grounds exceeded 13,000 visa applications. U.S. Dep’t of State, Ann. Rep. Table XX (2018), https://travel.state.gov/content/ dam/visas/Statistics/AnnualReports/FY2018AnnualReport/FY18AnnualReport%20%20%20TableXIX.pdf.
D. Allegations of Defendants’ Animus The City alleges that President Trump and senior Executive Branch officials harbor “animus towards immigrants, particularly those from Latin American, Asian, and African countries, and those who accept public benefits.” ECF 1, ¶ 74. In support of this allegation, plaintiff points to multiple statements by President Trump that allegedly reflect disdain for immigrants from Africa and Latin America. For example, President Trump reportedly told advisors in June 2017 that immigrants from Haiti “all have AIDS” and that Nigerians, once admitted to the United States, would never “go back to their huts.” Id. ¶ 70; see Eugene Scott, Trump’s History of Making Offensive Comments About Nonwhite Immigrants, Wash. Post (Jan. 11, 2018), https://www.washingtonpost.com/news/ the-fix/wp/2018/01/11/trumps-history-of-controversial-remarks-about-nonwhite-immigrants/.
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And, during a cabinet meeting on January 11, 2018, in reference to immigrants from Haiti and Africa, President Trump allegedly remarked, “Why do we want all these people from ‘shithole countries’ coming here?” ECF 1, ¶ 69; see also Scott supra.
Moreover, the Complaint contains four pages of other public statements made by President Trump, complaining that immigrants are a drain on the public fisk. ECF 1, ¶ 71. Those statements include:
1. “According to the National Academy of Sciences, our current immigration system costs America’s taxpayers many billions of dollars a year.” Id. ¶ 71(m).
2. “We also believe that those seeking to immigrate into our country should be able to support themselves financially and should not be able to use welfare for themselves or the household for a period of at least five years.” Id. ¶ 71(n).
3. “Current immigration policy imposes as much as $300 billion annually in net fiscal costs on U.S. taxpayers.” Id. ¶ 71(p).
4. “According to the Center for Immigration Studies, the $18 billion wall will pay for itself by curbing the importation of crime, drugs, and illegal immigrants who tend to go on the federal dole.” Id. ¶ 71(q).
5. “[T]hey’re not sending their finest. We’re sending them the hell back.” Id. ¶ 71(r). 6. “So-called Birthright Citizenship, which costs our Country billions of dollars and
is very unfair to our citizens, will be ended one way or the other.” Id. ¶ 71(t). 7. “We’re the only country in the world where a person comes in and has a baby, and
the baby is essentially a citizen of the United States . . . with all of those benefits.” Id. ¶ 71(u). In support of the City’s claims that the Trump Administration harbors animus towards immigrants, the City also cites to statements made by Stephen Miller, a senior advisor to President Trump on immigration policy, and comments made by former Attorney General Jeff Sessions when he was a U.S. Senator. Id. ¶¶ 72-73. Significantly, the City alleges that the President’s conduct led to the State Department’s decision to amend the FAM’s public charge instructions. Id. ¶ 76. The City asserts that, shortly
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after President Trump’s inauguration in January 2017, the media obtained a draft order titled “Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility.” Id. ¶ 77; see Andrew Bremberg, Memorandum for the President, Subject: Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility (Jan. 23, 2017). According to the City, the draft order directed DHS to “rescind any field guidance” and “propose for notice and comment a rule that provides standards for determining which aliens are inadmissible or deportable on public charge grounds.” ECF 1, ¶ 77. In addition, the City alleges that the draft order instructed the State Department “to amend the Foreign Affairs Manual to ensure that its public-charge provisions are consistent with the goals of this Order.” Id.
Notably, the draft order was never finalized. Id. Nevertheless, plaintiff contends that both the State Department and DHS took measures in accordance with the draft order. On October 10, 2018, DHS published a notice of proposed rulemaking in the Federal Register titled “Inadmissibility on Public Charge Grounds.” Id. ¶ 83; see 83 Fed. Reg. 51, 114 (Oct. 10, 2018) (“DHS Proposed Rule”). The proposed rule purported to expand the definition of public charge to include the receipt of non-cash public benefits. ECF 1, ¶ 86. DHS published a final version of the regulation on August 14, 2019. See Inadmissibility of Public Charge Grounds, 84 Fed. Reg. 41,292, 41,501 (Aug. 14, 2019) (to be codified as 8 C.F.R. § 212.21(a)).7 And, as noted, the State Department amended the FAM’s public charge provisions on January 3, 2018. ECF 1, ¶ 92.
7 There are seven pending lawsuits lodged against DHS’s public charge rule. See CASA de Maryland Inc. v. Trump, PWG-19-02715 (D. Md.); Make the Road N.Y. v. Cuccinelli, No. 1:19cv-07993 (S.D.N.Y.); New York v. U.S. Dep’t of Homeland Sec., No. 1:19-cv-07777 (S.D.N.Y.); California v. U.S. Dep’t of Homeland Sec., No. 3:19-cv-04975 (N.D. Cal. 8/16/19); La Clinica De La Raza v. Trump, No. 3:19-cv-04980 (N.D. Cal.); Washington v. U.S. Dep’t of Homeland Sec., No. 4:19-cv-05210 (E.D. Wash.); City and Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., No. 3:19-cv-4717 (N.D. Cal.).
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This litigation followed. Additional facts are included below, as necessary for the analysis. II. Standard of Review
Defendants have moved to dismiss the City’s Complaint under Rule 12(b)(1) for lack of subject matter jurisdiction, and pursuant to Rule 12(b)(6) for failure to state a claim.
A. Rule 12(b)(1) A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the jurisdictional allegations of the complaint [are] not true.’” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). The plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Preservation Ass’n v. Cty. Comm’rs of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. On the other hand, in a factual challenge, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Id. In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Evans, 166 F.3d at 647.
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B. Rule 12(b)(6) A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions’ . . . .” (citation omitted)); see also Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 849 F.3d 93, 112 (4th Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 10, 135 S. Ct. 346, 346 (2014) (per curiam). But, mere “‘naked assertions’ of wrongdoing” are generally insufficient to state a claim
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for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted). In other words, the rule demands more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. “[A]n unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of relief. Iqbal, 556 U.S. at 678. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).
In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th Cir. 2010). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).
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Courts ordinarily do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses’” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.’” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman).
“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to considering the sufficiency of allegations set forth in the complaint and the ‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448). Therefore, the court ordinarily “may not consider any documents that are outside of the complaint, or not expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 08 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, Ariz., 576 U.S. ____, 135 S. Ct. 2218 (2015), as recognized in Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015); see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007). However, under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may consider documents beyond the complaint without converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015).
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In particular, a court may properly consider documents that are “explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits.” Goines, 822 F.3d at 166 (citation omitted); see also Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th Cir. 2018); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004); Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999). But, “before treating the contents of an attached or incorporated document as true, the district court should consider the nature of the document and why the plaintiff attached it.” Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 455 (7th Cir. 1998)).
Of import here, “[w]hen the plaintiff attaches or incorporates a document upon which his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the contents of the document, crediting the document over conflicting allegations in the complaint is proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff attaches or incorporates a document for purposes other than the truthfulness of the document, it is inappropriate to treat the contents of that document as true.” Id.
A court may also “consider a document submitted by the movant that [is] not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 558 (2017); Oberg, 745 F.3d at 136; Kensington Volunteer Fire Dep’t. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To be “integral,” a document must be one “that by its ‘very existence, and not the mere information it contains, gives rise to the legal rights
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asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original). See also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).
In addition, “a court may properly take judicial notice of ‘matters of public record’ and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’” Goldfarb, 791 F.3d at 508; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011), cert. denied, 565 U.S. 825 (2011); Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). However, under Fed. R. Evid. 201, a court may take judicial notice of adjudicative facts only if they are “not subject to reasonable dispute,” in that they are “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” And, “these facts [must be] construed in the light most favorable” to the nonmovant. Clatterbuck, 708 F.3d at 557.
As noted, the City has attached as an exhibit to its Complaint the redline version of the FAM’s public charge provisions, subsequent to January 3, 2018. ECF 1-1; see ECF 1, ¶ 95. With their Motion, the government submitted a version of the Manual, dated August 4, 2017. ECF 172. As the City’s APA and constitutional claims are predicated on the Manual, it is integral to the Complaint and may be considered. In addition, the government references the Attorney General’s Manual on the APA in its Motion (ECF 17-1 at 42), and plaintiff relies on data concerning visa application denials in its opposition. ECF 25 at 19-20. Because these materials are publicly available, and neither party disputes their authenticity, I may take judicial notice of them.
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Accordingly, I may consider the exhibits and referenced public materials, without converting defendants’ Motion to one for summary judgment.
III. Justiciability The government argues that this Court is without subject matter jurisdiction to consider this case. According to defendants, plaintiff lacks Article III standing to pursue this suit and the case is not ripe. ECF 17-1 at 21-32. Defendants advance several arguments in regard to standing. First, they assert that plaintiff’s harm does not qualify as an injury-in-fact, as “it relies on speculation about what might happen to the City depending on how Baltimore residents react to the guidance.” Id. at 25. Second, they maintain that the City’s alleged harms are not “fairly traceable” to the FAM or redressable by judicial order, because they are caused by the “‘unfettered choices’” of “‘independent actors not before the courts.’” Id. at 26 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1993) (plurality opinion)). In addition, the government contends that the City lacks standing to assert the constitutional rights of its residents. Id. at 29-30. And, defendants argue that even if the City has Article III standing to sue the State Department and Pompeo, the City lacks standing to sue the President, because it does not plausibly allege that its injuries are fairly traceable to him. Id. at 3031. Not surprisingly, the City disagrees. ECF 25 at 22-37. As noted, under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Lujan, 504 U.S. at 561; Demetres, 776 F.3d at, 272; Durden, 736 F.3d at 300. Notably, the analysis of standing will vary with the stage of litigation. Overbey v. Mayor and City Council of Balt., 930 F.3d 215, 227 (4th Cir. 2019). In the context of a facial challenge under Rule 12(b)(1), the question is whether
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plaintiff’s allegations, taken as true, “are enough to give the [plaintiff] constitutional standing.” Id.
When, as here, “‘standing is challenged on the pleadings, [the court will] accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party.’” Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018) (quoting So. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 181-82 (4th Cir. 2013)); see Kerns, 585 F.3d at 192. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, [because] on a motion to dismiss [the court] presum[es] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (citation and quotation marks omitted); accord Hutton v. Nat’l Bd. of Exam’rs in Optometry, Inc., 892 F.3d 613, 620 (4th Cir. 2018); Moore v. Blibaum & Assocs., P.A., 693 F. App’x 205 (4th Cir. 2017); NAACP v. Bureau of the Census, PWG-18-891, 2019 WL 355743, at *17 (D. Md. Jan 19, 2019).
Therefore, in analyzing the standing issue, I shall accept as true the allegations in the Complaint, so long as “there is sufficient ‘factual matter’ to render them ‘plausible on [their] face.’” Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (quoting Iqbal, 556 U.S. at 678), cert. denied sub nom. Beck v. Shulkin, __ U.S. __, 137 S. Ct. 2307 (2017); see also Twombly, 550 U.S. at 555-56.
A. Standing 1. Background It is a bedrock principle that Article III of the Federal Constitution confines the federal courts to adjudicating “actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (citations omitted); see Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408
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(2013). “Indeed, ‘no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’” Dreher v. Experian Info. Solutions, Inc., 856 F.3d 337, 343 (4th Cir. 2017) (quoting Spokeo, Inc. v. Robins, 578 U.S. __, __, 136 S. Ct. 1540, 1547 (2016)).
Therefore, during the pendency of a case, an actual controversy must exist. See Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974); Int’l Bhd. of Teamsters, Local Union No. 639 v. Airgas, Inc., 885 F.3d 230, 234 (4th Cir. 2019); Williams v. Ozmint, 716 F.3d 801, 808 (4th Cir. 2013). Conversely, in the absence of a case or controversy, “the court’s subject matter jurisdiction ceases to exist . . . .” S.C. Coastal Conservation League v. U.S. Army Corps. of Eng’rs, 789 F.3d 475, 482 (4th Cir. 2015); see Gardner v. GMAC, Inc., 796 F.3d 390, 395 (4th Cir. 2015) (same).
“One element of the case-or-controversy requirement” is that a plaintiff must establish standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997); see Spokeo, Inc., 136 S. Ct. at 1547 (“Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.”); South Carolina v. United States, 912 F.3d 720, 726 (4th Cir. 2019) (“The standing doctrine derives from the Constitution’s limitation on Article III courts’ power to adjudicate ‘cases and controversies.’) (internal quotation marks and citations omitted). The Clapper Court explained, 568 U.S. at 408: “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.”8
8 Under the political question doctrine, which is not asserted here, courts may not “review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). It is a “narrow exception” to judicial review. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012); see Kravitz v. U.S. Dep’t of Commerce, 336 F. Supp. 3d 545, 561 (D. Md. 2018).
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The “constraint of Article III” includes principles of standing as well as ripeness, which “presents a ‘threshold question [] of justiciability.’” Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 269 (4th Cir. 2013) (citation omitted); South Carolina, 912 F.3d at 730. Like standing, ripeness is an issue of subject matter jurisdiction. Sansotta v. Town of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013); see NAACP, WL 355743, at *8 (describing standing and ripeness as “overlapping facets” of subject matter jurisdiction).
The doctrine of standing consists of two distinct “strands”: constitutional standing, pursuant to Article III, and prudential standing. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). As discussed, infra, “the standing inquiry asks whether a plaintiff ha[s] the requisite stake in the outcome of a case . . . .” Deal, 911 F.3d at 187 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)). Under Article III, “a party invoking the jurisdiction of a federal court [must] seek relief for a particularized injury,” which is a requirement that “serves vital interests going to the role of the judiciary in our system of separated powers.” Hollingsworth v. Perry, 570 U.S. 693, 696 (2013).
In addition to satisfying constitutional standing requirements, a plaintiff must also demonstrate that his claims are not barred by prudential limitations on a federal court’s exercise of jurisdiction. United States v. Windsor, 570 U.S. 744, 756-57 (2013); see also, e.g., Elk Grove Unified Sch. Dist., 542 U.S. at 11; Doe v. Sebelius, 676 F. Supp. 2d 423, 428 (D. Md. 2009). Prudential standing “‘embodies judicially self-imposed limits on the exercise of federal jurisdiction.’” Elk Grove Unified Sch. Dist., 542 U.S. at 11 (citation omitted).
One such limitation is that “a plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). This limitation serves to “preclude a court from deciding
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‘questions of broad social import in cases in which no individual rights will be vindicated’” and to ensure that “‘access to the federal courts [is] limited to those litigants best suited to assert the claims.’” Buchanan v. Consolidated Stores Corp., 125 F. Supp. 2d 730, 738 (D. Md. 2001) (quoting Mackey v. Nationwide Ins. Co., 724 F.2d 419, 422 (4th Cir. 1984)).
To establish Article III standing, a plaintiff must satisfy three elements. Lujan, 504 U.S. at 560. They are, id. (internal quotation marks and citations omitted):
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 168 (2014); Clapper, 568 U.S. at 409; Friends of the Earth, Inc., 528 U.S. at 180-81; Overbey, 930 F.3d at 226-27; Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018); Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 207 (4th Cir. 2017); Cahaly v. Larosa, 796 F.3d 399, 406 (4th Cir. 2015); Lane v. Holder, 703 F.3d 668, 671 (4th Cir. 2011); Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011). To meet the injury-in-fact requirement, a plaintiff must allege that it “suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural and hypothetical.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560); see South Carolina, 912 F.3d at 726. A threatened injury can also satisfy Article III standing, although “not all threatened injuries constitute an injury-in-fact.” Beck, 848 F.3d at 271; South Carolina, 912 F.3d at 726. The Fourth Circuit recently explained in Deal, 911 F.3d at 189, that the two concepts— actual, ongoing injury or imminent injury—are “disjunctive.” An “allegation of future injury may
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suffice if the threatened injury is ‘certainly impending,’ or there is a ‘“substantial risk” that the harm will occur.’” Susan B. Anthony, 573 U.S. at 158 (quoting Clapper, 568 U.S. at 414 n.5); see Lujan, 504 U.S. at 564; South Carolina, 912 F. 3d at 726. In contrast, “‘[a]llegations of possible future injury’ are not sufficient.” Clapper, 568 U.S. at 409 (emphasis in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). This requirement serves “to ensure that the alleged injury is not too speculative for Article III purposes.” Wikimedia Found., 857 F.3d at 208.
In some cases, it is enough that there is a “substantial risk” of a harm occurring that “prompt[s] plaintiffs to reasonably incur costs to mitigate or avoid that harm.” Clapper, 568 U.S. at 414 n.5. But, in such a case, the plaintiff cannot rely on an “attenuated chain of inferences” nor “on speculation about ‘the unfettered choices made by independent actors not before the court.’” Id. (quoting Lujan, 504 U.S. at 562). Nor can plaintiffs “manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U.S. at 416. “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.” Id.; see, e.g., Wikimedia, 857 F.3d at 216 (“Nor can Plaintiffs establish standing on the ground that . . . surveillance compels them to take burdensome and costly measures.”).
“For an injury to be traceable, ‘there must be a causal connection between the injury and the conduct complained of’ by the plaintiff.” Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 760 (4th Cir. 2018) (quoting Lujan, 504 U.S. at 560). However, “the defendant’s conduct need not be the last link in the causal chain[.]’” Id.; see also Lexmark Int’l, Inc., 572 U.S. at 134 n.6 (“Proximate causation is not a requirement of Article III standing[.]”). “[W]here the plaintiff suffers an injury that is ‘produced by [the] determinative or coercive effect’ of the defendant’s
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conduct ‘upon the action of someone else,’” the traceability requirement is satisfied. Lansdowne
on the Potomac Homeowners Ass’n, Inc. v. OpenBand and Lansdowne, LLC, 713 F.3d 187, 197
(4th Cir. 2013) (quoting Bennett v. Spear, 520 U.S. 154, 169 (1997)).
2. Alleged Harms
The City asserts that it has alleged “quintessential injuries-in-fact.” ECF 25 at 28. In sum,
it asserts that allegations of diversion of its resources, increased financial costs to the City, and
withdrawal of immigrants and their families from City programs, all due to the revised FAM,
“satisfy its pleading burden.[]” Id.
The City alleges that the change to the FAM sows confusion among immigrants and their
families as to the consequences of accepting public benefits from the City and other levels of
government, and chills them from pursuing such benefits. As a result, plaintiff avers that
immigrants are taking advantage of fewer public benefits to avoid adverse effects on immigration
determinations. The City rests this allegation on a mountain of news stories,9 think tank reports,10
9 See, e.g., Helena Bottemiller Evich, Immigrant Families Appear to Be Dropping Out of Food Stamps, Politico (Nov. 14, 2018), https://www.politico.com/story/2018/11/14/immigrantfamilies-dropping-out-food-stamps-966256; Christina Jewett et al., Under a Trump Proposal, Lawful Immigrants Might Shun Medical Care, Nat’l Pub. Radio (May 10, 2018) https://www.npr.org/sections/health-shots/2018/05/10/609758169/under-a-trump-proposallawful-immigrants-might-shun-medical-care; Kathleen Page, Cutting Off Immigrants from Public Benefits Means American Children Will Pay the Price, Baltimore Sun (Sept. 25, 2018), http://www.baltimoresun.com/news/opinion/oped/bs-ed-op-0926-public-charge-20180924story.html.
10 See, e.g., Samantha Artiga et al., Potential Effects of Public Charge Changes on Health Coverage for Citizen Children, Kaiser Family Found. 5 (May 2018), http://files.kff.org/ attachment/Issue-Brief-Potential-Effects-of-Public-Charge-Changes-on-Health-Coverage-forCitizen-Children; Jeanne Batalova et al., Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefits Use, Migration Pol’y Inst. 14 (June 2018), https://www.migrationpolicy.org/research/chilling-effects-expected-public-charge-ruleimpact-legal-immigrant-families; Sharon Parrott et al., Trump “Public Charge” Rule Would Prove Particularly Harsh for Pregnant Women and Children, Ctr. on Budget & Pol’y Priorities 2 (May 1, 2018), https://www.cbpp.org/sites/ default/files/atoms/files/5-1-18pov2.pdf.
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and academic articles.11 See ECF 1. In addition, the City describes the recent effects of the policy change on the City’s programs. See, e.g., ECF 1, ¶¶ 143, 144. And, the City alleges that the government has acknowledged that these changes are likely. It avers: “Research shows that when eligibility rules change for public benefits programs there is evidence of a ‘chilling effect’ that discourages immigrants from using public benefits programs for which they are still eligible.” Id. ¶ 122 (quoting Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114, 51,266 (Oct. 10, 2018)); see also ECF 1, ¶ 122 (“There may also be additional reductions in transfer payments from states to individuals who may choose to disenroll from or forego enrollment in a public benefits program.” (quoting 83 Fed. Reg. at 51,268)).
The City claims that by inducing immigrants to use fewer public benefits, the changes to the FAM harm the City in three distinct ways. These contentions are discussed below.
a. Impeding the City’s Delivery of Social Services to Immigrants First, the amendments to the FAM allegedly impede the City’s attempts to provide benefits and social services to immigrants residing in the City. ECF 1, ¶¶ 137-55. Baltimore provides significant health services, operating specialty clinics in two facilities, and funding of a visitingnurse program, as well as programs targeted at asthma, tuberculosis, childhood lead poisoning, and substance abuse. Id. ¶¶ 141-42. The City also provides housing benefits and services through three separate entities. Id. ¶ 144. For example, the Baltimore City Department of Housing and Community Development
11 See, e.g., Mitchell H. Katz & Dave A. Chokshi, The “Public Charge” Proposal and Public Health: Implications for Patients and Clinicians, J. Am. Med. Ass’n Viewpoint 3 (Oct. 1, 2018), https://jamanetwork.com/journals/jama/fullarticle/2705813; Krista M. Perreira et al., A New Threat to Immigrants’ Health – The Public-Charge Rule, 901 New Eng. J. Med. 903, 903 (Sept. 12, 2018).
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operates the Leading Innovation for a Green and Healthy Tomorrow (“LIGHT”) Program, which assesses residents and their homes to determine eligibility for over 200 federal, state, and local programs. According to the City, “LIGHT employees have seen clients come in to start the application process and voice concern over the potential immigration consequences of doing so.” Id. The City also administers and funds housing programs used by immigrants. Id. These programs provide weatherization assistance, energy conservation services, and lead hazard reduction, as well as financial assistance with down payments and closure costs. Id. ¶ 145. Further, the City provides services targeted at the homeless and those at risk for homelessness, including immigrants. Id. ¶ 146. And, the City manages over 9,000 public housing units in fifteen developments and administers rental assistance programs. Id. ¶ 147.
The City also provides low-income assistance programs targeted at poverty reduction. Id. ¶ 148. This includes a Summer Food Service Program, which it makes available to all minors regardless of their immigration status. Id. ¶ 150. The City maintains that many of these services resemble other services that immigrants are avoiding because of the change to the FAM. Id.; see id. ¶¶ 126-27. As a result, the City concludes that immigrants are likely avoiding the City’s programs as well. Id. ¶ 150.
Using federal funds, Baltimore operates Head Start programs. These programs are available to immigrants, but enrollment “has decreased, even sharply decreased among immigrants.” Id. ¶ 151. The Complaint asserts that Baltimore’s African immigrant population has “virtually ceased” enrollment in the months leading up of to the filing of the Complaint in November 2018. Id.
Baltimore also subsidizes a litany of other programs that provide services to immigrants. And, the City’s SAFE Cities Network subsidizes legal assistance for immigrants facing
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deportations. Id. ¶ 152. Although the City presumes that these services are not within the scope of the FAM change, it maintains that some immigrants may fear that using these services could jeopardize their immigration status and therefore decline to use them. Id. ¶ 154.
But, the City asserts that, “‘[e]ven before the publication of th[e] [DHS] rule, there have been reports of immigrants avoiding health care for concern of being considered a public charge.’” ECF 1, ¶ 143 (quoting Katz & Chokshi, supra n.9). Accordingly, plaintiff posits that the change to the FAM has driven some immigrants not to use health clinics and public services. ECF 1, ¶ 143.
b. Forcing the City to Divert Resources The City contends that it must incur significant financial expense to adapt its programs to the policy changes. Id. ¶¶ 156-61. The City alleges that it will need to divert resources to analyze the policy change and its effects on the City’s programs. Id. ¶ 157; see also id. (“Indirect costs . . . include familiarization with the rule for those entities that are not directly regulated but still want to understand the changes in federal and state transfer payments due to this rule familiarization costs, those familiarization costs are a direct cost of the rule.” (quoting 83 Fed. Reg. at 51,260)). It will then devote additional costs training City employees, as well as the City’s contractors and partners. ECF 1, ¶ 158. According to the City, the government has acknowledged these costs. Id. (“[local governments] may need to update and rewrite guidance” and “prepare training materials and retrain staff,” which “will require staff time and have associated costs” (quoting 83 Fed. Reg. at 51,270)). The City will also allocate additional time and resources to encouraging immigrants to accept public benefits that are not within the scope of the FAM change. ECF 1, ¶ 159. And, it will
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spend still more funds advising immigrants about the potential adverse effects of accepting public resources and the uncertainties that remain due to changes to the FAM. Id. ¶ 161.
c. Imposing Financial Costs on the City The amendments to the FAM shift costs from the federal budget to the City’s budget. Id. ¶¶ 162-70. The City alleges that immigrants may believe that local programs are exempt from immigration consequences, driving increased demand to City programs and draining the City’s coffers. Id. ¶ 163. For example, the withdrawal of immigrants from state and federal publicly subsidized health insurance programs, such as Medicaid, could result in a shift to Baltimore’s public clinics for the provision of care to immigrants. Id. ¶¶ 134-35, 164-65. Likewise, an immigrant may refuse to take federal nutrition programs, like the Supplemental Nutrition Assistance Program and the Special Supplemental Nutrition Program for Women, Infants, and Children, instead turning to Baltimore’s Summer Food Service Program or its public schooladministered pantries. Id. ¶ 166. Similarly, an immigrant unwilling to use Section 8 housing vouchers may instead rely on the City’s homeless services programs. Id. Indeed, the City alleges that the government acknowledged the following possible consequences: falling productivity, vaccination rates, and educational achievement, rising poverty, malnutrition, and communicable diseases. ECF 1, ¶ 168 (citing 83 Fed. Reg. at 51,270). Thus, the City asserts that the amendments to FAM will make the City’s immigrants “poorer and less healthy[.]” ECF 1, ¶ 167.
3. Analysis As noted, defendants contend that plaintiff has not suffered an injury-in-fact as a result of the amendments to the FAM. Further, they argue that the City’s alleged injuries are not fairly traceable to the FAM.
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The government places significant weight on the case of Frank Krasner Enterprises, Ltd. v. Montgomery Cty., 401 F.3d 230, 235 (4th Cir. 2005). However, the Frank Krasner Court did not establish that courts could never find standing when the “asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else,” only that doing so will be “‘substantially more difficult.’” Id. at 235 (quoting Lujan, 504 U.S. at 562). (internal citation omitted). The Fourth Circuit explained: “This is so because, ‘[t]he existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict.’” Frank Krasner Enters., 401 F.3d at 235(emphasis omitted) (quoting Lujan, 504 U.S. at 562).
In the recent case of Department of Commerce v. New York, __ U.S. __, 139 S. Ct. 2551 (2019), the Supreme Court confronted the standing arguments the government raises here. That case involved the Department of Commerce’s plan to ask about citizenship on the 2020 United States Census. Several states, counties, cities, and other entities challenged the change as arbitrary and capricious under the Administrative Procedure Act. Id. at 2564. The respondent challengers maintained that the question would result in residents declining to complete the Census, and that this underreporting would, in turn, lead to a host of injuries, including a loss of federal funds for states with a disproportionate share of noncitizen households. Id. at 2565.
The Department of Commerce contested respondents’ Article III standing on the ground that the alleged harms were not traceable to the Department’s actions but to the independent actions of third parties. Id. at 2565-66. Indeed, the Department contended that the chain of causation was further attenuated by the fact that the intervening, third party-actions were unlawful and driven by “unfounded fears.” Id. The Supreme Court rejected the Department’s argument, concluding that
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respondents “met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential.” Id. at 2566 (emphasis added). As a result, the respondents’ theory of standing “d[id] not rest on mere speculation about the decisions of third parties” but “instead on the predictable effect of Government action on the decisions of third parties.” Id.
The Court’s decision applies here on all fours. The City alleges that immigrants and their families will react in “predictable ways” to the changes in the FAM. They support this allegation with significant evidence that is consistent with the government’s own statements. Furthermore, the causal connection is even tighter here. According to the City, the amendments to FAM were intentionally designed to discourage immigrants from using public benefit programs. This expected behavior is neither speculative nor unlawful. Rather, it is the desired result. The City’s “theory of standing thus does not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of Government action on the decisions of third parties.” Dep’t of Commerce, 139 S. Ct. at 2566.
The government’s other challenges to standing are also without merit. It maintains that costs incurred by the City for education and outreach are not a cognizable injury because the harm is “the result of the City’s own decisions[.]” ECF 17-1 at 28. But, the City claims that it is compelled to reallocate its finite resources in response to the FAM for the purpose of combatting the injurious effects that the FAM will have on its residents, and the public programs it administers. ECF 1, ¶¶ 156-59, 161, 165-66. This qualifies as an Article III injury because it “threaten[s] [the City’s] ability to bear the costs of local government and to provide services.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 110-11 (1979); see also Air Evac EMS, 910 F.3d 760
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(“‘[F]inancial harm is a classic and paradigmatic form of injury in fact[.]’”) (citation omitted); Texas v. United States, 809 F.3d 134, 150-62 (5th Cir. 2015) (standing to challenge based on cost of issuing driver’s licenses to immigrants made eligible by executive action).
In a footnote, defendants assert that the City lacks standing to assert the constitutional rights of its residents. ECF 17-1 at 29. To be sure, the general prohibition against asserting the rights of another is a prudential limitation on standing. See Warth, 422 U.S. at 498. “To overcome the prudential limitation on third-party standing, a plaintiff must demonstrate: (1) an injury-in-fact; (2) a close relationship between herself and the person whose right she seeks to assert; and (3) a hindrance to the third party's ability to protect his or her own interests.” Freilich v. Upper Chesapeake, Health, Inc., 313 F.3d 205, 215 (4th Cir. 2002) (citing Powers v. Ohio, 499 U.S. 400, 410-11 (1991)); see also Singleton v. Wulff, 428 U.S. 106, 114-15 (1976). Regarding the third prong, the obstacles need not be “insurmountable.” Singleton, 428 U.S. at 117. Rather, it is enough if they engender “some hindrance to the third party’s ability to protect his or her own interests.” Powers, 499 U.S. at 411.
At this juncture, the City alleges sufficient facts to clear this prudential hurdle. See ECF 1, ¶¶195-97. First, as discussed, supra, plaintiff satisfies the injury-in-fact requirement of Article III standing. Second, the City provides a range of social services to immigrants and others residing within the City, from health clinics to housing to supplemental food programs to educational opportunities. The City seeks to assert the constitutional rights of immigrants living within the jurisdiction in order to seek relief from the FAM changes, which it alleges will disrupt the delivery of its services, force it to divert precious resources to understanding and explaining the FAM to its residents, and overwhelm its stop-gap services.
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And, the City’s immigrants face significant obstacles in bringing this suit on their own, as they may hold a credible fear that suing the federal government would torpedo the visa application of a family member whom they are sponsoring or seek to sponsor. See Singleton, 428 U.S. at 117 (holding that physicians have third-party standing to assert the rights of abortion patients because those women “may be chilled from . . . assert[ing] [their rights] by a desire to protect the very privacy of [their] decision from the publicity of a court suit”); Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 732-33 (S.D. Ind. 2016) (finding organization had third-party standing to assert constitutional rights of Syrian refugees due to an understandable desire to “laylow and not draw the attention to themselves that this suit would necessarily bring”), aff’d, 838 F.3d 902 (7th Cir. 2016).
In short, the City satisfies the requirements of Article III standing to challenge the amendments to the FAM.
B. Standing to Sue the President Defendants aver that the City does not have standing to sue President Trump in his official capacity. ECF 17-1 at 30-31. They assert that because the FAM “was issued by and is used by the Department of State, not by the President,” any injury that the City suffers “‘is not fairly traceable’ to the President.” Id. at 31. The City responds that it has standing to sue the President under the Due Process Clause, because the Complaint plausibly alleges that the President’s animus was a motivating factor that led to the amendments to the FAM. ECF 25 at 36-37. . The City must establish Article III standing for each claim against each defendant. See, e.g., Bostic v. Schaefer, 760 F.3d 352, 371 (4th Cir. 2014). As defendants correctly point out (ECF 17-1 at 49), the President is not amenable to suit under the APA as he is not an “agency.” See
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Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (plurality opinion). Thus, the inquiry focuses on whether the City has standing to bring its equal protection claim against the President.
The City alleges that the President harbors animus towards immigrants of color. See ECF 1 at 25-31, 72. In this regard, the Complaint alleges that President Trump made repeated statements that, accepted as true, exhibit hostility towards immigrants from Africa, Asia, and Latin America. Those statements include his remark that immigrants from Haiti “all have AIDS”; his suggestion that Nigerian immigrants, if admitted to the United States, would never “go back to their huts”; and his comment that immigrants from Africa and Latin America are “people from shithole countries[.]” Id. ¶¶ 69-70.
In addition, the Complaint plausibly alleges, at least by inference, that President Trump deliberately manipulated the State Department to revise the FAM. According to the Complaint, in the weeks following the President’s inauguration, high-ranking executive branch officials drafted an executive order directing the State Department “to amend the Foreign Affairs Manual to ensure that its public-charge provisions are consistent with the goals of this Order.” Id. ¶ 77 (quoting Andrew Bremberg, Memorandum for the President, Subject: Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility (Jan. 23, 2017)). Although the draft order was never finalized, plaintiff contends that the State Department got the message because, approximately a year after the draft order, it broadened the FAM’s definition of public charge. ECF 1, ¶ 92. Thus, the City has plausibly alleged that President Trump’s racial animus inspired the FAM revision. Consequently, the injuries that the City alleges are fairly traceable to the President.
I am not persuaded by defendants’ argument that plaintiff lacks standing to sue the President because the State Department, not the President, revised the FAM. “Our Constitution
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vests ‘executive Power’ in the President, not in the Secretary of [State], who reports to the President and is removable by him at will.” Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (quoting U.S. Const., art. II, § 1, cl. 1). In other words, the buck stops with the President. Consequently, if President Trump harbors animus towards immigrants of color, and if he encouraged the State Department to revise the FAM, then the amendments violate equal protection, even if officials within the State Department did not personally harbor racial animus.
