APPEAL,PROTECTIVE ORD
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:19−cv−01743−SI

Doe et al v. Trump et al Assigned to: Judge Michael H. Simon Case in other court: 9th Circuit Court of Appeals, 19−36020 Cause: 5:706 Administrative Procedures Act(Judicial Review)
Plaintiff

Date Filed: 10/30/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

John Doe #1

represented by Esther H. Sung Justice Action Center PO Box 27280 Los Angeles Los Angeles, CA 90027 323−316−0944 Email: esther.sung@justiceactioncenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jesse Bless American Immigration Lawyers Associations 1331 G. Street NW Washington, DC 20005 751−704−3897 Fax: 202−783−7853 Email: jbless@aila.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Karen C. Tumlin Justice Action Center PO Box 27280 Los Angeles, CA 90027 323−316−0944 Email: karen.tumlin@justiceactioncenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin M. Fee Sidley Austin, LLP (Chicago) One South Dearborn Chicago, IL 60603 312−853−7919 Fax: 312−853−7036 Email: kfee@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nadia H. Dahab Innovation Law Lab 333 SW Fifth Avenue #200 Portland, OR 97204 (503) 241−0035 Fax: (503) 241−7733

Plaintiff Juan Ramon Morales

Email: nadia@innovationlawlab.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi A. Igra Sidly Austin LLP 555 California Street Suite 2000 San Francisco, OR 94704 415−772−7495 Fax: 415−772−7400 Email: naomi.igra@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott D. Stein Sidley Austin, LLP (Chicago) One South Dearborn Chicago, IL 60603 312−853−7520 Fax: 312−853−7036 Email: sstein@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen W. Manning Innovation Law Lab Immigrant Law Group PC PO Box 40103 Portland, OR 97240 503−241−0035 Fax: 503−241−7733 Email: smanning@ilgrp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren Innovation Law Lab PO Box 8382 Portland, OR 97207 352−559−0897 Email: tess@innovationlawlab.org ATTORNEY TO BE NOTICED
represented by Esther H. Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse Bless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Doe #2

Kevin M. Fee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi A. Igra (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott D. Stein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) ATTORNEY TO BE NOTICED
represented by Esther H. Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse Bless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin M. Fee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi A. Igra

Plaintiff Iris Angelina Castro

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott D. Stein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) ATTORNEY TO BE NOTICED
represented by Esther H. Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse Bless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin M. Fee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi A. Igra (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott D. Stein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address)

Plaintiff Blake Doe
Plaintiff Brenda Villarruel

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) ATTORNEY TO BE NOTICED
represented by Esther H. Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse Bless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin M. Fee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi A. Igra (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott D. Stein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) ATTORNEY TO BE NOTICED
represented by Esther H. Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Latino Network

Jesse Bless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin M. Fee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi A. Igra (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott D. Stein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) ATTORNEY TO BE NOTICED
represented by Esther H. Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse Bless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jane Doe #3

Kevin M. Fee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi A. Igra (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott D. Stein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) ATTORNEY TO BE NOTICED
represented by Esther H. Sung (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse Bless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin M. Fee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Naomi A. Igra (See above for address)

Plaintiff Gabino Soriano Castellanos V. Defendant Donald Trump in his official capacity as President of the United States
Defendant U.S. Department of Homeland Security

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott D. Stein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) ATTORNEY TO BE NOTICED
represented by Nadia H. Dahab (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward U.S. Department of Justice Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−616−9121 Fax: 202−305−7000 Email: brian.c.ward@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
August E. Flentje U.S. Department of Justice 950 Pennsylvania Avenue NW Room 3613 Washington, DC 20530 202−514−3309 Fax: 202−307−6777 Email: august.flentje@usdoj.gov ATTORNEY TO BE NOTICED
Courtney E. Moran U.S.Department of Justice Civil Division, OIL−DCS P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−514−4587 Fax: 202−305−7000 Email: courtney.e.moran@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address)

Defendant Secretary of the Department of Homeland Security Kevin McAleenan, in his official capacity
Defendant U.S. Department Health & Human Services
Defendant Secretary of Health and Human Services Alex M. Azar, II, in his official capacity
Defendant U.S. Department of State

LEAD ATTORNEY ATTORNEY TO BE NOTICED
August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Courtney E. Moran (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Courtney E. Moran (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Courtney E. Moran (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Courtney E. Moran (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August E. Flentje (See above for address) ATTORNEY TO BE NOTICED

Defendant Secretary of State Michael Pompeo, in his official capacity
Defendant United States of America
Amicus State of Oregon
Amicus State of California Amicus Causa
Amicus

Courtney E. Moran (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Courtney E. Moran (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Courtney E. Moran (See above for address) ATTORNEY TO BE NOTICED
represented by Deanna J. Chang Oregon Department of Justice 100 SW Market Street Portland Portland, OR 97201 971−673−1880 Fax: 971−673−5000 Email: deanna.j.chang@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deanna J. Chang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leland Baxter−Neal American Civil Liberties of Oregon PO Box 40585 Portland, OR 97240 503−222−9019 Email: lbaxter−neal@aclu−or.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

El Programa Hispano Catolico
Amicus Virginia Garcia Memorial Health Center
Amicus Adelante Mujeres
Amicus Oregon Interfaith Movement for Immigrant Justice
Amicus Centro Latino Americano
Amicus Catholic Charities Immigration Legal Services
Amicus Immigrant and Refugee Community Organization
Amicus VIVA Inclusive Migrant Network
Amicus Immigration Reform Law Institute
Date Filed # Docket Text

represented by Leland Baxter−Neal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leland Baxter−Neal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leland Baxter−Neal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leland Baxter−Neal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leland Baxter−Neal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leland Baxter−Neal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leland Baxter−Neal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leland Baxter−Neal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard D. Franklin Richard D. Franklin, Attorney at Law P O Box 2187 Gresham, OR 97030 503−201−0099 Email: rfranklin@comcast.net ATTORNEY TO BE NOTICED

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1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: 0979−6062599 Jury Trial Requested: No. Filed by John Doe 2, John Doe, Juan Ramon Morales, Blake Doe, Latino Network, Brenda Villarruel, iris angelina castro against All Defendants (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons Michael Pompeo, # 3 Proposed Summons Kevin McAleenan, # 4 Proposed Summons Donald Trump, # 5 Proposed Summons US State Department, # 6 Proposed Summons US Homeland Security, # 7 Proposed Summons US Health & Human Services, # 8 Proposed Summons Alex Azar, # 9 Proposed Summons United States of America). (Manning, Stephen) (Entered: 10/30/2019)
2 Motion for Leave to Appear Pro Hac Vice for Attorney Karen C Tumlin . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−6063401. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 10/30/2019)
3 Motion for Leave to Appear Pro Hac Vice for Attorney Esther H Sung . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−6063406. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 10/30/2019)
4 Motion for Leave to Appear Pro Hac Vice for Attorney Scott D Stein . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−6063408. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 10/30/2019)
5 Notice of Case Assignment to Magistrate Judge Stacie F. Beckerman and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. Discovery is to be completed by 2/28/2020. Joint Alternate Dispute Resolution Report is due by 3/30/2020. Pretrial Order is due by 3/30/2020. Ordered by Magistrate Judge Stacie F. Beckerman. (joha) (Entered: 10/31/2019)
6 Summons Issued Electronically as to Secretary of Health and Human Services, Secretary of State, Secretary of the Department of Homeland Security, Donald Trump, U.S. Department Health & Human Services, U.S. Department of Homeland Security, U.S. Department of State, United States of America. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. (joha) (Entered: 10/31/2019)
7 Motion for Temporary Restraining Order . Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 11/01/2019)
8 ORDER: Granting Application for Special Admission Pro Hac Vice of Karen C. Tumlin for Iris Angelina Castro, Blake Doe, Jane Doe #2, Jane Doe #3, John Doe #1, Latino Network, Juan Ramon Morales, and Brenda Villarruel. Application Fee in amount of $300 collected. Signed on November 1, 2019 by Magistrate Judge Stacie F. Beckerman. (eo) (Entered: 11/01/2019)
9 Notification of CM/ECF Account for Karen C. Tumlin (Pro Hac Vice admission). Your login is: kctumlin. Go to the CM/ECF login page to set your password. (eo) (Entered: 11/01/2019)
10 ORDER: Granting Application for Special Admission Pro Hac Vice of Esther H. Sung for Iris Angelina Castro, Blake Doe, Jane Doe #2, Jane Doe #3, John Doe #1, Latino Network, Juan Ramon Morales, and Brenda Villarruel. Signed on November 1, 2019 by Magistrate Judge Stacie F. Beckerman. (eo) (Entered: 11/01/2019)
11 Notification of CM/ECF Account for Esther H. Sung (Pro Hac Vice admission). Your login is: ehsung. Go to the CM/ECF login page to set your password. (eo) (Entered: 11/01/2019)
12 ORDER: Granting Application for Special Admission Pro Hac Vice of Scott D. Stein for Iris Angelina Castro, Blake Doe, Jane Doe #2, Jane Doe #3, John Doe #1, Latino Network, Juan Ramon Morales, and Brenda Villarruel. Signed on November 1, 2019 by Magistrate Judge Stacie F. Beckerman. (eo) (Entered: 11/01/2019)
13 Notification of CM/ECF Account for Scott D. Stein (Pro Hac Vice admission). Your login is: sdstein. Go to the CM/ECF login page to set your password. (eo) (Entered: 11/01/2019)

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14 Scheduling Order by Judge Michael H. Simon. ORDER − Setting a Telephone Conference regarding Plaintiffs' Motion for Temporary Restraining Order (ECF 7 ) for 11/2/2019 at 02:00PM. The Court will provide the parties' with a call−in number by separate sealed entry. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/01/2019)
15 Motion to Proceed Under Pseudonym. Filed by Blake Doe, Jane Doe #2, Jane Doe #3, John Doe #1. (Dahab, Nadia) (Entered: 11/01/2019)
16 Declaration of Blake Doe . Filed by Blake Doe, Jane Doe #2, Jane Doe #3, John Doe #1. (Related document(s): Motion − Miscellaneous 15 .) (Dahab, Nadia) (Main Document 16 replaced on 11/6/2019) (cw). (Entered: 11/01/2019)
17 Declaration of John Doe . Filed by Blake Doe, Jane Doe #2, Jane Doe #3, John Doe #1. (Related document(s): Motion − Miscellaneous 15 .) (Dahab, Nadia) (Main Document 17 replaced on 11/6/2019) (cw). (Entered: 11/01/2019)
18 Declaration of Jane Doe #2 . Filed by Blake Doe, Jane Doe #2, Jane Doe #3, John Doe #1. (Related document(s): Motion − Miscellaneous 15 .) (Dahab, Nadia) (Main Document 18 replaced on 11/6/2019) (cw). (Entered: 11/01/2019)
19 Scheduling Order by Judge Michael H. Simon. ORDER − Resetting the Telephone Conference to an In−Court Conference regarding Plaintiffs' Motion for Temporary Restraining Order (ECF 7 ) set for 11/2/2019 at 2:00PM in Portland, Courtroom 15B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/01/2019)
20 Declaration of Jane Doe #3 . Filed by Blake Doe, Jane Doe #2, Jane Doe #3, John Doe #1. (Related document(s): Motion − Miscellaneous 15 .) (Dahab, Nadia) (Main Document 20 replaced on 11/6/2019) (cw). (Entered: 11/01/2019)
21 Motion for Leave to Appear Pro Hac Vice for Attorney Jesse Bless . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−6066625. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 11/01/2019)
22 Motion for Leave to Appear Pro Hac Vice for Attorney Naomi A Igra . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−6066703. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 11/01/2019)
23 Declaration of Carmen Rubio . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Dahab, Nadia) (Main Document 23 replaced on 11/6/2019) (cw). (Entered: 11/02/2019)
24 Declaration of Iris Angelina Castro . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Dahab, Nadia) (Main Document 24 replaced on 11/6/2019) (cw). (Entered: 11/02/2019)
25 Declaration of Brenda Villarruel . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Dahab, Nadia) (Main Document 25 replaced on 11/6/2019) (cw). (Entered: 11/02/2019)
26 Declaration of Juan Ramon Morales . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Dahab, Nadia) (Main Document 26 replaced on 11/6/2019) (cw). (Entered: 11/02/2019)
27 Declaration of Blake Doe . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Dahab, Nadia) (Main Document 27 replaced on 11/6/2019) (cw). (Entered: 11/02/2019)
28 Declaration of John Doe #1 . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Dahab, Nadia) (Main Document 28 replaced on 11/6/2019) (cw). (Entered: 11/02/2019)
29 Declaration of Jane Doe #2 . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Dahab, Nadia) (Main Document 29 replaced on 11/6/2019) (cw). (Entered: 11/02/2019)
30 Declaration of Jane Doe #3 . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 7 .) (Dahab, Nadia) (Main Document 30 replaced on

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11/6/2019) (cw). (Entered: 11/02/2019)
31 ORDER − Plaintiffs' Motion to Proceed Under Pseudonym (ECF 15 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/02/2019)
32 MINUTES OF ORAL ARGUMENT HEARING: ORDER − Plaintiffs' Motion for Temporary Restraining Order (ECF 7 ) is GRANTED for a period not to exceed 28 days. Formal order to follow. ORDER − Setting a briefing schedule as follows: Plaintiffs' Motion for Preliminary Injunction is due by November 8, 2019; Defendants' response is due by November 15, 2019; Plaintiffs' reply is due by November 19, 2019; and a Preliminary Injunction Hearing is set for Friday, November 22, 2019 at 1:00PM in Portland, Courtroom 15B, before Judge Michael H. Simon. Nadia H. Dehab, Stephen W. Manning, Esther H. Sung, Karen C. Tumlin, Scott D. Stein, Stephanie Hales, Keven Fee, and Jesse Bless present as counsel for Plaintiffs. Andrew Bernie, Brian Ward, and Courtney Moran present as counsel for Defendants. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 11/02/2019)
33 TEMPORARY RESTRAINING ORDER − Defendants are hereby temporarily restrained and enjoined from taking any action to implement or enforce Presidential Proclamation No. 9945 ("Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System"). 2. In the interest of justice, Plaintiffs need not provide any security and all requirements under Rule 65(c) of the Federal Rules of Civil Procedure are waived. 3. The Court will hold a hearing on Friday, November 22, 2019, at 1:00 p.m. in Courtroom 15B of the Mark O. Hatfield United States Courthouse in Portland, Oregon to determine whether a preliminary injunction should be issued. The Court will set a briefing schedule by separate order. 4. This Order shall expire twenty−eight (28) days after entry, unless otherwise extended by stipulation of the parties or by further order of the Court. Signed on 11/2/2019 by Judge Michael H. Simon. (mja) (Entered: 11/02/2019)
34 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion for Temporary Restraining Order held on November 2, 2019 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 11/12/2019. Redaction Request due 11/25/2019. Redacted Transcript Deadline set for 12/4/2019. Release of Transcript Restriction set for 2/3/2020. (Apodaca, Dennis) (Entered: 11/03/2019)
35 ORDER: Granting Application for Special Admission Pro Hac Vice of Jesse Bless for Iris Angelina Castro, Blake Doe,Jane Doe #2,J Jane Doe #3, John Doe #1, Latino Network, Juan Ramon Morales,and Brenda Villarruel. Application Fee in amount of $300 collected. Receipt No. 0979−6066625 issued. Signed on 11/4/2019 by Magistrate Judge Stacie F. Beckerman. (ecp) (Entered: 11/04/2019)
36 Notification of CM/ECF Account for Jess Bless (Pro Hac Vice admission). Your login is: jbless. Go to the CM/ECF login page to set your password. (ecp) (Entered: 11/04/2019)
37 ORDER: Granting Application for Special Admission Pro Hac Vice of Naomi A. Igra for Iris Angelina Castro, Blake Doe, Jane Doe #2 Jane Doe #3,r John Doe #1,Latino Network, Juan Ramon Morales,and Brenda Villarruel. Application Fee in amount of $300 collected. Receipt No. 0979−6066703 issued. Signed on 11/4/2019 by Magistrate Judge Stacie F. Beckerman. (ecp) (Entered: 11/04/2019)
38 Notification of CM/ECF Account for Naomi A. Igra (Pro Hac Vice admission). Your login is: naigra. Go to the CM/ECF login page to set your password. (ecp) (Entered: 11/04/2019)
39 Notice of Correction by Clerk regarding 28 Declaration, 26 Declaration, 27 Declaration, 24 Declaration, 20 Declaration, 18 Declaration, 29 Declaration, 23 Declaration, 16 Declaration, 17 Declaration, 30 Declaration, 25 Declaration. A Clerical error has been discovered in the case record: The documents were missing a case caption cover page. The following corrections were made to the record: A corrected PDF has been uploaded and has replaced the incorrect attachments. (cw)

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(Entered: 11/06/2019)
40 Notice of Appearance of Courtney E. Moran appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Moran, Courtney) (Entered: 11/06/2019)
41 Notice of Appearance of Brian C. Ward appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Ward, Brian) (Entered: 11/07/2019)
42 Unopposed Motion to File Excess Pages . Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 11/07/2019)
43 ORDER: Granting Plaintiffs' Unopposed Motion for Leave to File Oversized Brief (ECF No. 42 ). Ordered on 11/8/2019 by Judge Michael H. Simon. (gw) (Entered: 11/08/2019)
44 Motion to Certify the Class . Oral Argument requested. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 11/08/2019)
45 Declaration of Stephen W Manning . Filed by All Plaintiffs. (Related document(s): Motion to certify class 44 .) (Attachments: # 1 Exhibit Presidential Proclamation Ntc of Oct 4 2019 WH, # 2 Exhibit Presidential Proclamation Ntc of Oct 4 2019 DOS, # 3 Exhibit AIDS United, # 4 Exhibit American Medical Assn, # 5 Exhibit Asian Pacific Islander American Health Forum, # 6 Exhibit Center for Elder Law & Justice, # 7 Exhibit Childrens Health Watch, # 8 Exhibit Consortium for Citizens with Disabilities, # 9 Exhibit Covered California, # 10 Exhibit DC Health Benefit Exchange, # 11 Exhibit Disability Rights California, # 12 Exhibit Latino Network, # 13 Exhibit Legal Aid Society, # 14 Exhibit Mass Health Connector, # 15 Exhibit MN Sure, # 16 Exhibit Natl Assn Pediatric Nurse Practicioners, # 17 Exhibit Natl Disability Rights Network, # 18 Exhibit Natl Health Law Project, # 19 Exhibit Natl Immigration Law Center, # 20 Exhibit Or Dept Consumer Business Services, # 21 Exhibit Oregon Primary Care Assn, # 22 Exhibit American Occ Therapy Assn, # 23 Exhibit Virginia Garcia Memorial Health Center, # 24 Exhibit AILA Comment, # 25 Exhibit Report to Congress on Medicaid, # 26 Exhibit DOS Emergency Notice, # 27 Exhibit OMB Notice of Action, # 28 Exhibit Response to Emergency PRA) (Manning, Stephen) (Entered: 11/08/2019)
46 Motion for Preliminary Injunction . Oral Argument requested. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 11/08/2019)
47 Declaration of Jane Doe 3 . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
48 Declaration of Charles H Kuck . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
49 Declaration of Jane Doe 2 . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
50 Declaration of Daniel Rhoads . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
51 Declaration of Iris Castro . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
52 Declaration of Dulce Ramos . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
53 Declaration of Juan Ramon Morales . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)

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54 Declaration of Leighton Ku . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
55 Declaration of John Doe 1 . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
56 Declaration of Sarah Lueck . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
57 Declaration of Dania Palanker . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
58 Declaration of Gabino Castellanos . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
59 Declaration of Carmen Rubio . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
60 Declaration of Brenda Villarruel . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
61 Declaration of Louise Norris . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
62 Declaration of Dagmar Butte . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
63 Declaration of Joan Watson−Patko . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
64 Declaration of Stacey Pogue . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
65 Declaration of Pam Macewan . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
66 Declaration of Blake Doe . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 , Motion to certify class 44 .) (Manning, Stephen) (Entered: 11/08/2019)
67 Declaration of Nadia Dahab . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 .) (Manning, Stephen) (Entered: 11/08/2019)
68 Motion to Compel Administrative Record. Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 11/11/2019)
69 Declaration of Nadia H. Dahab . Filed by All Plaintiffs. (Related document(s): Motion to compel 68 .) (Dahab, Nadia) (Entered: 11/11/2019)
70 Notice of Case Reassignment: This case has been reassigned from Magistrate Judge Stacie F. Beckerman to Judge Michael H. Simon. (eo) (Entered: 11/12/2019)
71 Unopposed Motion for Leave to File Brief of Amici Curiae States and City in Support of Plaintiffs' Motion for a Preliminary Injunction and Memorandum in Support. Filed by State of Oregon, State of California. (Chang, Deanna) (Entered: 11/12/2019)
72 Motion to Appear as Amicus Curiae . Filed by Causa, El Programa Hispano Catolico, Virginia Garcia Memorial Health Center, Adelante Mujeres, Oregon Interfaith

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Movement for Immigrant Justice, Centro Latino Americano, Catholic Charities Immigration Legal Services, Immigrant and Refugee Community Organization, VIVA Inclusive Migrant Network. (Baxter−Neal, Leland) (Entered: 11/12/2019)
73 Proposed Amicus Curiae Appearance entered by Leland Baxter−Neal on behalf of Adelante Mujeres, Catholic Charities Immigration Legal Services, Causa, Centro Latino Americano, El Programa Hispano Catolico, Immigrant and Refugee Community Organization, Oregon Interfaith Movement for Immigrant Justice, VIVA Inclusive Migrant Network, Virginia Garcia Memorial Health Center . Filed by on behalf of Adelante Mujeres, Catholic Charities Immigration Legal Services, Causa, Centro Latino Americano, El Programa Hispano Catolico, Immigrant and Refugee Community Organization, Oregon Interfaith Movement for Immigrant Justice, VIVA Inclusive Migrant Network, Virginia Garcia Memorial Health Center. (Baxter−Neal, Leland) (Entered: 11/12/2019)
74 ORDER − The State of Oregon and the State of California's Unopposed Motion for Leave to File Brief of Amici Curiae States and City in Support of Plaintiffs' Motion for a Preliminary Injunction (ECF 71 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/13/2019)
75 ORDER − The Amici organizations Causa, El Programa Hispano Catlico, Virginia Garcia Memorial Health Center, Adelante Mujeres, Oregon Interfaith Movement for Immigrant Justice, Centro Latino Americano, Catholic Charities Immigration Legal Services, Immigrant and Refugee Community Organization, and VIVA Inclusive Migrant Network's Motion for Leave to File Brief of Amici Curiae (ECF 72 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/13/2019)
76 Response in Opposition to Motion to Compel Administrative Record 68 . Filed by All Defendants. (Moran, Courtney) (Entered: 11/13/2019)
77 Unopposed Motion to File Excess Pages . Filed by All Defendants. (Ward, Brian) (Entered: 11/14/2019)
78 Reply to Motion to Compel Administrative Record 68 Oral Argument requested. Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 11/14/2019)
79 ORDER − The Government's Unopposed Motion for Leave to File Oversized Brief (ECF 77 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/15/2019)
80 Notice of Appearance of August E. Flentje appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Flentje, August) (Main Document 80 replaced on 11/15/2019) (joha). (Entered: 11/15/2019)
81 Notice of Correction by Clerk regarding Notice of Appearance 80 . A Clerical error has been discovered in the case record: The incorrect PDF was attached. The following corrections were made to the record: A corrected PDF has been uploaded and has replaced the incorrect attachment. (joha) (Entered: 11/15/2019)
82 Motion for Leave to Appear Pro Hac Vice for Attorney Kevin Fee . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−6084302. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 11/15/2019)
83 Opinion and Order − Defendants shall produce, before noon November 20, 2019, documents from the State Department's administrative record relating to the amendments to the Foreign Affairs Manual and the State Department's "methodology" and other definitions implementing the Proclamation. If Plaintiffs believe that additional documents from the administrative record are necessary at this stage of the litigation, Plaintiffs may contact the Courtroom Deputy with their request. If Defendants cannot feasibly produce all of the documents as ordered, Defendants may contact the Court and provide an explanation. Plaintiffs may file a supplemental brief of no more than 10 pages addressing new arguments raised by the produced documents, if any, on or before 3:00 p.m. on November 21, 2019. The parties shall confer on a date for the lodging of the full administrative record. Signed on 11/15/2019 by Judge Michael H. Simon. (mja) (Entered: 11/15/2019)
84 Response in Opposition to Motion for Preliminary Injunction 46 . Filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Ward, Brian)

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(Entered: 11/15/2019)
85 ORDER: Granting Application for Special Admission Pro Hac Vice of Kevin M. Fee for Iris Angelina Castro, Blake Doe,Jane Doe #2 Jane Doe #3 John Doe #1, Latino Network, Juan Ramon Morales,Brenda Villarruel. Application Fee in amount of $300 collected. Receipt No. 0979−6084302 issued. Signed on 11/18/2019 by Judge Michael H. Simon. (ecp) (Entered: 11/18/2019)
86 Notification of CM/ECF Account for Kevin M. Fee (Pro Hac Vice admission). Your login is: kmfee. Go to the CM/ECF login page to set your password. (ecp) (Entered: 11/18/2019)
87 Motion for Extension of Time to File a Response/Reply to Motion to Certify the Class 44 . Expedited Hearing requested. Filed by All Defendants. (Ward, Brian) (Entered: 11/18/2019)
88 Brief of Amici Curiae States and City in Support of Plaintiffs' Motion for a Preliminary Injunction. Filed by State of California, State of Oregon. (Chang, Deanna) (Entered: 11/19/2019)
89 ORDER − Defendants' Motion for Extension of Time to Respond to Plaintiffs' Motion for Class Certification (ECF 87 ) is DENIED with leave to renew if the parties can reach an agreement regarding a modest extension of the pending TRO. If such an extension is agreed upon, the parties should confer regarding an appropriate briefing schedule that allows both sides to have sufficient time to brief their respective positions on the pending motions for preliminary injunction and class certification and that also allows the Court sufficient time to consider the parties' arguments before the expiration of the TRO. Signed on 11/19/2019 by Judge Michael H. Simon. (mja) (Entered: 11/19/2019)
90 Reply to Motion for Preliminary Injunction 46 Oral Argument requested. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 11/19/2019)
91 Administrative Record . Filed by All Defendants. (Ward, Brian) (Entered: 11/21/2019)
92 Supplemental Brief . Filed by All Plaintiffs. (Related document(s): Motion for Preliminary Injunction 46 .) (Dahab, Nadia) (Entered: 11/21/2019)
93 MINUTES OF PRELIMINARY INJUNCTION HEARING: ORDER − Plaintiff's Motion for Preliminary Injunction (ECF 46 ) is taken under advisement on November 22, 2019. Nadia H. Dehab, Stephen W. Manning, Esther H. Sung, Karen C. Tumlin, Scott D. Stein, Jesse Bless, and Kevin Fee present as counsel for Plaintiffs. August E. Flentje, Brian C. Ward, and Courtney E. Moran present as counsel for Defendants. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 11/22/2019)
94 Response in Opposition to Motion to Certify the Class 44 Oral Argument requested. Filed by All Defendants. (Moran, Courtney) (Entered: 11/22/2019)
95 Opinion and Order − Plaintiffs' Motion for a Preliminary Injunction (ECF 46 ) is GRANTED. Until the Court resolves this case on the merits or orders otherwise, or until such time as the parties agree in writing to amend, supersede, or terminate this Preliminary Injunction, IT IS ORDERED that Defendants are enjoined from taking any action to implement or enforce Presidential Proclamation No. 9945, "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System." Signed on 11/26/2019 by Judge Michael H. Simon. (mja) (Entered: 11/26/2019)
96 Stipulated Motion for Protective Order . Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 11/26/2019)
97 SCHEDULING ORDER − Within a reasonable time not to exceed 28 days without further Court order, the parties shall confer and then file with the Court a proposed case management order addressing: (1) a process and schedule for completing class discovery and supplementing, if needed, any briefing on class certification; (2) a process and schedule for resolving any remaining disputes concerning the lodging of the Administrative Record; and (3) any other matters that either party wishes to raise. Ordered by Judge Michael H. Simon. (mja) (Entered: 11/27/2019)

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98 Stipulated Protective Order. Signed on 11/27/2019 by Judge Michael H. Simon. (mja) (Entered: 11/27/2019)
99 Notice of Appearance of Tess Hellgren appearing on behalf of All Plaintiffs Filed by on behalf of All Plaintiffs. (Hellgren, Tess) (Entered: 11/27/2019)
100 First Amended Complaint . Filed by Jane Doe #3, Jane Doe #2, John Doe #1, Blake Doe, Brenda Villarruel, Juan Ramon Morales, Latino Network, Iris Angelina Castro, Gabino Soriano Castellanos against All Defendants (Attachments: # 1 Exhibit 1, # 2 Exhibit 2). (Dahab, Nadia) (Entered: 11/27/2019)
101 Notice of Filing First Amended Class Action Complaint Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 11/27/2019)
102 Reply to Motion to Certify the Class 44 Oral Argument requested. Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 11/27/2019)
103 Declaration of Nadia Dahab . Filed by All Plaintiffs. (Related document(s): Reply to Motion 102 .) (Dahab, Nadia) (Entered: 11/27/2019)
104 Notice of Appeal to the 9th Circuit (fee exempt status selected (AUSA)). Filed by All Defendants. (Ward, Brian) (Entered: 12/04/2019)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal − Preliminary Injunction 104 . Case Appealed to 9th Circuit Court of Appeals Case Number 19−36020 assigned. (jtj) (Entered: 12/05/2019)
105 Order from USCA for the 9th Circuit, USCA # 19−36020 re Notice of Appeal − Preliminary Injunction 104 . The appeal filed December 4, 2019 is a preliminary injunction appeal. Accordingly, Ninth Circuit Rule 3−3 shall apply. The mediation questionnaire is due three days after the date of this order. If they have not already done so, within 7 calendar days after the filing date of this order, the parties shall make arrangements to obtain from the court reporter an official transcript of proceedings in the district court that will be included in the record on appeal. The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due not later than January 2, 2020; the answering brief is due January 30, 2020 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 21 days after service of the answering brief. See 9th Cir. R. 3−3(b). No streamlined extensions of time will be approved. See 9th Cir. R. 31−2.2(a)(3). Any request for an extension of time to file a brief must be made by written motion under Ninth Circuit Rule 31−2.2(b). Failure to file timely the opening brief shall result in the automatic dismissal of this appeal by the Clerk for failure to prosecute. See 9th Cir. R. 42−1. (jtj) (Entered: 12/05/2019)
106 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion Hearing held on November 22, 2019 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/19/2019. Redaction Request due 1/2/2020. Redacted Transcript Deadline set for 1/13/2020. Release of Transcript Restriction set for 3/11/2020. (Apodaca, Dennis) (Entered: 12/12/2019)
107 Affidavit of Service of Summons Issued, 6 upon Secretary of Health and Human Services served on 11/12/2019 Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/12/2019)
108 Affidavit of Service of Summons Issued, 6 upon Donald Trump served on 11/15/2019 Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/12/2019)
109 Affidavit of Service of Summons Issued, 6 upon Secretary of the Department of Homeland Security served on 11/12/2019 Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/12/2019)
110 Affidavit of Service of Summons Issued, 6 upon Secretary of State served on 11/12/2019 Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/12/2019)

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111 Affidavit of Service of Summons Issued, 6 upon U.S. Department Health & Human Services served on 11/12/2019 Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/12/2019)
112 Affidavit of Service of Summons Issued, 6 upon U.S. Department of Homeland Security served on 11/12/2019 Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/12/2019)
113 Affidavit of Service of Summons Issued, 6 upon U.S. Department of State served on 11/12/2019 Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/12/2019)
114 Affidavit of Service of Summons Issued, 6 upon United States of America served on 11/1/2019 Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/12/2019)
115 Order from USCA for the 9th Circuit, USCA # 19−36020 re Notice of Appeal − Preliminary Injunction 104 . The government requests an emergency temporary stay of the district court's order preliminarily enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System, pending consideration of the motion for a stay pending appeal. The government also seeks a stay of the preliminary injunction pending appeal. The plaintiffs oppose both motions. A temporary stay in this context (sometimes referred to as an administrative stay) is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal. Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long−term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect. By this order we are expediting briefing and oral argument on the emergency motion and anticipate an expeditious issuance of a decision following argument. Any government reply to plaintiffs' opposition to the motion for stay pending appeal is due December 23, 2019. The parties are directed to appear for oral argument on the motion for stay pending appeal on Thursday, January 9, 2020, at 10:00 am in San Francisco, California. Each side will be allotted 20 minutes of argument time. The parties are encouraged to appear in person if possible. If any party wishes to appear by video, that party must notify Kwame Copeland, 415.355.7888, no later than Friday, January 3, 2020, and must coordinate with Mr. Copeland in making suitable arrangements for an appearance by video. The opening brief and excerpts of record are due January 2, 2020; the answering brief is due January 30, 2020 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 21 days after service of the answering brief. This case will be assigned to the next available oral argument panel for a decision on the merits of the appeal. (jtj) (Entered: 12/23/2019)
116 Proposed Joint Case Management Schedule . Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 12/25/2019)
117 ORDER SETTING AMENDED CASE MANAGEMENT SCHEDULE: Defendants will lodge the full Certified Administrative Record by January 10, 2020. Defendants will provide Plaintiffs with a privilege log by January 10, 2020. Plaintiffs may file any motions to compel or to supplement the Certified Administrative Record within 14 days of receiving the Certified Administrative Record. Defendants may serve interrogatories related to class certification issues on the Named Plaintiffs identified in the First Amended Complaint (ECF 100) not later than January 10, 2020. Defendants' shall respond to the First Amended Complaint (ECF 100) not later than January 30, 2020. Plaintiffs shall respond to Defendants' interrogatories related to class certification issues not later than February 10, 2020. Defendants may file any supplemental memorandum (or sur−reply) in opposition to Plaintiffs' Motion to Certify the Class (ECF 44) not later than February 24, 2020. Plaintiffs may file any supplemental memorandum (or sur−sur−reply) in support of Plaintiffs' Motion to Certify the Class (ECF 44) not later than March 9, 2020. The Court will take Plaintiff's Motion to Certify the Class (ECF 44) under advisement as of March 9, 2020. The