Indeed, other courts have found that plaintiffs had plausibly stated an equal protection claim against an executive agency’s immigration action based on the same statements by President Trump that are alleged here. See NAACP v. U.S. Dep’t of Homeland Sec., 364 F. Supp. 3d 568, 578 (D. Md. 2019) (concluding that President Trump’s statements were sufficient to plausibly alleged that DHS’s decision to rescind immigrants’ temporary protected status violated equal protection); Saget v. Trump, 345 F. Supp. 3d 287, 303 (E.D.N.Y. 2018) (same); Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1123-24 (N.D. Cal. 2018) (same); Batalla, 291 F. Supp. 3d at 279 (holding that plaintiff had plausibly alleged that DHS’s decision to rescind the Deferred Action for Childhood Arrivals policy violated equal protection based on the President’s statements).
The issue is presented in the context of a motion to dismiss. The City’s Complaint alleges facts sufficient to nudge from conceivable to plausible the allegation that the President harbors racial animus and that he played a role in the creation of the FAM amendments. I conclude that the City has standing to advance its equal protection claim against the President.
C. Ripeness As with standing, the ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction . . . .” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (internal quotation marks omitted);
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see Perry Capital LLC v. Mnuchin, 864 F.3d 591, 632 (D.C. Cir. 2017) (ripeness “has both constitutional and prudential facets”), cert. denied, __, U.S. __, 138 S. Ct. 978 (2018). Whereas standing focuses on who can sue, ripeness “addresses ‘the appropriate timing of judicial intervention.’” Deal, 911 F.3d at 190 (quoting Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir. 2013)); see NAACP, 2019 WL 355743, at *8 (noting that standing addresses who may sue, and ripeness addresses when a party may sue).
“Like standing, the ripeness doctrine ‘originates in the case or controversy constraint of Article III.’” South Carolina, 912 F.3d at 730 (citation omitted) (cleaned up). And, “[a]s with standing, ripeness is a question of subject matter jurisdiction.” Id.; see San Sotta v. Town of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013). Moreover, the doctrine of ripeness requires presentation of “a controversy in a ‘clean-cut and concrete form.’” Id. (quoting Miller v. Brown, 462 F.3d 312, 318-19 (4th Cir. 2006)). In so doing, the doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and . . . protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732-33 (1998) (citations omitted).
Ripeness depends on “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808; accord South Carolina, 912 F.3d at 730; Deal, 911 F.3d at 191. “A case is ‘fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.’” Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand and Lansdowne, LLC, 713 F.3d 187, 198 (4th Cir. 2013) (quoting Miller, 462 F.3d at 318-19). “‘The hardship prong is measured by the immediacy of the threat and the burden imposed on the
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plaintiff.’” Id. (brackets omitted) (quoting Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992)); see also Pashby v. Delia, 709 F.3d 307, 317 (4th Cir. 2013); Arch Mineral Corp. v. Babbitt, 104 F.3d 660, 665 (4th Cir. 1997).
Thus, a claim is not ripe for judicial review “‘if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Scoggins, 718 F.3d at 270 (quoting Texas v. United States, 523 U.S. 296, 300 (1998)); see also South Carolina, 912 F.3d at 730 (an action is ripe if “final and not dependent on future uncertainties or intervening agency rulings”) (quoting Franks v. Ross, 313 F.3d 184, 195 (4th Cir. 2002)).
The government contends that the City’s claims are not ripe because the City “has not identified any particular instance in which the guidance has been applied in a way that threatens harm to the City.” ECF 17-1 at 30. Further, they maintain that the City is not harmed by the FAM because it “has never been applied to the City of Baltimore and it will never be—a city is obviously never in the position of applying for a U.S. visa.” Id. In response, the City argues that the bulk of the issues are “purely legal,” and the City is already suffering from the FAM change. ECF 25 at 36. According to the City, it has presented “ample evidence that the application of the FAM change produces a chilling effect that harms the city.” Id.
Defendants’ ripeness argument is without merit. The City’s claims satisfy the fitness criterion. Its APA claims—whether the FAM change is “arbitrary and capricious,” impermissibly retroactive, or procedurally invalid—present purely legal questions. And, postponing review is unnecessary for the City’s equal protection claim to crystallize into a more definite form, given that the City rests its claim primarily on the President’s statements.
As for the hardship prong, delayed review would cause the City significant hardship. The FAM change is “final and not dependent on future uncertainties.” South Carolina, 912 F.3d at
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730; see also infra Part IV.C. And, as discussed, supra, the City has plausibly alleged that it is suffering substantial harm due to the FAM change. See Part III.A(2), supra.
The government’s contention that the City will “never [be] in the position of applying for a U.S. visa” and therefore experiences no hardship is not persuasive. ECF 25 at 35. The primary injury alleged by the City is not that it fears being deemed a public charge. Rather, it is that the City must bear the financial costs of the defendants’ unlawful action. To repeat, the City alleges that the revised Manual frustrates the City’s efforts to provide social services to immigrants; forces the City to divert valuable resources to understanding the changes and conducting education and outreach; and strains the City’s budget by increasing the demand for certain City benefits like emergency health care. See ECF 1 at 53-68. Postponing review will only exacerbate these harms.
Accordingly, I find that the City’s claims are ripe for judicial review. IV. APA Claims
Defendants put forth a smorgasbord of arguments for why the City’s claims are not cognizable under the APA. ECF 17-1 at 32-44. They argue that the City has failed to state a claim under the APA because the FAM change is committed to agency discretion, the City does not fall within the INA’s zone of interests, and the FAM change is not a final agency action. Id. at 33-41. In addition, defendants posit that Count Two should be dismissed, as the Manual’s changes are not retroactive. Id. at 42-44. Defendants also move to dismiss Count Three, asserting that the FAM is not subject to notice and comment. Id. at 41-42.
A. Background The APA provides for judicial review of a final agency action. 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”). See Abbott
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Labs. v. Gardner, 387 U.S. 136, 140-41, (1967) (quoting 5 U.S.C. § 704); see also Ergon-W. Va., Inc. v. EPA, 896 F.3d 600, 609 (4th Cir. 2018); Roland v. U.S. Citizenship & Immigration Servs., 850 F.3d 625, 629 n.3 (4th Cir. 2017); Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 586 (4th Cir. 2012).
“The APA provides that a reviewing court is bound to ‘hold unlawful and set aside agency action’ for certain specified reasons, including whenever the challenged act is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Friends of Back Bay, 681 F.3d at 586-87 (quoting 5 U.S.C. § 706(2)(A)); see United States v. Bean, 537 U.S. 71, 77 (2002). Review under the APA is highly deferential, however, and the agency action enjoys a presumption of validity. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (citing Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1395, 1400 (4th Cir. 1993)).
In assessing an agency decision, “the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). But, the court “is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). And, while the arbitrary and capricious standard “is not meant to reduce judicial review to a rubber-stamp of agency action,” Ohio Valley Entl. Coal., 556 F.3d at 192 (internal quotation marks and citations omitted), so long as the agency “‘provide[s] an explanation of its decision that includes a rational connection between the facts found and the choice made,’ its decision should be sustained.” Perez v. Cissna, 914 F.3d 846, 855 (4th Cir. 2019) (quoting Ohio Valley Envtl. Coal., 556 F.3d at 192); see also Motor Vehicle Mfrs. Ass’n of U.S.,
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463 U.S. at 43, (noting that a court should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned”).
In addition, the APA mandates that, subject to limited exceptions, agencies comply with certain procedures before issuing a rule. 5 U.S.C. § 553; N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 763 (4th Cir. 2012); Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098, 1103 (4th Cir.1985). Under the APA, a rule is “the whole or party of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy[.]” 5 U.S.C. § 551(4).
Generally stated, the APA’s rulemaking provisions require that the agency publish a notice of proposed rule-making in the Federal Register; permit interested parties the opportunity to comment on the proposed rule; and, after considering the submitted comments, issue a concise general statement of the rule’s purpose along with the final rule. See 5 U.S.C. § 553(b), (c); N.C. Growers’ Ass’n, Inc., 702 F.3d at 763. The notice and comment procedures serve both to “ensure informed agency decisionmaking” and to “encourage public participation in the administrative process.” N.C. Growers’ Ass’n, Inc., 702 F.3d at 763 (internal quotation marks and citations omitted). Although review of an agency’s decision under the arbitrary and capricious standard is deferential, the Fourth Circuit has instructed that courts “‘must be strict in reviewing an agency’s compliance with procedural rules.’” Id. at 764 (quoting Chocolate Mfrs. Ass’n, 755 F.2d at 1103).
B. Reviewability The government maintains that executive immigration policies cannot be challenged under the APA, absent express statutory authorization. ECF 17-1 at 33-34. According to defendants, the City’s APA claims must fail “because the Supreme Court ‘ha[s] long recognized the power . . . to exclude aliens as a fundamental sovereign attribute exercised by the Government’s political
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departments largely immune from judicial control.’” Id. at 33 (quoting Fiallo ex rel. Rodriguez v. Bell, 430 U.S. 787, 792 (1977)).12
“[T]here is a ‘strong presumption’ in favor of judicial review of agency action.” Casa de Maryland v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 697 (4th Cir. 2019) (quoting Speed Mining, Inc. v. Fed Mine Safety & Health Review Comm’n, 528 F.3d 310, 316 (4th Cir. 2008), petition for cert. filed (U.S. May 24, 2019) (No. 18-1469); see Ergon-W. Virginia, Inc., 896 F.3d at 609; Roland, 850 F.3d at 629 n.3. As the Supreme Court has repeatedly emphasized, the APA “creates a ‘basic presumption of judicial review for one ‘suffering legal wrong because of agency action.’” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., __ U.S. __, __, 139 S. Ct. 361, 370 (2018) (quoting Abbott Labs., 387 U.S. at 140); see also Mach Mining, LLC v. EEOC, 575 U.S. __, __, 135 S. Ct. 1645, 1651 (2015); Lincoln v. Vigil, 508 U.S. 182, 190 (1993).
However, judicial review is not available “to the extent that . . . statutes preclude judicial review,” 5 U.S.C. § 701(a)(1), or “agency action is committed to agency discretion by law.” Id. § 701(a)(2). The latter exception is read “quite narrowly.” Weyerhaeuser Co., 139 S. Ct. at 370; accord Citizens to Preserve Overton Park, 401 U.S. at 410. This applies “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’” Id. (quoting Lincoln, 508 U.S. at 191); see also Heckler v. Chaney, 470 U.S. 821, 830 (1985) (judicial review is unavailable if the statute provides “no judicially manageable standards . . . for judging how and when an agency should exercise its discretion”); see also Speed Mining, Inc., 528 F.3d at 317. “In determining whether a ‘meaningful standard’ for reviewing agency discretion exists,
12 Defendants do not contend that § 702 precludes judicial review of plaintiff’s constitutional claim. Nor could they, as “it is well settled that even if agency action is committed to its discretion by law, a court may still determine whether the action is constitutional.” Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 347 (4th Cir. 2001).
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courts consider the particular language and overall structure of the statute in question, as well as ‘the nature of the administrative action at issue.’” Speed Mining, Inc., 528 F.3d at 317 (internal citations omitted) (quoting Heckler, 470 U.S. at 830 and Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002)).
Defendants do not specify which provision of § 701 they believe precludes plaintiff’s APA claims. See ECF 17-1 at 33-34. But this is of no moment, because neither applies to this case.
First, the APA specifies procedures that agencies must follow when engaging in “substantive” or “legislative” rulemaking. See 5 U.S.C. §§ 553, 604. Therefore, the Court can review the process by which defendants promulgated the amended Manual in light of the APA’s procedural requirements. See Lincoln, 508 U.S. at 195-98. Second, the INA provides a meaningful standard against which to assess whether the FAM change is arbitrary and capricious. In sum, § 701(a)(1) does not bar the City’s APA claims.
Moreover, defendants have not identified any statutory authority for their argument. See 5 U.S.C. § 701(a)(1). Rather, they seem to argue that the Manual is immune from judicial scrutiny simply because it bears on immigration policy. See ECF 17-1 at 33.
To be sure, significant deference is due to foreign affairs and immigration policy determinations made by the Executive Branch. See, e.g., Trump v. Hawaii, __ U.S. __, __, 138 S. Ct. 2392, 2419 (2018) (“For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”) (quoting Fiallo v. Bell, 430 U.S. 787 (1977)); Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010); Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). However, “the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over
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immigration . . . .” Washington v. Trump, 847 F.3d 1151, 1162 (9th Cir. 2017), superseded by 858 F.3d 1168 (9th Cir. 2017); see also Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 278 (4th Cir. 2018) (Gregory, C.J., concurring) (“No case from either this Court or the Supreme Court supports [the] sweeping proposition” that courts may not review “statutory challenge[s] to the President’s authority to exclude classes of noncitizens”), vacated on other grounds, __ U.S. __, 138 S. Ct. 2710 (2018); Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 151-52 (E.D.N.Y. 2017) (rejecting government’s contention that § 702(a)(2) barred review of Deferred Action for Childhood Arrivals policy); see also Casa de Maryland, 924 F.3d at 699 (citing cases). Indeed, a brief survey of the Supreme Court’s immigration cases reveals that the Court regularly reaches the merits of a plaintiff’s statutory claims. See, e.g., Hawaii, 138 S. Ct. at 2407 (reviewing plaintiffs’ statutory claims lodged against President Trump’s so-called Travel Ban); Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 170-88 (1993); Fiallo, 430 U.S. at 800.
Defendants lean heavily on Fiallo v. Bell, 430 U.S. 787 (1977), for the proposition that changes to the Manual are unreviewable under the APA due to the Executive’s broad discretion to enforce the immigration laws. ECF 17-1 at 33. But, in my view, Fiallo cuts in favor of the City.
In Fiallo, three sets of fathers and children attacked the constitutionality of an INA provision that extended “special preference” to natural fathers of legitimate U.S. citizen children but not the fathers of “illegitimate” children. Id. at 788-89. After recounting the facts, the Court stated, id. at 792 (internal quotation marks and citations omitted):
At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. Our cases have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.
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This statement is consistent with the longstanding principle that courts may not review individual immigration determinations. See, e.g., Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999) (courts lack jurisdiction to review a consular officer’s decision to grant or deny a visa). However, it does not mean, as defendants would have it, that any agency policy touching immigration escapes judicial review. That much is confirmed by the fact that the Fiallo Court proceeded to resolve the merits of the plaintiff’s claims. See 430 U.S. at 800. Thus, Fiallo reinforces that the federal judiciary retains the authority to review challenges to executive action in the immigration sphere.
Accordingly, § 701(a) does not compel the dismissal of plaintiff’s APA claims. C. Zone of Interests
Defendants argue that the City’s APA claims fail because they fall outside the “zone of interests” protected by the INA. ECF 17-1 at 34-35. According to the government, the City’s interest in this litigation is its “desire to ensure that its residents take advantage of available social services when needed.” Id. at 35. In their view, the INA does not “protect or even consider interests of this type.” Id.
The zone-of-interests test asks “whether the statute grants the plaintiff the cause of action that he asserts.” Bank of Am. Corp., 137 S. Ct. at 1303; see Lexmark Int’l, Inc., 134 S. Ct. at 1387 (“Whether a plaintiff comes within the zone of interests” turns on “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim” (internal quotation marks omitted)). Where the plaintiff asserts a cause of action under the APA, the inquiry focuses on the relevant zone of interest defined by the substantive statute, not the APA. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345-48 (1984); Mendoza v. Perez, 754 F.3d 1002, 1017 (D.C. Cir.
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2014); Am. Inst. of Certified Pub. Accountants v. IRS, 746 F. App’x. 1, 7 (D.C. Cir. 2018) (collecting cases).
The “zone-of-interests limitation” applies to “all statutorily created causes of action.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014); see also Bank of Am. Corp. v. City of Miami, __ U.S. __, __, 137 S. Ct. 1296, 1303 (2017). However, unlike standing and ripeness, the test is not jurisdictional because “‘the absence of a valid . . . cause of action does not implicate . . . the court’s statutory or constitutional power to adjudicate the case.’” Lexmark Int’l, Inc., 527 U.S. at 128 (emphasis in original) (quoting Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642-43 (2002)).
Moreover, the zone-of-interests test “is not meant to be especially demanding.” Match-EBe-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quoting Clarke v. Sec. Industry Ass’n, 479 U.S. 388, 399 (1987)). This is especially so where the plaintiff files suit under the APA, given “Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’” Id. (quoting id.). To that end, the plaintiff need only demonstrate that its interests “arguably” fall within the statute’s purpose, with “the benefit of any doubt go[ing] to the plaintiff.” Id. Further, courts “do not require any indication of congressional purpose to benefit the would-be plaintiff.” Id. Thus, the rule “forecloses suit only when a plaintiff's ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” Id. (quoting Clarke, 479 U.S. at 399).
Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, __ U.S. __, 136 S. Ct. 2271 (2016) (mem.), is instructive on this point. Texas filed suit against the federal government under the APA to enjoin the implementation of the Deferred Action for Parents
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of Americans and Lawful Permanent Residents program (“DAPA”), an executive action to delay the deportation of immigrants who lacked lawful residency status. Id. at 148. Texas asserted that it satisfied prudential standing to challenge DAPA because, under Texas law, DAPA recipients would be entitled to obtain a state-subsidized driver’s license. Id. at 149-50. The Fifth Circuit agreed. Id. at 163. It observed that the INA “[r]eflect[s] a concern that ‘aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates . . . .’” Id. at 163 (quoting United States v. Alabama, 691 F.3d 1269, 1298 (11th Cir. 2012)).
The Fifth Circuit pointed out that 8 U.S.C. § 1621(a) prohibits unlawfully present immigrants from receiving state or local benefits, including driver’s licenses. Id. Texas’s claim thus fell within the INA’s zone of interest, because it was asserting its right to “participate in notice and comment before the Secretary changes the immigration classification of millions of illegal aliens in a way that forces the state to the Hobson’s choice of spending millions of dollars to subsidize driver’s licenses or changing its statutes.” Id.
Here, the City’s interest in avoiding the costs of the FAM revision falls within the INA’s zone of interest. As the Fifth Circuit observed, the INA expressly regulates the use of public assistance by immigrants. Section 1621 provides that immigrants who lack lawful status are “not eligible for any State or local public benefit.” 8 U.S.C. § 1621(a). And, § 1621(c) clarifies that “State or local public benefit” encompasses “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.” Id. § 1621(c)(B) (emphasis added). Moreover, the INA’s public charge provision accounts for the impact public charge determinations may have on municipal
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governments. Specifically, § 1183 entitles “the proper law officers” of “any State, territory, district, county, town, or municipality in which [an] alien becomes a public charge” to bring a lawsuit against the individual who sponsored the alien’s visa to enforce the Affidavit of Support. 8 U.S.C. § 1183.
And, like Texas, the City seeks to vindicate its interest in having the opportunity to “participate in notice and comment before [defendants] change[d] the immigration classification of millions of [immigrants] in a way that forces the [City] to the Hobson’s choice of spending millions of dollars . . . or changing its [services].” 809 F.3d at 163. Thus, the City’s claims “are, at the least, ‘arguably within the zone of interests’” protected by the INA. Bank of Am., 137 S. Ct. at 1303 (citation omitted).
D. Finality Defendants maintain that the City has failed to state a claim because the revision to the Manual is not a “final agency action” and “therefore is not reviewable under the APA.” ECF 171 at 36. The APA limits judicial review to “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704; see also City of New York v. U.S. Dep’t of Defense, 913 F.3d 423, 430-31 (4th Cir. 2019); Clear Sky Car Wash LLC v. City of Chesapeake, 743 F.3d 438, 445 (4th Cir. 2014); Golden & Zimmerman LLC v. Domenech, 599 F.3d 426, 432-33 (4th Cir. 2010). Under Bennett v. Spear, 520 U.S. 154 (1997), an agency action is final if it (1) “‘mark[s] the consummation of the agency’s decisionmaking process’” and (2) is an action “‘by which rights or obligations have been determined, or from which legal consequences will flow.’” U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. ___, ___, 136 S. Ct. 1807, 1813 (2016) (quoting Bennett v, 520 U.S. at 177-78).
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“The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.” Massachusetts v. Franklin, 505 U.S. 788, 797 (1992) (plurality opinion); see Flue-Cured Tobacco Cooperative Stabilization Corp. v. EPA, 313 F.3d 852, 858 (4th Cir. 2002) (“[T]he critical issue is whether the [agency’s action gives rise to legal consequences, rights, or obligations.”). Courts take a “‘pragmatic’ approach . . . to finality.” Hawkes, 136 S. Ct. at 1815 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
The government does not contest that the revision to FAM satisfies the first Bennett prong, and for good reason. The FAM is not “informal, or only the ruling of a subordinate official, or tentative.” Abbott Labs, 387 U.S. at 151. Rather, it is the State Department’s “authoritative source” on “policies[] and procedures,” including consular processing. Foreign Affairs Manual and Handbook, U.S. Dep’t of State, http://fam.state.gov/. The Manual is the State Department’s last word on the criteria consular officers should consider when making public charge determinations. Accordingly, the FAM “mark[s] the consummation of the [State Department’s] decisionmaking process.” Hawkes, 136 S. Ct. at 1813.
The parties dispute, however, whether the amendments to the FAM have “‘direct and appreciable legal consequences.’” Id. at 1814 (quoting Bennett, 520 U.S. at 178). The government maintains that the change to the Manual “does not have any legal effect of its own” because “it only instructs Department of State personnel on how to apply the governing statute and regulations.” ECF 17-1 at 36. Yet, the government concedes that the “new guidance, compared to the old guidance, could potentially lead to individuals being denied visas on ‘public charge’ grounds more frequently.” Id. at 41. Nevertheless, it contends that this fact alone does not render the revision to the Manual a final agency action. Id.
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The City counters that the amendments to the FAM have legal force because they eliminated a safe harbor for visa applicants and their families by directing consular officers to consider non-cash benefits in making public charge determinations. ECF 25 at 40.
Agency action has legal consequences if it “alters the legal regime[.]” Bennett, 520 U.S. at 178; see also Hawkes, 136 S. Ct. 1814; Nat’l Res. Def. Council v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011). So too does action that grants or withdraws a regulatory “safe harbor.” Hawkes, 136 S. Ct. 1814; Frozen Food Express v. United States, 351 U.S. 40, 44-45 (1956); Scenic Am., Inc. v. Dep’t of Transp., 836 F.3d 42, 56 (D.C. Cir. 2016), cert. denied, __ U.S. __, 138 S. Ct. 2 (2017); Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023, 1032 (D.C. Cir. 2016); Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., 637 F.3d 259, 266 (4th Cir. 2011); Gen. Elec. Co. v. EPA, 290 F.3d 384, 383 (D.C. Cir. 2002).
The Supreme Court’s analysis in U.S. Army Corps of Engineers v. Hawkes Co., ___ U.S. ___, 136 S. Ct. 1807 (2016), is instructive. There, the Court considered whether “jurisdictional determinations” made by the U.S. Army Corps of Engineers regarding whether a particular tract of land contains “waters of the United States,” and thus subject to the Clean Water Act (“CWA”), were final agency actions. See id. at 1812-13. The Court found that the determinations satisfied the second Bennett prong because legal consequences flow from both negative and affirmative determinations. Id. at 1814. If the Army Corps concludes that a parcel does not contain such waters, that finding creates a “safe harbor,” precluding the Army Corps and EPA from bringing an enforcement action under the CWA against the property owner for five years. Id. Moreover, while a negative determination does not foreclose the possibility of citizen suits under the CWA, the property owner cannot be held liable for past violations. Id. Thus, a negative finding “both narrows the field of potential plaintiffs and limits the potential liability a landowner faces for
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discharging pollutants without a permit. Each of those effects is a ‘legal consequence’ satisfying the second Bennett prong.” Id. (brackets omitted). Affirmative determinations “have legal consequences as well: They represent the denial of the safe harbor that negative [determinations] afford.” Id.
The revisions to the FAM alter the visa application regime by eliminating, in effect, a safe harbor once extended to the receipt of non-cash benefits. Previously, the Manual directed that “[n]either the past nor possible future receipt of such non-cash or supplemental assistance may be considered in determining whether an alien is likely to become a public charge.” ECF 17-2 at 4. And, it barred consular officers from denying a visa application on public charge grounds due to the current or past use of non-cash public assistance by the applicant’s family. Id. at 11. In no uncertain terms, the new version of the Manual reverses this position.
According to the new version of the FAM, consular officers should consider the past and future use of non-cash benefits by the applicant as “part of the totality of the applicant’s circumstances in determining whether an applicant is likely to become a public charge.” ECF 1-1 at 5. Moreover, the FAM now requires consular officers to examine the use of non-cash public benefits by the applicant’s family members and dictates that this is a “heavily negative factor” in the analysis. Id. at 8-9. Thus, it is no longer the case that visa applicants and their families can use non-cash public assistance without the possibility of being deemed a public charge.
The government argues that this safe harbor was illusory. ECF 56 at 20. According to the government, applicants “who accepted noncash public benefits never had any assurances that they would not be denied visas on public-charge grounds.” Id. In their view, because an applicant receiving non-cash public benefits could have been deemed a public charge based on some other consideration, such as health or financial condition, the change is of no legal significance. Id.
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This contention misses the mark. The fact that consular officers can deny visa applications for reasons other than the receipt of non-cash benefits does not rob the FAM change of legal consequences. Rather, as Hawkes demonstrates, agency action has legal consequences even if it only “narrows” the field of regulatory targets or “limits the[ir] potential liability[.]” Hawkes, 136 S. Ct. at 1814; see also Texas v. EEOC, No. 18-10638, slip op. at 12-13 (5th Cir. Aug. 6, 2019) (finding EEOC guidance letter to be final agency action because it creates a safe harbor by detailing how employers can avoid liability).
The amendments to the FAM bear the hallmarks of finality. In particular, they present the “authoritative” position of the State Department on the public charge rule; they alter a legal regime; and they eliminate a safe harbor relied on by visa applicants and their families. It follows that defendants’ Motion, seeking dismissal of the City’s APA claims under § 704, is unavailing on this basis.
Defendants further assert that the FAM is not a “final agency action” because it is an interpretive rule. See ECF 17-1 at 37-41. This argument elides § 704’s finality requirement with § 553’s command that agencies provide notice and comment before promulgating legislative rules.
I discuss interpretive and legislative rules, infra. But, I note here that the D.C. Circuit recently explained: “[A]lthough all legislative rules are final, not all final rules are legislative, and the finality analysis is therefore distinct from the test for whether an agency action is a legislative rule.” Cal. Comtys. Against Toxics v. EPA, 934 F.3d 627, 631 (D.C. Cir. Aug. 20, 2019); see also id. (observing that the Hawkes Court “neither asked whether the action at issue had the force and effect of law nor made a single mention of legislative rules”). The Manual’s legislative character (or lack thereof) is therefore inapposite to the finality inquiry.
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E. Retroactivity The revised FAM directs consular officers to consider an immigrant’s use of non-cash benefits at any time as a factor in visa determinations. This directive is not limited to an immigrant’s current or future use of non-cash public benefits; the officer also must consider the use of non-cash benefits, even if that use occurred before the changes to the FAM were implemented. Defendants have moved (ECF 17-1 at 42-44) to dismiss Count Two of the Complaint, which alleges that the amendments to the FAM have an impermissible retroactive effect, in violation of the APA. ECF 1 at 71. The government argues that the City has not plausibly raised this claim, insisting that the amended FAM does not attach new legal consequences to past events. ECF 17-1 at 42-44. Instead, it allows past events to be considered as a factor in future visa determinations. The City disagrees. It maintains that it sufficiently alleged that the changes to the FAM are impermissibly retroactive. ECF 25 at 49-51. Further, it contends that such a retroactive change must be authorized by statute. Moreover, even if it were authorized, it would be unjustified, according to the City. “Retroactivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). The “core principle disfavoring retroactive application of laws” is that “‘settled expectations should not be lightly disrupted[.]’” GTE S., Inc. v. Morrison, 199 F.3d 733, 741 (4th Cir. 1999) (quoting Landgraf, 511 U.S. at 265). The APA provides that a rule must be of “future effect.” 5 U.S.C. § 551(4). Therefore, “a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.” Bowen, 488 U.S. at 208. This
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prohibition applies to “interpretative rules, no less than legislative rules.” Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994).
A rule is impermissibly retroactive if it “‘alter[s] the past legal consequences of past actions.’” Celtronix Telemetry, Inc. v. FCC, 272 F.3d 585, 588 (D.C. Cir. 2001) (quoting Bowen, 488 U.S. at 219 (Scalia, J., concurring)); see also Landgraf, 511 U.S. at 269-70. Specifically, a rule may not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280.
If a rule has an “exclusively ‘future effect’” that “affect[s] the desirability of past transactions,” it is considered “secondarily retroactive” and is “invalid only if arbitrary and capricious.” Celtronix Telemetry, 272 F.3d at 589; see Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 145, 159 (D.C. Cir. 2010); see also Nat’l Petrochemical & Refiners Ass’n, 630 F.3d at 159 (describing rules that “merely ‘upset[] expectations’” as “secondarily retroactive”). A secondarily retroactive rule is arbitrary and capricious if a court determines that it is not “reasonable both in substance and in being made retroactive.” Celtronix Telemetry, Inc., 272 F.3d at 589.
The government rests its argument primarily on Boniface v. U.S. Dep’t of Homeland Sec., 613 F.3d 282 (D.C. Cir. 2010), and Matherly v. Andrews, 817 F.3d 115 (4th Cir. 2016). In Boniface, the court considered a regulation directing DHS to consider past criminal acts to determine eligibility for a license to transport hazardous materials. A state can grant a “‘license to operate a motor vehicle transporting in commerce hazardous materials’” only if the TSA has determined that the applicant is not a security threat. Id. at 284 (quoting 49 C.F.R. §§ 5103a(a)(1)). The challenged rule provided a list of “disqualifying criminal offense[s].” If an applicant has been
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convicted of a disqualifying offense, then the TSA issues an initial determination that the applicant is a “‘security threat warranting denial’” of his application. However, this initial determination could be rebutted through a waiver process.
After Bonifice was denied a license in 2009 because of a 1975 conviction for a “disqualifying criminal offense,” he challenged the rule. The court found that a “disqualifying criminal offense” creates only a rebuttable presumption that the applicant poses a threat. As a result, it concluded that the regulation did have not an unauthorized retroactive effect under any of the tests set out in Landgraf.
In Matherly, 817 F.3d 115, the Fourth Circuit considered a challenge to a federal statute providing for the civil commitment to the Bureau of Prisons of a “sexually dangerous person.” Matherly challenged the law as impermissibly retroactive because it took effect after he was convicted and in the Bureau’s custody. Id. The Court determined that the statute was not retroactive because “it simply ‘uses’ prior acts ‘solely for evidentiary purposes’ to support a finding” that a person is sexually dangerous. Id. at 120 (quoting United States v. Comstock, 627 F.3d 513, 523 (4th Cir. 2010) (internal citation omitted)).
These cases are distinguishable. In both cases, the contested law or regulation changed the effect of past criminal convictions on future governmental decisions. In essence, the government considered the plaintiffs’ prohibited acts as evidence adverse to the plaintiff in future government decisions. Here, the revised FAM does not pertain to prior unlawful acts, but to “transactions already completed,” i.e., the receipt of non-cash public benefits. Landgraf, 511 U.S. at 280. Before the changes to the Manual, the receipt of these benefits was not only lawful, but also sanctioned by the FAM. After the changes to the Manual, however, benefits received prior to the policy change are considered as a factor (or in some cases a “heavily negative factor”) in visa
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determinations. Based on the allegations, this change represents a “complete[] reversal of the status quo.” See Nat’l Petrochemical & Refiners Ass’n, 630 F.3d at 160 (characterizing Bowen, 488 U.S. 204, as an instance in which an “agency ‘completely reversed the status quo ante’”).
Even if the change does not “alter the past legal consequences of past actions,” the City has adequately alleged that the revised FAM is secondarily retroactive. Celtronix Telemetry, Inc., 272 F.3d at 588. Immigrants (and their families) had “settled expectations” that receipt of noncash benefits would have no effect on visa determinations. See Olatunji v. Ashcroft, 387 F.3d 383, 396 (4th Cir. 2004). Accordingly, plaintiff plausibly alleges that the changes to the FAM are retroactive.13
F. Notice and Comment Count Three of the Complaint asserts that the amended public charge instructions must be set aside as unlawful because the Manual was “amended without notice and comment,” in violation of 5 U.S.C. § 706(2)(D). ECF 1, ¶¶ 186-87. Defendants move to dismiss Count Three for failure to state a claim. ECF 17-1 at 41. As noted, the APA generally requires that before a federal agency adopts a rule it must publish a proposed rule in the Federal Register and provide interested parties with an opportunity to comment. See 5 U.S.C. § § 551(4)-(5), 553(a)-(c). Failure to comply with the APA’s rulemaking process renders the rule invalid. See, e.g., N.C. Grower’s Ass’n., Inc., 702 F.3d at 770 (invalidating regulation that was issued without notice and comment); Mendoza, 654 F.3d at 1025; Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95-96 (D.C. Cir. 2012).
13 Although not essential to my determination, I note that the DHS Proposed Rule expressly declined to apply the rule retroactively. 93 Fed. Reg. at 51,206. (“DHS would not consider public benefits under the proposed 8 C.F.R. § 212.21(b) that were previously excluded under the 1999 Interim Field Guidance if received before effective date of the final rule.”).
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The APA, however, contains several exemptions to these procedural requirements. See 5 U.S.C. §§ 553(a), 553(b)(3). Here, defendants offer two distinct reasons for why the FAM is not subject to the APA’s rulemaking procedures. First, they contend the Manual is exempt from notice and comment as an “interpretive rule” under § 553(d)(2). ECF 17-1 at 36-41. Second, they argue the FAM falls within the sweep of § 553(a)(1), which exempts from notice and comment rules affecting “foreign affairs.” ECF 17-1 at 42.
1. Interpretative and Legislative Rules Under the APA, a “Rule” is a “statement of general or particular applicability and future effect” that is “designed to implement, interpret, or prescribe law or policy or describ[e] the organization, procedure, or practice requirements of an agency[.]” 5 U.S.C. § 551(4). “The APA divides agency action, as relevant here, into three boxes: legislative rules, interpretive rules, and general statements of policy. A lot can turn on which box an agency action falls into.” Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 246 (D.C. Cir. 2014) (Kavanaugh, J.). “The APA generally requires that agencies provide notice of proposals to create, amend, or repeal a rule and an opportunity for interested parties to comment on the proposal.” Casa de Md., 924 F.3d at 701 (citing 5 U.S.C. §§ 551(4)-(5), 553(a)-(c)). Thus, an agency’s failure to comply with notice and comment renders a rule procedurally invalid. See, e.g., Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 620 (4th Cir. 2018) (“CHKD”); N.C. Growers’ Ass’n Inc., 702 F.3d at 771; Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 208 (4th Cir. 1989). However, the APA’s rulemaking procedure “does not apply” to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A).
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“Rules issued through the notice-and-comment process are often referred to as ‘legislative rules’ because they have the ‘force and effect of law.’” Perez v. Mortg. Bankers Ass’n, 572 U.S. 92, __, 135 S. Ct. 1199, 1203-04 (2015) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302-303 (1979)). In contrast, “interpretive rules” are those “‘issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.’” Id. (quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995)). Although “the process of issuing interpretive rules [is] comparatively easier for agencies than issuing legislative rules,” they “do not have the force and effect of law and are not accorded that weight in the adjudicatory process.” Id. (citation omitted).
The line between legislative rules and interpretative rules is less than perfectly pellucid. The DC Circuit has, at various times, characterized the doctrine as “tenuous,”14 fuzzy,”15 blurred,”16 “byzantine,”17 “enshrouded in considerable smog,”18 and “quotidian but abstruse.”19 Indeed, even “[t]he Supreme Court recently acknowledged that the ‘precise meaning’ of the term ‘interpretive rule’ in the APA ‘is the source of much scholarly and judicial debate,’ and expressly declined to ‘wade into that debate.’” CKHD, 896 F.3d at 620 (quoting Perez, 135 S. Ct. at 1204).
14 Chisholm v. FCC, 538 F.2d 349, 393 (D.C. Cir. 1976). 15 Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987). 16 Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987). 17 Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 246 (D.C. Cir. 2014). 18 Ass’n. of Flight Attendants v. Huerta, 785 F.3d 710, 717 (D.C. Cir. 2015) (quoting Cmty. Nutrition Inst., 818 F.2d at 946). 19 Cal. Comtys. Against Toxics v. EPA, 934 F.3d at 630.