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current Discovery and Pretrial Scheduling Order (ECF 5) is vacated. Ordered by Judge Michael H. Simon. (See order for full text.) (dls) (Entered: 12/26/2019)
118 Administrative Record . Filed by All Defendants. (Ward, Brian) (Entered: 01/10/2020)
119 Motion to Compel Completion of Administrative Record and Privilege Log. Oral Argument requested. Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 01/24/2020)
120 Declaration of Nadia Dahab . Filed by All Plaintiffs. (Related document(s): Motion to compel 119 .) (Dahab, Nadia) (Entered: 01/24/2020)
121 Motion for Extension of Time to Answer until March 30, 2020. Filed by All Defendants. (Moran, Courtney) (Entered: 01/27/2020)
122 ORDER − Defendants' Motion for Extension of Time to Answer (ECF 121 ) is GRANTED. Answer is due by 3/30/2020. Ordered by Judge Michael H. Simon. (mja) (Entered: 01/28/2020)
123 Notice of Additional Facts Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 01/29/2020)
124 Response to Motion to Compel Completion of Administrative Record and Privilege Log 119 . Filed by All Defendants. (Ward, Brian) (Entered: 02/07/2020)
125 ORDER − In light of Defendants' misunderstanding relating to the scope of the administrative record, Defendants have until February 28, 2020, to supplement the administrative record and privilege log and to file a supplemental response to Plaintiffs' motion to compel. If Defendants believe they need additional time to supplement the administrative record or draft a supplemental response to Plaintiffs' motion, they may contact the Courtroom Deputy with their request after conferring with Plaintiffs. Plaintiffs may file a reply two weeks after the filing of Defendants' supplemental response. Signed 2/11/2020 by Judge Michael H. Simon. (mja) (Entered: 02/11/2020)
126 Sur−Reply in Support of Defendants' Opposition to Motion to Certify the Class 44 . (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Defendants. (Attachments: # 1 Exhibit Plaintiffs' Answers and Objections to Defendants' Interrogatories) (Moran, Courtney) (Entered: 02/24/2020)
127 Supplemental Response in Opposition to Motion to Compel Completion of Administrative Record and Privilege Log 119 . Filed by All Defendants. (Ward, Brian) (Entered: 02/28/2020)
128 Reply to Sur−Reply to Motion to Certify the Class 44 Oral Argument requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 03/09/2020)
129 Supplemental Brief ISO Plaintiffs' Motion to Compel. Filed by All Plaintiffs. (Related document(s): Motion to compel 119 .) (Dahab, Nadia) (Entered: 03/13/2020)
130 Unopposed Motion for Extension of Time to Answer Amended Complaint, 100 . Filed by All Defendants. (Moran, Courtney) (Entered: 03/23/2020)
131 ORDER − Defendants' Unopposed Motion for 60−day Extension of Answer Deadline (ECF 130 ) is GRANTED. Answer or other responsive pleading is due by 5/29/2020. Ordered by Judge Michael H. Simon. (mja) (Entered: 03/23/2020)
132 Opinion and Order − Plaintiffs' Motion for Class Certification (ECF 44 ) is GRANTED, with a modified subclass definition. The Court certifies under Rule 23(b)(2) of the Federal Rules of Civil Procedure these two subclasses:

(1) U.S. Petitioner Subclass:

Individuals in the United States who currently have or will have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer's satisfaction that he or she "will be covered by approved health insurance" within 30 days after entry or will be able "to pay for reasonably foreseeable medical costs"; and

(2) Visa Applicant Subclass:

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Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they "will be covered by approved health insurance" within 30 days after entry or will be able "to pay for reasonably foreseeable medical costs." Signed on 4/7/2020 by Judge Michael H. Simon. (mja) (Main Document 132 replaced on 4/8/2020) (ct). (Main Document 132 replaced on 4/8/2020) (ct). (Entered: 04/07/2020)
133 Order for Administrative Correction of the Record pursuant to Fed. R. Civ. P. 60(a) regarding 132 Opinion and Order. A clerical error has been discovered in the case record: two changes were made to the opinion and order: (1) in the introduction, the term class was replaced with subclass and (2) on Page 27 footnote 5 was added. The following corrections were made to the record: A corrected PDF has been uploaded and the parties have been notified. (mja) (Entered: 04/08/2020)
134 Opinion and Order − Plaintiffs' Motion to Compel Completion of Administrative Record and Privilege Log (ECF 119 ) is GRANTED IN PART AND DENIED IN PART, as set forth herein. Signed on 4/13/2020 by Judge Michael H. Simon. (mja) (Entered: 04/13/2020)
135 Motion for Temporary Restraining Order . Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Manning, Stephen) (Entered: 04/25/2020)
136 Scheduling Order by Judge Michael H. Simon. ORDER − Setting a briefing schedule on Plaintiffs' Motion for Temporary Restraining Order (ECF 135 ) as follows: (1) Defendants shall file a response no later than 5:00 p.m., Pacific time, on Monday, April 27, 2020; (2) Plaintiffs shall file a reply no later than 5:00 p.m., Pacific time, on Tuesday, April 28, 2020; and (3) the Court will hold Telephone Oral Argument at 12:00 noon, Pacific time, on Wednesday, April 29, 2020. The Court will provide the parties with a call−in number by separate sealed entry. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/25/2020)
137 Response in Opposition to Motion for Temporary Restraining Order 135 Oral Argument requested. Filed by All Defendants. (Attachments: # 1 Exhibit Presidential Proclamation 10014, # 2 Exhibit Brianne Marwaha Declaration) (Moran, Courtney) (Entered: 04/27/2020)
138 Reply to Motion for Temporary Restraining Order 135 Oral Argument requested. Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 04/28/2020)
139 Declaration of Charles Wheeler ISO Plaintiffs Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 135 .) (Dahab, Nadia) (Entered: 04/28/2020)
140 Motion to Appear as Amicus Curiae . Filed by Immigration Reform Law Institute. (Attachments: # 1 Attachment Amicus Brief) (Franklin, Richard) (Entered: 04/29/2020)
141 ORDER − Immigration Reform Law Institute's Motion for Leave to File Brief Amicus Curiae in Support of the Federal Defendants' Opposition to Plaintiffs' Motion for a Temporary Restraining Order (ECF 140 ) is GRANTED. Ordered by Judge Michael H. Simon. (mja) (Entered: 04/29/2020)
142 MINUTES OF TELEPHONE ORAL ARGUMENT HEARING: ORDER − Plaintiffs' Motion for Temporary Restraining Order (ECF 135 ) is taken under advisement as of 4/29/2020. Nadia H. Dehab present as counsel for Plaintiffs. Courtney E. Moran present as counsel for Defendants. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja) (Entered: 04/29/2020)
143 Opinion and Order − Plaintiffs' Motion for Temporary Restraining Order (ECF 135 ) is DENIED. Signed on 4/29/2020 by Judge Michael H. Simon. (mja) (Entered: 04/29/2020)

05/04/2020 05/05/2020

144 Order from USCA for the 9th Circuit, USCA # 19−36020 re Notice of Appeal − Preliminary Injunction 104 . We direct the Clerk of Court to expedite the appeal (SEE ORDER FOR FULL TEXT). In sum, the government has not established the requisite irreparable harm necessary to justify a stay pending appeal. Its rights may be vindicated upon completion of this litigation. The alleged monetary harms to third parties upon which the government relies do not constitute irreparable harm. While that sole factor is dispositive, we also conclude that the government did not meet its high burden to satisfy the other Nken factors. It has not demonstrated likelihood of success. Staying the injunction would injure both the plaintiff class and third parties, and the public interest weighs against entering a stay. The preliminary injunction preserves the status quo during the pendency of this appeal. The district court did not abuse its discretion in determining the scope of the preliminary injunction. For these reasons, we deny the motion to stay the preliminary injunction pending appeal. We do not prejudge the consideration of the merits appeal. MOTION DENIED. (jtj) (Entered: 05/04/2020)
145 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephonic Motion Hearing held on April 29, 2020 before Judge Michael H. Simon, Court Reporter Dennis W. Apodaca, telephone number (503) 326−8182 or dennis_apodaca@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/12/2020. Redaction Request due 5/26/2020. Redacted Transcript Deadline set for 6/5/2020. Release of Transcript Restriction set for 8/3/2020. (Apodaca, Dennis) (Entered: 05/05/2020)

 
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Stephen Manning (SBN 013373) smanning@ilgrp.com Nadia Dahab (SBN 125630) nadia@innovationlawlab.org INNOVATION LAW LAB 333 SW Fifth Avenue #200 Portland, OR 97204 Telephone: +1 503 241-0035 Facsimile: +1 503 241-7733

Karen C. Tumlin (pro hac vice forthcoming) karen.tumlin@justiceactioncenter.org Esther H. Sung (pro hac vice forthcoming) esther.sung@justiceactioncenter.org JUSTICE ACTION CENTER P.O. Box 27280 Los Angeles, CA 90027 Telephone: +1 323 316-0944

Attorneys for Plaintiffs (additional counsel listed on signature page)

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JOHN DOE #1; JUAN RAMON MORALES; JANE DOE #2; JANE DOE #3; IRIS ANGELINA CASTRO; BLAKE DOE; BRENDA VILLARRUEL; and LATINO NETWORK,

Case No.:

Plaintiffs,

v.

CLASS ACTION COMPLAINT

DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KEVIN MCALEENAN, in his official capacity as Acting Secretary of the Department of Homeland Security; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; ALEX M. AZAR II, in his official capacity as Secretary of the Department of Health and Human Services; U.S. DEPARTMENT OF STATE; MICHAEL POMPEO, in his official capacity as Secretary of State; and UNITED STATES OF AMERICA,

Defendants. _____________________________________

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TABLE OF CONTENTS INTRODUCTION ........................................................................................................................... 1
JURISDICTION AND VENUE ....................................................................................................... 6 PARTIES......................................................................................................................................... 6
PLAINTIFFS ............................................................................................................................... 6 DEFENDANTS ............................................................................................................................ 9
FACTUAL ALLEGATIONS ......................................................................................................... 10 A. The Proclamation ............................................................................................................... 10
B. Agency Implementation of the Proclamation .................................................................. 14 C. The Proclamation is Vague, Internally Contradictory, and Inconsistent with Existing Law in Ways State Department Action has Not Addressed............... 18
1. The Proclamation Uses Unclear, Undefined Terms and Standards ................................. 18 2. Very Few, if Any of the Proclamation’s “Approved Health Plans” Are Available to Visa Applicants ............................................................................................ 21 3. The Proclamation Is Internally Inconsistent with Its Stated Goals .................................. 27 THE PROCLAMATION IMPERMISSIBLY RESHAPES THE NATION’S CONGRESSIONALLY-ENACTED HEALTH BENEFIT SYSTEM FOR IMMIGRANTS BY PRESIDENTIAL FIAT ........................................................................................................... 30
A. The Immigration and Nationality Act (“INA”) ................................................................... 30 B. The Personal Responsibility Work Opportunity Reconciliation Act of 1996 ....................... 37
C. The Children’s Health Insurance Plan (“CHIP”) and CHIP Reauthorization Act.............. 38 D. The Affordable Care Act .................................................................................................... 40
REGULATORY BACKGROUND ................................................................................................ 43 THE PROCLAMATION, LIKE THE RECENT PUBLIC CHARGE RULE, ATTEMPTS TO RADICALLY REWRITE CONGRESS’ CHOICES ON WHICH IMMIGRANTS MAY ENTER THE COUNTRY, BASED ON WEALTH CONSIDERATIONS...................................... 44 THE PROCLAMATION AND ITS IMPLEMENTATION ARE UNLAWFUL ............................ 55
A. The Proclamation Does Not Pass Muster Under Section 212(f) or Rational Basis Review ................................................................................................................ 55

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B. The Proclamation Does Not Pass Muster Under Equal Protection...................................... 65
THE PROCLAMATION AND ITS IMPLEMENTATION HARM PLAINTIFFS ........................ 75
CLASS ALLEGATIONS ............................................................................................................... 86
CAUSES OF ACTION .................................................................................................................. 90
FIRST CLAIM FOR RELIEF (Violation of the Administrative Procedure Act) (On behalf of All Plaintiffs, including the Class) ........................................................................ 90
SECOND CLAIM FOR RELIEF (Equal Protection) (On behalf of Resident Plaintiffs/U.S. Petitioners Subclass) ....................................................... 93 THIRD CLAIM FOR RELIEF (Ultra Vires) (On behalf of All Plaintiffs, including the Class) ........................................................................ 94 FOURTH CLAIM FOR RELIEF (Procedural Due Process) (On behalf of Resident Plaintiffs/U.S. Petitioners Subclass) ....................................................... 95
PRAYER FOR RELIEF ................................................................................................................ 96

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INTRODUCTION 1. Late on Friday night, October 4, 2019, President Trump issued a presidential proclamation that, effective November 3, 2019, will block nearly two thirds of all prospective legal immigrants, mostly from predominantly nonwhite countries, from receiving visas and coming to the United States. 2. The “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”) bars qualified immigrant visa applicants from receiving visas and entering the United States unless they can establish, “to the satisfaction of a consular officer,” that they either “will be covered by approved health insurance” within 30 days after entry or are wealthy enough—and/or healthy enough—“to pay for reasonably foreseeable medical costs.” 3. The Proclamation seeks to unilaterally rewrite this country’s immigration laws, imposing a new ground of inadmissibility that Congress has expressly rejected, and creating requirements that will be extremely difficult, or impossible, for most otherwise qualified immigrant visa applicants to satisfy. In doing so, the Proclamation contravenes well-established and duly enacted immigration and healthcare laws, exceeds the scope of the President’s statutory authority, and violates Constitutional separation of powers and equal protection principles. 4. In implementing the Proclamation, the U.S. Department of State has publicly announced on its website that, beginning November 3, 2019, all applicants for immigrant visas who are subject to the Proclamation “must demonstrate to the consular officer at the time of interview” that they will be covered by “approved” health insurance under the Proclamation within 30 days of entry or have the financial resources to pay for reasonably foreseeable medical costs”— and that “[i]nability to meet this requirement will result in the denial of the visa application.”

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5. In addition to imposing new requirements for immigrant visa applicants that are unmoored from the existing statutory and regulatory framework, the Proclamation and agency implementation actions provide staggeringly few options to satisfy this barrier. While the Proclamation lists a number of health insurance options that would-be immigrants ostensibly could obtain in order to satisfy the new requirement, it in fact provides few or even no options that are available to these individuals in reality. First, most of the “approved health insurance” plans that are listed as satisfying the Proclamation’s requirement are not actually legally or practically available to the vast majority of prospective immigrants—like Medicare, which requires a recipient to have lived in the United States for five years, or any plan available under the Affordable Care Act, with or without financial assistance, because such plans are only available to individuals living in the United States. Second, under the Proclamation, any kind of coverage involving common federal- or state-provided health insurance benefits, such as premium tax credits under the Affordable Care Act (“ACA”) for plans sold on the individual market or Medicaid coverage for any individual over age 18, does not allow prospective immigrants to surmount this new barrier to entry. By imposing these restrictions on “approved” types of health insurance, the Proclamation excludes benefits and assistance that Congress has specifically and explicitly made available by statute to certain immigrants in the United States. Third, a number of the “approved” health insurance options are not available in all states, or, in many cases, allow denials and exclusions based on pre-existing conditions, such that many would-be immigrants would not qualify for or have access to such plans. Fourth, the coverage provided under certain “approved” options is limited and does not provide for “minimum essential coverage” as defined under the ACA.
6. The Proclamation is therefore poised to create a new class of otherwise qualified immigrants who are barred from entry on the sole ground of the health insurance requirement, as

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well as a new class of underinsured individuals with non-comprehensive coverage in the United States. These effects frustrate both existing immigration laws and established healthcare laws, and create further concerns for public health and the healthcare system. Under its terms and agency implementation actions, the Proclamation would ban an immigrant who would receive financial assistance under the ACA to purchase comprehensive individual health insurance coverage, but would allow an immigrant who purchased an “approved,” non-comprehensive visitor or short-term limited duration insurance plan, even though the former would be better insured and far less likely to incur uncompensated care costs than the latter. In effect, the Proclamation and its implementation incentivize, if not require, would-be immigrants to purchase non-comprehensive plans to satisfy the Proclamation’s health insurance requirement because those plans are in many cases the most realistically accessible to immigrants. In doing so, the Proclamation and its implementation undermine not only Congress’s intent, as expressed through the ACA, to provide a certain minimum level of coverage to all legal immigrants and citizens in the United States, but also the Proclamation’s own stated goal of addressing the burdens of uncompensated care provided to uninsured individuals.
7. The Proclamation and its implementation are similar (yet even more egregious) in effect to the Administration’s recently promulgated—and currently enjoined by several courts— “Public Charge” Rule, which attempts to redefine what it means for an immigrant to be a “public charge” and therefore inadmissible to the United States. Both the Proclamation requirements and the Public Charge Rule provisions are tools that the Trump Administration is seeking to use in order to exclude prospective immigrants who have satisfied all statutory requirements under the Immigration and Nationality Act (“INA”) to enter the United States; both favor so-called “unsubsidized” ACA health insurance over subsidized; both consider the use of Medicaid to be a

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negative or disqualifying factor for individuals age 18 and over; and both involve some analysis on the part of a consular officer as to whether an intending immigrant has sufficient financial resources to cover “reasonably foreseeable medical costs.” The Public Charge rule, while still problematic and under challenge on various grounds (as reflected in the pending lawsuits challenging the rule and the preliminary injunction orders recently issued by several courts), was at least promulgated through a notice and comment rulemaking process, as required by the Administrative Procedure Act. The Proclamation did not go through any such a process and seeks to impose the same, or even a heightened, draconian effect on the immigration system through presidential fiat and corresponding agency action to carry out the new requirement.
8. Indeed, the Proclamation is unprecedented in its scope and impact, the largest ever suspension on the entry of immigrants of its kind. It will affect mostly immigrants from Latin America, Africa, and Asia, by drastically reducing, if not eliminating, the numbers of immigrants who enter the United States with family-sponsored visas, humanitarian visas, or diversity visas. With no termination point or procedure by which a prospective immigrant may seek a waiver of the Proclamation’s suspension on entry, the Proclamation will separate families—especially nonwhite families—indefinitely, in contravention of one of the bedrock principles of this country’s immigration system.
9. Such anticipated effects of the Proclamation are striking, but perhaps hardly surprising. Like the Public Charge Rule (and the failed RAISE Act of 2017), the Proclamation reflects the President’s often expressed belief that, unlike immigrants who would enter via a “merit-based” system, immigrants who currently enter the country through family-based and diversity visas do not contribute to the United States but instead present a threat to the country’s economy and security. “Why are we having all these people from shithole countries come here?”