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The Fourth Circuit has instructed that “‘interpretative rules simply state what the administrative agency thinks the statute means, and only remind affected parties of existing duties.’” CHKD, 896 F.3d at 620 (quoting Jerri’s Ceramic Arts, 874 F.2d at 207). “Put differently, ‘[a]n interpretive rule is merely a clarification or explanation of an existing statute or rule.’” Id. (brackets and emphasis in original) (quoting Zhou Chai v. Carroll, 48 F.3d 1331, 1341 (4th Cir. 1995)). As for legislative rules, the Fourth Court has explained:
“By contrast, ‘a substantive or legislative rule, pursuant to properly delegated authority, has the force of law, and creates new law or imposes new rights or duties.’ To that end, ‘[a] rule is legislative if it supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy.’ Likewise, a rule is legislative if it ‘expand[s] the footprint of a regulation by imposing new requirements, rather than simply interpreting the legal norms Congress or the agency itself has previously created.’” Id. (first quoting Jerri’s Ceramic Arts, 874 F.2d at 207, then quoting Mendoza, 754 F.3d at 1021, and then quoting Iowa League of Cities v. EPA, 711 F.3d 844, 873 (8th Cir. 2013)). Further, “[w]hen an agency relies on expressly delegated authority to establish policy . . . courts generally treat the agency action as legislative, rather than interpretive, rulemaking.” Id. at 622. Defendants argue that the City has failed to state a claim that the FAM violates the APA’s notice and comment requirements because the FAM is an interpretive rule. In their view, the amendment to the FAM “does not carry legal force” because it merely “clarif[ies] the agency’s interpretation of the applicable statutes and regulations” and serves only to “advis[e]” consular officers. ECF 17-1 at 37. That is, the FAM’s public charge provisions “merely draw on those statutes and regulations and do not establish legal rules in their own right.” Id. at 39. In addition, defendants point out that the Ninth and D.C. circuits have described the FAM as not carrying “force of law,” and they analogize to Fourth Circuit cases in which agency manuals were held to be interpretive rules. Id. at 38-40.
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The government concedes that the revision to FAM “could potentially lead to individuals being denied visas on ‘public charge’ grounds more frequently.” Id. at 41. But, it insists that this “does not mean the guidance should be considered substantive rather than interpretive.” Id.
The City counters that it has plausibly alleged that the FAM is a legislative rule subject to notice and comment. They contend that defendants’ characterization of the FAM as interpretive is belied by the fact that DHS “is simultaneously proceeding through notice-and-comment rulemaking to implement similar changes to public charge for immigrants seeking to adjust status.” ECF 25 at 42 (citing 83 Fed. Reg. 51,114). Further, the City argues that the FAM change is a legislative rule because it “‘change[d] the rules of the game’ by including within public charge a host of programs that had previously been excluded—a quintessentially legislative action.” Id. at 43 (bracket in original) (quoting Sprint Corp. v. FCC, 315 F.3d 369, 374 (D.C. Cir. 2003)).
The focus of this litigation, the FAM’s public charge provisions, contain all the hallmarks of a legislative rule. For starters, it “supplements a statute,” specifically 8 U.S.C. § 1182(a)(4). CKHD, 896 F.3d at 620. In making the public charge determination, the INA provides that consular officers “shall at a minimum consider” the applicant’s “age”; “health”; “family status”; “assets resources, and financial status”; and “education and skills.” 8 U.S.C. § 1182(a)(4)(B). Public assistance—cash or otherwise—is not, therefore, a factor that the statute explicitly requires consular officers to consider. And, to the extent that cash benefits are encompassed within “financial status,” the same cannot necessarily be said for the receipt of non-cash benefits. Similarly, the INA makes no mention of the receipt of public benefits by a visa applicant’s family members, nor does it prescribe the proper weight that should be given to an Affidavit of Support. See id. “Accordingly, [9 FAM] does not derive ‘from an existing [statute or regulation] whose meaning compels or logically justifies the proposition,” thereby weighing in favor of treating the
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[challenged FAM provisions] as a legislative rule.” CKHD, 896 F.3d at 622 (quoting Mendoza, 754 F.3d at 1021).
The FAM changes also “‘expand[] the footprint of a regulation by imposing new requirements, rather than simply interpreting the legal norms Congress or the agency itself has previously created.’” Id. at 620 (brackets omitted). To be sure, the fact that the revision to FAM alters the longstanding concept of the public charge rule does not, alone, transform the FAM into a legislative rule. See Perez, 135 S. Ct. at 1206 (“Because an agency is not required to use noticeand-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule.”). But, the revisions to the FAM did not simply repeal an existing regulation or clarify the INA. Instead, the FAM effects substantive changes to the definition of public charge in the INA as interpreted and applied by the State Department.
In particular, non-cash benefits, which were once excluded from public charge determinations, are now part of the totality-of-the-circumstances analysis. ECF 1, ¶ 97. Likewise, while the FAM previously stated that past or current receipt of cash benefits by the applicant’s family members “must not be considered,” it now provides that the “[p]ast or current receipt of public assistance of any type” by the applicant’s family members “is relevant” to the analysis. ECF 1, ¶ 103 (emphasis added). And, the FAM deemphasized the importance of an Affidavit of Support from “normally . . . sufficient” to only a “positive” factor. ECF 1, ¶ 105. Thus, the FAM revisions impose new requirements on visa applicants and their families with respect to what benefits they can utilize without the risk of being deemed a public charge. See, e.g., Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19, 45-47 (D.D.C. 2018) (denying motion to dismiss plaintiff’s APA claims after finding plaintiff had alleged sufficient facts that USCIS memorandum was a legislative
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rule because it “broadens statutory criteria” for deportability); Mendoza, 754 F.3d at 1022 (DOL guidance letters were legislative rules because the letters “do more than clarify or remind parties of preexisting duties”; “they supplement the statute by imposing specific duties on employers”).
Finally, the State Department “relie[d] on expressly delegated authority to establish [the] policy” embodied in the FAM’s public charge provisions. CHKD, 896 F.3d at 621. Section 1104 of the INA provides that “[t]he Secretary of State shall be charged with the administration and the enforcement of the provisions of this chapter and all other immigration and nationality laws relating to (1) the powers, duties, and functions of diplomatic and consular officers of the United States . . . .” 8 U.S.C. § 1104. Based on this authority, the State Department promulgated Volume Nine to instruct consular officers how to make public charge determinations. The “Introduction to 9 FAM Visa” explains that the Manual is “based on statutes, regulations, Executive Orders, Presidential directives, OMB circulars and other sources.” 9 FAM 101.1-1 (2019).
Specifically, the FAM derives its authority from the INA and 22 C.F.R. §§ 40-42 (2019), which govern the State Department’s visa operations. See 9 FAM 101.1-2. As the Fourth Circuit observed in CKHD, the Secretary’s reliance on his delegated authority to implement the FAM’s public charge provisions militates in favor of finding the provisions legislative, rather than interpretive. See CKHD, 896 F.3d at 623; see also Mendoza, 754 F.3d at 1022 (“Where Congress has specifically declined to create a standard, the Department cannot claim its implementing rule is an interpretation of the statute.”).
The government makes three arguments in support of the contrary contention. First, it points out that the State Department “published the [Manual] in a form that does not carry legal force[.]” ECF 17-1 at 37. The government is correct that the form of the agency action bears on the analysis. See McCarthy, 758 F.3d at 252 (an “agency’s characterization of the guidance” is a
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relevant factor when identifying legislative rules). But, it is not dispositive. See Jerri’s Ceramic Arts, 874 F.2d at 207 (“An agency’s ‘characterization of its statement as an expansion of its policy or interpretation . . . does not preclude our finding that it is something more.’” (citation omitted)); see also Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C.Cir.2000) (finding guidance document was a legislative rule).
Second, the government argues that this Court should follow in the footsteps of the Ninth Circuit and D.C. Circuit, both of which have held that the FAM does not carry the force of law. But, the government misreads both cases.
Scales v. I.N.S., 232 F.3d 1159 (9th Cir. 2000), involved the appeal of an order of removal. Facing deportation, Scales argued that he was a U.S. citizen because his Filipina mother was married to a U.S. service member at the time Scales was born in the Philippines. Id. at 1162. The government responded by citing the FAM, which provided that, “[a]bsent a blood relationship between the child and the parent on whose citizenship the child's own claim is based, U.S. citizenship is not acquired.” Id. at 1165 (quoting 7 FAM § 1131.4–1(a) (ed. 2000)). The government urged the Ninth Circuit to accord Chevron “defer[ence] to the FAM as an agency interpretation” of the INA. Id.
The Ninth Circuit declined to do so. The court observed that “the statement in the FAM is not specifically an interpretation of [the pertinent INA section] and, importantly, it is not an interpretation “arrived at after, for example, a formal adjudication or notice-and-comment rulemaking.” Id. at 1166. For additional support, the court then quoted Christensen v. Harris County, 529 U.S. 576 (2000), a case principally concerned with Chevron and Auer deference, for the proposition that “‘[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the
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force of law—do not warrant Chevron-style deference.’” Id. (quoting Christensen v. Harris Cty., 529 U.S. 576, 587 (2000)).
In Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012), a safety inspector at the U.S. embassy in Paris sued the State Department, alleging that his forced retirement violated the Age Discrimination in Employment Act (“ADEA”). Id. at 1335. In assessing whether the State Department was bound by the ADEA, the court noted in passing: “Whether or not more informal documents like the Department's Foreign Affairs Handbook and Foreign Affairs Manual would qualify for Chevron treatment, there is no mention of mandatory retirement (or an exemption from the ADEA) in the provisions of those documents that the Department cites.” Id. at 1349 (footnote omitted).
Neither Scales nor Miller preclude this Court from concluding that 9 FAM is legislative. Both cases discussed the FAM in passing, and in the context of Chevron deference—a question distinct from whether the FAM is a legislative rule. More important, neither concerned the FAM’s public charge provisions—the focus of this litigation. And, the focus of the inquiry here is on those changes, not the FAM as a whole or Volume Nine. Cf. 5 U.S.C. § 551(4) (defining a “rule” as “the whole or part of an agency statement of general or particular applicability and future effect”).
Third, the government asserts that agency manuals are interpretive rules under Fourth Circuit precedent, arguing that this case is “most similar” to United States v. Ellen, 961 F.2d 462 (4th Cir. 1992). Ellen involved an appeal of a criminal conviction for discharging pollutants in wetland areas, in violation of the Clean Water Act. Id. at 464. The defendant argued that his conviction violated the Due Process and Ex Post Facto Clauses because the court admitted testimony defining “wetlands” according to an inter-agency manual, which was promulgated after
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he was charged. Id. at 465. The Court rejected this contention, stating: “Ellen has presented no reasons why the 1989 Manual is legislative rather than interpretive in nature and we find no indication that promulgation of the 1989 Manual was an exercise of the agencies’ delegated legislative function.” Id. at 466 (emphasis in original).
Ellen is distinguishable. The manual at issue in Ellen “merged” the then-existing policies of four federal agencies into one “technical guidance document” to establish “a uniform national procedure for wetland determinations.” Id. The manual “d[id] not purport to create new law or impose new rights or duties . . . .” Id. The same cannot be said for the FAM’s public charge provisions.
For one thing, while the FAM provides guidance to consular officers, the FAM also affects the legal rights of visa applicants and their families, i.e., what benefits they can utilize without the possibility of being deemed a public charge. Moreover, the FAM revisions are not merely codifying longstanding practices to improve inter-agency coordination; rather, they alter the standards that govern whether a visa applicant is inadmissible as a public charge.
Jerri’s Ceramic Arts, Inc. v. Consumer Product Safety Commission, 874 F.2d 205 (4th Cir. 1989), is instructive. There, the Fourth Circuit determined that a “Statement of Interpretation” issued by the Consumer Product Safety Commission was a legislative rule. See id. at 206. The statement at issue designated the “paper, fabric, yarn, fuzz, elastic, and string” components of toys to be “small parts.” Id. at 207. This reversed the agency’s longstanding policy treating only hard components as “small parts,” and it threatened to result in toys previously exempt from regulation being banned as choking hazards. Id.
Examining “‘the provision’s language, its context, and any available extrinsic evidence’” revealed its legislative character. Id. at 208 (quoting Doe v. Hampton, 556 F.2d 265, 280-81 (D.C.
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Cir. 1977)). The Court reasoned, 874 F.2d at 208: “[T]he language of the statement and related comments establishes that more is involved than mere ‘interpretation,’ because the proposed statement has the clear intent of eliminating a former exemption and of providing the Commission with power to enforce violations of a new rule.” Thus, given the Commission’s authority to impose civil and criminal penalties on noncompliant actors, the Court found “the agency’s argument that “the statement ‘only expects’ and ‘urges’ compliance, and merely provides guidance to the public and its staff” to be “simply incredible.” Id. Further, the Court observed that “[t]he fact that the statement altered a long-standing position cannot readily be discounted,” and here “the statement would, for the first time, have the effect of bringing within the sweep of the regulation entirely new classes of business.” Id.
Here too, at least according to the allegations, the changes to the FAM “alter a longstanding position,” as it “imposes new duties” and has “the effect of bringing within the sweep of the regulation entirely new classes of [benefits].” Id. at 208. And, the FAM is not all bark and no bite—a visa applicant (or family member) who utilizes non-cash benefits faces the prospect of being deemed inadmissible to enter the United States on public charge grounds. Thus, as in Jerri’s Ceramic Arts, the facts surrounding the FAM change, in the light most favorable to the City, “establish that the [State Department] has made a legislative rule and called it an interpretation.” Id.
Therefore, I conclude that the City has adequately pleaded that the FAM is subject to notice and comment under the APA. Accordingly, dismissal is not warranted in regard to the City’s notice-and-comment claim.
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2. Foreign Affairs Exception The government maintains that the changes to the FAM are exempt from notice and comment under the APA’s foreign affairs exception. ECF 17-1 at 41-42. Therefore, it claims that Count Three fails to state a claim. The APA’s foreign affairs exception provides that a rule need not undergo notice and comment “to the extent that there is involved . . . a military or foreign affairs function of the United States[.]” 5 U.S.C. § 553(a)(1). However, to invoke the exception, the government must do more than “merely recite that the Rule ‘implicates’ foreign affairs.” East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 775 (9th Cir. 2018). The government must demonstrate a “need for immediate implementation of the final rule” due to “obvious international consequences.” Id.; see also Zhang v. Slattery, 55 F.3d 732, 744 (2d Cir. 1995) (“For the exception to apply, the public rulemaking provisions should provoke definitely undesirable international consequences.”), superseded on other grounds by statute, 8 U.S.C. § 1101(a)(42); Jean v. Nelson, 711 F.2d 1455, 1477-78 (11th Cir. 1983) (rejecting the foreign affairs exception where government “offered no evidence of undesirable international consequences that would result if rulemaking were employed”), vacated and rev’d on other grounds, 727 F.2d 957 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985). To my knowledge, the federal appellate courts have recognized the applicability of the APA’s foreign affairs exception on just two occasions: responding to the attacks of September 11, 2001, see Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008), and the Iranian hostage crisis. See Nademi v. INS, 679 F.2d 811, 814 (10th Cir. 1982); Yassini v. Crosland, 618 F.2d 1356, 1360 (9th Cir. 1980) (per curiam); Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981).
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In the immigration context, “the dangers of an expansive reading of the foreign affairs exception . . . are manifest.” City of N.Y. v. Permanent Mission of India to United Nations, 618 F.3d 172, 202 (2d Cir. 2010). Indeed, a capacious interpretation of § 553 (would risk “eliminat[ing] public participation in [an] entire area of administrative law.” Id. (internal quotation marks and citation omitted); see also Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (“The foreign affairs exception would become distended if applied to [immigration] actions generally, even though immigration matters typically implicate foreign affairs.”). Consequently, where the government seeks to apply the exception to immigration rules, it must establish that the “ordinary application of the public rulemaking provisions [will] provoke definitely undesirable international consequences.” East Bay Sanctuary Covenant, 932 F.3d at 776 (brackets in original) (quoting Yassini, 618 F.2d at 1360); accord City of New York, 618 F.3d at 202; Zhang, 55 F.3d at 744; Jean, 711 F.2d at 1477-78.
At this stage, I cannot conclude that subjecting the FAM to APA rulemaking would produce “definitely undesirable international consequences.” Nor are there “obvious” exigent circumstances like the September 11 attacks or the Iranian hostage crisis that would explain defendants’ need to suddenly expand the FAM’s definition of public charge.
Indeed, the government relies almost exclusively on the Attorney General’s Manual on the APA to support its contention that the foreign affairs exception applies here. ECF 17-1 at 42. Such reliance is misplaced.
The Attorney General’s Manual states that the foreign affairs exception is “broad” and “applicable to most functions of the State Department.” U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 26-27 (1947). According to defendants, the Manual is “entitled to deference” because the Department of Justice was “heavily involved in the
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legislative process that resulted in the Act’s enactment in 1946.” Id. at 42 (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979), and citing Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 546 (1978)).
The government overstates the import of the Attorney General’s Manuel. In Chrysler Corp., 441 U.S. at 302 n.31, the Court only considered the Attorney General’s Manual after noting that the House and Senate Reports did not address the issue under consideration. Likewise, in Vermont Yankee, 435 U.S. at 546, the Court analyzed the House and Senate Reports before citing the Attorney General Manual as further confirmation of the legislative history. Thus, while relevant, the Court need not blindly adhere to the Attorney General Manual’s views on the foreign affairs exception.
And, in any event, the Attorney General Manual does not mandate the application of the foreign affairs exception to this case. Tellingly, the government omits the quote of a House and Senate Report, contained in the Attorney General’s Manual, id. at 26:
As to the meaning of “foreign affairs function”, both the Senate and House reports state: “The phrase ‘foreign affairs functions,’ used here and in some other provisions of the bill, is not to be loosely interpreted to mean any function extending beyond the borders of the United States but only those ‘affairs’ which so affect relations with other governments that, for example, public rule making provisions would clearly provoke definitely undesirable international consequences." (quoting H. Rep. No. 79-1980 at 257 S. Rep. No. 79-572 at 199 (1946)) (emphasis added). In sum, defendants’ effort to invoke § 553(a)(1) is doomed by their failure to explain how subjecting the FAM to APA rulemaking would harm foreign policy interests. At this stage, I agree with plaintiff that the foreign affairs exception does not require dismissal of the suit.
V. Equal Protection The City contends that the amendments to the FAM violate the equal protection component of the Due Process Clause because they discriminate based on “race, national origin, nationality,
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income, or receipt of public benefits.” ECF 1, ¶ 189. The government moves to dismiss the City’s equal protection claim, asserting that “the City has not alleged facts that could establish that the challenged FAM guidance was motivated by racial animus on the part of the Department of State or the President.” ECF 17-1 at 44. And, the government points out that federal actions which discriminate on the basis of income and national origin are subject only to rational basis review. Id. at 45-46.20
The Equal Protection Clause of the Fourteenth Amendment “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Equal Protection principles apply to the federal government through the Due Process Clause of the Fifth Amendment to the Constitution. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
“To state a race-based claim under the Equal Protection Clause, a plaintiff must allege that a government actor intentionally discriminated against him on the basis of his race.” Williams v. Hansen, 326 F.3d 569, 583 (4th Cir. 2003); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). Discriminatory intent “implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Adm’r of Mass. v.
20 The government does not explain why the City has failed to state a claim even if the FAM discriminated on the basis of income or national origin, as opposed to race. See ECF 17-1 at 44-46. Regardless, as discussed, infra, Trump v. Hawaii, __ U.S. __, __, 138 S. Ct. 2392 (2018), may compel the application of rational basis review to the City’s equal protection claim, regardless of whether the alleged classification is income, national origin, or race.
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Feeney, 442 U.S. 256, 279 (1979). That said, “the Equal Protection Clause ‘does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes.’” Williams, 326 F.3d at 584 (emphasis in original) (quoting Arlington Heights, 429 U.S. at 265). It is enough to show “that racial animus was one of several factors that, taken together, moved the decision-maker to act as he did.” Id.
“There are several ways for a plaintiff to make out a valid claim of unconstitutional discrimination[:]” The plaintiff can (1) “point to a law or policy that expressly classifies persons on the basis of race,” (2) “identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner,” or (3) “allege that a facially neutral statute or policy that is neutrally applied nonetheless has an adverse effect on a protected group, and that the adoption of the statute or policy was motivated by discriminatory animus.” Williams, 326 F.3d at 584 (internal citations omitted).
In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), the Supreme Court set forth a non-exhaustive list of factors for courts to consider in performing the “sensitive inquiry” into discriminatory intent. These include: (1) “The historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “The specific sequence of events leading up the challenged decision”; (3) “Departures from the normal procedural sequence”; (4) “Substantive departures . . ., particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “The legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 267-68 (internal citations and references omitted).
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When undertaking this analysis, courts must be cautious not to “miss[] the forest in carefully surveying the many trees.” N.C. State Conference of NAACP v. McCrory, 831 F.3d, 204, 214 (4th Cir. 2016). “Any individual piece of evidence can seem innocuous when viewed alone, but gains an entirely different meaning when considered in context.” Id. at 233.
Applying the Arlington Heights factors, the City’s allegations are sufficient to survive defendants’ Motion. First, the Complaint alleges that the FAM change was a substantive departure from previous policy. “For decades,” asserts the City, the FAM’s definition of public charge did not encompass the receipt of non-cash benefit. Then, on January 3, 2018, the State Department changed course, making the receipt of non-cash benefits by both the visa applicant and his or her family a relevant factor. ECF 1, ¶ 44. Likewise, the State Department retracted its instruction that Affidavits of Support are “normally . . . sufficient,” and replaced it with the advisement that an Affidavit is simply a “positive factor.” Id., ¶¶ 47, 105.
Second, the City points to “specific sequences of events” that raise red flags. Shortly after President Trump’s inauguration, a draft Executive Order was leaked to the media, which directed DHS and the State Department to adjust how they conduct public charge determinations. Id. ¶ 77. Although the order was never finalized, both agencies have implemented nearly identical regulatory changes. Id. ¶ 78. Similarly, plaintiff alleges that the State Department published the amended Manual without forewarning; that when it did announce the changes on its website, it left out many of the details, including any explanation for the revisions; and it removed the press release from its website shortly after posting it. Id. ¶¶ 115-20.
Finally, the City identifies statements by the President and senior Executive Branch officials to support its claim that defendants’ decision was motivated, at least in part, by intentional discrimination against immigrants of color. See id. ¶¶ 69-73.
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The government throws the proverbial kitchen sink at the City’s equal protection claim. However, none of its arguments are persuasive.
As an initial matter, defendants contend that the City cannot raise a plausible equal protection claim because “aliens seeking entry into the United States cannot assert constructional rights.” ECF 17-1 at 44. That is undoubtedly true. Kerry v. Din, 576 ___ U.S. ___, ___, 35 S. Ct. 2128, 2131 (2015) (opinion of Scalia, J.); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). But, the City is not asserting the rights of unadmitted nonresident aliens. Rather, it seeks to assert the constitutional rights of its residents, particularly those who are affected by the FAM, either because they are immigrant residents, sponsors, or family members of a visa applicant. ECF 1, ¶¶ 195-97. Thus, Din and Kleindienst are inapposite.
Further, the government insists that the remarks by President Trump, on which the Cities relies, are merely “statements about policy” and that, regardless, none of these statements pertain to the FAM change. ECF 17-1 at 47-48. The government is wrong on both fronts.
It is true that many of the President’s remarks on which the City relies are policy or policyrelated statements, like his contention that “[c]urrent immigration policy imposes as much as $300 billion annually in net fiscal costs on U.S. taxpayers.” ECF 1, ¶ 71(p). And, others are nothing more than political bluster. See, e.g., id. ¶ 71(e) (“ObamaCare gives free insurance to illegal immigrants.”). Indeed, it cannot be the case that an equal protection claim is born every time a president expresses his views on contentious subjects, such as immigration. See Hawaii, 138 S. Ct. at 2417 (“The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”). But, the Complaint contains statements of the President that plausibly constitute prejudice. Those statements include (1) the President’s alleged complaint on January 11, 2019, about “people from shithole countries” coming to the United States (id. ¶ 69);
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(2) his comment that immigrants from Haiti “all have AIDS” (id. ¶ 70); and (3) his assertion that Nigerians, if admitted to the United States, would never “go back to their huts” (id.).
And, the government invokes Trump v. Hawaii, __ U.S. __, 138 S. Ct. 2392 (2018), for the proposition that courts should ignore the President’s statements when searching for evidence of racial animus. ECF 17-1 at 48-49. In Trump v. Hawaii, the plaintiffs lodged, inter alia, an Establishment Clause challenge to Presidential Proclamation No. 9645, which restricted the entry of foreign nationals from six predominantly Muslim countries. Id. at 2403; see 82 Fed. Reg. 45161 (Sept. 27, 2017). The President’s statements in that case were at “the heart” of the plaintiffs’ constitutional claim. Id. at 2417. The plaintiffs obtained a preliminary injunction barring enforcement of the restrictions, and the government appealed. Id. at 2406-07.
As relevant here, the Court vacated the preliminary injunction based, in part, on finding that the plaintiffs had not “demonstrated a likelihood of success on the merits of their constitutional claim.” Id. at 2423. The Court applied the standard set forth in Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), which provides that, pursuant to Congress’s plenary power over immigration, a court reviewing a constitutional attack on a visa denial should examine only whether there was a “facially legitimate and bona fide reason” for the decision. Id. at 2420.
Applying the Mandel standard, the Court found that the Proclamation was facially neutral as to religion, “reflect[ed] the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies,” and was “expressly premised on legitimate purposes: preventing the entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Id. at 2421. But, the Court went further, finding it appropriate to “look behind the face of the Proclamation to the extent of applying rational basis review.” Id. at 2420. Thus, the Court stated: “As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold
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the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” Id. Although the Court acknowledged the extrinsic record presented by the plaintiffs, it concluded that, “because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.” Id.
There is little daylight between Hawaii and the case sub judice. Here, as there, plaintiff mounts a constitutional challenge to an Executive Branch policy concerning the entry of foreign nationals into the country. Accordingly, the Court is limited to the “circumscribed judicial inquiry,” asking only if the FAM changes “can reasonably be understood to result from a justification independent of unconstitutional grounds.” Id. at 2420.
However, Hawaii does not foreclose plaintiff’s equal protection claim. First, rational basis review is not toothless. See, e.g., Romer v. Evans, 517 U.S. 620, 635 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448-50 (1985); U.S. Dep’t of Agric. v. Moreno, 413, U.S. 528, 534-36 (1973). Perhaps plaintiff will unearth evidence during discovery demonstrating that defendants were driven by nothing more than “a bare . . . desire to harm a politically unpopular group.” Moreno, 413 at 534. Or, perhaps defendants will produce evidence that the revisions to the FAM have a legitimate basis. But, at this juncture, there is no evidence as to why defendants amended the Manual.
Second, Hawaii in no ways holds that the President’s statements are irrelevant. See Int’l Refugee Assistance Project v. Trump, 373 F. Supp. 3d 650, 671 (D. Md. 2019) (“[Hawaii] does not instruct courts to disregard [presidential] statements . . ., nor does it hold that the subjective intent of the President and his advisors . . . is irrelevant.”); see also Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 519-520 (9th Cir. 2018), cert. granted, __ U.S. __,
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139 S. Ct. 2779 (2019) (No. 18-587); id. at 524 n.4 (Owens, J., concurring in the judgment). Indeed, despite limiting its review, the Hawaii Court nonetheless considered “extrinsic evidence”—namely, President Trump’s statements. Hawaii, 138 S. Ct. at 2420.
Finally, defendants ignore that the standard of review in Hawaii was materially different than the one this Court must apply to defendants’ Motion. The question in Hawaii was whether the plaintiffs had established a “likelihood of success on the merits,” so as to entitle them to a preliminary injunction. See id. at 2423; see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Here, in contrast, this Court is tasked with deciding whether the Complaint states a plausible claim for relief. See Arab Am. Civil Rights League v. Trump, No. 17-10310, 2019 WL 3003455, at *9 (E.D. Mich. July 10, 2019) (declining to apply Hawaii v. Trump at motion to dismiss stage due to the differing standards of review).
The government is correct that none of the President’s statements relate specifically to the decision to change the FAM’s public charge provisions. But, at this juncture, the City does not need to demonstrate a tight nexus between words and actions. See, e.g., Saget v. Trump, 345 F. Supp. 3d 287 (E.D.N.Y. 2018) (plaintiffs plausibly alleged an equal protection violation based on the President’s statements); Casa de Md., Inc. v. Trump, 355 F. Supp. 3d 307, 325-26 (D. Md. 2018) (same); New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766, 810 (S.D.N.Y. 2018) (same), aff’d in part and rev’d in part, __ U.S. __, 139 S. Ct. 953 (2019); Centro Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393, 414-15 (D. Mass. 2018) (same); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (rejecting the argument that the President’s statements were irrelevant to equal protection challenge to agency action). Indeed, “there can be no doubt that if, as alleged, the President influenced the decision to [amend the FAM], the discriminatory motivation cannot be laundered through the Secretary.” Casa de Maryland, 355 F.
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Supp. 3d at 326. And, in any event, plaintiff plausibly claims that President Trump was personally involved in the decision based on the draft Executive Order commanding the State Department to revise the FAM’s public charge provisions. ECF 1, ¶ 77.
Whether this evidence will ultimately suffice to establish an equal protection violation is a question for another day. At this juncture, accepting plaintiff’s allegations as true, and drawing all reasonable inferences in plaintiff’s favor, as I must at this stage, I conclude that the City has alleged sufficient facts to allege a claim of an equal protection violation.
VI. Injunctive relief and the President Relying primarily on Franklin v. Massachusetts, 505 U.S. 788 (1992) (plurality opinion), defendants assert that the Court should, at a minimum, dismiss the City’s claims against the President because “separation of powers generally prevents a federal court from issuing an injunction purporting to supervise the President’s performance of his duties.” ECF 17-1 at 50. The prospect of enjoining the President raises serious separation of powers concerns. Indeed, the Supreme Court has consistently cautioned courts against granting equitable relief against the chief executive. See Clinton v. Jones, 520 U.S. 681, 718-19 (1997) (Breyer, J. concurring); Massachusetts v. Mellon, 262 U.S. 447, 487 (1923) (The “general rule is that neither department may invade the province of the other and neither may control, direct, or restrain the action of the other”); Johnson, 71 U.S. (4 Wall.) 475, 500 (1866) (“Neither [the Congress or President] can be restrained in its actions by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.”). In Franklin, 505 U.S. 788, Massachusetts sued to enjoin the President from submitting the census statement to Congress under the APA and the Enumeration Clause. Id. at 802. A plurality of the Supreme Court observed that a “grant of injunctive relief against the President himself is
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extraordinary, and should . . . raise[ ] judicial eyebrows.” Id. The plurality went on to state: “in general ‘this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.’” Id. at 802-03 (quoting Johnson, 71 U.S. (4 Wall.) 475, 500). But the plurality did “not decide whether injunctive relief against the President was appropriate, because . . . the injury alleged is likely to be redressed by declaratory relief against the Secretary alone.” Id. at 803.
In a concurring opinion, Justice Scalia opined in Franklin: The apparently unbroken historical tradition supports the view, which I
think implicit in the separation of powers established by the Constitution, that the principals in whom the executive and legislative powers are ultimately vested— viz., the President and the Congress (as opposed to their agents)—may not be ordered to perform particular executive or legislative acts at the behest of the Judiciary. . . . . Permitting declaratory or injunctive relief against the President personally would not only distract him from his constitutional responsibility to “take Care that the Laws be faithfully executed,” U.S. Const., Art. II, § 3, but, as more and more disgruntled plaintiffs add his name to their complaints, would produce needless head-on confrontations between district judges and the Chief Executive. Id. at 827-28 (Scalia, J., concurring in part and concurring in the judgment) (internal quotation marks and citations omitted). But, this does not place the President above the law. Justice Scalia explained that “[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive . . . .” Id. at 828; accord Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.), as amended (May 31, 2017), as amended (June 15, 2017) (reversing injunction issued against the President because injury could be remedied by injunctive relief against subordinate officials), vacated and remanded on other grounds sub nom. Trump v. Int’l Refugee Assistance, __ U.S. __, __, 138 S. Ct. 353, 199 (2017); Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996).
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Despite casting grave doubt on enjoining Presidential action, the Supreme Court has not foreclosed the possibility that it may be warranted in extreme cases. See Clinton v. New York, 524 U.S. 417, 433 n.22 (1998) (holding plaintiffs satisfied Article III standing because “each injury is traceable to the President's cancellation of [certain act provisions], and [it] would be redressed by a declaratory judgment that the cancellations are invalid”); see also Patricia M. Wald & Jonathan R. Siegel, The D.C. Circuit and the Struggle for Control of Presidential Information, 90 Geo. L.J. 737, 758 (2002) (noting that the Court “has not expressly held that a court may never enjoin the President,” only “that there is something unique about litigation against the President eo nomine that should cause a special judicial hesitation in the enforcement of legal constraints on executive action.”).
Other district courts, when faced with this delicate question at the motion to dismiss stage, have declined the government’s invitation to dismiss the President as a party. See Stone v. Trump, __ F. Supp. 3d __, __, 2019 WL 3935363 at ⃰ 29 (D. Md. Aug. 2019) (declining to dismiss President from suit on a motion to dismiss); District of Columbia v. Trump, 291 F. Supp. 3d 725, 751-52 (D. Md. 2018), rev’d and remanded on other grounds, In re Trump, 928 F.3d 360 (4th Cir. 2019) (same); Centro Presente, 332 F. Supp. 3d at 418-19 (finding it “premature to determine whether this case has the potential to be the rare case in which such an extraordinary remedy might be justified”); CASA de Md., 355 F. Supp. 3d at 328-29 (“Though ultimately, relief against the President himself is extraordinarily unlikely in this case, none of the authority cited by Defendants requires that the President be dismissed at this early stage. The Court thus denies Defendants' motion to dismiss President Trump from the case.”); Saget, at 345 F. Supp. 3d at 297-98 (E.D.N.Y. 2018) (“Because this could be one of the rare cases in which the extraordinary remedy of injunctive
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relief against the President could be appropriate, it is premature to dismiss the President as a party at this time.”).
Defendants contend that the City’s suit against the President is “especially weak” because the State Department, not the President, publishes the FAM. ECF 71 at 50. That may ultimately prove to be true. But this argument is misplaced at this stage in the litigation. Therefore, I shall deny the government’s motion to dismiss defendant President Trump as a party.
VII. Conclusion For the reasons stated above, I shall deny defendants’ Motion to Dismiss (ECF 17). An Order follows, consistent with this Memorandum Opinion.