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he reportedly asked during a 2018 Oval Office discussion of protections for immigrants from Haiti, El Salvador, and certain African countries. “Why do we need more Haitians?” he asked. During that same discussion, he suggested that the United States should instead bring more people from countries like Norway—which is regularly ranked as one of the wealthiest countries in the world.
10. The Proclamation is but the latest effort of the Trump Administration to unilaterally rewrite Congressionally enacted laws governing who may come to this country as an immigrant. It is also the one of the most drastic. Based on the latest data, up to an estimated 375,000 immigrants are at risk each year of being banned due to a lack of “approved” health insurance coverage, or close to two-thirds of all qualified immigrant visa applicants, many of whom are people of color. This is repugnant not only to our values, but also our nation’s laws and Constitution.
11. Plaintiffs challenge the Proclamation and Defendants’ implementation of its requirements under this Court’s inherent authority to review executive actions that exceed statutory grants of authority, the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)–(D), and the equal protection guarantee of the Due Process Clause of the Fifth Amendment. Plaintiffs respectfully request that the Court issue appropriate declaratory relief and preliminarily and permanently enjoin the Proclamation as a whole.

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JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343 over Plaintiffs’ claims under the U.S. Constitution and federal statutes. The Court has additional remedial authority under 28 U.S.C. §§ 2201–02. 13. Venue is proper under 28 U.S.C. § 1391 and Local Rule 3.2. Defendants are officers or employees of the United States acting in their official capacities, and agencies of the United States. Plaintiff John Doe #1 resides in the Portland Division of this District and Plaintiff Latino Network is a non-profit organization based in Portland. Moreover, on information and belief, the proposed class includes numerous members residing in this District who will be affected by the actions of Defendants. No real property is involved in this action.
PARTIES PLAINTIFFS 14. Plaintiff John Doe #1 is a United States citizen of Mexican origin who resides in Beaverton, Oregon, with his wife, a Mexican citizen, and his fourteen-year-old United States citizen son. John Doe #1, who is not able to work due to a disability, sponsored an immigrant visa for his wife so that she can have legal status to live and work in the United States. Her immigrant visa consular interview is scheduled for November 6, 2019. Under the Proclamation and Defendants’ implementation of its requirements, John Doe #1 and his wife cannot afford or qualify for an “approved” health insurance option for her and fears that they lack sufficient financial resources to pay foreseeable medical costs out of pocket. 15. Plaintiff Juan Ramon Morales is a United States citizen originally from Puerto Rico who now resides in Liberty, New York with his wife, Vianca Morales, a Mexican citizen; their daughter; and Ramon’s step-daughter. Mr. Morales has sponsored his wife for an immigrant visa

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and she is waiting to schedule her consular interview, but he is not able to add his wife to his employer-sponsored health insurance or obtain another “approved” health insurance plan under the Proclamation due to cost.
16. Jane Doe #2 is a United States citizen of Nicaraguan origin and a single mother of two children who resides in Rancho Cucamonga, California. She has an approved I-130 petition for her parents, who are living in Nicaragua and waiting to schedule their consular interview. She has been unable to find available and affordable health insurance for her parents that complies with the Proclamation, and it is unlikely that they will be able to show the ability to pay for reasonably foreseeable medical costs as required under the Proclamation and Defendants’ implementation of its provisions.
17. Plaintiff Jane Doe #3 is a U.S. citizen who currently resides in Los Angeles, California. She is unable to work due to a disability and has insurance through Medi-Cal, California’s Medicaid program. Jane Doe #3 has an approved I-130 petition for her husband, a German citizen who currently resides in Berlin, Germany and is an architect who teaches architectural theory and design. Although he is gathering documents for consular processing, Jane Doe #3 does not believe that her husband will be able to prove at a consular interview that he would be covered by approved health insurance within 30 days of his entry into the United States because they do not believe that they have the financial resources to afford “approved” health insurance as defined in the Proclamation or to pay his foreseeable medical expenses out of pocket as required by the Proclamation and Defendants’ implementation of it.
18. Plaintiff Iris Angelina Castro is a United States citizen who lives in Springfield, Massachusetts with her son, who is a U.S. citizen. She recently became unemployed and currently has state health insurance. She has an approved I-130 visa petition for her husband, Hermogenes

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Castro Molina, a Dominican citizen, so that they can reunite in the United States. He is currently in the process of filing all necessary documents so that they can schedule a consular interview, but they do not believe that he will be able to prove that he can obtain available and affordable “approved” health insurance within 30 days of entering the U.S. or pay for foreseeable medical costs as required under the Proclamation and Defendants’ implementation of its provisions.
19. Plaintiff Blake Doe is a U.S. citizen living in Corvallis, Oregon, with his wife. He has approved I-130 immigrant petitions for his parents, both Mexican citizens, with whom he had lived his entire life in Oregon until going to college at Oregon State University to study civil engineering. Blake Doe’s parents are currently waiting to have their consular interview scheduled in Ciudad Juarez, Mexico. Blake Doe and his parents do not believe that they would be able to prove that his parents would be able to obtain available and affordable “approved” health insurance within 30 days of their entry into the U.S. or to pay foreseeable medical expenses out of pocket as required under the Proclamation and Defendants’ implementation of its provisions.
20. Plaintiff Brenda Villarruel is a U.S. citizen who currently resides in Chicago, Illinois, with her United States citizen son and United States citizen parents. Ms. Villarruel works part time as a licensed medical assistant. She does not have medical insurance and receives health care, when necessary, through a clinic that charges based on income. Ms. Villarruel has sponsored an immigrant visa for her husband, a Mexican citizen who currently resides in Mexico City, Mexico, and is awaiting consular processing. Ms. Villarruel and her husband do not have the resources to obtain available and affordable “approved” health insurance coverage for him or to pay his foreseeable medical expenses out of pocket as required under the Proclamation and Defendants’ implementation of its provisions.

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21. Plaintiff Latino Network is a non-profit organization based in Portland, Oregon. Latino Network’s organization mission is to educate and empower Multnomah County Latinos to achieve physical and mental health, safe housing, sustainable financial stability, and social support. Latino Network does so by offering a variety of programs and services, including early childhood services, community-based programs, school-based programs, arts and culture programs for youth, health and wellness programs, and civic leadership programs. The impending effective date of the Proclamation has forced Latino Network to divert resources from its core activities to address the Proclamation’s fallout within the community the organization serves.
DEFENDANTS 22. Defendant Donald Trump is the President of the United States. He is sued in his official capacity. In that capacity, he issued the Proclamation. 23. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level department of the United States federal government. The Proclamation assigns DOS a variety of responsibilities regarding its implementation and enforcement. 24. Defendant Kevin McAleenan is the Acting Secretary of Homeland Security and has responsibility for overseeing enforcement and implementation of the Proclamation by all Department of Homeland Security staff. He is sued in his official capacity. 25. Defendant U.S. Department of Health and Human Services (“DHHS”) is a cabinetlevel department of the United States federal government. The Proclamation assigns DHHS a variety of responsibilities regarding its implementation and enforcement.

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26. Defendant Alex M. Azar II is the Secretary of Health and Human Services and has responsibility for overseeing enforcement and implementation of the Proclamation by all Department of Health and Human Services staff. He is sued in his official capacity.
27. Defendant U.S. Department of State (“DOS”) is a cabinet-level department of the United States federal government. DOS is responsible for the issuance of immigrant visas abroad. The Proclamation assigns DOS a variety of responsibilities regarding its implementation and enforcement.
28. Michael Pompeo is the Secretary of State and has responsibility for overseeing enforcement and implementation of the Proclamation by all Department of State staff. He is charged by statute with the administration and enforcement of the Immigration and Naturalization laws, including those related to the powers, duties, and functions of consular officers not reserved to the officers themselves. 8 U.S.C. § 1104. He is sued in his official capacity.
FACTUAL ALLEGATIONS A. The Proclamation
29. Late on Friday night, October 4, 2019, President Trump signed the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”). A copy of the Proclamation can be viewed at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-suspension-entryimmigrants-will-financially-burden-united-states-healthcare-system/ and is attached as Exhibit 1.
30. Beginning at 12:01 a.m. eastern daylight time on November 3, 2019, the Proclamation will ban would-be immigrants from receiving visas and entering the United States unless they can demonstrate, “to the satisfaction of a consular officer,” that they will be able to

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obtain “approved” health insurance coverage within 30 days after arriving in the United States, or are wealthy enough to “pay for reasonably foreseeable medical costs.”
31. The Proclamation, by its own terms, was not issued for national security reasons. Ostensibly, the Proclamation is meant to “address[] the challenges facing our healthcare system, including protecting both it and the American taxpayer from the burdens of uncompensated care” given to “people who lack health insurance or the ability to pay for their healthcare.” The Proclamation notes that hospitals and other health care providers “often administer care to the uninsured without any hope of receiving reimbursement from them.” Such uncompensated costs “are passed on to the American people in the form of higher taxes, higher premiums, and higher fees for medical services.” The Proclamation further states that uninsured individuals “strain Federal and State government budgets through their reliance on publicly funded programs, which ultimately are financed by taxpayers,” and rely on emergency care for non-emergency conditions, “causing overcrowding and delays for those who truly need emergency services.”
32. Given these challenges, the Proclamation asserts that “the United States Government is making the problem worse by admitting thousands of aliens who have not demonstrated any ability to pay for their healthcare costs,” and claims that “data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance.” Accordingly, the Proclamation declares that “[c]ontinuing to allow entry into the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental to these interests.” If a prospective immigrant will not “be covered by approved health insurance” “within 30 days of the alien’s entry into the United States,” or if the immigrant does not have “the financial resources to pay for reasonably foreseeable medical costs,”

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the immigrant is deemed to be someone who will “financially burden the United States healthcare system” and whose entry into the United States is therefore “suspended.”
33. Simply put, under the Proclamation, a lack of “approved” insurance, or the inability to prove that an intending immigrant can pay for “reasonably foreseeable” medical care, absolutely bars the entry of that individual to the United States who meets all qualifications mandated by Congress in the Immigration and Nationality Act.
34. The Proclamation sets out a narrow range of health insurance plans that qualify as “approved health insurance.” No “subsidized” health plan offered in the individual market within a State under the ACA qualifies. Proclamation § 1(b)(ii). Nor does Medicaid qualify as “approved health insurance” for any individual over 18, Proclamation § 1(c), even though some states have chosen to make Medicaid available to certain adults over 18, including certain new and recently arrived immigrants. “Approved health insurance” under the Proclamation includes only:
• employer-sponsored plans (Proclamation § 1(b)(i)); • catastrophic plans (Proclamation § 1(b)(iv)); • certain health plans available to the U.S. military (Proclamation § 1(b)(vi)); • the health plans of family members (Proclamation § 1(b)(v)); • Medicare (Proclamation § 1(b)(viii)); • short-term, limited duration health policies effective for at least 364 days (Proclamation §
1(b)(iii)); and • visitor health insurance plans that provide “adequate coverage for medical care,” also for
at least 364 days (Proclamation § 1(b)(vii)).

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As explained below, the Proclamation’s “approved” health insurance plans are not practically or legally available to most or all prospective immigrants residing outside the country or within their first 30 days of arrival.
35. A prospective immigrant may also obtain a “health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee,” but the Proclamation provides no guidance as to how “adequate coverage” is defined. (Proclamation § 1(b)(ix)).
36. Subject to limited exceptions, the Proclamation applies to nearly all individuals seeking to enter the United States with an immigrant visa. Indeed, based on insurance coverage alone, most adults who were granted green cards over the last three years would have been banned had the Proclamation been in effect.1 The only exceptions from the Proclamation’s suspension of entry cover very small populations, including:
• certain Special Immigrant Visa applicants specifically from Iraq and Afghanistan (Proclamation § 2(b)(ii));
• green card holders returning to the U.S. on a “Returning Resident” visa after remaining abroad for more than one year (Proclamation § 2(b)(v));
• biological and adopted children under 21, but only if those children are not accompanying a parent who is also immigrating to the United States and is subject to the Proclamation (Proclamation § 2(b)(iii), (vi)); and
• parents of U.S. citizen children over the age of 21 arriving with an IR-5 visa, but only if the parent or the U.S. citizen-child sponsor “demonstrates to the satisfaction of the consular
1 Nicole Narea, Trump just quietly cut legal immigration by up to 65%, VOX, https://www.vox.com/2019/10/9/20903541/trump-proclamation-legal-immigration-health-insurance (last visited Oct. 27, 2019).

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officer that the [parent’s] healthcare will not impose a substantial burden on the United States healthcare system” (Proclamation § 2(b)(iv)). With respect to this last exception, the Proclamation provides no guidance as to how the parent or U.S. citizen-child sponsor must demonstrate, nor how a consular officer should evaluate, whether the parent’s health care will impose a “substantial burden on the United States healthcare system.” 37. Notably, certain types of plans that qualify as “approved” coverage under the Proclamation provide only very limited benefits and/or allow exclusions based on preexisting conditions, such that they may be either unavailable to many individuals or may result in “underinsurance”—which has itself been shown to impose a “substantial burden on the United States healthcare system.” Yet, the Proclamation would encourage underinsurance among newly arrived immigrants. 38. The Proclamation also contains exceptions for noncitizens “whose entry would further important United States law enforcement objectives,” or “whose entry would be in the national interest,” as “determined by the Secretary of State or his designee.” Proclamation § 2(b)(vii), (viii). Again, however, the Proclamation provides no procedure for would-be immigrants either to learn or to demonstrate how they would qualify for such exceptions. B. Agency Implementation of the Proclamation 39. In implementing the Proclamation, the Department of State created a page on its website that informs and instructs visa applicants and consular officers of their new obligations under the Proclamation (“Posting”), available at https://travel.state.gov/content/travel/en/usvisas/immigrate/Presidential-Proclamation-on-Health-Care.html (Exhibit 2). 40. The Posting states definitively that “if you are applying for an immigrant visa” on or after November 3, 2019 “you must demonstrate at the time of the interview” that you meet the

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Proclamation’s requirements. It also specifies that an “inability” to meet the Proclamation’s requirements at the time of the interview “will result in the denial of the visa application.” The Posting then lists the same exceptions that appear in the Proclamation and the same list of approved health insurances. Under the heading “Requirement at visa interview,” the Posting specifies that “[d]uring the visa interview,” applicants will need to demonstrate that they satisfy the requirements of the Proclamation. It informs that applicants that consular officers “will review the medical and financial documentation that is already part of the applicant’s case file and may request additional information or documentation as needed.” The Posting also includes a link to the Proclamation itself.
41. By its terms, the Posting unequivocally makes clear not only that visa applicants have the obligation to satisfy the Proclamation’s requirements or be denied a visa, but also that consular officers will enforce the Proclamation, which has significant legal and practical consequences for visa applicants and their families. It did so without satisfying any of the requirements for agency action under the Administrative Procedure Act (“APA”) or demonstrating good cause for diverging from standard agency practice.
42. Eleventh-hour action by the State Department purports to offer the opportunity for notice and comment for “information collection” related to the Proclamation, but this only highlights the agency’s failure to act according to the requirements of the APA. Just yesterday, on October 29, 2019, the Department of State issued a “Notice of Information Collection” for “Emergency Review”2 (the “Emergency Notice”), which was published in the Federal Register

2 60-Day Notice of Proposed Information Collection: Public Charge Questionnaire, FED. REGISTER, https://www.federalregister.gov/documents/2019/10/24/2019-23219/60-day-noticeof-proposed-information-collection-public-charge-questionnaire (last visited on Oct. 27, 2019). https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-23639.pdf

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today (October 30, 2019) and purports to announce a “methodology” established by the Secretary of State, as authorized by Section 3 of the Proclamation, “to establish standards and procedures for governing such determinations.” 84 Fed. Reg. 58199 (Oct. 30, 2019); see also Advance Print Emergency Notice (issued Oct. 29, 2019), available at https://s3.amazonnews.com/publicinspection.federalregister.gov/2019-23639. The Emergency Notice states that “to implement [the Proclamation] when it goes into effect on November 3, 2019,” consular officers “will verbally ask immigrant visa applicants covered by [the Proclamation] whether they will be covered by health insurance in the United States within 30 days of entry to the United States and, if so, for details relating to such insurance.” If the applicant says yes, “consular officers will ask for applicants to identify the specific health insurance plan, the date coverage will begin, and such other information related to the insurance plan as the consular officer deems necessary.” The Emergency Notice further adds that visa applicants will not be suspended “if they do not have coverage, but possess financial resources to pay for reasonably foreseeable medical expenses.” It defines “reasonably foreseeable medical expenses” as “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.”
43. The Emergency Notice provides a comment period of less than 48 hours, an unusually short period of time, stating that “[a]ll public comments must be received by October 31, 2019.” It notes that the Proclamation “was signed on October 4, 2019, and emergency review of this information collection is necessary for the Department to prepare consular officers to implement [the Proclamation] when it goes into effect on November 3, 2019.”3 The Emergency