Date: September 20, 2019

/s/ Ellen Lipton Hollander United States District Judge

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 Case 1:18-cv-03636-ELH Document 116 Filed 05/26/20 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
BALTIMORE DIVISION

MAYOR AND CITY COUNCIL OF BALTIMORE,
Plaintiff,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America, et al.,
Defendants.

Case No. 1:18-cv-3636-ELH

CORRECTED BRIEF OF UNITED STATES HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Case 1:18-cv-03636-ELH Document 116 Filed 05/26/20 Page 2 of 22

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES ........................................................................................................ iii

INTEREST OF AMICUS CURIAE................................................................................................ 1

INTRODUCTION AND SUMMARY .......................................................................................... 2

ARGUMENT ................................................................................................................................. 4

I.

THE STATE DEPARTMENT’S NEW UNDERSTANDING OF “PUBLIC CHARGE”

DEPARTS FROM THAT TERM’S LONGSTANDING AND SETTLED MEANING.............. 4

A. The Term “Public Charge” Has Always Referred To A Person Primarily Dependent On The Government For A Significant Period. ........................................................................................................ 4

B. Congress Legislated Against The Backdrop Of The Long-Settled Meaning Of “Public Charge” When It Reenacted The Provision.............. 7

C. The State Department’s New Rule Impermissibly Departs From The Long-Settled Understanding Of “Public Charge.” ........................... 10

II. THE STATE DEPARTMENT’S NEW “PUBLIC CHARGE” RULE IS IRRATIONAL. ........ 14

CONCLUSION............................................................................................................................ 15

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases

Page(s)

Coykendall v. Skrmetta, 22 F.2d 120 (5th Cir. 1927) .......................................................................................................5

Cuomo v. Clearing House Ass’n, LLC, 557 U.S. 519 (2009).................................................................................................................14

Galvan v. Press, 347 U.S. 522 (1954)...................................................................................................................1

Gegiow v. Uhl, 239 U.S. 3 (1915).......................................................................................................................5

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974)...................................................................................................................9

Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 139 S. Ct. 628 (2019) .............................................................................................................3, 8

Helvering v. Winmill, 305 U.S. 79 (1938).....................................................................................................................9

Ex parte Hosaye Sakaguchi, 277 F. 913 (9th Cir. 1922) .........................................................................................................5

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)...................................................................................................................9

Judulang v. Holder, 565 U.S. 42 (2011)...................................................................................................................15

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991)...................................................................................................................9

Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015) ...............................................................................................................8

Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018) .............................................................................................................11

Constitutional Provisions

U.S. Const., Art. I, § 8 .....................................................................................................................1

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Statutes 7 U.S.C. § 2011........................................................................................................................12, 13 7 U.S.C. § 2015(d) .........................................................................................................................13 8 U.S.C. § 1182(a)(4)(A) .......................................................................................................2, 7, 14 8 U.S.C. § 1613..............................................................................................................................14 42 U.S.C. § 1396-1 ........................................................................................................................12 42 U.S.C. § 1396a(a)(10)(i) ...........................................................................................................12 42 U.S.C. § 1396a(l) ......................................................................................................................12 42 U.S.C. § 1437(a)(1)...................................................................................................................12 42 U.S.C. § 1437a(b)(2)(B) ...........................................................................................................12 42 U.S.C. § 1437f(o)(4) .................................................................................................................12 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009 ................................................................................................7, 10 Immigration Act of 1882, 22 Stat. 214 ............................................................................................4 Immigration Act of February 5, 1917, 39 Stat. 874.........................................................................5 Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163 (1952) ..................................5 Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No.
104-193, 110 Stat. 2105 (1996) ...............................................................................................10 Rules and Regulations 7 C.F.R. § 273.9(a)(1) ....................................................................................................................12 64 Fed. Reg. 28,676 (proposed May 26, 1999) (INS Field Guidance)......................................7, 12 83 Fed. Reg. 51,114 (proposed Oct. 20, 2018) ..............................................................................11 Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b),
https://perma.cc/M25F-496H .....................................................................................................1 84 Fed. Reg. 54,996 (Oct. 11, 2019) (Public Charge Rule).................................................2, 10, 14
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Administrative Decisions Matter of A-,
19 I. & N. Dec. 867 (BIA 1988) ..........................................................................................6, 13 Matter of Harutunian,
14 I. & N. Dec. 583 (BIA 1974) ................................................................................................6 Matter of Martinez-Lopez,
10 I. & N. Dec. 409 (A.G. 1964) ...........................................................................................6, 9 Matter of Perez,
15 I. & N. Dec. 136 (BIA 1949) ................................................................................................6 Matter of T-,
3 I. & N. Dec. 641 (BIA 1949) ..................................................................................................5 Legislative Materials 142 Cong. Rec. S11872 (daily ed. Sept. 30, 1996) ..........................................................................7 S. Rep. No. 113-40 (2013) ...............................................................................................................8 Other Authorities Cong. Research Serv., R42054, The Supplemental Nutrition Assistance Program
(SNAP): Categorical Eligibility (Oct. 25, 2019), https://tinyurl.com/yah2r2qc......................13 Hidetaka Hirota, Expelling the Poor (2016) ....................................................................................5 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts (2012) ...............................................................................................................................8 Danilo Trisi, Ctr. on Budget & Pol’y Priorities, Administration’s Public Charge
Rule Would Close the Door to U.S. to Immigrants Without Substantial Means (Nov. 11, 2019), https://tinyurl.com/ur8d7xy ..........................................................................11 Webster’s American Dictionary of the English Language (1st ed. 1828) .......................................4
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INTEREST OF AMICUS CURIAE1 Amicus curiae, the United States House of Representatives,2 respectfully submits this brief because of its interest in ensuring that immigrants to our Nation are accorded the rights to which the immigration laws entitle them. The Constitution empowers the Legislative Branch to “establish a uniform Rule of Naturalization.” Art. I, § 8. The formulation of “[p]olicies pertaining to the entry of [noncitizens] and their right to remain here … is entrusted exclusively to Congress.” Galvan v. Press, 347 U.S. 522, 531 (1954) (citation omitted). For more than 100 years, courts and the Executive Branch have understood the “public charge” provision of our Nation’s immigration laws to apply to individuals who are likely to become primarily dependent upon public assistance for a significant period. Congress preserved that long-established meaning when it reenacted the public-charge provision without material change in 1996. Congress has an important interest in preserving its ability to reenact a statutory term, against the backdrop of that term’s settled meaning, without the risk that an administration dissatisfied with Congress’s policy judgment will later seek to give the term a meaning that Congress has already rejected.
1 The House certifies that no counsel for a party authored the brief in whole or in part, and no person or entity other than the House and its counsel made a monetary contribution intended to fund the preparation or submission of the brief. All parties consented to the filing of this brief. 2 The Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives has authorized the filing of an amicus brief in this matter. The BLAG comprises the Honorable Nancy Pelosi, Speaker of the House, the Honorable Steny H. Hoyer, Majority Leader, the Honorable James E. Clyburn, Majority Whip, the Honorable Kevin McCarthy, Republican Leader, and the Honorable Steve Scalise, Republican Whip, and “speaks for, and articulates the institutional position of, the House in all litigation matters.” Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b), https://perma.cc/M25F-496H. The Republican Leader and Republican Whip dissented.
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INTRODUCTION AND SUMMARY Since 1882, Congress has directed that non-U.S. citizens likely to become “public charges” may not settle in the United States. During that time, the courts and the Executive Branch have consistently construed this provision as limited to persons likely to become primarily dependent on the government for a significant period. Congress affirmed this longestablished understanding of the term when it reenacted the public-charge provision without material change in 1996. The current version of the provision once more denies admission and adjustment of status to permanent residency to persons “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). At the same time, in a closely related provision, Congress considered and rejected an effort to broaden the definition of “public charge” to include noncitizens who receive small amounts of widely available government benefits. The Trump Administration now seeks to broaden—dramatically—the scope of the “public charge” provision. The Department of State has issued an interim final rule redefining “public charge” to refer to persons likely at any time to receive certain government benefits— including benefits like food stamps, Medicaid, and federal housing assistance—for more than 12 months in the aggregate within any three-year period. See 84 Fed. Reg. 54,996, 54,998 (Oct. 11, 2019) (Public Charge Rule). The class of noncitizens who may obtain these benefits is vast. Together with a similar rule issued by the Department of Homeland Security (DHS), the rule would overhaul the Nation’s immigration system, seizing on a previously narrow exclusion to substantially limit the class of individuals who may settle here. The Trump Administration may not substitute its own policy judgment for Congress’s in this way. When Congress reenacted the public-charge provision without material change in 1996, it legislated against the settled understanding of “public charge” as limited to noncitizens
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who primarily depend on the government over the long term. Courts must presume that Congress intended to ratify that established meaning when it reenacted the provision without change. See Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 139 S. Ct. 628, 633-34 (2019).
The State Department’s rule deviates from the long-settled understanding of “public charge” in crucial respects. For the first time ever, the State Department would consider in its public-charge determination not just a noncitizen’s receipt of cash benefits for income maintenance, but also the receipt of benefits like food stamps, Medicaid, and affordable housing, even though acceptance of such benefits does not make a noncitizen primarily dependent upon the government. And for the first time ever, a noncitizen deemed likely at any point in the future to collect small amounts of public benefits would be considered a “public charge.”
These changes cannot be reconciled with Congress’s intent when it reenacted the provision in 1996—particularly given that Congress in 1996 rejected efforts to broaden a related provision to encompass noncitizens likely to obtain these government benefits. After Congress has repeatedly reenacted a term in reliance on its settled meaning, and after Congress has rejected efforts to expand that term by statute, the Executive Branch should not be permitted to outmaneuver Congress by expanding the term to give it the meaning Congress rejected.
In addition, the State Department’s new rule would be impossible to apply rationally or fairly. The interim final rule would require immigration officials to make predictive judgments about whether noncitizens are likely far in the future to collect de minimis public benefits for even short periods. There is simply no way for a government official to predict with any degree of accuracy whether an individual may at some point many years later in life qualify for—and, if so, choose to accept—minimal assistance from the government. Congress did not intend to force State Department consular officers to make such impossible predictions.
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ARGUMENT

I.

THE STATE DEPARTMENT’S NEW UNDERSTANDING OF “PUBLIC CHARGE” DEPARTS

FROM THAT TERM’S LONGSTANDING AND SETTLED MEANING.

A. The Term “Public Charge” Has Always Referred To A Person Primarily Dependent On The Government For A Significant Period.

The term “public charge” has always referred to persons likely to become primarily

dependent on the government over the long term. In the more than 100 years since Congress

enacted the public-charge provision, both the courts and the Executive Branch have understood

the term consistent with that long-established meaning.

1. Congress first used the phrase “public charge” in the Immigration Act of 1882, the

Nation’s original immigration law. The 1882 Act provided that “any convict, lunatic, idiot, or

any person unable to take care of himself or herself without becoming a public charge … shall

not be permitted to land [in the United States].” Immigration Act of 1882, ch. 376, 22 Stat. 214.

The text of the 1882 statute establishes that “public charge” referred to persons primarily

dependent on the government. When the statute was enacted, Webster’s Dictionary defined a

“charge” as a “person or thing committed to another’s custody, care or management.” Webster’s

American Dictionary of the English Language (1st ed. 1828). A “public charge,” therefore was

understood to refer to someone committed to the custody or care of the government—i.e.,

someone primarily dependent on the government.

Other features of the 1882 Act confirm that “public charge” requires a showing of

primary and long-term dependency. A different provision of the 1882 Act created an “immigrant

fund” to be used “for the care of immigrants arriving in the United States, for the relief of such as

are in distress,” and to “provide for the support and relief of such immigrants therein landing as

may fall into distress or need public aid.” 22 Stat. at 214. Because the statute contemplated the

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admission of immigrants needing public aid, the public-charge provision could not have excluded immigrants on the ground that they might collect some public aid. This conclusion is reinforced by the fact that Congress modeled the original public-charge restriction on state laws directed at “exceptionally impoverished and destitute persons,” which excluded persons who needed modest and temporary assistance. Hidetaka Hirota, Expelling the Poor 33, 68 (2016).
Thus, in Gegiow v. Uhl, 239 U.S. 3 (1915), the Supreme Court held as a matter of law that the public-charge provision did not apply in a case involving immigrants who had little money, did not speak English, and would be unable to find employment in their chosen destination city. Id. at 8-10. To be a “public charge,” the Court concluded, a person must be “excluded on the ground of permanent personal objections.” Id. at 10. That the immigrants would not find a job in their destination did not make them “public charges.” Id.
2. In 1917, Congress amended the public-charge provision, moving its location within the statute, but courts and the Executive Branch continued to recognize that the amended provision applied only to persons likely to become primarily dependent on the government for significant periods. See Immigration Act of February 5, 1917, ch. 29, 39 Stat. 874, 876. As the Ninth Circuit explained, the 1917 Amendment “does not change the meaning that should be given” to public charge. Ex parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). Other courts also continued to read “public charge” to mean “a condition of dependence on the public for support.” Coykendall v. Skrmetta, 22 F.2d 120, 121 (5th Cir. 1927). The Executive Branch applied the provision similarly. See Matter of T-, 3 I. & N. Dec. 641, 644 (BIA 1949).
3. In 1952, Congress enacted the Immigration and Nationality Act (INA), which retained the “public charge” provision. Pub. L. No. 82-414, ch. 2, § 212, 66 Stat. 163, 183. The INA continued to make inadmissible noncitizens who are “likely to become public charge[s].” Id. As
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before, the provision was understood to apply only to noncitizens considered likely to become primarily dependent on the government over the long term.
In 1964, the Attorney General issued a precedential decision holding that the publiccharge provision “requires more than a showing of a possibility that the [noncitizen] will require public support.” Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 421 (A.G. 1964). The Attorney General explained that “[s]ome specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present.” Id. And the Attorney General concluded that “[a] healthy person in the prime of life cannot ordinarily be considered likely to become a public charge”—“especially where he has friends or relatives in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.” Id. at 421-22.
Later opinions by the Board of Immigration Appeals (BIA) reaffirmed this settled understanding of “public charge.” Hence, a noncitizen could not be excluded as a public charge—even though “her family received public cash assistance for approximately 4 years”— given that she “has now joined the work force, that she is young, and that she has no physical or mental defects which might affect her earning capacity.” Matter of A-, 19 I. & N. Dec. 867, 870 (BIA 1988); see also Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (noncitizen not a public charge even though “she was, and had been for some time, the recipient of welfare”). By contrast, a noncitizen “who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support” would be “excludable as likely to become a public charge.” Matter of Harutunian, 14 I. & N. Dec. 583, 589-90 (BIA 1974).
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Summarizing the state of the law in 1999, the Immigration and Naturalization Service (INS) understood “public charge” to refer to a noncitizen who has become “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” 64 Fed. Reg. 28,676, 28,677 (proposed May 26, 1999) (INS Field Guidance). “[C]onsistent with” a century of “public charge” precedents, INS explained that the plain meaning of the term “public charge” “suggests a complete, or nearly complete, dependence on the Government rather than the mere receipt of some lesser level of financial support.” Id.
B. Congress Legislated Against The Backdrop Of The Long-Settled Meaning Of “Public Charge” When It Reenacted The Provision.
When Congress reenacted the public-charge provision without material change in 1996, it intended to retain the established judicial and administrative understanding of that statutory term.
1. Congress enacted the latest public-charge provision as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See Pub. L. No. 104-208, 110 Stat. 3009. IIRIRA made substantial reforms to the Nation’s immigration scheme, but it retained the public-charge provision materially unchanged. The Act provides that a noncitizen is inadmissible if, “in the opinion of” the relevant immigration official, the noncitizen “is likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A).
Congress in considering IIRIRA rejected a proposal to amend the public-charge provision addressing deportation to include noncitizens who temporarily receive supplemental public benefits. A prior version of the bill would have defined “public charge” to permit deportation if a noncitizen “received Federal public benefits for an aggregate of 12 months over a period of 7 years.” 142 Cong. Rec. S11872, S11882 (daily ed. Sept. 30, 1996) (statement of Sen. Kyl). But this provision was removed under threat of veto. Id. at S11881-82.
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In 2013, Congress again rejected an attempt to expand the public-charge provision beyond its long-established meaning to encompass receipt of supplemental public benefits. Then-Senator Jeff Sessions introduced an amendment that would have “expand[ed] the criteria for ‘public charge,’” requiring noncitizens “to show they were not likely to qualify even for noncash employment supports,” including Medicaid and food stamps. S. Rep. No. 113-40, at 42 (2013). This proposal would have “denied entry” to noncitizens who were “likely to receive these types of benefits in the future.” Id. at 63. The amendment was rejected by voice vote. Id.
2. Where, as here, “a word or phrase has been … given a uniform interpretation by inferior courts or the responsible agency, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012). Congress must be able to rely on the settled meaning of a statutory term without the risk that an Executive Branch dissatisfied with Congress’s policy choices will later attempt to redefine the term to mean something different.
The Supreme Court has repeatedly held that when Congress reenacts a statutory phrase that has received a settled judicial interpretation, Congress is presumed to have ratified that interpretation. Faced with settled precedent regarding the meaning of a statutory phrase, the Court recently emphasized that it “presume[s] that when Congress reenacted the same language in the [new statute], it adopted the earlier judicial construction of that phrase.” Helsinn, 139 S. Ct. at 633-34. Congress’s decision to amend a statute “while still adhering to the operative language” in a provision “is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals” interpreting that provision. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015). A similar presumption applies when Congress reenacts a statutory phrase that has been interpreted
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authoritatively by the relevant agency. See Helvering v. Winmill, 305 U.S. 79, 83 (1938) (agency “interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval”).
These presumptions apply with particular force where Congress has rejected efforts to modify the term at issue. “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987) (citation omitted); see also Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974).
These principles leave no doubt that Congress preserved the long-established meaning of “public charge” when it reenacted that term without change in IIRIRA. In enacting IIRIRA, Congress legislated against the backdrop of a uniform body of law holding that “[a] healthy person in the prime of life cannot ordinarily be considered likely to become a public charge.” Matter of Martinez-Lopez, 10 I. & N. Dec. at 421. And Congress considered and rejected a proposal to expand the public-charge provision governing deportation to cover a noncitizen’s temporary receipt of benefits—compelling evidence that it did not intend to achieve that result.
“Congress legislates with knowledge of [the Supreme Court’s] basic rules of statutory construction.” McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 496 (1991). Thus, when Congress chooses to retain a statutory term with a settled meaning, and when it chooses to reject a proposed expansion of the term, Congress trusts that the other branches will respect its decision to adopt the term’s settled meaning. The other branches cannot play a shell game with Congress by ignoring these basic rules of statutory construction after Congress has relied on them.
3. Congress’s decision to retain the longstanding meaning of “public charge” is confirmed by several other amendments Congress made to the public benefits laws and to the
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INA in 1996. One month before it passed IIRIRA, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2105 (1996) (PRWORA), which overhauled key aspects of the Nation’s federal benefits programs. PRWORA provided that lawful permanent residents could collect public benefits like food stamps and Medicaid after they had lived in the United States for five years. Id., 110 Stat. at 2265. In addition, the Act made affidavits of support submitted by an immigration sponsor, in support of a noncitizen’s application for lawful permanent residency, legally enforceable. Id., 110 Stat. at 2271. Then, in IIRIRA, Congress amended the INA to require most immigrants to obtain affidavits of support from sponsors. Pub. L. No. 104-208, 110 Stat. at 3009-674.
These amendments underscore Congress’s codification of the long-settled meaning of “public charge.” In 1996, Congress expressly authorized immigrants to collect federal benefits and required sponsors to reimburse the government for receipt of these benefits in some circumstances. Congress therefore necessarily contemplated that immigrants, at least after the initial five-year period, would collect federal benefits. It addressed its concerns about immigrant self-sufficiency not by excluding all immigrants who might collect benefits, but instead by enacting a detailed scheme that limited their eligibility for a defined period and required reimbursement upon the government’s request.
C. The State Department’s New Rule Impermissibly Departs From The LongSettled Understanding Of “Public Charge.”
1. The new rule transforms the public-charge provision. It defines “public charge” to mean a person who, according to the predictive judgment of the relevant immigration official, is likely to collect more than 12 months of certain public benefits in the aggregate during a 36month period. Public Charge Rule at 54,998. Under the new rule, qualifying benefits for the first time include in-kind assistance like food stamps (now known as the Supplemental Nutrition
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Assistance Program, or SNAP), Medicaid, and federal housing assistance. Id. Multiple benefits received in a single month count as multiple months of benefits. Id.
It is difficult to overstate the significance of this transformation. Less than two percent of noncitizens receive cash benefits that could trigger a public-charge determination under the meaning of that term that has governed for a century. 83 Fed. Reg. 51,114, 51,193 (proposed Oct. 10, 2018). But the new rule requires consular officers to predict whether at any time in the future a noncitizen is likely to collect de minimis public benefits that are widely used by the population at large, increasing the number of noncitizens who may be deemed inadmissible on public-charge grounds by orders of magnitude. “[A]bout half of all U.S.-born citizens” at some point participate in the benefits programs considered in the new rule.3 Thus, under the rule, consular officers would exclude a noncitizen deemed likely to resemble financially any person in the less affluent half of the U.S.-born population.
Together with DHS’s materially identical rule, the State Department’s rule would overhaul the Nation’s immigration system, seizing on a previously narrow exclusion to impose a new and dramatic limit on the class of individuals seeking to enter the United States or become lawful permanent residents. That is not a decision Congress authorized the State Department to make. “Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018). “Until it exercises that power, the people may rely on the original meaning of the written law.” Id.
3 Danilo Trisi, Ctr. on Budget & Pol’y Priorities, Administration’s Public Charge Rules Would Close the Door to U.S. to Immigrants Without Substantial Means (Nov. 11, 2019), https://tinyurl.com/ur8d7xy.
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2. The State Department’s rule departs from the long-established understanding of the term “public charge” in at least three respects.
In-Kind Benefits. A public-charge determination historically could be triggered only by a likelihood of receiving benefits associated with primary dependence on the government. But the new rule makes noncitizens inadmissible even if they are likely to receive minimal in-kind benefits like SNAP, Medicaid, and housing assistance.
Individuals who receive such benefits often do not depend on them for subsistence, as the Executive Branch has recognized. See INS Field Guidance at 28,686 (noting that these benefits “typically provide only supplemental and marginal assistance”). These benefits instead reflect Congress’s policy judgment that individuals should have access to nutritious food, medical care, and affordable housing. See 7 U.S.C. § 2011; 42 U.S.C. § 1396-1; 42 U.S.C. § 1437(a)(1). The programs are not exclusively available to the poor. SNAP benefits are generally available to individuals with incomes up to 130% of the federal poverty line. See 7 C.F.R. § 273.9(a)(1). Many states have expanded Medicaid to persons with incomes up to 138% of the poverty line. See 42 U.S.C. § 1396a(a)(10)(i), (l). And affordable housing assistance is in many geographic areas available to persons who earn incomes that place them substantially above the poverty line. See 42 U.S.C. § 1437f(o)(4); id. § 1437a(b)(2)(B) (families eligible if they earn 50% of area median income or less). Individuals who receive these benefits may not be destitute, but may accept the benefits because Congress has made a policy choice to provide them free of cost.
Primary Dependence. The term “public charge” had historically been understood to “suggest[] a complete, or nearly complete, dependence on the Government rather than the mere receipt of some lesser level of financial support.” INS Field Guidance at 28,677. But the new
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rule treats as “public charges” individuals likely to receive any amount of benefits, no matter how small, including individuals who are fully employed and living above the poverty line.
Individuals who obtain small amounts of in-kind benefits often will not primarily depend on those benefits. Consider a recipient of SNAP benefits. As its name suggests, SNAP supplements an individual’s ability to obtain nutritious food. See 7 U.S.C. § 2011. Some individuals at the higher end of income eligibility for SNAP receive as little as 62 cents per day—or $15 per month.4 Most SNAP recipients who can work do so, and many are subject to work requirements as a condition of receiving benefits. See 7 U.S.C. § 2015(d). Such an individual is not a “public charge” under any reasonable understanding of the term.
Long-Term Dependence. Prior to the recent changes, the term “public charge” required a showing that the noncitizen would depend on the government for a significant period. The BIA recognized that there “may be circumstances beyond the control of the [noncitizen] which temporarily prevent [a noncitizen] from joining the work force”—such as if the noncitizen is “unable to find a job”—and that this temporary inability to find work would not make the noncitizen a “public charge.” Matter of A-, 19 I. & N. Dec. 870. But the new rule would deem noncitizens “public charges” if they receive benefits for only a few months.
The State Department’s rule covers any noncitizen likely to receive more than 12 months of benefits in any three-year period, and it counts a noncitizen’s receipt of multiple benefits in one month as multiple months of benefits. Thus, an individual would be excluded under the public-charge provision if she were deemed likely to receive SNAP, Medicaid, and housing assistance for more than four months spread over any three-year period during her lifetime.
4 Cong. Research Serv., R42054, The Supplemental Nutrition Assistance Program (SNAP): Categorical Eligibility 2 (Oct. 25, 2019), https://tinyurl.com/yah2r2qc.
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Construing such a short-term receipt of benefits to trigger a public-charge finding departs from the long-settled meaning of “public charge” that Congress intended to reenact.
3. In justifying its transformation of the “public charge” provision, the State Department invokes the discretion given to immigration and consular officers to apply the term. Public Charge Rule at 55,006. While individual consular officers may have some discretion to apply the “public charge” provision, this does not give the State Department discretion to rewrite the statute contrary to its long-established meaning. Even where there may be “some uncertainty” about a provision’s meaning, the Executive Branch cannot “expand Chevron deference to cover virtually any interpretation.” Cuomo v. Clearing House Ass’n, LLC, 557 U.S. 519, 525 (2009). The language adopted by Congress sets the “outer limits” on a provision’s meaning, id., and courts police those limits using the traditional tools of statutory interpretation. II. THE STATE DEPARTMENT’S NEW “PUBLIC CHARGE” RULE IS IRRATIONAL.
The State Department’s new rule would be impossible to apply in practice and would lead to a host of practical problems that Congress did not intend.
The public-charge provision does not ask whether the noncitizen is currently a “public charge.” Instead, it asks whether a person is “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). The interim final rule, in turn, requires consular officers to make a prediction about whether a noncitizen “is more likely than not” at any time in the future to receive “one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.” Public Charge Rule at 55,000-01.
This prediction requires consular officers to look far into the future with no crystal ball to aid them. With minor exceptions, Medicaid, SNAP, and federal affordable housing assistance are unavailable to noncitizens until they have lived here for five years. See 8 U.S.C. § 1613.
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Most persons subject to the “public charge” restriction are thus ineligible for these benefits when they apply for visas, and many will remain ineligible for another five years thereafter. As a result, the State Department rule requires consular officers to predict not whether an immigrant has already collected or is likely imminently to collect benefits, but whether she is likely to collect them at any point from five years on into the future.
As to the overwhelming percentage of immigrant visa applicants, no consular officer could make such a prediction accurately. Many noncitizens subject to the new understanding of “public charge” will be employed full-time and situated above the poverty line when the consular officer is called upon to make the prediction. Others will ordinarily be employed, except that they may have suffered a medical emergency or job loss that requires them to collect benefits temporarily. Some might at some point collect merely de minimis benefits even though they are fully employed. And some will qualify for benefits, but nevertheless will not collect them for various reasons, ranging from personal preference to familial support.
A consular officer could not hope to make an accurate prediction regarding which of these noncitizens would accept minimal benefits and which would not. See Judulang v. Holder, 565 U.S. 42, 56 (2011) (invalidating an agency interpretation as likely to yield an outcome as irrational “as a coin flip”). It would be impossible for a consular officer to make a reasoned decision about whether an applicant, far in the future, is likely to encounter an unpredictable yet temporary hardship, or is likely to choose at some point to accept small amounts of benefits to supplement her steady income. Congress cannot possibly have intended consular officers to make the arbitrary and irrational prediction the State Department’s rule requires.
CONCLUSION For the foregoing reasons, Plaintiff’s Motion for Summary Judgment should be granted.
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May 22, 2020
Thomas M. Bondy Peter E. Davis ORRICK, HERRINGTON &
SUTCLIFFE LLP 1152 15th Street NW Washington, DC 20005
Rene Kathawala ORRICK, HERRINGTON &
SUTCLIFFE LLP 51 West 52nd Street New York, NY 10019