3 The late posting of the Emergency Notice and extremely short notice-and-comment period stand in stark contrast to a “60-Day Notice of Proposed Information Collection” in the Federal Register six days prior on October 24, 2019 (the “Notice”). That Notice proposed and solicited public comments on a new written form, DS-5540, that would ostensibly collect information

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Notice was not, however, implemented in direct response to any particular event impacting foreign relations.
44. Taken together, the Emergency Notice and the Posting make clear that, effective November 3, consular officers are empowered to determine whether prospective immigrants meet the Proclamation’s requirements, resulting in a direct impact on the rights of immigrants and their families. These are definitive actions that reflect the consummation of the agency’s decisionmaking process and that affect the substantive rights and obligations of regulated individuals.
45. The Posting and the last-minute Emergency Notice confirm press reports that government officials were scrambling earlier this month to implement and enforce the Proclamation by its effective date. On information and best belief, these efforts necessarily include DOS officials as well as DHHS and DHS officials. For example, as indicated above, the DHHS Secretary “or his designee” has authority under the Proclamation to determine whether a “health plan . . . provides adequate coverage for medical care” (though provides no guidance as to how “adequate coverage” is defined for such purpose). Proclamation § 1(b)(ix). According to one media report published a week after the Proclamation was signed, government health officials “are wrestling with highly technical questions” as they attempt to implement the Proclamation, despite

intended to assist consular officers “in assessing whether an applicant is likely to become a public charge,” but stated that a consular officer could ask a visa applicant to fill out certain questions on the same form to assess whether the applicant meets the Proclamation’s requirements. See 60-Day Notice of Proposed Information Collection: Public Charge Questionnaire, FED. REGISTER,See https://www.federalregister.gov/documents/2019/10/24/201923219/60-day-notice-of-proposed-information-collection-public-charge-questionnaire (last visited on Oct. 27, 2019).https://s3.amazonaws.com/public-inspection.federalregister.gov/201923219.pdf

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“concerns” that its mandate “may be unworkable and even illegal.”4 Indeed, officials “are confused about numerous aspects of the proclamation, such as whether implementing the new health insurance requirements would fall to [the Center for Consumer Information and Insurance Oversight, within the Department of Health and Human Services] or the State Department.”5 None of these deliberations or concerns, which have a direct impact on the legal rights of visa applicants, have been presented to the public as part of any administrative process.
46. It is no surprise that officials were at least initially confused about how to implement the Proclamation, given that the Proclamation is inconsistent with existing immigration and healthcare laws, contrary to core constitutional principles, and, moreover, is riddled with undefined terms and imprecise standards and appears to ignore many of the practical realities of both this country’s immigration and health care systems. C. The Proclamation is Vague, Internally Contradictory, and Inconsistent with
Existing Law in Ways State Department Action has Not Addressed 1. The Proclamation Uses Unclear, Undefined Terms and Standards 47. The Proclamation’s list of “approved health insurance” plans includes several options that are unclear and undefined. “Catastrophic health insurance,” for example, is one “approved” option, but the term can be used generically, to refer to certain high-deductible plans, or specifically, as defined by the ACA with certain coverage parameters and eligibility requirements. The Proclamation does not specify what it means when it allows “catastrophic health insurance” as “approved health insurance.”
4 Dan Diamond, Health officials: Trump immigration order could be illegal, POLITICO, https://www.politico.com/news/2019/10/11/trump-immigrants-health-insurance-illegal-044716 (last visited on Oct. 27, 2019). 5 Id.

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48. Likewise, a variety of forms of financial assistance under the ACA are broadly available to individuals seeking health insurance on the ACA Exchanges—indeed, an Exchange enrollee may qualify for some level of assistance if she has a household income from 100 to 400 percent of the federal poverty level (“FPL”),6 and lawfully present immigrants qualify for assistance even if their household income is below 100% FPL if they are not otherwise eligible for Medicaid. Such financial assistance can take the form of “premium tax credits” offered to eligible enrollees, as well as certain cost-sharing reductions tied to specific “silver” plans, for which eligibility is based on income. The ACA, however, does not define either of these forms of financial assistance as a “subsidy.” The Proclamation is silent as to which forms of assistance would render a plan “subsidized,” and therefore not “approved,” health insurance.
49. In addition, the Proclamation states that “an alien will financially burden the United States healthcare system . . . unless the alien possesses the financial resources to pay for reasonably foreseeable medical costs”—but provides no guidance on what might constitute a “reasonably foreseeable medical cost.” Nor does the Proclamation indicate how a consular officer with no medical training should evaluate what medical costs may be “reasonably foreseeable” for a specific prospective immigrant, or how the consular offer should assess whether that individual has sufficient “financial resources” to cover such costs. The State Department’s Emergency Notice, published today in the Federal Register, defines “reasonably foreseeable medical expenses” as “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication” but, again, does not clarify how consular officers are to make that assessment.

6 In 2019, the income level necessary for a family of four to qualify for financial assistance ranged from $25,100 at 100% FPL to $100,400 at 400% FPL.

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50. Likewise, the Proclamation states that a visitor health insurance plan may qualify as an “approved” health plan if it provides “adequate coverage for medical care”—but provides no standards or definitions that would enable either a would-be immigrant or a non-medically trained consular officer to assess what coverage qualifies as “adequate.” Similarly, the Secretary of Health and Human Services may approve “any other health plan that provides adequate coverage for medical care,” but the Proclamation is devoid of guidance as to how the Secretary should determine that a plan’s coverage is “adequate,” to say nothing of guidance that would enable prospective immigrants to evaluate whether a potential plan not already enumerated in the Proclamation provides sufficiently “adequate” coverage to qualify as “approved.”
51. The Proclamation does provide exceptions to the entry suspension for immigrants “whose entry would be in the national interest,” as determined by the Secretary of State, or “whose entry would further important United States law enforcement objectives,” as determined by the Secretary of State based on a recommendation of the Attorney General. But the Proclamation does not explain what such terms as “national interest” or “important United States law enforcement objectives” mean. There is no indication, in either the text of the Proclamation or the Department of State website, of how a prospective immigrant may seek such a determination from the Secretary of State or demonstrate her qualifications for such a determination.
52. When making an exception for immigrants whose entry would further “law enforcement objectives,” moreover, the Proclamation makes no mention of a special visa, the U visa, which exists specifically for victims of certain crimes who are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Although the INA specifically allows U visa holders to petition to bring certain family members to the United States on immigrant visas, the Proclamation is silent as to whether such family members are excepted

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from the Proclamation, either under the “law enforcement” provision or otherwise. At best, such silence on the topic creates uncertainty for U-derivative immigrant family members; at worst, it indicates that such family members are subject to the Proclamation’s requirements, notwithstanding the fact that the INA expressly provides for the reunification of U visa families.
2. Very Few, if Any of the Proclamation’s “Approved Health Plans” Are Available to Visa Applicants
53. Beyond the Proclamation’s vague and ill-defined terminology, most of the Proclamation’s “approved” health insurance plans are not practically or legally available to most or all prospective immigrants residing outside the country or within their first 30 days of arrival.
54. Medicare plans, for example, are an approved type of health insurance under the Proclamation, Proclamation § 1(b)(viii), but such coverage is unavailable to immigrants unless they are over 65 years old and have been living continuously in the United States for five years.
55. TRICARE plans and other related coverage, “approved” under § 1(b)(iv) of the Proclamation, are only available to members of the United States military, their spouses, and children up to 26 years of age.
56. Employer-sponsored plans also constitute “approved plans” under the Proclamation § 1(b)(i), but employers are permitted under federal law to impose a waiting period of up to 90 days before new employees can be covered by employer-sponsored coverage.7 Seventy-one percent of employers impose a waiting period, with waiting periods on average lasting 1.9 months.8 Beyond that, over two-thirds of immigrants are the beneficiaries of family petitions or other non-

7 42 U.S.C. § 300gg-7.
8 2018 Employer Health Benefits Survey, KAISER FAMILY FUND, (Oct. 3, 2018), https://www.kff.org/report-section/2018-employer-health-benefits-survey-section-3-employeecoverage-eligibility-and-participation/

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employment-based visa applications, and therefore are unlikely to have an employer-sponsored plan before even arriving in the United States and acquiring valid work authorization.
57. Although a “family member’s plan” is “approved” under the Proclamation, § 1(b)(v), it is highly unlikely that most immigrants will be able to obtain coverage through a family member unless they are a spouse or a child under 27. All other relations are not usually considered a “dependent” eligible to be included in a family health insurance plan.9
58. The Proclamation states that a “catastrophic health plan” may constitute an approved plan, Proclamation § 1(b)(iv), but under the ACA, “catastrophic” plans are available only to individuals living in the United States, and eligible enrollees must be either under 30 years of age or have qualified for a hardship or affordability exemption. 42 U.S.C. § 18022(e).10
59. The list of “approved” health insurance includes “an unsubsidized health plan offered in the individual market within a State,” Proclamation § 1(b)(ii), but an intending immigrant would not be able to obtain such coverage from abroad. Like an ACA-compliant catastrophic plan, any other “unsubsidized” health plan offered in an ACA marketplace is only available to individuals living in the United States, in the marketplace’s service area. 45 C.F.R. § 155.305(a)(3)(i).
60. Further logistics could impede the immigrant’s ability to acquire not only an “unsubsidized health plan” but also a “catastrophic health plan” (whether through the ACA
9 An employer health plan is only a benefit excludable from income tax if it limits eligibility to spouses, children who have not yet attained age 27, and tax dependents. 26 U.S.C. § 105(b), 26 C.F.R. § 1.106-1(a). Employers are permitted to limit eligibility further, and indeed, coverage of family members other than children and spouses or domestic partners is very rare. See https://www.theabdteam.com/blog/eligibility-parents-group-health-plan/ 10 Are You Eligible to Use the Marketplace?, HEALTHCARE.GOV, https://www.healthcare.gov/quick-guide/eligibility/

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Exchanges or outside of them) within 30 days of entering the United States. Under rules governing an insurance policy’s effective date, a newly purchased policy becomes effective on the first day of the next month after purchase—but only if the policy was purchased before the fifteenth day of the current month.11 Otherwise, the effective date rolls to the first day of the subsequent month. In other words, if an immigrant is so fortunate as to enter the United States under the Proclamation, but unluckily arrives on the 20th of the month, her insurance coverage will not take effect until well after 30 days of arriving in the country. The Proclamation is silent on whether such a possibility would prevent a prospective immigrant from satisfying the “approved health insurance” requirement to gain entry.
61. When accounting for the fact that Medicare, TRICARE and other military plans, employer-sponsored plans, family members’ plans, and unsubsidized and catastrophic plans available under the ACA are all practically or legally impossible for most prospective immigrants to acquire, the two remaining options for “approved health insurance” under the Proclamation are visitor insurance plans or short-term limited duration insurance (“STLDI”) plans, which in either case must last for a minimum of 364 days. But STLDI plans lasting the minimum required 364 days are not available in almost half the states,12 and many disqualify an individual from coverage if that person is not a United States citizen or resident.13 Neither visitor plans nor STLDI plans, moreover, are required to cover individuals with preexisting conditions or pregnant women, and
11 See 45 C.F.R. § 155.420(b)(1); 45 C.F.R. § 147.104(b)(2). 12 Is Short-term Health Insurance Right for You?, HEALTHINSURANCE.ORG, https://www.healthinsurance.org/short-term-health-insurance/ 13 Short Term Health Insurance Eligibility Information for Short Term Health Insurance, or STM, ELIGIBILITY.COM (Updated Jan. 28, 2019), https://eligibility.com/short-term-healthinsurance

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many do not.14 Such plans can also adjust premiums based on an individual’s health history, gender, or (outside specified parameters) age and make them prohibitively, and exploitatively, expensive.15 Indeed, many states are concerned that unscrupulous insurance brokers and STLDI insurers provide misleading information about the costs, deductibles, and coverage associated with these plans.16
62. Even assuming prospective immigrants can acquire visitor insurance plans or STLDI plans, it remains unclear that such insurance plans actually further the Proclamation’s goal of “addressing the challenges facing our healthcare system, including protecting both it and the American taxpayer from the burdens of uncompensated care.” Visitor and STLDI plans are not required under the ACA to provide “essential health benefits,” such as hospitalization, prescription drugs, emergency services, and maternity and newborn care. Indeed, the fine print of such policies can exclude coverage for prescription drugs, a tonsillectomy, hernia surgery, prenatal care, treatment of pre-existing conditions an individual does not know about, or even “treatment of injury resulting from participation in organized sports,” like care for a concussion a child receives during soccer.17 As a result, the coverage provided by such plans can leave an individual

14 Id.
15 Id.; see also Rachel Schwab, Coming Up Short: The Problem with Counting Short-Term, Limited Duration Insurance as Coverage, CHIRBLOG.ORG (June 7, 2019), Id.; see also http://chirblog.org/coming-short-problem-counting-short-term-limited-duration-insurancecoverage/
16 S. Corlette et al., The Marketing of Short-Term Health Plans, ROBERT WOOD JOHNSON FOUNDATION (Jan. 31, 2019) https://www.rwjf.org/en/library/research/2019/01/the-marketing-ofshort-term-health-plans.html
17 https://www.cbpp.org/research/health/key-flaws-of-short-term-health-plans-pose-risks-toconsumers

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effectively uninsured for relatively mundane needs like prescriptions or a prenatal checkup, as well
as for hospital interventions.
63. A Pennsylvania man, for example, was hospitalized for an abnormal heartbeat but
was denied coverage under his STLDI plan because of a previous doctor visit for high blood
pressure, which led the insurer to claim his hospitalization was actually for a preexisting
condition.18 Similarly, a Washington, D.C. man’s STLDI plan had a stated maximum payout of
$750,000, but it paid only $11,780 towards a $211,690 hospitalization bill for heart surgery, in
part due to a denial of coverage based on his father’s medical history.19 In another case, a woman
from Illinois went to the hospital with heavy vaginal bleeding and ended up needing a
hysterectomy and a five-day hospital stay. She was denied coverage under her STLDI plan on the
ground that her menstrual cycle constituted a pre-existing condition.20
64. Indeed, a substantial share of uncompensated care costs are due to underinsured
individuals with high deductibles, excluded services, or low annual limits, which are all common
characteristics of visitor and STLDI plans.21 Even the insurers who offer short-term limited
18 Sarah Lueck, Key Flaws of Short-Term Health Plans Pose Risks to Consumers, CTR. ON BUDGET AND POLICY PRIORITIES (Sept. 20, 2018) https://www.cbpp.org/research/health/keyflaws-of-short-term-health-plans-pose-risks-to-consumers 19 Cheryl Fish-Parcham, Families USA, to Alex Azar et al., “Comments on Short-Term Limited Duration Insurance Proposed Rule (CMS-9924-P),” Apr. 23, 2018 (https://www.regulations.gov/document?D=CMS-2018-0015-8801). 20 Id. 21 Susan Morse, Increase in Uncompensated Hospital Care Could be One Effect of Short-term Coverage Rule, HEALTHCARE FINANCE NEWS (Aug. 1, 2018) https://www.healthcarefinancenews.com/news/increase-uncompensated-hospital-care-could-beone-effect-short-term-coverage-ruleRick Pollack, AHA Statement on Final Rule on Short-Term, Limited-Duration Health Insurance Plans, AMERICAN HOSPITAL ASSOCIATION (Aug. 1, 2018); https://www.aha.org/press-releases/2018-08-01-aha-statement-final-rule-short-term-limitedduration-health-insurance

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duration insurance or visitor coverage do not consider it to be a replacement for ordinary health insurance.22
65. The table below summarizes the options for “approved health insurance” under the Proclamation and the reasons why such plans are not attainable at all, or attainable by an insignificant number of intending immigrants:

Approved Health Insurance Limitations on Availability Plans

Additional Barriers to Enrollment

Employer-sponsored plan

Available only to individuals who have an offer of employment that includes employer-sponsored insurance, as well as work authorization.

Most employers impose a waiting period before a new employee can be covered by employer-sponsored insurance; waiting periods last on average for 1.9 months, or well over 30 days.

Unsubsidized health plan offered in the individual market within a State

Available only to individuals living in the United States.

Newly arrived immigrants may not be enrolled within 30 days based on their date of arrival and the effective date that their coverage begins.

Short-term limited duration health policy effective for a minimum of 364 days

Available only in about half the States with the 364-day minimum; often not available to individuals living outside the United States.

Usually not available to individuals with pre-existing conditions.

Catastrophic plan

Available only to individuals living in the United States who are either 30 or younger or who have a

Newly arrived immigrants may not be enrolled within 30 days based on their date of arrival and the effective date that their coverage begins.

22 Comment of American Cancer Society Cancer Action Network et al., Apr. 23, 2018, at 3 (noting that sellers of short-term limited duration insurance plans “acknowledge that such plans are ‘designed solely to provide temporary insurance during unexpected coverage gaps’”) (citation omitted).

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hardship/affordability exemption

Family member’s plan

Generally available only to spouses and children 26 or younger.

Medical Plan under 10 U.S.C. § 55, including TRICARE

Available only to members of the U.S. military, their spouses, and children 26 or younger.

Visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days

Usually not available to individuals with pre-existing conditions.

Medicare

Available only to individuals at least 65 years old who have been living continuously in the United States for 5 years.