Respectfully submitted,
/s/ Douglas N. Letter Douglas N. Letter General Counsel Todd B. Tatelman Megan Barbero Adam A. Grogg William E. Havemann OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, DC 20515 T: (202) 225-9700 F: (202) 226-1360 Douglas.Letter@mail.house.gov
Counsel for Amicus Curiae5

5 “The General Counsel of the House of Representatives and any other counsel in the Office of the General Counsel of the House of Representatives, including any counsel specially retained by the Office of General Counsel, shall be entitled, for the purpose of performing the counsel’s functions, to enter an appearance in any proceeding before any court of the United States or of any State or political subdivision thereof without compliance with any requirements for admission to practice before such court ....” 2 U.S.C. § 5571(a).
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 Case 1:18-cv-03636-ELH Document 99 Filed 02/27/20 Page 1 of 61

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MAYOR AND CITY COUNCIL OF BALTIMORE,
100 N. Holliday Street, Suite 101 Baltimore, MD 21202,
Plaintiff,
vs.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
1600 Pennsylvania Avenue NW Washington, DC 20500,
U.S. DEPARTMENT OF STATE, 2201 C Street NW Washington, DC 20520, and
MICHAEL R. POMPEO, in his official capacity as U.S. Secretary of State,
2201 C Street NW Washington, DC 20520,
Defendants.

Case No. 1:18-cv-3636-ELH

SUPPLEMENTAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CCaassee11:1:188-c-cvv-0-033663366-E-ELLHH DDooccuummeennt t9929-2 FFileiledd0022/2/077/2/200 PPaaggee22oof f6611
TABLE OF CONTENTS JURISDICTION AND VENUE ..................................................................................................2 PARTIES ....................................................................................................................................3 ADDITIONAL FACTS...............................................................................................................3
VIII. The Application of the Foreign Affairs Manual Change. ......................................3 IX. The Department of Homeland Security Public Charge Rule. ................................7 X. The State Department’s Interim Final Rule.........................................................12 XI. The Interim Final Rule Harms Baltimore............................................................17
Supplemental Nutrition Assistance Program ...........................................21 Medicaid ................................................................................................25 Other Harms...........................................................................................28 ADDITIONAL CLAIMS FOR RELIEF AS TO THE INTERIM FINAL RULE .......................30 Count Five (Violation of the Administrative Procedure Act, the Immigration and Nationality Act, and the Illegal Immigration Reform and Immigrant Responsibility Act) ............................................................................................30 Count Six (Violation of the Administrative Procedure Act – Arbitrary and Capricious) .31 Count Seven (Violation of the Administrative Procedure Act – Notice and Comment) ..33 Count Eight (Violation of the Fifth Amendment – Equal Protection) .............................35 REQUEST FOR RELIEF AS TO THE INTERIM FINAL RULE .............................................36
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Pursuant to Federal Rule of Civil Procedure 15(d), Plaintiff Mayor and City Council of Baltimore, Maryland hereby supplements its Complaint, see ECF No. 1, against Defendants Donald J. Trump, in his official capacity as President of the United States of America, the U.S. Department of State, and Michael R. Pompeo, in his official capacity as U.S. Secretary of State, and alleges as follows:131
198. In its original Complaint, Baltimore explained how Defendants’ January 2018 revisions to the provision of the Foreign Affairs Manual governing the application of the “public charge” ground of inadmissibility (the “FAM change”) violate the Administrative Procedure Act and the U.S. Constitution and inflict grievous harm on the City. In ruling on Defendants’ Motion to Dismiss, the Court concluded that Baltimore had sufficiently alleged multiple plausible legal challenges to the FAM change as well as its standing to bring those challenges. Sept. 23, 2019 Mem. Op., ECF No. 59.
199. Just over two and a half weeks after the Court issued its opinion, however, Defendants issued a new interim final rule purporting again to revise the State Department’s understanding of public charge. Visas: Ineligibility Based on Public Charge Grounds, 84 Fed. Reg. 54,996 (Oct. 11, 2019) (to be codified at 22 C.F.R. pt. 40) (the “Interim Final Rule” or “IFR”). According to Defendants, the IFR is “intended to align the Department’s standards with those of the Department of Homeland Security,” and “supersedes all prior inconsistent guidance on the public charge visa ineligibility.” Id. at 54,996.
200. The IFR is nothing more than old wine in a new bottle. The IFR again drastically and inexplicably expands the meaning of public charge, replacing the longstanding inquiry into
131 For ease of reference, the paragraphs, footnotes, and section headings in the Supplemental Complaint are numbered consecutively to the original Complaint. All allegations in the original Complaint are incorporated by reference here.

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whether an applicant is likely to become primarily dependent on government assistance with a focus on whether the applicant is likely to use even small amounts of non-cash, supplemental benefits.
201. This time, however, the IFR adopts a framework similar to the Department of Homeland Security’s final rule, which has been challenged in five separate courts. Notably, even though this Court rejected Defendants’ reliance on two exceptions to notice-and-comment rulemaking, Defendants again issued the IFR without advance notice and comment. And even though the Court concluded that Baltimore had plausibly alleged that President Trump’s racial animus motivated the FAM change, Defendants again rushed out a rule with the manifest intention of targeting immigrants of color. Nor does the IFR reflect any increased regard for the interests of cities like Baltimore and its residents, immigrant or not.
202. The IFR and the FAM change should meet the same fate. For the reasons explained in Baltimore’s original Complaint, and elaborated upon here, the IFR and the FAM change continue to harm the City and its residents, and violate basic principles of administrative process, immigration law, and equal protection. The Court should hold them unlawful, set them aside, and require Defendants to return to processing visa applications under the standards in effect prior to January 3, 2018.
JURISDICTION AND VENUE 203. The Court continues to have subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under federal law. 204. Venue remains proper in this district pursuant to 28 U.S.C. § 1391(e) because Defendants are agencies and officers of the United States and Plaintiff Mayor and City Council of Baltimore, Maryland is located in Maryland.
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PARTIES 205. The parties to this action are the same as identified in Plaintiff’s Complaint.
ADDITIONAL FACTS VIII. The Application of the Foreign Affairs Manual Change.
206. Since the State Department implemented the FAM change, the number of visa denials on public charge grounds has skyrocketed.
207. In Fiscal Year (FY) 2016, the last full fiscal year before President Trump took office, the Department denied around 1,033 immigrant visas on public charge grounds.132 In FY 2017, this number rose to around 3,209.133 Then, in FY 2018, this number jumped to around 12,973.134 That is a more than 300 percent increase between FY 2017 and 2018,135 and a twelvefold increase between FY 2016 and 2018.
208. This trend has worsened since. Preliminary data from FY 2019 show that the Department denied 12,179 visas on public charge grounds between October 1, 2018 and July 29,
132 Data on Visas Refused Under Public Charge Grounds, U.S. Dep’t of State (Aug. 2, 2019), https://www.politico.com/f/?id=0000016d-97fe-da83-a5fd-9ffea2270000 [hereinafter Data on Visas]; see also Ann. Rpt. Table XX, U.S. Dep’t of State (2016), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16 AnnualReport-TableXX.pdf (showing 1,076 public charge denials in FY 2016). 133 Data on Visas; see also Ann. Rpt. Table XX, U.S. Dep’t of State (2017), https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2017AnnualReport/FY17 AnnualReport-TableXX.pdf (showing 3,237 public charge denials in FY 2017). 134 Data on Visas; Ann. Rpt. Table XX, U.S. Dep’t of State (2018) https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2018AnnualReport/FY18 AnnualReport%20%20-%20TableXX.pdf (showing 13,450 public charge denials in FY 2018). 135 Stuart Anderson, New Data Reveal State Department Visa Denials Surged in 2018, Forbes (Mar. 1, 2019), https://www.forbes.com/sites/stuartanderson/2019/03/01/state-department-visadenials-surged-in-2018/#1f8ba4e066d4 [hereinafter Anderson, New Data].
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2019.136 At this rate, “the department [was] on pace to surpass last year’s total,”137 which, again, already represented a more than 300 percent increase in visa denials between FY 2017 and 2018.138
209. In addition to dramatically increasing the overall number of public charge visa denials between FY 2016 and 2019, the FAM change has disparately impacted applicants from certain majority-minority countries. Whereas public charge denials for applicants from, for example, Mexico, Bangladesh, Pakistan, and the Dominican Republic have surged, there has been no statistically significant increase in visa denials for applicants from predominantly white countries.
210. Between FY 2016 and the first ten months in FY 2019, for example, Mexico saw the steepest rise in public charge rejections.139 In FY 2016, the Department denied only seven immigrant visas for Mexican applicants.140 In contrast, during the portion of FY 2019 between October 2018 and July 2019, the Department denied 5,343 immigrant visa applications from Mexican nationals on public charge grounds.141
211. Department data show similar consequences for applicants from other majorityminority countries.142 In FY 2016, no Bangladeshi applicants were denied on public charge grounds. Then, in FY 2018, the Department refused 1,502 Bangladeshi immigrant visa applicants
136 Ted Hesson, Exclusive: Visa Denials to Poor Mexicans Skyrocket Under Trump’s State Department, Politico (Aug. 6, 2019), https://www.politico.com/story/2019/08/06/visa-denialspoor-mexicans-trump-1637094 [hereinafter Hesson, Visa Denials Skyrocket]. 137 Id. 138 Anderson, New Data. 139 Hesson, Visa Denials Skyrocket. 140 Id. 141 Id. 142 Data on Visas.
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on public charge grounds. In the first ten months of FY 2019, the Department has already denied 1,262 Bangladeshi immigrant visa applicants on public charge grounds.
212. The Department turned away 1,246 Pakistani immigrant visa applicants on public charge grounds in FY 2018 compared to just two denials in FY 2016. From October 2018 to July 2019, the Department denied 563 Pakistani immigrant visa applications on public charge grounds.
213. The Department also rejected 168 Dominican immigrant visa applicants in FY 2018 on public charge grounds compared to a single comparable denial in FY 2016. In the first ten months of FY 2019, the Department has already denied 1,012 Dominican immigrant visa applicants on public charge grounds.
214. In sharp contrast, only three Canadian immigrant visa applicants were refused on public charge grounds in FY 2018, each of whom ultimately overcame the public charge determination. In the first ten months of FY 2019, the State Department has denied zero Canadian immigrant visa applicants based on public charge grounds.
215. Only one Belarusian visa application was denied on public charge grounds in FY 2018. In the first ten months of FY 2019, the State Department has denied zero Belarusian immigrant visa applicants based on public charge grounds.
216. Similarly, in FY 2018, two Georgian visa applications were denied on public charge grounds, and only one in the first ten months of FY 2019.
217. Likewise, only four Bulgarian visa applications were denied on public charge grounds in FY 2018, and only two such denials were issued in the first ten months of FY 2019.
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218. Jeffrey Gorsky, former Chief of the Legal Advisory Opinion section of the Visa Office in the Department of State, has said that “the most logical explanation for the surge in public charge denials in FY 2018” is the FAM change.143
219. Similarly, the National Foundation for American Policy concluded that “[t]he administration’s March 6, 2017, presidential memorandum on ‘heightened screening and vetting of applications for visas’ and the change in public charge standards in the Foreign Affairs Manual are most responsible for the decline in visa issuance.”144
220. February 2019 press guidance from the State Department Bureau of Consular Affairs confirms these conclusions. It instructs that, if asked about the increase in visa refusals under public charge, Department officials should reply that “[g]uidance on public charge was clarified in January 2018 to better inform consular officers in their adjudication decisions.”145 Internal emails also reflect the Department’s understanding that the 2018 increase “is based on the new policy and training which accompanied the January 2018 updates to 9 FAM 302.8 on assessing public charge.”146
221. These records also reflect the Department’s application of the FAM change. Specifically, a webinar conducted after the change in late January 2018 informed consulates that “a properly filed, non-fraudulent Affidavit of Support is no longer sufficient on its own to
143 Anderson, New Data; see also Defs.’ Mot. to Dismiss at 31, ECF No. 17-1 (“It is true that application of the new guidance, compared to the earlier guidance, could potentially lead to individuals being denied visas on ‘public charge’ grounds more frequently.”). 144 State Department Visa Refusals in FY 2018 for Immigrants and Nonimmigrants, Nat’l Found. for Am. Pol’y (Mar. 2019), https://nfap.com/wp-content/uploads/2019/03/State-DepartmentVisa-Refusals-In-FY-2018.NFAP-Policy-Brief.March-2019-1.pdf. 145 Exhibit A at 2 (Release of Visa Refusal Data). 146 Exhibit B (Email from Morgan A. Parker).
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overcome public charge concerns.”147 That statement clarifies that the FAM change meaningfully changed the Department’s treatment of Affidavits of Support. IX. The Department of Homeland Security’s Public Charge Rule.
222. On October 10, 2018, DHS published a Notice of Proposed Rulemaking proposing to revamp DHS’s interpretation and application of the public charge ground for visa inadmissibility (the “DHS Proposed Rule”). Compl. ¶ 83. It accepted comments on that proposal until December 10, 2018. Id.
223. DHS received more than 266,000 comments from “healthcare providers; research institutes and universities; law firms and individual attorneys; federal, state, local, and tribal elected officials; State and local government agencies; religious and community organizations; advocacy groups; unions; Federal Government officials; and trade and business organizations.” Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,304 (Aug. 14, 2019) (rule to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245, 248).
224. According to DHS, “the vast majority of commenters opposed the rule.” Id. Among other things, commenters vigorously opposed: (1) the expanded definition of “public charge”; (2) changes to the benefits that would be newly considered and the manner in which they would be considered; and (3) the introduction of weighted factors into the totality of the circumstances test, which were difficult to understand. Id. at 41,346-401.
225. Despite the significant concerns raised in these comments, on August 14, 2019, DHS published the final rule (the “DHS Final Rule”), which was largely unchanged from the DHS Proposed Rule. Id. at 41,292-508. In particular:
147 Exhibit C (Webinar Description); see also Exhibit D (Webinar Screen).
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a. The DHS Final Rule continues to redefine public charge to mean “an alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period,” rather than one who is likely to become “primarily dependent on the Government for subsistence,” as the term has been historically understood. Id. at 41,295.
b. The DHS Final Rule dramatically expands the range of benefits considered in the public charge analysis “to include cash benefits for income maintenance, [Supplemental Nutrition Assistance Program, or “SNAP” benefits], most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 ProjectBased Rental Assistance, and certain other forms of subsidized housing.” Id. at 41,295.
c. The DHS Final Rule imposes a complex and confusing scheme of positive and negative “factors,” including certain “heavily weighted” factors, to be used in applying the totality of the circumstances test. Id. Chief among the “heavily weighted” negative factors is an applicant’s past or current receipt of public benefits. Id.
226. To the extent DHS deviated from the DHS Proposed Rule at all, the revisions reflected in the DHS Final Rule often made the rule even more draconian, increasing the impact of receiving even a small amount of public benefits for a short period of time:
a. Where the DHS Proposed Rule set a value threshold for evaluating whether an applicant’s use of benefits fell within the “public charge” definition, the DHS Final Rule dispenses with the threshold altogether,
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replacing it with a pure durational requirement that looks only to the fact of receiving benefits over some period of time rather than the amount of such benefits. Id. at 41,297. b. Unlike the DHS Proposed Rule, the DHS Final Rule authorizes immigration officials to consider, as part of the “totality of the circumstances,” the receipt of all past benefits regardless of the frequency at which they were received (i.e., they need not meet the requirement of one or more for more than twelve months in any 36-month period to be considered). Id. In so doing, the DHS Final Rule makes receipt of any amount of benefit at all relevant to the public charge determination. c. In a further departure from the DHS Proposed Rule, the DHS Final Rule provides that when an individual receives two or more benefits simultaneously, DHS will count each benefit separately in calculating the duration of use. Id. 227. Taken together, these changes dramatically expand the circumstances under which applicants will be deemed inadmissible on public charge grounds. 228. The DHS Final Rule is yet another attempt by the Trump Administration to further its anti-immigration policies and target immigrants of color. As detailed in Plaintiff’s Complaint, President Trump has been actively involved in pressing for the public charge rules. See Compl. ¶¶ 69-75. 229. While the Trump Administration was finalizing the DHS Final Rule, a White House official told agency officials to “recognize … that the decision of whether to propose
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expanding the definition of public charge, broadly, has been made at a very high level and will not be changing.”148
230. After promulgating the DHS Final Rule, President Trump told reporters that he was “tired of seeing people come into the country who immediately go on welfare.”149
231. President Trump has relied on Stephen Miller, a senior White House advisor, to ensure that the public charge rules are finalized as quickly as possible. In one Oval Office meeting, “Trump told Miller he would be in charge of handling all immigration and border affairs, according to officials familiar with the meeting.”150
232. Leaked emails obtained by the Southern Poverty Law Center show that Miller has “promoted white nationalist literature, pushed racist immigration stories and obsessed over the loss of Confederate symbols after Dylann Roof’s murderous rampage.”151
148 Dara Lind & Yeganeh Torbati, The Administration Rushed on a Sweeping Immigration Policy. We Found Substantive, Sloppy Mistakes., ProPublica (Aug. 20, 2019), https://www.propublica.org/article/trump-administration-rushed-on-a-sweeping-immigrationpolicy-we-found-substantive-sloppy-mistakes. 149 Jennifer Jacobs (@JenniferJJacobs), Twitter (Aug. 13, 2019, 12:04 PM), https://twitter.com/JenniferJJacobs/status/1161307619727990785?s=20. 150 Nick Miroff et al., Trump Ditches His Nominee to Lead ICE, Saying He Wants Someone ‘Tougher’ for Top Immigration Enforcement Role, Wash. Post (Apr. 5, 2019), https://www.washingtonpost.com/immigration/trump-ditches-his-nominee-to-lead-ice-says-hewants-someone-tougher-for-top-immigration-enforcement-role/2019/04/05/c184cc6a-57bd11e9-9136-f8e636f1f6df_story.html. 151 See Michael Edison Hayden, Stephen Miller’s Affinity for White Nationalism Revealed in Leaked Emails, S. Poverty L. Ctr. (Nov. 12, 2019), https://www.splcenter.org/hatewatch/2019/11/12/stephen-millers-affinity-white-nationalismrevealed-leaked-emails.
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233. Miller has specifically focused on and “pushed hard”152 for expanding the definition of public charge, even directing DHS to “prioritize” it over “other efforts.”153
234. Miller’s drive to finalize the DHS Final Rule and other anti-immigration policies
despite opposition from officials who questioned their legality was reported to be one of the
primary reasons why former DHS Secretary Kirstjen Nielsen was forced to resign, along with other DHS officials.154
235. Miller also reportedly exerted pressure to force the resignation of U.S. Citizenship
and Immigration Services Director L. Francis Cissna because of his perceived lack of urgency in finalizing the DHS Final Rule, which Miller predicted would be “transformative.”155 Emails
obtained through a Freedom of Information Act request show Miller berating Cissna in June
2018 over the perceived delay in publishing the proposed public charge rule, with Miller writing “I don’t care what you need to do to finish it on time.”156
236. Documents obtained from the Department also show that officials at the White
House were involved in preparing the FAM change as early as June 2017, including officials
152 Michael D. Shear & Emily Baumgaertner, Trump Administration Aims to Sharply Restrict New Green Cards for Those on Public Aid, N.Y. Times (Sept. 22, 2018), https://www.nytimes.com/2018/09/22/us/politics/immigrants-green-card-public-aid.html. 153 Tal Kopan, Sources: Stephen Miller Pushing Policy to Make It Harder for Immigrants who Received Benefits to Earn Citizenship, CNN (Aug. 7, 2018), https://www.cnn.com/2018/08/07/politics/stephen-miller-immigrants-penalizebenefits/index.html. 154 See Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting His Way on Immigration: His Own Officials, N.Y. Times (Apr. 14, 2019), https://www.nytimes.com/2019/04/14/us/politics/trump-immigration-stephen-miller.html. 155 See id. 156 Ted Hesson, Emails Show Stephen Miller Pressed Hard to Limit Green Cards, Politico (Aug. 2, 2019), https://www.politico.com/story/2019/08/02/stephen-miller-green-card-immigration1630406.
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close to Miller.157 The Department also submitted the revisions to the Office of Information and Regulatory Affairs (“OIRA”) for their review.158
237. In response to the DHS Final Rule, a number of states and the District of Columbia, municipalities, non-profit immigrants’ rights, public interest, and health advocacy organizations, and individuals filed a total of nine lawsuits in five different federal courts spanning four circuits. See Casa de Md., Inc. v. Trump, 2019 WL 5190689 (D. Md. 2019); Cook Cty. v. McAleenan, 2019 WL 5110267 (N.D. Ill. 2019); Make the Road N.Y. v. Cuccinelli, 2019 WL 5484638 (S.D.N.Y. 2019); Washington v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 1191 (E.D. Wash. 2019); San Francisco v. U.S. Citizenship and Immigr. Servs., 408 F. Supp. 3d 1057 (N.D. Cal. 2019).
238. Between October 11 and October 14, 2019, all five courts enjoined the DHS Final Rule before it was to take effect on October 15, 2019, three on a nationwide basis. See id. After the Fourth and Ninth Circuits stayed two of the nationwide injunctions, the U.S. Supreme Court stayed the nationwide preliminary injunction entered in the Southern District of New York pending disposition of the governments’ appeal before the Second Circuit. See Dep’t of Homeland Sec. v. New York¸ No. 19A785, 2020 WL 413786 (Jan. 27, 2020). X. The State Department’s Interim Final Rule.
239. On October 11, 2019, the State Department promulgated the Interim Final Rule. See 84 Fed. Reg. 54,996.
157 Exhibit E (Email with Andrew M. Veprek); Exhibit F (Email with White House personnel); Exhibit G (Email with White House notes); see also Abigail Tracy, “He Actually Prefers the Chaos”: Stephen Miller, Immigration Warlord, Emerges from the Shadows, Vanity Fair (Apr. 14, 2019), https://www.vanityfair.com/news/2019/04/stephen-miller-dhs-purge-kirstjen-nielsenimmigration (explaining in April 2019 that “Miller has been building networks of influence inside the Trump administration,” including “Andrew Veprek in the State Department”). 158 Exhibit H (Email regarding OIRA submission).
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240. The Department set October 15, 2019 as the effective date. Id. at 54,996. 241. The IFR amends the State Department’s regulations to “prescrib[e] how consular officers will determine whether an alien is ineligible for a visa … because he or she is likely at any time to become a public charge.” Id. 242. The IFR is “intended to align the Department’s standards with those of the Department of Homeland Security,” and thereby avoid situations where consular officers and Department of Homeland Security personnel reach different conclusions regarding whether an individual is likely to become a public charge. Id.; see also id. at 55,000-01. 243. The IFR adopts the central features of the DHS Final Rule:
a. The IFR radically redefines public charge to mean “an alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period,” rather than one who is likely to “become primarily dependent on the U.S. Government for subsistence,” as the term has been historically understood. Id. at 54,998. In other words, the IFR makes it so that use of a single benefit for a relatively brief period of time is sufficient for an applicant to be deemed a public charge.
b. The IFR treats benefits as cumulative, such that “receipt of two benefits in one month counts as two months’ worth of benefits.” Id. at 55,004-05.
c. Compared to the pre-January 3, 2018 version of the FAM, the IFR, like the DHS Final Rule, expands the definition of public benefit to include supplemental, non-cash benefits like SNAP, Medicaid (with limited exceptions), and public housing and rental assistance programs under Sections 8 and 9 of the Housing Act of 1937. Id. at 54,999.
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d. The IFR imposes a complex and confusing scheme of positive and negative “factors,” including certain “heavily weighted” factors, to be used in applying the totality of the circumstances test. Id. at 55,012-13. Many of these factors have no bearing on an applicant’s likelihood of becoming a public charge. Chief among the “heavily weighted” negative factors is an applicant’s past or current receipt of any amount of public benefits, including receipt that falls below the 12-month threshold.
See generally 22 C.F.R. § 40.41. 244. Although the new test largely mimics the DHS Final Rule, the Department stated
that the IFR also “reflects the Department’s independent interpretations and policies.” 84 Fed. Reg. at 55,000. The Department clarified that “some aspects of the rule may deviate from the DHS approach due to the differing circumstances of visa applicants … as contrasted with applicants for USCIS-administered benefits,” stressing that its “standards are in some ways tailored specifically for unique aspects of visa adjudication.” Id. at 55,001.
245. Ultimately, the IFR is intended to “supersede[] all prior inconsistent guidance on the public charge visa ineligibility,” id. at 54,996, including the pre-1999 understanding of public charge, the 1999 NRPM, the 1999 Field Guidance, and the relevant provisions of the Foreign Affairs Manual prior to and following the January 3, 2018 changes. See also id. at 55,007.
246. The IFR also incorporates certain components of the FAM change that are inconsistent with the FAM as it stood prior to January 3, 2018. For example, the IFR expressly requires consular officers to independently “‘consider whether any third party’ listed in the affidavit of support will be ‘willing and able to financially support the alien while the alien is in
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the United States,’” id. at 54,996, and treats valid affidavits as merely a “positive factor,” rather than as determinative, id. at 54,998, 55,004.
247. The range of benefits that can trigger a public charge determination under the IFR is strikingly broad: by one estimate, in any one year, 30 percent of U.S.-born citizens receive one of the benefits encompassed by the IFR, compared to 5 percent who would meet the criteria enumerated in the 1999 Field Guidance.159 For workers in particular, the figures are 16 percent and 1 percent, respectively.160 A more recent report by the Center for Budget and Policy Priorities concluded that, “[i]f one considers benefit receipt of the U.S.-born citizens over the 1997-2017 period, some 43 to 52 percent received one of the benefits included in the proposed public charge rule,” and that more than 50 percent of the U.S.-born citizen population would receive such benefits over their lifetimes.161
248. Indeed, the Department estimated that 12,736,034 visa applicants would be affected by the IFR per year. Id. at 55,011.
249. However, the Department did not consider how its definition of public charge might deter individuals from accepting public benefits, as it did in the 1999 NPRM and Field Guidance, see Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676, 28,676-77 (May 26, 1999); Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,692 (May 26, 1999), nor did it estimate how
159 See Comments – Department of Homeland Security Notice of Proposed Rulemaking: Inadmissibility on Public Charge Grounds, Ctr. for Budget & Pol’y Priorities 7 (Dec. 7, 2018), https://www.regulations.gov/document?D=USCIS-2010-0012-37272. 160 Id. at 8. 161 Trump Administration’s Overbroad Public Charge Definition Could Deny Those Without Substantial Means a Chance to Come to or Stay in the U.S., Ctr. for Budget & Pol’y Priorities (May 30, 2019), https://www.cbpp.org/research/poverty-and-inequality/trump-administrationsoverbroad-public-charge-definition-could-deny.
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many individuals would forgo receiving public benefits as a result of the IFR, as DHS did with its final rule.162
250. The Department did not provide the affected community with an opportunity to comment on the IFR before it was promulgated. The Department provided a 30-day postpromulgation comment period. 84 Fed. Reg. at 54,996.
251. The Department asserted that it had “good cause” to dispense with notice and comment prior to the promulgation of the IFR because it would be both “impracticable and contrary to the public interest” to do so. Id. at 55,011. Specifically, the Department claimed that “[i]f implementation of the rule is delayed pending completion of notice and comment, consular officers would apply public charge-related ineligibility standards differing from those applied by DHS.” Id.
252. Despite this purported interest in aligning the policies of the two departments, counsel for the State Department represented to counsel for Baltimore that the Department was unwilling to stay implementation of the IFR during the period when the DHS Final Rule was enjoined by multiple courts.
253. The IFR has already prompted at least one legal challenge, which asserts that the Rule violates the Immigration and Nationality Act, the Rehabilitation Act, the Administrative Procedure Act, and the Fifth Amendment. See Compl., Make the Road N.Y. v. Pompeo, No. 1:19cv-11633 (S.D.N.Y. filed Dec. 19, 2019), ECF No. 1.
162 Regulatory Impact Analysis, Inadmissibility on Public Charge Grounds, DHS Dkt. No. USCIS-2010-0012, at 93-94 (Aug. 2019), https://www.regulations.gov/document?D=USCIS2010-0012-63741 [hereinafter DHS Final Rule Regulatory Impact Analysis].
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254. Although the IFR became effective on October 15, 2019, the Department has represented that it “will not implement the rule until the use of a new form for information collection is approved by the Office of Management and Budget [“OMB”].”163
255. On October 24, 2019, the Department published a notice that it would accept comments concerning that form for 60 days, or until December 23.164
256. The Department has not yet submitted the revised form to OMB. 257. While the Department represented that its “standards will be implemented through guidance,” 84 Fed. Reg. at 55,001, it has not promulgated any accompanying revisions to the Foreign Affairs Manual. 258. The Department has not stated when it expects the information collection form to be ready, when it expects to promulgate the accompanying revisions to the FAM, or, ultimately, when it expects to begin implementing the IFR. 259. Instead, the Department appears content to allow the specter of the IFR (and the FAM change) to continue deterring immigrants and their families from using public benefits. By its terms, the IFR applies to all benefits received after October 15, 2019, see id. at 55,005, even though the Department did not actually begin implementing the IFR on that date. XI. The Interim Final Rule Harms Baltimore. 260. For the reasons explained in Baltimore’s Complaint, Compl. ¶¶ 121-70, and addressed in the Court’s Memorandum Opinion (at 28-36), the Interim Final Rule, like the FAM change, harms Baltimore and its residents.
163 Information on Public Charge, U.S. Dep’t of State (Oct. 24, 2019), https://travel.state.gov/content/travel/en/traveladvisories/ea/Information-on-Public-Charge.html. 164 Id.; see 60-Day Notice of Proposed Information Collection: Public Charge Questionnaire, 84 Fed. Reg. 57,142 (Oct. 24, 2019).
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261. Specifically, like the FAM change, the IFR has had a tangible chilling effect on the use of public benefits by Baltimore’s immigrant residents, their family members, and their sponsors. The IFR imposes immigration consequences for the use of public benefits, thereby deterring immigrants and their families from accepting those benefits. Immigrants and their families are therefore forced to choose between accepting necessary benefits and maintaining their ability to come to and remain together in the United States. See Compl. ¶¶ 121-32.
262. The IFR therefore continues to perpetuate and/or exacerbate the three categories of injuries identified in the Complaint: (1) it obstructs Baltimore’s efforts to provide benefits and social services to its immigrant residents, see id. ¶¶ 137-50; (2) it forces Baltimore to devote time and money to adapt its programs and reach out to immigrant communities, see id. ¶¶ 156-61; and (3) it imposes significant downstream costs on Baltimore’s budget and on the City as a whole, see id. ¶¶ 162-70.
263. As the Court has concluded, see ECF No. 59 at 47-50, the interests Baltimore seeks to protect in this lawsuit are, at the very least, “arguably within the zone of interests” protected by the INA. Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1303 (2017) (quoting Assoc. of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)).
264. To be sure, the IFR encompasses a different range of benefits than the FAM change. But that difference does not mitigate its harmful impact. To the contrary, confusion over the application of the IFR and fear of its consequences deters immigrants and their families from accepting benefits even if use of those benefits would not actually be subject to the Rule. Cf. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019) (finding that plaintiffs had standing to challenge citizenship question because they demonstrated that it would lead to non-
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citizen residents not responding to the census, “even if [the residents] do so unlawfully and despite the requirement that the Government keep individual answers confidential”).
265. As DHS reiterated in its Regulatory Impact Analysis for the DHS Final Rule, “[r]esearch shows that when eligibility rules change for public benefits programs there is evidence of a ‘chilling effect’ that encourages immigrants to disenroll or forego enrollment in public benefits programs for which they are eligible.”165 The studies upon which DHS relied, as well as others, confirm that changes in eligibility rules deter “many immigrants entitled to public benefits and services from using them due to confusion about eligibility criteria and fears that users would be unable to sponsor family members in the future.”166 See Compl. ¶¶ 121-25.
266. Similarly, more recent reports have confirmed that immigrants and their families are avoiding public benefits even where use of those benefits would not yield any adverse immigration consequences. For example, as a result of the DHS Proposed Rule, the Urban Institute observed “chilling effects in families with various mixes of immigration and citizenship statuses,” which resulted in “14.7 percent of adults in families where all noncitizen members had green cards and 9.3 percent of those in families where all foreign-born members were naturalized
165 DHS Final Rule Regulatory Impact Analysis, at 90 (emphasis added). 166 Jeanne Batalova et al., Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefits Use, Migration Pol’y Inst. 14 (June 2018), https://www.migrationpolicy.org/research/chilling-effects-expected-public-charge-rule-impactlegal-immigrant-families; see also Sharon Parrott et al., Trump “Public Charge” Rule Would Prove Particularly Harsh for Pregnant Women and Children, Ctr. on Budget & Pol’y Priorities 2 (May 1, 2018), https://www.cbpp.org/sites/default/files/atoms/files/5-1-18pov2.pdf (“In the late 1990s, widespread confusion and fear about how public charge rules could impact families’ ability to adjust their status among immigrants with children eligible for and in need of federal benefits such as SNAP and Medicaid resulted in many being deterred from applying for benefits.”).
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citizens” avoiding taking public benefits.167 And a study published in JAMA Pediatrics in July