3. The Proclamation Is Internally Inconsistent with Its Stated Goals 66. The Proclamation provides no explanation for how incentivizing—if not effectively requiring—immigrants to buy non-comprehensive or STLDI plans, many of which will likely leave an immigrant underinsured after she arrives, is likely to shield taxpayers or hospitals from such uncovered emergency costs, which the Proclamation decries as “driv[ing] hospitals into insolvency” and “saddl[ing] our healthcare system, and subsequently American taxpayers, with higher costs.” 67. Indeed, the Proclamation appears to be even more self-defeating considering its exclusion of “subsidized” ACA health insurance from the list of “approved health insurance” plans that would enable immigrants to enter the United States. Unlike visitor insurance or short-term limited duration insurance plans, any ACA-marketplace health insurance plan that also offers

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financial assistance is a comprehensive plan that covers a wide range of essential health benefits, including prescription drugs, hospitalization, prenatal and maternity care, and mental health care. Financial assistance to purchase such qualified health plans is available to individuals with household incomes of 100 to 400 percent FPL. Indeed, when passing the ACA, Congress extended the same benefits to immigrants on even more permissive terms, explicitly making assistance available to legally present immigrants even with incomes under 100 percent FPL, including newly arrived immigrants in their first five years in the country, who are otherwise generally excluded from most other federal means-tested benefits. But, although Congress expressly made such benefits available to newly arrived immigrants—and in fact intended for such immigrants to arrive, through this country’s legislatively enacted immigration system—the Proclamation operates to ban those immigrants who would benefit from assistance provided under the ACA.
68. Although an immigrant who receives financial assistance under the ACA to purchase comprehensive health insurance would be better insured than an immigrant who purchases non-comprehensive visitor or STLDI insurance, the Proclamation bars the former and allows the latter, in the name of protecting this nation’s health care system from uncompensated costs incurred by uninsured individuals.
69. Viewed as a whole, the Proclamation is far less than the sum of its parts. Its standards and terse language are opaque when they are not vague or ill-defined. The Proclamation’s array of various “approved health insurance” options are, for a significant majority of intending immigrants, merely a set of legal or practical impossibilities. When taken to their logical consequence, the incentives it creates for prospective immigrants lead to results that almost certainly will not further the Proclamation’s goal of reducing the burden of uncompensated care

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for uninsured individuals. At best, these disparate parts form an internally inconsistent whole; at worst, they smack of bad faith.
70. Given the draconian sweep of the Proclamation—indeed, by some estimates, it has the potential to reduce legal immigration by nearly two thirds and affect most, if not nearly all, family-based and diversity immigrants—the structure, text, and import of the Proclamation all suggest that its ostensible purpose of addressing the burden that uninsured individuals place on this country’s health care system is merely a pretext to rework this country’s immigration system in the manner that the President sees fit, in contravention of the laws passed by Congress.
71. The Proclamation, moreover, does not operate in a vacuum. It will be enforced in a legal landscape already shaped by numerous Congressional enactments, including the Immigration and Nationality Act, the Public Responsibility and Work Opportunity Reconciliation Act, the Illegal Immigration Reform and Immigrant Responsibility Act, the Children’s Health Insurance Program Reauthorization Act, and the Affordable Care Act; and the regulations of the Administration’s recently promulgated “public charge rule,” which establishes new criteria for determining whether a would-be immigrant may be deemed inadmissible because she is likely to become a “public charge”. As set out in more detail below, the Proclamation is in tension, if not direct conflict, with each of these statutory and regulatory schemes, and therefore also with Congress’s legislative intent.
72. The Proclamation, moreover, is but the latest link in a long chain of statements and actions by this President and his Administration expressing antipathy toward all noncitizens, but also specifically toward immigrants seeking to come to the United States—particularly immigrants of color, from Central and Latin America, Africa, and the Middle East. Since the early days of his Administration, the President has consistently called for eliminating the two main ways that

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immigrants from predominantly nonwhite countries receive visas—the family preference system and the diversity visa lottery. After a legislative attempt—the RAISE Act—that failed in 2017, and an administrative attempt—the public charge rule—that received overwhelmingly negative public comment, and which has since been enjoined, the Proclamation now appears to be an attempt by presidential fiat. The laws and the Constitution of this country do not countenance such executive overreach.
THE PROCLAMATION IMPERMISSIBLY RESHAPES THE NATION’S CONGRESSIONALLY-ENACTED HEALTH BENEFIT SYSTEM FOR IMMIGRANTS
BY PRESIDENTIAL FIAT A. The Immigration and Nationality Act (“INA”)
73. The Immigration and Nationality Act (“INA”) was originally enacted in 1952 and has since been amended significantly multiple times. Although it now represents “a long series of legislative accretions,”23 it nevertheless creates a system by which this country may grant up to 675,000 permanent immigrant visas each year, as well as an unlimited number of permanent immigrant visas for the admission of U.S. citizens’ spouses, parents, and children under the age of 21. In doing so, the INA, 8 U. S. C. § 1101 et seq., expresses and reflects Congress’s intent that foreign nationals who meet certain qualifications may immigrate to the United States, in furtherance of the goals of reunifying families, admitting immigrants with skills that are useful to the United States economy, and promoting diversity.24
74. A series of related and interacting statutes, including the Public Responsibility and Work Opportunity Reconciliation Act (“PRWORA”), the Children’s Health Insurance Program

23 Adam B. Cox & Christina M. Rodriguez, The President and Immigration Law Redux, 125 YALE L.J. 104, 158-59 (2015).
24 See Elkins v. Moreno, 435 U.S. 647, 664 (1978).

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Reauthorization Act (“CHIPRA”), and the Affordable Care Act (“ACA”), likewise express and reflect Congress’s intent to extend certain health care-related benefits to legal immigrants. Through PRWORA, Congress made significant changes to health care eligibility for noncitizens and simultaneously devolved substantial power to the states to allow the states to replace benefits to legal immigrants through Medicaid, and later through the Children’s Health Insurance Programs (“CHIP”), and to receive federal matching funds when providing such coverage. Through CHIPRA, Congress affirmatively provided federal dollars to fund care for newly arrived legal immigrant children and legal immigrant pregnant women during their first five years in this country. And through the ACA, Congress made financial assistance in the form of premium tax credits available to both United States citizens and legal immigrants to purchase comprehensive health coverage.
75. The interaction of these statutes reflects Congress’ intent to keep important health care benefits available to both newly arrived immigrants and qualified foreign nationals, especially the spouses, children, and parents of United States citizens, to ensure that such individuals are allowed to immigrate to the United States in the first instance to reunite with family, contribute their skills to the United States economy, be afforded humanitarian protections, and/or promote diversity.
76. In rendering inadmissible all immigrants who are unable either to purchase certain enumerated kinds of health insurance or pass an opaque wealth test through categorizing such individuals as “detrimental to the United States”—particularly immigrants who would otherwise be eligible to enter the United States and receive health insurance benefits like Medicaid, CHIP, or financial assistance under the ACA—the Proclamation expressly contravenes Congress’s legislative intent.

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77. The bedrock pillars of U.S. immigration law allow immigration for family reunification, for business purposes, for humanitarian considerations, and to promote diversity. To that end, Congress has set forth a comprehensive system to allow limited “worldwide immigration” based on an allocation of “family-based visas,” “employment-based visas” and “diversity-based” visas. 8 U.S.C. § 1151(a). Section 1151 of the INA sets an annual minimum family-sponsored preference limit of 226,000; the worldwide level for annual employment-based preference immigrants is at least 140,000. A maximum of fifty-five thousand visas each year are available through a diversity visa lottery, open to nationals of countries with historically low rates of immigration to the United States.
78. A family member or employer seeking to “sponsor” a noncitizen for an immigrant visa must first file either a Form I-130, Petition for Alien Relative, or Form I-140, Petition for Alien Workers, with the United States Citizenship and Immigration Service on behalf of the “beneficiary.” This form establishes the necessary family or employer-employee relationship that exists to allow for an immigrant visa. Once the beneficiary of an approved immigrant petition has an immigrant visa number that is immediately available, there are two ways to apply for lawful permanent resident status (“Green Card”). If the beneficiary is outside of the United States, he or she must apply at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as a permanent resident. This pathway is referred to as consular processing. If the beneficiary is already in the United States, she may attempt to apply for permanent resident status without having to return to her home country to complete processing. This process is called adjustment of status.25 See 8 U.S.C. § 1255(a).
25 If an individual present in the United States does not qualify for adjustment of status, she must travel abroad for a consular interview to obtain her immigrant visa. Some applicants who have accrued more than 180 days of unlawful presence while in the United States, but have no other

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79. Section 1152 of the INA prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. This means that no single nation can receive more than 7 percent of the total green cards issued in a year (unless they would otherwise go unused).
80. Among family-based immigrants, Congress has prioritized the admission of “immediate relatives,” which is defined as “the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.” 8 U.S.C. § 1151(b). These familial relations have been carved out of certain exceptions to the various numerical limitations on immigrant visas, and thus visas are always and immediately available for these qualifying family members
81. The allocation of immigrant visas subject to the numerical limitations is governed by 8 U.S.C. § 1153. Subsection (a) sets forth preference allocations for family-sponsored immigrants; subsection (b) sets forth the preference allocations for employment-based visas. See, e.g., 8 U.S.C. § 1153(a)(1) (“Qualified Immigrants who are the unmarried sons and daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400.”).
82. Section 1153(e) provides that family-sponsored and employment-based preference visas “shall” be issued to eligible immigrants in the order in which a petition on behalf of each has been filed, that is, according to the “priority date” of the visa petition.
bars to admissibility, may obtain an I-601A waiver of inadmissibility to overcome the unlawful presence bars under 8 U.S.C. § 1182(a)(9)(B) before they can return. The I-601A waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees) who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States and remain with their family members before they depart for their immigrant visa interview abroad. See 8 C.F.R. § 212.7(e).

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83. A family member or employee may not apply for lawful permanent residence abroad until a visa is immediately available. The Department of State issues a monthly Visa Bulletin organized according to country of origin and visa preference category.26
84. If there are sufficient visas available for applicants from a specific country and of a specific preference category, then the Visa Bulletin lists that combination as “current,” and all applicants matching that combination may file an application regardless of their priority date, or the date the visa was received by the agency. If there are insufficient visas available for all known applicants of a specific combination, however, the Visa Bulletin lists a cut-off date, and only those applicants who have priority dates earlier than the cut-off date may file an application. Sometimes, a cut-off date may retrogress, meaning that fewer visas are available than previously projected. When that happens to an applicant whose application is already filed, the applicant is forced to wait until the cut-off date again progresses past his priority date for his application to be adjudicated.
85. Before the issuance of an immigrant visa, the noncitizen must establish that she is eligible for admission to the country. Section 1101(a)(13)(A) of Title 8 defines “admission” to mean “the lawful entry of a noncitizen into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
86. Section 1182 of Title 8, INA § 212, is titled “Inadmissible Aliens” and sets forth ten classes of noncitizens “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a) (prescribing the inadmissibility of, inter alia, noncitizens who have a

26 See, e.g., Visa Bulletin for November 2019, TRAVEL.STATE.GOV, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-fornovember-2019.html (last visited Oct. 27, 2019).

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communicable disease of public health significance, those convicted of two or more criminal offenses, those who engaged in terrorist activities).
87. Under the system set out in the INA, family-based petitions account for approximately 65% of the immigrant visas granted every year. The diversity lottery visa system accounts for approximately 4.5%.
88. In addition to the comprehensive system for the allocation of family-based, employment-based, and diversity visas, Congress has authorized multiple special categories for immigrants from abroad based on specific humanitarian considerations. For example, a qualifying battered spouse, child or parent may file an immigrant visa petition under the Immigration and Nationality Act (INA), as amended by the Violence Against Women Act (VAWA). See generally 8 U.S.C. § 1154(a)(1), 8 U.S.C. § 1186(c)(4). Among other sympathetic considerations to victims of abuse, VAWA created special provisions in United States immigration law to protect victims of abuse who are not citizens of the United States. Id. In cases of domestic violence, US immigration law allows certain victims of abuse who are not citizens to obtain lawful status without having to rely on their abuser to petition. Id. Qualifying applicants may apply self-petition for an immigrant visa abroad and subsequently enter the United States as immigrants if the abuser is an employee of the U.S. government, the abuser is a member of the uniformed services, or the applicant was subjected to battery or extreme cruelty in the United States. 8 U.S.C. §§ 1154(a)(1)(A)(v), (a)(1)(B)(iv).
89. In addition, the U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity; it provides a pathway to lawful permanent residence and subsequently citizenship after 3 years of residence in the United

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States. See generally 8 U.S.C. § 101(a)(15)(U). Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women Protection Act, Pub. L. 106-386) in October 2000. Under the provisions of this statute, a U nonimmigrant may also petition for certain family members to receive a “derivative U visa.” While many such eligible family members will already have entered the United States with a derivative U visa before the principal U nonimmigrant receives a green card after three years of residence, those family members who do not may apply for an immigrant visa abroad. See 8 U.S.C. § 245(m)(3) (upon the approval of an adjustment of status application for a principal U nonimmigrant, “the Secretary of Homeland Security may adjust the status or issue an immigrant visa to a spouse, a child, or in the case of an alien child, a parent who did not receive a [derivative U visa] under section 101(a)(15)(U)(ii)” of the INA.); 8 C.F.R. § 245.24(g).
90. The Proclamation’s suspension of entry does violence to this legislatively enacted immigration scheme that synthesizes considerations of national origin, merit, race, humanitarian, and family-based preferences—principles that have formed the bedrock of this nation’s immigration system for decades—and replaces it with a single inquiry: does the prospective immigrant have a specific kind of health insurance or sufficient financial resources to pay for what a consular officer considers to be reasonably foreseeable medical costs? The United States immigration system has never countenanced anything approaching such a standard for admission, which would disproportionately affect immigrants who are from predominantly nonwhite countries and either seeking to reunite with family already here in the United States, or fear being separated from family in the United States when they leave for a consular interview. Once effective, the Proclamation will ban nearly two thirds of all noncitizens legally permitted under the INA to immigrate to the United States, and will separate thousands of families indefinitely.

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91. In effectively barring most legal and otherwise qualified immigrants from entering the country because they cannot afford health care completely out of pocket, the Proclamation thwarts the carefully considered Congressional scheme that provides health care-related benefits to new and recently arrived immigrants via a combination of federal and state-elected programs. Over the past two decades, Congress—and the States, at Congressional behest—have acted to provide certain benefits specifically to such immigrants. But the Proclamation would ban most immigrants from entering the United States precisely because they would be entitled to such benefits if they came. B. The Personal Responsibility Work Opportunity Reconciliation Act of 1996
92. Under the Personal Responsibility Work Opportunity Reconciliation Act (“PRWORA”), passed in 1996, Congress restricted the availability of certain means-tested benefits for newly arrived immigrants, but gave states the ability to fill in this gap by electing to provide coverage to such individuals. Before PRWORA’s enactment, legal immigrants living in the United States were eligible for public benefits on similar terms as citizens. After enactment, however, PRWORA has generally barred all new legal immigrants, excepting certain humanitarian categories, including but not limited to asylees and refugees, from receiving federal means-tested public benefits, such as Medicaid, TANF, SNAP, and SSI, for five years after their arrival in the United States.
93. Despite redrawing immigrant eligibility for federal benefits, PRWORA expressly devolved broad new powers to the states, in relevant part authorizing, but not requiring, states to use state-only funds to offer food, cash, and health-related benefit programs as a substitute for lost federal benefits for legal immigrants. A number of states took advantage of this “gap-filling” authority to use state funds to provide TANF, SNAP, SSI, and/or Medicaid to legal immigrants

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subject to the five-year bar. States were, for example, given the option under PRWORA to use state funds to continue coverage to immigrants under Medicaid during their first five years in the country. C. The Children’s Health Insurance Plan (“CHIP”) and CHIP Reauthorization Act
94. Congress subsequently reinforced PRWORA’s grant of power to the states to provide health care-related benefits to legal immigrants under federal health care programs through the Children’s Health Insurance Plan (“CHIP”). The original State Children’s Health Insurance Program was enacted in 1997 with bi-partisan support to act as a complement to Medicaid, the nation’s major health coverage for low-income children, by giving states financial support to provide coverage to uninsured, low-income children who do not qualify for Medicaid. The program was reauthorized on February 4, 2009, through the Children’s Health Insurance Program Reauthorization Act (“CHIPRA”), which passed with bi-partisan support and was one of the first pieces of legislation signed by President Obama.
95. The original CHIP expanded health insurance coverage to low-income children ineligible for Medicaid by providing block grants to states that must be matched with state dollars. Under the law, states could use their federal CHIP funds to finance coverage for children whose family incomes are too high to qualify for Medicaid, either by expanding their already existing Medicaid programs, creating a separate CHIP program, or a combination of those two approaches. Indeed, under the matching rates required under the program, the federal government bears a higher percentage of the overall cost of CHIP than it does under Medicaid. All states, plus the District of Columbia, currently use CHIP funds to expand publicly funded health insurance coverage to uninsured children who are ineligible for Medicaid; most states cover children up to

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or above 200% of the federal poverty level.27 In the same vein as PRWORA, the original CHIP also authorized States to provide coverage to newly arrived legal immigrant children, who were otherwise ineligible to enroll in either Medicaid or CHIP for their first five years in the country, but States doing so had to fund such coverage with state-only dollars.
96. CHIPRA reauthorized CHIP and provided states with significant new funding, new programmatic options such as dental coverage, and a range of new incentives to provide Medicaid and CHIP coverage to uninsured, low-income children, especially those who may be eligible for Medicaid or CHIP but who are not enrolled. CHIPRA also established new options and federal funding for states to cover pregnant women, as well as legal immigrant children and legal immigrant pregnant women during their first five years in the country. Thirty-one states, plus the District of Columbia, now cover legal immigrant children, legal immigrant pregnant women, or both under CHIPRA.28 Under the Proclamation, however, Medicaid is expressly excluded from the “approved” types of health insurance coverage for all individuals over the age of 18, even though CHIPRA expressly extends CHIP coverage eligibility to children up to age 19, and Medicaid eligibility to individuals up to age 21 and to pregnant women, including immigrants lawfully residing in the United States within their first five years of having legal status.

27 Medicaid/CHIP Coverage of Lawfully-Residing Immigrant Children and Pregnant Women, KAISER FAMILY FUND, https://www.kff.org/health-reform/state-indicator/medicaid-chipcoverage-of-lawfully-residing-immigrant-children-and-pregnantwomen/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22: %22asc%22%7D. Medicaid currently covers children at 133% of the federal poverty level; Where Are States Today? Medicaid and CHIP Eligibility Levels for Children, Pregnant Women, and Adults, KAISER FAMILY FOUND., https://www.kff.org/medicaid/fact-sheet/where-are-statestoday-medicaid-and-chip/. Medicaid currently covers children at 138% of the federal poverty level. Id. 28 Medicaid and CHIP Coverage of Lawfully Residing Children and Pregnant Women, MEDICAID.GOV, https://www.medicaid.gov/medicaid/outreach-and-enrollment/lawfullyresiding/index.html

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D. The Affordable Care Act 97. In 2010, Congress passed comprehensive health reform, the Patient Protection and
Affordable Care Act (“PPACA”), as amended by the Health Care and Education Reconciliation Act (“HCERA”) (together, the “Affordable Care Act” or “ACA,” or “Obamacare”) into law. 124 Stat. 119. The PPACA contains 10 titles covering over 900 pages, as well as additional provisions under the HCERA. In at least three relevant ways, the ACA was intended to expand access to meaningful and affordable health insurance coverage for all U.S. residents, including legal immigrants, at a guaranteed minimum level of coverage.
98. First, to facilitate broad health insurance enrollment nationwide, the ACA required the creation of a marketplace, or exchange, in each state so that residents can shop for insurance. These marketplaces took the form of state-run-exchanges, a federally facilitated exchange available at the healthcare.gov website, or a hybrid of the two.29
99. Second, to ensure a certain standard of coverage, the ACA required health insurers, including those who participated in the state and federal Exchanges and those selling plans outside of it, to provide plans that cover “essential health benefits,” including hospitalization, prescription drugs, mental health services, ambulatory patient services, maternity and newborn care, mental health and substance use disorder services, preventive and wellness services, and pediatric services, including oral and vision care. 42 U.S.C. § 18022(b)(1). All individual market plans, including ACA-defined and regulated catastrophic health plans, must provide such essential health

29 As enacted, the ACA required most United States citizens and legal residents to purchase and maintain health insurance or pay a penalty. However, President Trump and a Republicancontrolled Congress eliminated the financial penalty that an individual would incur if she failed to maintain health insurance as part of the Tax Cuts and Jobs Act of 2017 (see https://www.congress.gov/115/bills/hr1/BILLS-115hr1enr.pdf).

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benefits, must cover preexisting conditions and may not impose annual or lifetime dollar limits on core coverage.30 Short-term limited duration insurance plans, however, are ACA-exempt and cannot be offered or purchased on ACA exchanges. As a result, they are non-comprehensive and do not provide the full range of essential health benefits, can and often do deny coverage based on preexisting conditions, and can and often do impose annual or lifetime dollar limits on core coverage.
100. Third, the ACA provides financial assistance in the form of income-related, premium-based tax credits (“PTCs” or “APTCs”) to individuals with household incomes between 100 and 400% of the federal poverty line. 26 U.S.C. § 36B. For newly arrived legal immigrants who are subject to PRWORA’s five-year bar on means-tested public benefits, the ACA allows PTCs on more permissive terms, also including individuals below 100% of the federal poverty line. 26 U.S.C. § 36(b)(c)(1)(B). In 2019, under DHHS Federal Poverty Guidelines, the income level necessary for a family of four to qualify for financial assistance ranged from $25,100 at 100% FPL to $100,400 at 400% FPL.
101. Taken together, these three components of the ACA promote the overarching goals of robust nationwide enrollment, protections for consumers through coverage that is comprehensive and does not bar eligibility based on preexisting conditions, and increased affordability for health insurance coverage. Robust enrollment in comprehensive coverage plans promotes insurance market stability and more affordable premiums across the market, as the robust enrollment of healthy individuals allows distributing costs for less healthy individuals across a larger pool of enrollees. More affordable premiums, in turn, spurs more robust enrollment.

30 42 U.S.C. § 300gg-3, 300gg-11.

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102. The ACA’s structure and operation also evinces Congress’s intent that legal immigrants, including newly and recently arrived immigrants, be able to participate fully in the ACA marketplace to enroll in comprehensive health care and to receive financial assistance if necessary. The benefits available under the ACA, especially when considered in connection with the benefits that the states and federal government have made available to newly and recently arrived legal immigrants under PRWORA and CHIPRA, make clear that Congress intended for legal immigrants to be able to receive specific health care-related benefits to ensure a minimum level of health care coverage upon their arrival in the United States.
103. The Proclamation directly conflicts with this benefits scheme, disqualifying “subsidized” health insurance offered on ACA Exchanges as “approved health insurance” that would permit entry to the United States. The effect of the Proclamation is to prevent would-be immigrants, who would otherwise be fully qualified under the INA to come to the United States, from entering and receiving the benefits Congress expressly intended for them to have.
104. Moreover, as noted above, visitor insurance and STLDI plans are the only two options for “approved health insurance” that are realistically and feasibly available to most prospective immigrants outside the United States, especially those who are not entering with an offer of employment that includes employer-sponsored health insurance. Because such plans are less regulated under the ACA than individual market plans, carriers of such plans will no doubt rise to meet the new demand the Proclamation will invariably create. But in driving a majority of new immigrants towards these non-comprehensive plans—for a minimum of 364 days, no less, or their first year in the United States—the Proclamation undermines not only the ACA’s goal of providing a certain minimum level of coverage to all legal immigrants in the United States, but

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also its own stated goal of addressing the burdens of uncompensated care provided to uninsured individuals.
REGULATORY BACKGROUND 105. In addition to entering a stage already set by PRWORA, CHIPRA, and the ACA, the Proclamation follows hot on the heels of the Trump Administration’s recently promulgated (and recently enjoined) “Public Charge Rule,” which attempts to change what it means to be deemed a “public charge,” one of the ten enumerated grounds of inadmissibility under the INA. Ignoring decades of legislation and case law, the new Rule attempts to redefine the term “public charge” and reshape the “totality of circumstances” framework that immigration officials apply to determine whether a person seeking admission is likely to become a public charge. The new Rule was enjoined from taking effect on October 15, 2019 by numerous courts. Each court found the new definition of “public charge” contrary to Congress’ plain meaning and intent.31 106. Both the Proclamation and the new Rule effectively turn the question of admissibility to the United States into a receipt-of-benefits issue. The Rule was promulgated by the Department of Homeland Security via formal notice-and-comment rulemaking under the APA; the Proclamation was not.

31 New York v. U.S. Dep’t of Homeland Security, No. 19 Civ. 7777 (GBD), 2019 U.S. Dist. LEXIS 177323 (S.D.N.Y. Oct. 11, 2019); Make the Rd. N.Y. v. Cuccinelli, 19 Civ. 7993 (GBD), 2019 U.S. Dist. LEXIS 177316 (S.D.N.Y. Oct. 11, 2019);)) City & Cty. of San Francisco v. U.S.US Citizenship & Immigration Servs., No. 4:19-cv-0471704980-PJH, 2019 U.S. Dist. LEXIS 177379 (N.D. Cal. Oct. 11, 2019); Washington v. Dep’t Homeland Security, No. 4:19-cv05210-RMP, 2019 U.S. Dist. LEXIS 178854 (E.D. Wash. Oct. 11, 2019); Cook Cty. v. McAleenan, No. 19 C 6344, 2019 U.S. Dist. LEXIS 177759 (N.D. Ill. Oct. 14, 2019); Casa De Md., Inc. v. Trump, No. PWG-19-2715, 2019 U.S. Dist. LEXIS 177797 (D. Md. Oct. 14, 2019).

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THE PROCLAMATION, LIKE THE RECENT PUBLIC CHARGE RULE, ATTEMPTS TO RADICALLY REWRITE CONGRESS’ CHOICES ON WHICH IMMIGRANTS MAY ENTER THE COUNTRY, BASED ON WEALTH CONSIDERATIONS 107. The State Department’s actions to implement the Proclamation without satisfying
the requirements of notice and comment rulemaking layer one form of lawlessness on another. The Proclamation, like the recent Public Charge Rule, attempts to radically rewrite Congressional decision about which immigrants may enter the country based on wealth considerations.
108. The nation’s immigration laws have long included a prohibition on admitting noncitizens deemed to be a “public charge” on the country. This definition has evolved over time but has never erected the kind of broad entry barrier that the Proclamation permits.
109. In 1882, Congress enacted the country’s first immigration laws, which refused foreign nationals permission “to land” in the United States “if on such examination there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” See An Act to Regulate Immigration, 22 Stat. 214, Chap. 376 § 2 (1882) (“1882 Act”) (emphasis added).
110. In 1891, Congress amended the 1882 Act to provide, in part, That the following classes of aliens shall be excluded from
admission into the United States . . . : All idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists, and . . . . An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens Under Contract or Agreement to Perform Labor, 26 Stat. 1084, Chap. 551 (“1891 Act”) §§ 1, 11 (1891).

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111. Congress subsequently amended immigration laws in 1903, 1907, and 1910 without
materially altering the authorization to refuse entry to a noncitizen deemed a “public charge.”32
The 1910 Act provided, for example:
That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease; persons not comprehended within any of the foregoing excluded classes who are . . . mentally or physically defective, such mental or physical defect being of a nature which may affect the ability of such alien to earn a living; persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude; polygamists, or . . . .”
1910 Act § 2.
112. In 1915, The Supreme Court considered a “single question, . . . whether an alien
can be declared likely to become a public charge on the ground that the labor market in the city of
his immediate destination is overstocked.” See Gegiow v. Uhl, 239 U.S. 3, 9-10 (1915).
113. In answering “no” to the question, the Supreme Court interpreted the term “Persons
likely to become a public charge” in context, that is, as “mentioned between paupers and
professional beggars, and along with idiots, persons dangerously diseased, persons certified by the
examining surgeon to have a mental or physical defect of a nature to affect their ability to earn a
living, convicted felons, prostitutes and so forth.” Id. The Court held that “[t]he persons
enumerated in short are to be excluded on the ground of permanent personal objections

32 An Act to Regulate the Immigration of Aliens Into the United States, 32 Stat. 1213, Chap. 1012 § 2 (1903); An Act to Regulate the Immigration of Aliens Into the United States, 34 Stat. 898, Chap. 1134 § 2 (1907); An Act to Amend an Act entitled An Act to Regulate the Immigration of Aliens Into the United States, 36 Stat. 263, Chap. 128 § 2 (1910).

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accompanying them irrespective of local conditions,” and thus not according to local or temporary conditions impacting their self-sufficiency. Id. at 10.
114. After Gegiow, federal courts and immigration officials universally understood the term public charge as referring to persons with “a mental or physical defect of a nature to affect their ability to make a living,” that is, those substantially, if not entirely, dependent on government assistance on a long-term basis.33
115. In the century since the Gegiow decision, Congress has made numerous changes to immigration law, most notably the Immigration and Nationality Act of 1952. An Act to Revise the Laws Relating to Immigration, Naturalization, and Nationality; and for Other Purposes, 66 Stat. 163, 183, Title 2, Chap. 2 (“1952 Act”) § 212 (1952). It has continued to use “public charge” as a basis for denying entry to noncitizens, but it has never offered its own definition of the term. It has, however, rejected attempts to adopt a definition contrary to the understanding developed in legislative history and case law.
116. In 1996, for example, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674-75 (1996), which amended the INA by codifying five factors relevant to a public charge determination. In the course of enacting IIRIRA, members of Congress debated whether to expand the public charge definition to include use of non-cash public benefits such as Medicaid and CHIP. See Immigration Control & Financial Responsibility Act of 1996, H.R. 2202, 104th Cong. § 202

33 See, e.g., United States ex rel. De Sousa v. Day, 22 F.2d 472, 473-74 (2d Cir. 1927); United States ex rel. La Reddola v. Tod, 299 F. 592, 592-93 (2d Cir. 1924); Howe v. United States ex rel. Savitsky, 247 F. 292, 294 (2d Cir. 1917); Ng Fung Ho v. White, 266 F. 765, 769 (9th Cir. 1920), rev’d on other grounds, 259 U.S. 276 (1922); Ex parte Horn, 292 F. 455, 457 (W.D. Wash. 1923); In re Martinez-Lopez, 10 I. & N. Dec. 409, 421–22 (B.I.A. 1962); In re Harutunian, 14 I. & N. Dec. 583, 589 (B.I.A. 1974); In re Perez, 15 I. & N. Dec. 136, 137 (B.I.A. 1974).

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(1996) (early House bill that would have defined public charge for purposes of removal to include receipt by a non-citizen of Medicaid, supplemental food assistance, SSI, and other means-tested public benefits). The Senate, however, rejected the effort to include previously unconsidered, noncash public benefits in the public charge test. It also rebuffed the attempt to create a bright-line framework of considering whether the immigrant has received public benefits for an aggregate of twelve months as “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet.” S. Rep. No. 104-249, at *63−64 (1996) (Senator Leahy’s remarks). Accordingly, in its final bill, Congress did not include the receipt of Medicaid, CHIP, supplemental food assistance, SSI, and other means-tested public benefits. as determinative of a public charge.34 See 8 U.S.C. § 1182(a)(4)(A).
117. The public charge ground of inadmissibility, as amended in IIRIRA, provides: “[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.”35 8 U.S.C. § 1182(a)(4)(A). When determining whether an applicant is inadmissible as a public charge, the statute instructs the officer to consider “at a minimum” the applicant’s age; health; family status; assets, resources, and financial status; and education and skills. 8 U.S.C. § 1182(a)(4)(B)(i). The officer “may also consider any affidavit of support under section 213A [8 U.S.C. § 1183a] for purposes of exclusion” on the public charge ground. 8 U.S.C. § 1182(a)(4)(B)(ii).

34 Congress rejected a similar attempt to expand the public charge definition in 1994 when considering the Immigration Stabilization Act, see S. 1923 (103rd), § 501 (https://www.govtrack.us/congress/bills/103/s1923/text).
35 Certain groups of noncitizens, such as asylum seekers and refugees, are not subject to exclusion based on an assessment that they are likely to become a public charge. See 8 U.S.C. § 1157 (refugee); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1159(c) (refugee).

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118. In 1999, the Immigration and Naturalization Service (“INS”), a precursor to the US Citizenship and Immigration Services (“USCIS”), issued a notice of proposed rulemaking and field guidance intended to “summarize longstanding law with respect to public charge and provide new guidance on public charge determinations” following the passage of IIRIRA. 64 Fed. Reg. 26,689 (May 26, 1999) (the “Field Guidance”). Notice of Proposed Rulemaking, Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676 (May 26, 1999) (to be codified at 8 C.F.R., pts. 212 & 237) (“1999 Proposed Rule”); Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (Mar. 26, 1999) ("1999 Field Guidance"). The 1999 Proposed Rule and Field Guidance defined “public charge” to mean “an alien 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 purposes, or (ii) Institutionalization for long-term care at Government expense (other than imprisonment for conviction of a crime).” 1999 Proposed Rule, 64 Fed. Reg. at 28,681; 1999 Field Guidance, 64 Fed. Reg. at 28,689. The 1999 Rulemaking clarified in particular that the INS had adopted this definition “based on the plain meaning of the word ‘charge,’ the historical context of public dependency when the public immigration provisions were first enacted more than a century ago, and the expertise of the benefit-granting agencies that deal with subsistence issues.” 64 Fed. Reg. at 28,677.
119. The Field Guidance further directed service officers “to assess the financial responsibility of the alien by examining the ‘totality of the alien's circumstances’ at the time of his or her application * * * The existence or absence of a particular factor should never be the sole criterion for determining if an alien is likely to become a public charge.” 1999 Field Guidance, 64 Fed. Reg. at 28,690 (emphasis in original).

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120. The 1999 Field Guidance, which was made consistent with the Department of State’s understanding, reaffirmed 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. The nature of the public program must be considered. 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.” 1999 Field Guidance, 64 Fed. Reg. at 28,692 (citing FAM § 40.41 n.9.1 (1999)).
121. The 1999 Field Guidance also emphasized that the purpose in issuing the proposed rule and field guidance was intended to end “confusion about the relationship between the receipt of public benefits and the concept of ‘public charge’ [that] has 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. This reluctance to access benefits has an adverse impact not just on the potential recipients, but on public health and the general welfare.” 1999 Field Guidance, 64 Fed. Reg. at 28,692.
122. The 1999 Field Guidance specifically exempted “Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care” from public charge determinations. 1999 Field Guidance, 64 Fed. Reg. at 28,693.
123. Although the 1999 Proposed Rule was never finalized, the 1999 Field Guidance has governed public charge admissibility determinations since that time—nearly two decades.