estimated that “more than 8 million children, most of whom are U.S. citizens presently
participating in Medicaid, the Children’s Health Insurance Program or SNAP, are at risk of being
unenrolled due to fear and confusion about the rule, even among immigrant families to which the
rule does not technically apply. ”168
267. Regardless, deterring immigrants and their families from accepting the benefits
specifically identified in the IFR is likely to cause significant harm to Baltimore and its residents,
particularly children. In Baltimore, over 15,000 citizen children under the age of 18 have one or
more parents who are foreign-born.169 Children in immigrant families are more likely to face
certain hardships and are less likely to secure help due in part to eligibility rules that create
barriers for immigrant families.170 If a non-citizen parent is afraid to receive public benefits,
immigrant families may similarly decline to receive benefits to support their children.
268. The value of access to public benefits has been documented repeatedly. Children
thrive when their parents can access needed physical and mental health care, when their families
167 Hamutal Bernstein et al., One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018, Urban Inst. (May 2019), https://www.urban.org/sites/default/files/publication/100270/one_in_seven_adults_in_immigrant _families_reported_avoiding_publi_4.pdf. 168 Gavrielle Jacobovitz, Trump’s Immigration Proposals Don’t Need to Happen to Cause Harm. That’s The Point., Huff. Post (Aug. 2, 2019), https://www.huffpost.com/entry/trumpimmigration-chilling-effects-public-charge-census_n_5d42ef7ce4b0acb57fc890bc (quotation omitted). 169 2017 American Community Survey, U.S. Census Bureau, at tbl. C05009, https://data.census.gov/cedsci/table?text=C05009&y=2017&tid=ACSDT1Y2017.C05009&layer =place&hidePreview=false&cid=C05009_001E&vintage=2017&g=1600000US2404000. 170 Tanya Broder et al., Overview of Immigrant Eligibility for Federal Programs, Nat’l Immigr. L. Ctr. (2015), https://www.nilc.org/issues/economic-support/overview-immeligfedprograms/; Kinsey Alden Dinan, Federal Policies Restrict Immigrant Children’s Access to Key Public Benefits, Nat’l Ctr. for Children in Poverty (2005), http://www.nccp.org/publications/pdf/text_638.pdf.
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have enough to eat, and when they have a roof over their heads.171 Conversely, parents’ stress and health challenges impede effective caregiving and can undermine children’s development.172
269. The IFR’s treatment of specific programs also further harms Baltimore and its
residents in multiple ways.
Supplemental Nutrition Assistance Program 270. The IFR expressly includes “Federal, State or local cash benefit programs for
income maintenance, including [SNAP].” 84 Fed. Reg. at 54,999.
271. Congress created the food stamp program (now known as SNAP) in 1964, in
order to “safeguard the health and well-being of the Nation’s population and raise levels of nutrition among low-income households.”173
272. The Trump Administration’s efforts to include SNAP in public charge
determinations has deterred Baltimore’s immigrant residents and their families from accepting
SNAP benefits. Specifically, SNAP enrollment has decreased from an average of 202,000 Baltimore City residents per month in FY 2015 to 165,608 in FY 2019.174 Between July 2019 and November 2019,175 which accounts for the first five months of FY 2020, the average number
171 Health Coverage for Parents and Caregivers Helps Children, Geo. U. Health Pol’y Ctr. (March 2017), https://ccf.georgetown.edu/wp-content/uploads/2017/03/Covering-Parents-v2.pdf. 172 Id. 173 Food Stamp Act of 1964, Pub. L. No. 88-525, 78 Stat. 703 (1964) (codified at 7 U.S.C. § 2011); accord 7 C.F.R. § 271.1 (reiterating same purpose). 174 2015 All Program Monthly Statistical Report, Md. Dep’t of Human Servs., at tbl. FSP2-2 (2015), http://dhs.maryland.gov/documents/Data%20and%20Reports/FIA/Statistical%20Reports/2015All-Program-Monthly-Statistical-Report.pdf; 2019 All Program Monthly Statistical Report, Md. Dep’t of Human Servs, at tbl. FSP2-16 (2019), http://dhs.maryland.gov/documents/Data%20and%20Reports/FIA/Statistical%20Reports/2019All-Prg-MoStat-Public-Web-w-Charts-FINAL-11.pdf. 175 November 2019 is the latest month available from the Maryland Department of Human Services’s public SNAP data.
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of Baltimore City residents enrolled in SNAP further dropped to 159,806.176 The statistics also
show a significant decrease after the FAM change went into effect: the average number of
Baltimore residents enrolled in SNAP dropped by more than 13,000 participants between
January 2018, when the revisions went into effect, and November 2019.177
273. SNAP benefits vastly improve health and self-sufficiency for families. Compared
to children in immigrant families without SNAP, families with children who participate in the
program have more resources to afford medical care and prescription medications.178 An
additional year of SNAP eligibility for young children with non-citizen parents is associated with
significant health benefits in later childhood and adolescence.179 Research demonstrates that
safety net programs such as SNAP and Medicaid have short and long-term health benefits and
are crucial levers to reducing the intergenerational transmission of poverty.180
176 2020 All Program Monthly Statistical Report, Md. Dep’t of Human Servs., at tbl. FSP2-16 (2020), http://dhs.maryland.gov/documents/Data%20and%20Reports/FIA/Statistical%20Reports/2020All-Prg-MoStat-Public-Web-w-Charts-FINAL-4.pdf. 177 2018 All Program Monthly Statistical Report, Md. Dep’t of Human Servs., at tbl. FSP2-2 (2018), http://dhs.maryland.gov/documents/Data%20and%20Reports/FIA/Statistical%20Reports/2018All-Prg-MoStat-Public-Web-w-Charts-FINAL-7.pdf; 2020 All Program Monthly Statistical Report, Md. Dep’t of Human Servs., at tbl. FSP2-16 (2020), http://dhs.maryland.gov/documents/Data%20and%20Reports/FIA/Statistical%20Reports/2020All-Prg-MoStat-Public-Web-w-Charts-FINAL-4.pdf 178 Report Card on Food Security and Immigration: Helping Our Youngest First-Generation Americans to Thrive, Children’s Health Watch (2018), http://childrenshealthwatch.org/wpcontent/uploads/Report-Card-on-Food-Insecurity-and-Immigration-Helping-Our-Youngest-FirstGeneration-Americans-to-Thrive.pdf. 179 Chloe N. East, The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility, J. Hum. Res. (2018), http://jhr.uwpress.org/content/early/2018/09/04/jhr.55.3.0916-8197R2.abstract. 180 Marianne Page, Safety Net Programs Have Long-Term Benefits for Children in Poor Households, Ctr. for Poverty Res. (Mar. 2017), https://poverty.ucdavis.edu/sites/main/files/fileattachments/cpr-health_and_nutrition_program_brief-page_0.pdf
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274. Enrollment in SNAP is also used, in part, to determine whether high-poverty schools will receive federal and state educational funding. If enough families disenroll or refrain from participating in SNAP out of fear of adverse immigration consequences, Baltimore City Public Schools risks losing its ability to participate in the U.S. Department of Agriculture’s Community Eligibility Provision program. Through the Community Eligibility Provision program, school districts receive federal funding to provide free breakfasts and lunches to all students if at least 40 percent of students participate in SNAP and Temporary Assistance for Needy Families (“TANF”), among other eligibility criteria.181
275. Baltimore City Public Schools has relied on this funding in recent years to provide nutritious meals to all its students—thereby reducing food insecurity and improving students’ well-being and capacity for learning. As fewer students receive SNAP benefits, there will be an increase in unreimbursed costs to the school district under the program. If the rate decreases enough, Baltimore City Public Schools may become unable to afford to participate in the program or may ultimately become ineligible. Several schools in Baltimore that primarily serve non-citizen communities have already lost federal funding because SNAP participation rates decreased too much. When schools lose these sources of funding, Baltimore City Public Schools and the City must find ways to make up for the resulting financial shortfalls.
276. In addition, adults will be harmed because they will be deterred from enrolling in benefits to which they are entitled. In Baltimore, one in five individuals are food insecure, meaning they do not have regular access to nutritious food.182 SNAP is proven to reduce food
181 Community Eligibility Provision: Guidance and Updated Q&As, U.S. Dep’t of Agric. (2016), https://fns-prod.azureedge.net/sites/default/files/cn/SP54-2016os.pdf. 182 Baltimore Food System Resilience Advisory Report, Johns Hopkins Ctr. for a Livable Future 7 (2017), https://clf.jhsph.edu/sites/default/files/2019-01/baltimore-food-system-resilienceadvisory-report.pdf.
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insecurity in the most vulnerable populations.183 SNAP helps low-income households afford healthier diets “and free[s] up resources that can be used on health-promoting activities and preventive health care.”184 It can offset some of the stress associated with intermittent or unpredictable meals and having to balance food affordability with medicine, housing, or other necessary expenses.185
277. Among adults, food insecurity is associated with hypertension, coronary heart disease, diabetes, kidney disease, and poorer physical and mental health.186 On average, lowincome adults on SNAP incur nearly 25% less in medical care costs—about $1,400 per year— than low-income non-participants.187 These savings are even greater for those with hypertension (nearly $2,700 less) and coronary heart disease (over $4,100).188 SNAP is thus a preventive strategy both in terms of health outcomes as well as healthcare spending. Non-citizen residents who have disenrolled or have chosen to forgo SNAP benefits because of the IFR and FAM change will likely experience a decline in their health and well-being.
278. The drop in SNAP enrollment due to the IFR and FAM change also affects the local economy in Baltimore. Each SNAP participant spends approximately $125 per month in the local food economy. The drop in nearly 5,000 SNAP participants equates to approximately $625,000 in lost spending every month in Baltimore’s food economy.
183 Steven Carlson & Brynne Keith-Jennings, SNAP Is Linked with Improved Nutritional Outcomes and Lower Health Care Costs, Ctr. on Budget & Pol’y Priorities 2 (2018), https://www.cbpp.org/sites/default/files/atoms/files/1-17-18fa.pdf. 184 Id. at 11. 185 Id. at 4. 186 Id. at 16. 187 Id. 188 Id.
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279. More than 80% of SNAP benefits are redeemed at supermarkets.189 Supermarkets, which typically operate on small profit margins of 1-3 percent, suffer significant financial harm from a decrease in SNAP enrollment. The Baltimore City Food Environment maps and analyses reveal that of the 47 supermarkets currently in Baltimore, 24 are “preventing” food deserts, meaning that if one store were to close, the area would become a food desert due to surrounding conditions.190 These are the stores that depend most on customers redeeming SNAP benefits as the primary form of payment, and drastic reductions in SNAP customers could lead to store closures and widespread decreases in food access. The decrease in overall purchasing power could also make it more difficult to establish new supermarkets and other sources for food access in these communities into the future.
280. Moreover, immigrants and their families who forgo SNAP or other public benefits due to the IFR and FAM change (thereby reducing their available resources to purchase food) are likely to look to local food banks for nutritional support. The Baltimore City Department of Housing and Community Development administers a Summer Food Service Program, available to all city minors regardless of immigration status.191 Increased demand for these resources will impose additional costs on the City.
Medicaid 281. The IFR also includes Medicaid in the categories of benefits relevant to a public charge determination. 84 Fed. Reg. at 54,999.
189 SNAP Retailers Database, Ctr. on Budget & Pol’y Priorities, https://www.cbpp.org/snapretailers-database (last visited Jan. 30, 2020). 190 Baltimore City’s Food Environment: 2018 Report, Johns Hopkins Ctr. for a Livable Future 23 (2018), https://clf.jhsph.edu/sites/default/files/2019-01/baltimore-city-food-environment2018-report.pdf. 191 Summer Food Service, Balt. City Dep’t of Hous. & Cmty. Dev., https://dhcd.baltimorecity.gov/cs/summer-food-services.
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282. Congress created the federal Medicaid program in 1965 to assist states in furnishing medical assistance to individuals and families.192 Medicaid provides health coverage to millions of individuals, among them low-income adults, children, pregnant women, elderly adults, and people with disabilities.193
283. Baltimore’s immigrant residents and their families have likely disenrolled or refused to enroll in Medicaid due to the chilling effect caused by the FAM change and the IFR.
284. Medicaid coverage is essential for families: Children in immigrant families with health insurance coverage are more likely to have a usual source of care and receive regular health care visits, and are less likely to have unmet care needs.194 Children with access to Medicaid have fewer absences from school, are more likely to graduate from high school and college, and are more likely to have higher paying jobs as adults.195
285. Separate from the effect on Baltimore’s residents, the IFR and FAM change will also significantly increase healthcare costs to the City. Baltimore’s health-care services are funded by Medicaid reimbursements. Approximately 76% of the budget for EMS for the Baltimore City Fire Department is funded by Medicaid or Medicare. Because Baltimore residents have likely disenrolled or refused to enroll in Medicaid due to the chilling effect caused by the IFR and FAM change, the City will receive less in reimbursements from Medicaid,
192 Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (1965). 193 Medicaid, Ctrs. for Medicare & Medicaid Servs., https://www.medicaid.gov/medicaid/index.html. 194 Christine Percheski & Sharon Bzostek, Public Health Insurance and Health Care Utilization for Children in Immigrant Families, 21 Maternal & Child Health J. 2153 (2017), https://www.ncbi.nlm.nih.gov/pubmed/28702865. 195 Karina Wagnerman et al., Impact of Medicaid on Children: Latest Research Findings, Geo. U. Health Pol’y Inst. (2017), https://ccf.georgetown.edu/2017/03/13/medicaid-is-a-smartinvestment-in-children/.
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reducing the funding available for its health services at the same time as the demand for free and reduced-cost services increases.
286. Lost federal Medicaid reimbursements will place additional financial strain on the limited funding available for uncompensated care for individuals who are eligible for federally financed health coverage. Baltimore maintains several health services that provide free or reduced-cost services for its uninsured and underinsured populations. These services likely will see increased demand because of the IFR and FAM change, thereby increasing the cost to the City of providing these services. Indeed, DHS admitted that its rule could lead to “increased use of emergency rooms and emergent care as a method of primary health care due to delayed treatment” and “increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient.” 84 Fed. Reg. at 41,384.
287. Some individuals might worry that even receiving care at the City’s health clinics will adversely affect them in a public-charge determination—and therefore go without any health care at all. When city residents go without health care, Baltimore is sicker and less productive as a city. With fewer families seeking preventive care, contagious illnesses may go untreated and spread, endangering the greater public health of Baltimore. The Baltimore City Health Department is responsible for controlling outbreaks of infectious diseases in Baltimore, so an increase in outbreaks will impose greater costs on the City. For example, in response to recent disease outbreaks, the Baltimore City Health Department operated mass-vaccination clinics, quarantined ill patients, and identified and assessed those who encountered infected individuals. The City expended over 2,000 hours of staff time in response to a recent outbreak of measles.
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Other Harms 288. Similar dynamics apply to the IFR’s treatment of housing programs. See 84 Fed. Reg. at 54,999. The IFR includes three types of federal housing assistance in its definition of “public benefit”: (i) public housing; (ii) Section 8 vouchers; and (iii) project-based Section 8. Id. 289. Federal aid, issued by the Department of Housing and Urban Development to the local public housing authority that owns and manages the public housing, is intended to cover the gap between tenant rents and operating costs.196 Section 8 housing choice vouchers provide a rental subsidy to the participant household that can be used to rent a privately-owned housing unit.197 Households receiving project-based Section 8 benefit from a subsidy that is attached to the residence where they reside.198 290. Children whose families receive housing assistance are more likely to have a healthy weight and to rate higher on measures of well-being—especially when housing assistance is accompanied with food assistance.199 But children who are unstably housed, hungry, or lack access to health care—in part because of the IFR and FAM change—will likely have more difficulty at school and may require more remedial services. More broadly, increased homelessness will strain Baltimore’s housing assistance, social services, and emergency response programs. 291. The IFR also threatens broader economic harm upon Baltimore. As DHS noted in its Regulatory Impact Assessment for the DHS Final Rule, echoing the allegations above,
196 HUD’s Public Housing Program, U.S. Dep’t of Hous. & Urban Dev., https://www.hud.gov/topics/rental_assistance/phprog. 197 42 U.S.C. §§ 1437f, 1437u. 198 42 U.S.C. § 1437f; 24 C.F.R. pts. 5, 402, 880-884, 886. 199 Kathryn Bailey et al., Overcrowding and Frequent Moves Undermine Children’s Health, Children’s HealthWatch (2011), https://www.issuelab.org/resources/13900/13900.pdf.
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reductions in federal and state transfers under federal benefit programs may have impacts on state and local economies, large and small businesses, and individuals. For example, the rule might result in reduced revenues for healthcare providers participating in Medicaid, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs.200 292. Baltimore has already expended staff resources and time to provide guidance and training to City employees, community partners, and agencies regarding the potential ramifications of the IFR and FAM change. The Mayor’s Office of Immigrant Affairs has dedicated staff time and resources to conducting outreach to non-citizen resident communities about the IFR and FAM change. City agencies must now analyze and explain how two different sets of State Department rules—the IFR and the FAM change—interact with the parallel DHS Final Rule and affect the City’s residents. 293. Federal courts across the nation have similarly concluded that the states and cities challenging the DHS Final Rule have standing based on the rule’s chilling effect, the need to reallocate resources, increased operational costs related to individuals disenrolling from public benefits programs, and increased costs of community health epidemics and of uncompensated care. San Francisco v. U.S. Citizenship & Immigr. Servs., 944 F.3d 773, 787-88 (9th Cir. 2019); Cook Cty., 2019 WL 5110267, at *3-4; New York v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 334, 343-44 (S.D.N.Y. 2019); Washington, 408 F. Supp. 3d at 1208-09; San Francisco, 408 F. Supp. 3d at 1121-25. 294. In sum, the harms resulting from the chilling effect created by the IFR are no different from the harms caused by the FAM change and the DHS Final Rule. These harms to
200 DHS Final Rule Regulatory Impact Assessment, at 6.
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Baltimore are ongoing and will continue to persist while the IFR and FAM change remain in effect.
ADDITIONAL CLAIMS FOR RELIEF AS TO THE INTERIM FINAL RULE Count Five
(Violation of the Administrative Procedure Act, the Immigration and Nationality Act, and the Illegal Immigration Reform and Immigrant Responsibility Act)
295. Plaintiff repeats and incorporates by reference each of the foregoing allegations and the allegations in the Complaint, ECF No. 1, as if fully set forth herein.
296. The Interim Final Rule constitutes “final agency action for which there is no other adequate remedy in court” and is “subject to judicial review.” 5 U.S.C. § 704; see id. § 702.
297. The Administrative Procedure Act requires courts to “hold unlawful and set aside” agency action that is “not in accordance with law.” 5 U.S.C. § 706(2)(A).
298. For over a century, “public charge” has been understood to refer to a person who is “primarily dependent” upon the government for subsistence. That understanding has been reflected in, among other things, multiple immigration statutes passed by Congress, court decisions interpreting the term “public charge,” consistent agency interpretations of the public charge ground of inadmissibility, and the common usage of the term. See, e.g., New York, 408 F. Supp. 3d at 346.
299. The IFR is contrary to the longstanding meaning of public charge because, among other things, it expands the definition of public charge to include any applicant who receives one or more public benefits for 12 months in the aggregate within any 36-month period, expands the definition of public benefits to include even non-cash, supplemental benefits that do not bear on an applicant’s likelihood of becoming primarily dependent on government assistance, and supplants the statutory totality of the circumstances test with a test that is complicated and vague,
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and relies on factors that have no bearing on whether an individual is likely to become a public charge, while simultaneously deemphasizing the Affidavit of Support.
300. The IFR is therefore contrary to law and must be held unlawful and set aside. Count Six
(Violation of the Administrative Procedure Act – Arbitrary and Capricious) 301. Plaintiff repeats and incorporates by reference each of the foregoing allegations and the allegations in the Complaint, ECF No. 1, as if fully set forth herein. 302. The IFR constitutes “final agency action for which there is no other adequate remedy in court” and is “subject to judicial review.” 5 U.S.C. § 704; see id. § 702. 303. Under the Administrative Procedure Act, a “reviewing court shall … hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). 304. The Interim Final Rule is arbitrary, capricious, and an abuse of discretion because Defendants have relied on factors that Congress did not intend, failed to consider important aspects of the problem the agency was addressing, and offered an explanation for the IFR that was inconsistent with the evidence before the agency. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 305. For example, the IFR, without adequate explanation or support in the evidence, expands the definition of public charge to include any applicant who receives one or more public benefits for 12 months in the aggregate within any 36-month period; expands the definition of public benefits to include even non-cash, supplemental benefits that do not bear on an applicant’s likelihood of becoming a public charge; and supplants the statutory totality of the circumstances test with a test that is complicated and vague, and relies on factors that have no bearing on
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whether an individual is likely to become a public charge, while deemphasizing the Affidavit of Support.
306. Defendants also failed to consider the harm to immigrant communities, and to cities like Baltimore with immigrant populations, that will result from a rule that chills immigrants from accessing public benefits.
307. Moreover, these unexplained changes violate the legal requirement that when an agency changes position, it must at a minimum “provide [a] reasoned explanation for its action,” “display awareness that it is changing position,” and “show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009) (emphasis omitted). The Department did not.
308. The Department’s decision is implicitly based on “factual findings that contradict those which underlay its prior policy” (id. at 515), i.e., a different understanding of how immigrants will react to the imposition of immigration consequences for using public benefits and/or a different assessment of the odds that an immigrant who uses certain benefits is likely to become dependent on public assistance. The Department was therefore obligated to “provide a more detailed justification than what would suffice for a new policy created on a blank slate.” Id.
309. Similarly, the Department provided no reason for overriding the “serious reliance interests” engendered by its decades-long understanding of public charge (id.)—a rule that has allowed immigrants, their families, and their sponsors to use supplemental non-cash benefits without fear of adverse immigration consequences. These interests, too, obligated the Department to provide a more fulsome explanation.
310. The IFR is therefore arbitrary and capricious and must be held unlawful and set aside.
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Count Seven (Violation of the Administrative Procedure Act – Notice and Comment) 311. Plaintiff repeats and incorporates by reference each of the foregoing allegations and the allegations in the Complaint, ECF No. 1, as if fully set forth herein. 312. Under the Administrative Procedure Act, a “reviewing court shall … hold unlawful and set aside agency action … found to be … without observance of procedure required by law.” Id. § 706(2)(D). 313. Under the Administrative Procedure Act, an agency must provide “[g]eneral notice of proposed rule making … published in the Federal Register,” whenever the agency seeks to promulgate a rule. 5 U.S.C. § 553(b). Thereafter, “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” Id. § 553(c). Any final rule must be published at least thirty days prior to its effective date. Id. § 553(d). 314. Only in very limited circumstances does the APA permit an agency to forego notice-and-comment procedures and the 30-day waiting period: “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedures thereon are impracticable, unnecessary, or contrary to the public interest.” Id. § 553(b)(B). “[T]he circumstances justifying reliance on the good cause exception are rare,” and the “exception applies only in emergency situations, or in cases when delay could result in serious harm.” N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 767 (4th Cir. 2012) (quotations omitted). 315. As detailed above, the Department did not provide the public with notice and the opportunity to comment before issuing the IFR. Moreover, the Department set October 15, 2019
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as the effective date—just four days after publication and well less than the required 30-day window between the publication and effective date required by the APA.
316. Although the Department claimed “good cause” to justify these departures from the APA, its invocation was legally deficient. The Department’s only explanation for why it had good cause to forego notice and comment and the 30-day waiting period was that such procedures would be impracticable and contrary to the public interest because the Department needed to conform its implementation of the public charge inadmissibility ground with DHS’s implementation of the DHS Final Rule.
317. But the Department’s conduct belies that justification in at least four ways. First, despite the Department’s purported need to conform in October with the DHS public charge rule, it has, four months later, still not begun to implement the IFR, or provided any timetable for implementation. Second, the Department’s good cause justification does nothing to explain why it could not have opened a public comment period before October 11, 2019, given that DHS published its proposed rule a year earlier, on October 10, 2018. Third, the Department did not stay its rule while the DHS Final Rule was enjoined—creating the very inconsistency the Department purported to solve. And fourth, the Department has applied an inconsistent standard since it enacted the FAM change on January 3, 2018, permitting consular officers to consider supplemental, non-cash benefits that DHS would not.
318. In any event, the claimed need to conform the Department’s rules with those of DHS is not, by itself, sufficient cause to do away with notice and comment.
319. The IFR was therefore promulgated “without observance of procedure required by law” and must be held unlawful and set aside.
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Count Eight (Violation of the Fifth Amendment – Equal Protection) 320. Plaintiff repeats and incorporates by reference each of the foregoing allegations and the allegations in the Complaint, ECF No. 1, as if fully set forth herein. 321. The Due Process Clause of the Fifth Amendment prohibits Defendants from denying any person the equal protection of the laws, including on the basis of race, national origin, nationality, income, or receipt of public benefits. 322. The IFR discriminates on the basis of race, national origin, nationality, income, or receipt of public benefits, and was motivated by animus and a desire to effect such discrimination. Moreover, the IFR was motivated by discriminatory and baseless stereotypes concerning the receipt of public benefits by immigrants, particularly immigrants from Latin American, African, and Asian countries. Defendants’ statements provide direct evidence of their discriminatory motives in enacting the IFR. 323. Additionally, the IFR effectively differentiates between persons on the basis of national origin and nationality and is accordingly subject to strict scrutiny. 324. The IFR also differentiates between persons on the basis of income or receipt of public benefits, imposing immigration consequences on immigrants, their families, and their sponsors for taking essential public benefits. Cf. Plyler v. Doe, 457 U.S. 202, 223 (1982). 325. The IFR fails strict scrutiny because its broad focus on the receipt of “public assistance” by immigrants, their families, and their sponsors, and the diminished role of the affidavit of support, is not narrowly tailored to the goal of preventing immigrants from becoming primarily dependent upon public benefits.
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326. Alternatively, and for the same reasons, the IFR furthers no substantial state interest when weighed against the harm to immigrants, their families, and their sponsors. Nor is the IFR rationally related to any legitimate state interest.
327. Through the actions described in this Supplemental Complaint, Defendants have violated the equal protection guarantee of the Fifth Amendment’s Due Process Clause.
328. As the Court has concluded, see Mem. Op. at 35-36, Baltimore may assert the equal protection claims of its immigrant residents, their families, and their sponsors. Baltimore is injured by the IFR, as described above.
329. Baltimore also has a close relationship with those who depend upon its public benefits, including its medical, legal, educational, food, and housing services. Because Baltimore is better off when all of its residents can access the public benefits to which they are entitled, regardless of immigration status, Baltimore will serve as an especially effective advocate for their equal protection claims.
330. Finally, Baltimore’s immigrant residents, their families, and their sponsors face impediments to bringing their claims in their own names because they fear the potential immigration consequences of coming forward, suffer from language-related and other barriers, and cannot bear the significant economic and logistical burdens of participating in litigation. Cf. Exodus Refugee Immigr., Inc. v. Pence, 165 F. Supp. 3d 718, 732 (S.D. Ind.), aff’d, 838 F.3d 902 (7th Cir. 2016) (concluding that social services organization could assert equal protection claims of its refugee clients).
REQUEST FOR RELIEF AS TO THE INTERIM FINAL RULE WHEREFORE, in addition to the relief sought with respect to the FAM change, ECF No. 1, which Plaintiff incorporates by reference, Plaintiff additionally requests that this Court:
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1. declare the Interim Final Rule contrary to law, arbitrary and capricious, procedurally infirm, and unconstitutional;
2. vacate the IFR; 3. enjoin Defendants, their officers, their employees, and their agents from adjudicating visas on the basis of the heightened standards implemented through the IFR, and instead apply the FAM “public charge” provision as it stood prior to January 3, 2018; 4. award Plaintiff its costs, attorneys’ fees, and other disbursements for this action; and 5. grant any other relief this Court deems appropriate.

Dated: February 7, 2020
/s/ John T. Lewis John T. Lewis (D.C. Bar No. 1033826)
(pro hac vice) Karianne Jones (D.C. Bar No. 187783)
(pro hac vice) Benjamin Seel (D.C. Bar. 1035286)
(pro hac vice) DEMOCRACY FORWARD FOUNDATION 1333 H St. NW Washington, DC 20005 (202) 448-9090 jlewis@democracyforward.org kjones@democracyforward.org bseel@democracyforward.org
Danielle Y. Conley (D.C. Bar No. 503345) (pro hac vice)
Jonathan E. Paikin (D.C. Bar No. 466445) (pro hac vice)
Molly M. Jennings (D.C. Bar No. 1023087) (pro hac vice)
Jamie Yood (D.C. Bar No. 1033919) (pro hac vice)

Respectfully submitted,
Mayor and City Council of Baltimore
Andre M. Davis #00362 City Solicitor
Suzanne Sangree #26130 Senior Counsel for Public Safety & Director of Affirmative Litigation
CITY OF BALTIMORE DEPARTMENT OF LAW City Hall, Room 109 100 N. Holliday Street Baltimore, MD 21202 443-388-2190 andre.davis@baltimorecity.gov suzanne.sangree2@baltimorecity.gov

37

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DORR, LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000 danielle.conley@wilmerhale.com jonathan.paikin@wilmerhale.com molly.jennings@wilmerhale.com jamie.yood@wilmerhale.com emily.farmer@wilmerhale.com
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U.S. Department of State Case No. F-2019-00183 Doc No. C06716015

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Date: 04/24/2019

CA Press Guidance February 28, 2019

Release of Visa Refusal Data

[RELEASE IN FULL]

• The Report of the Visa Office 2018 provides statistics on immigrant and nonimmigrant visa issuances and refusals worldwide. The yearly report has been published annually since the mid-sixties and includes Table XX indicating immigrant and nonimmigrant visa ineligibilities, broken down by ground of refusal under the Immigration and Nationality Act (INA). Table XX for fiscal year 2018 was released on February 26, 2019.

• Since December 8, 2017, the Department has fully implemented Presidential Proclamation 9645, consistent with the December 4, 2017 Supreme Court order. The data category within Table XX labeled "2017 E.O. on Immigration - Subject to 2017 Executive Order on Immigration" comprises those visa applicants refused under Presidential Proclamation 9645 or the 2017 predecessor orders. The Department began publishing this information in FY 2017.

• Data reflected in Table XX includes all applications refused that remained in a refused

status at the end ofFY 2018. If a waiver of the Proclamation may be available, but the visa

had not been issued before the end of the fiscal year, the application would be considered a

refusal for purposes of the report. Thus some of the refusals reported could ultimately result

.
m

a

vi. sa

i. ssuance.

• We also refer you to general information on the Proclamation' s implementation published on travel. state.gov at: https ://travel. state. gov/contenUtravel/en/us-visas/visa-informationresources/presidential-proclamationarchive/june 26 supreme court decision on presidential proclamation9645 .html. As of January 31, 2019, since the implementation of the Proclamation, 2,673 applicants were cleared for waivers after a consular officer determined the applicants satisfied all criteria and completed required processing. Many of those applicants already have received their visas.

• The data category within Table XX labeled "Public Charge" comprises those visa applicants refused under INA Section 212(a)(4) in 2018.

IF ASKED
Q: Does the category "212(/) - Presidential proclamation suspending the entry ofany class of aliens" also cover Proclamation 9645 cases?
• No. This category refers to all other Presidential Proclamations that include visa refusal components.
[REVIEW AUTHORITY: Barbara Nielsen, Senior Reviewer]

UNCLASSIFIED U.S. Department of State Case No. F-2019-00183 Doc No. C06716015 Date: 04/24/2019

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Q: How do you respond to concerns over the tens ofthousands ofvisa denials under the Proclamation?
• When an individual applies for a U .S. visa, a consular officer reviews the facts of the case and determines whether the applicant is eligible for a U.S. visa based on U.S. laws, including policies, such as Presidential Proclamation 9645, promulgated under the authority granted in
those laws. In FY 2018, the Department of State issued 9 million nonimmigrant visas, and
533 ,557 immigrant visas.
Q: Members ofCongress are reporting only 5.9 percent ofproclamation-affected applicants
qualifiedfor waivers as ofOctober 31, 2018. Why is that number so low?
• We do not comment on our communications with Congress. We also refer you to general information the Proclamation' s implementation published on travel.state.gov at: https ://travel. state. gov/content/travel/en/us-visas/visa-information-resources/presidentialproclamationarchive/june 26 supreme court decision on presidential___proclamation9645.html. As of January 31 , 2019, since the implementation of the Proclamation, 2,673 applicants were cleared for waivers after a consular officer determined the applicants satisfied all criteria and completed required processing. Many of those applicants already have received their visas.
Q: Why are 11,000 applicants still waitingfor a determination on national security, the final step to obtaining a waiver?
• Every visa decision is a national security decision and we work within the interagency to review all visa applicants to ensure they do not pose a threat to the United States. The review process is comprehensive and takes time to complete.
Q: Why has the number ofrefusals under Pu,blic Charge increased?
• As directed by Section 3 of the March 6, 2017, Presidential Memorandum on Implementing Immediate Heightened Screening and Vetting, the Department of State and the Department of Homeland Security have been reviewing all guidance related to visa ineligibilities provided in the JNA. Guidance on public charge was clarified in January 2018 to better inform consular officers in their adjudication decisions.
• Section 9 FAM 302 .8 / JNA 212(a)(4) provides that an applicant who is likely to become a public charge is inadmissible. All immigrant visa (IV) and nonimmigrant visa (NIV) applicants, except those mentioned in 9 FAM 302.8-2(B)(6), are subject to a public charge ineligibility.

UNCLASSIFIED U.S. Department of State Case No. F-2019-00183 Doc No. C06716015 Date: 04/24/2019

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• For additional information about Public Charge, we refer you to USCIS. Drafted: CA/P Olivia Woods

Cleared:

CA: KLChristensen (ok)

CA/P: JWeinshenker (ok)

CA/VO: ERamotowski (ok)

CA/VO: :MMesquita (ok)

CA/VO/F: l\1Parker (ok)

CA/VO/F: JCordell (ok)

CA/VO/L: DNewman (ok)

CA/VO/SAC: TSmith (ok)

CA/VO/DO: JNantais (ok)

H: WK.ennedy

( ok)

UNCLASSIFIED U.S. Department of State Case No. F-2019-00183 Doc No. C06716015 Date: 04/24/2019

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