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124. On October 10, 2018, DHS published a notice of proposed rulemaking (the “Rule” or the “Public Charge Rule”), Inadmissibility on Public Charge Grounds, which rescinded the 1999 Rulemaking, redefined “public charge,” and amended the totality-of-the-circumstances standard prescribed by the 1999 Field Guidance. 83 Fed. Reg. 51,114 (Oct. 10, 2018) (to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245 and 248).
125. The proposed rule followed President Trump’s failed attempt to garner broad congressional support for the 2017 the Reforming American Immigration for a Strong Economy (RAISE) Act, which would have eliminated the INA’s system of allocating immigration visas according to family, employment, and diversity categories and replacing it with a points-based “merit” system “to prioritize immigrants based on the skills they bring to our Nation while safeguarding the jobs of American workers.”36
126. After a 60-day notice-and-comment period, in which it received 266,077 comments, DHS finalized and issued the Rule on August 14, 2019, notwithstanding the fact that the “vast majority of [comments] . . . opposed the rule.” 84 Fed. Reg. at 41,304. The Rule was scheduled to become effective on October 15, 2019.
127. The Rule redefined a “public charge” to include any noncitizen “who receives one or more public benefits . . . for more than 12 months in the aggregate within any 36 month period (such that, for instance, receipt of two benefits in one month counts as two months).” 84 Fed. Reg. 41,501 (to be codified at 8 C.F.R. § 212.21(a)). Unlike the previous Field Guidance definition of “public charge,” which focused specifically on the receipt of cash benefits or long-term institutionalization, the Rule defines “public benefit” as both cash benefits and noncash benefits,

36 President Donald J. Trump Backs RAISE Act, WHITEHOUSE.GOV (Aug. 2, 2017) https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-backs-raise-act/

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including Temporary Assistance for Needy Families (“TANF”), Supplemental Nutrition Assistance Program (“SNAP,” also known as “food stamps”), Medicaid, and public housing and Section 8 housing assistance. Id.; see also 8 C.F.R. § 212.21(b).
128. The Rule also significantly altered the totality-of-the-circumstances framework, assigning different weights to certain factors labeled as positive, negative, heavily positive, and heavily negative, which a DHS officer must weigh “individually and cumulatively.” 84 Fed. Reg. at 41,397; see also id. at 41,502-04.
129. A prospective immigrant is given heavy negative weight if, for example, she has a medical condition requiring “extensive medical treatment” and is “uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition.” 84 Fed. Reg. 41,504; see also 8 C.F.R. § 212.22(c)(1)(i), (iii). A prospective immigrant would receive heavy positive weight for “an annual income . . . of at least 250 percent of the [Federal Poverty Guidelines] for the alien’s household size” or for “private health insurance that is not subsidized under the Affordable Care Act.” See 8 C.F.R. § 212.22(c)(2)(ii), (iii). The consular officer must also consider, among other things, the immigrant’s age; household income; household size; credit score; education; occupational skills, certifications, or licenses; and English fluency. See 8 C.F.R. § 212.22(b).
130. As Trump Administration officials have acknowledged, the cumulative effect of these changes would substantially burden immigrants with disabilities and lower incomes—and in particular, non-white immigrants who are not from Europe—to demonstrate their admissibility. When Ken Cuccinelli, acting director of USCIS, was asked whether the proposed Rule conflicted with the New Colossus poem by Emma Lazarus inscribed at the base of the Statue of Liberty, he amended the poem as follows: “Give me your tired and your poor who can stand on their own two

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feet, and who will not become a public charge.” 37 Shortly thereafter, he clarified his understanding
that New Colossus “was referring to people coming from Europe.”38
131. Expert analysis confirmed that the Rule “could shift legal immigration away from
Latin America and towards Europe” due to its emphasis on income.39 The Migration Policy
Institute, for example, examined immigrants who had received legal permanent residence within
the last five years to explore the potential scope of the Rule’s impact. MPI analysts found that 69%
of immigrants who had received legal permanent residence within the last five years had at least
one negative factor under the Rule, and that the Rule would have “a disproportionate effect on
women, children, and the elderly.”40 In particular, among “recently arrived legally present
noncitizens[,] 71 percent of Mexicans and Central Americans, 69 percent of Africans, and 52
percent of Asian immigrants would fail to meet the threshold” of incomes or financial assets above
250% of the federal poverty line, a heavily weighted factor under the Rule.41 In short, “the impact
37 Jacey Fortin, ‘Huddled Masses’ in Statue of Liberty Poem Are European, Trump Official Says, NY TIMES (Aug. 14, 2019) https://www.nytimes.com/2019/08/14/us/cuccinelli-statue-libertypoem.html 38 Id. 39 Randy Capps et al., Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. Immigration, MIGRATION POLICY INST. (Nov. 2018) https://www.migrationpolicy.org/research/impact-dhs-public-charge-rule-immigration 40 Id.; see also Abigail Hauslohner et al., Trump Officials Move to Deny Green Cards, Path to Citizenship for Poor Immigrants, WASH. POST (Aug. 12, 2019) Id.; see also https://www.washingtonpost.com/immigration/trump-administration-aims-to-make-citizenshipmore-difficult-for-immigrants-who-rely-on-public-assistance/2019/08/12/fe3f8162-b565-11e98949-5f36ff92706e_story.html 41 Jeanne Batalova et al., Through the Back Door: Remaking the Immigration System via the Expected “Public Charge” Rule, MIGRATION POLICY INST. (Aug. 2018) https://www.migrationpolicy.org/news/through-back-door-remaking-immigration-systemexpected-public-charge-rule. Notably, MPI also found that 40 percent of US-born citizens would fail to meet this threshold and would be at risk of being deemed a public charge under the Rule.

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of the new standard would fall most heavily upon Asian, Latin American, and African immigrants, making the proposal something of a modern-day version of the National Origins Quota Act of 1924. That since-repudiated law sought to tilt immigration to Western Europe.”42
132. Although multiple courts have since enjoined the Rule, it nevertheless constitutes an attempt to radically reshape what it means to be a public charge, and by doing so, constitutes an attempt to radically reshape which noncitizens are allowed to immigrate to or adjust status in the United States. Analysis of the characteristics of recent green-card recipients, compared with the negative and heavily weighted negative factors in the public charge test, reveals that 69% had at least one negative factor and 43% had at least two.43 More significantly, the effects of the rule “are likely to be less for Europe, Canada, and Oceana, where 27 percent had two or more negative factors.”44 In contrast, “impacts will be far greater for Central America and Mexico, where 60 percent had two or more such factors,”45 and in general for “Latin America and Africa, where incomes are generally lower than the rest of the world.”46 Researchers have predicted that “people

42 Jeanne Batalova et al., Through the Back Door: Remaking the Immigration System via the Expected “Public Charge” Rule, MIGRATION POLICY INST. (Aug. 2018) https://www.migrationpolicy.org/news/through-back-door-remaking-immigration-systemexpected-public-charge-rule
43 Jeanne Batalova et al., Millions Will Feel Chilling Effects of U.S. Public-Charge Rule That is Also Likely to Reshape Legal Immigration, MIGRATION POLICY INST., (Aug. 2019) https://www.migrationpolicy.org/news/chilling-effects-us-public-charge-rule-commentary
44 Id.
45 Id.
46 Abigail Hauslohner et al., Trump Officials Move to Deny Green Cards, Path to Citizenship for Poor Immigrants, WASH. POST (Aug. 12, 2019) https://www.washingtonpost.com/immigration/trump-administration-aims-to-make-citizenshipmore-difficult-for-immigrants-who-rely-on-public-assistance/2019/08/12/fe3f8162-b565-11e98949-5f36ff92706e_story.html

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who are granted green cards – the major step towards winning citizenship – will become wealthier but their numbers will shrink.”47 In other words, “[m]ore green cards will go to immigrants with a good education and a measure of self-sufficiency; fewer will be granted simply because someone has a family member in the United States”48—a result President Trump has long championed when promoting a “merit-based” immigration system to replace the current one.
133. The anticipated effects of the Proclamation are similar to those of the now-enjoined Rule. This can hardly be surprising, given that both share significant similarities: Both favor “unsubsidized” ACA coverage over subsidized; the use of Medicaid is a negative or disqualifying factor for adults 18 and over; and both involve some analysis on the part of a consular officer as to whether an intending immigrant has sufficient financial resources to cover “reasonably foreseeable medical costs.”
134. How the Rule and the Proclamation achieve these effects, however, is where the two differ. When promulgating the Rule, the Trump Administration made at least some attempt to comply with the strictures of the Administrative Procedure Act—just as Senators Tom Cotton and David Perdue, two allies of the President in the Senate, attempted to comply with the legislative processes of Congress when sponsoring the RAISE Act. The Proclamation, by contrast, is an improper attempt to legislate by presidential fiat, followed by invalid agency action to implement those improper orders. Here, with a single sweep of the President’s pen, the Proclamation attempts to overwrite and overturn more than a century of Congressional intent to admit qualified noncitizens as immigrants, regardless of wealth, health, race, or national origin.

47 Michael D. Shear et al., Trump’s Policy Could Alter the Face of the American Immigrant, NY TIMES (Aug. 14, 2019) https://www.nytimes.com/2019/08/14/us/immigration-public-chargewelfare.html
48 Id.

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THE PROCLAMATION AND ITS IMPLEMENTATION ARE UNLAWFUL A. The Proclamation Does Not Pass Muster Under Section 212(f) or Rational Basis
Review 135. The Proclamation purports to be grounded in the President’s authority under 8 U.S.C. § 1182(f), which allows the President to “suspend the entry of all aliens or any class of aliens” whenever the President “finds that the entry” of such “aliens into the United States would be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). But in suspending the entry of potentially two thirds of all legal immigrants to the United States, the Proclamation represents an unprecedented abuse of the §1182(f) power. Although the Supreme Court found that the Muslim Ban represented a permissible exercise of the President’s broad authority to impose entry restrictions under § 1182(f) based on national security considerations, the Proclamation strains even the generous analysis of Trump v. Hawaii, 138 S. Ct. 2392 (2018). 136. Indeed, the Supreme Court’s decision in Hawaii is bound up in the circumstances of the proclamation at issue in that case, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” The Court took pains to note, for example, that the Muslim Ban “supports Congress’s individualized approach for determining inadmissibility” because it was intended to “promote[] the effectiveness of the [consular officer] vetting process by helping to ensure the availability” of “sufficient (and sufficiently reliable) information” to assess a visa applicant’s admissibility. Hawaii, 138 S. Ct. at 2411. It also observed that previous suspensions under § 1182(f) often involved foreign policy judgments: Some such suspensions “broadly suspended entry on the basis of nationality due to ongoing diplomatic disputes;” others “were directed at subsets of aliens from the countries at issue;” but as a general rule, the Court found that previous Presidents “repeatedly

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suspended entry” under § 1182(f) “to retaliate for conduct by their governments that conflicted with foreign policy interests.” Id. at 2413.
137. Within this context, the Court found that the President had satisfied the “sole requisite set forth in § 1182(f)”—i.e., that the President “find that the entry of covered aliens would be detrimental to the interests of the United States.”8 U.S.C. § 1182(f). As the Court observed, the President had ordered DHS and other agencies “to conduct a comprehensive evaluation,” then “set[] forth extensive findings” justifying why “it was in the national interest to restrict entry of aliens who could not be vetted with adequate information—both to protect national security and public safety, and to induce improvement by their home countries.” The Court also highlighted language in the Muslim Ban noting that the Administration had “crafted country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, while securing the Nation until such time as improvements occur.” Indeed, the Court found that “[t]he 12-page Muslim Ban—which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions—is more detailed than any prior order a President has issued under § 1182(f).” Hawaii, 138 S. Ct. at 2409.
138. Given these findings, especially within a national security setting, the Court found that the Muslim Ban “is squarely within the scope of Presidential authority under the INA.” Id. at 2415.
139. The Court also noted, however, that it “has engaged in a circumscribed inquiry when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.” Id. at 2419. The limits on such an inquiry, pursued under Kleindienst v. Mandel, have “particular force in admission and immigration cases that overlap with the area of national security” for two reasons: First, judicial inquiry into national security concerns potentially “intrud[es] on the President’s

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constitutional responsibilities in the area of foreign affairs,” raising separation of powers concerns. Id. at 2398. Second, the courts are not well positioned “when it comes to collecting evidence and drawing inferences on questions of national security.” Id.
140. Thus, when evaluating the Plaintiffs’ constitutional challenges to the Ban, the Court articulated a standard of review that “considers whether the entry policy is plausibly related to the Government’s stated objective.” Id. at 2420.
141. Although the Supreme Court found that the Muslim Ban ultimately met this standard, it was careful to note that its analysis was grounded in the national security context. It was this context that allowed the Court to find that “the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility,” Id. at 2421, despite acknowledging “a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation,” Id. at 2417. In so finding, the Court gave express deference to “the Executive’s evaluation of the underlying facts . . .particularly in the context of litigation involving ‘sensitive and weighty interests of national security and foreign affairs.’” Id. at 2422.
142. In addition, the Court credited three specific features of the Ban and its predecessors that “support the Government’s claim of a legitimate national security interest.” Id. at 2402.
143. First, three Muslim-majority countries had already been removed from the list of banned countries, and the Proclamation stated that for countries remaining on the list, the tailored entry suspensions would “remain in force only so long as necessary to address” the security concerns posed by each country. Id. at 2410.
144. Second, the Ban “includes significant exceptions for various categories of foreign nationals,” permitting “nationals from nearly every covered country to travel to the United States

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on a variety of nonimmigrant visas,” which make up the majority of visas issued to nationals from the banned countries. Id. at 2422.
145. Third, “the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants,” and “directs DHS and the State Department to issue guidance elaborating upon the circumstances that would justify a waiver.” Id. at 2422-23. The Court found this program, which identifies specific eligibility criteria, to be similar to humanitarian exceptions set forth in a similar country-specific suspension imposed by President Carter during the Iran hostage crisis.
146. Given these considerations, the Court held that the plaintiffs had failed to demonstrate a likelihood of success on the merits of their constitutional claims because “the Government has set forth a sufficient national security justification to survive rational basis review,” and remanded the case to the lower courts for further proceedings. Id. at 2423.
147. The Supreme Court found that § 1182(f) “grants the President broad discretion to suspend the entry of aliens into the United States.” Id. at 2408. But such authority is not limitless. If the Proclamation is allowed to ban two thirds of immigrants whom Congress has expressly permitted to seek and receive immigrant visas based on wealth or self-sufficiency, such a reading of § 1182(f) would provide the President with unfettered discretion to rewrite the INA as he sees fit. Such a reading cannot muster under even the most generous reading of Hawaii.
148. As an initial matter, unlike the Muslim Ban, the Proclamation does nothing to “support[] Congress’s individualized approach for determining admissibility” under the INA. There is nothing in the text of the Proclamation indicating that one of its purposes is to “improve the screening and vetting protocols and procedures associated with” the visa-issuance process. 82 Fed. Reg. 45162 (Sept. 27, 2017). To the contrary, the Proclamation expressly has nothing to do

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with national security, bearing a “HEALTHCARE” label on the White House website.49 By its terms, the Proclamation’s purpose is to protect the country’s health care system and taxpayers “from the burdens of uncompensated care” by suspending the “entry into the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare.” Thus, instead of a relatively targeted, country-specific approach intended to “encourage foreign governments to improve their . . . practices” in vetting and information sharing, the Proclamation sweeps far more broadly and indiscriminately, affecting hundreds of thousands of immigrants solely on the basis of their ability to afford health insurance. 82 Fed. Reg. 45,162.
149. Second, the Proclamation does not even attempt to set forth factual findings justifying its sweeping ban on nearly two thirds of all prospective immigrants seeking to enter the United States. Unlike the Muslim Ban, the Proclamation is not grounded in any comparable multiagency, comprehensive evaluation that led to “extensive findings” set forth in the Proclamation, justifying why it is in the national interest to restrict the entry of aliens through country-specific restrictions crafted to “encourage cooperation given each country’s distinct circumstances.” Hawaii, 138 S. Ct. at 2409 (citation and internal quotations omitted).
150. Instead, in a short preamble that ostensibly justifies the details of the suspension that follows, the Proclamation merely claims that uninsured individuals burden the country’s health care system for two main reasons: because “[h]ealthcare providers and taxpayers bear substantial costs in paying for medical expenses incurred by people who lack health insurance;” and because “uninsured individuals often use emergency rooms to seek remedies for a variety of

49 Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, WHITEHOUSE.GOV (Oct. 4, 2019) https://www.whitehouse.gov/presidential-actions/presidential-proclamation-suspension-entryimmigrants-will-financially-burden-united-states-healthcare-system/

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non-emergency conditions,” which burdens taxpayers, “who reimburse hospitals for a portion of their uncompensated emergency care costs.” 84 Fed. Reg. 53,991. According to an unsupported assertion in the preamble, “[i]n total, uncompensated care costs – the overall measure of unreimbursed services that hospitals give their patients – have exceeded $35 billion in each of the last 10 years.” Id. The Proclamation then asserts that “data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance.” Id. The Proclamation does not provide or cite to any support for these claims.
151. It is these unsupported assertions alone that purport to justify the Proclamation’s indiscriminate ban on hundreds of thousands of prospective immigrants across the globe.
152. The lack of factual support for the Proclamation’s entry suspension is evident. While claiming that “lawful immigrants are about three times more likely than United States citizens to lack health insurance,” the Proclamation ignores the fact that United States citizens actually account for 75% of the total 27.4 million uninsured in this country, or 20.55 million uninsured individuals.50 In comparison, according to figures provided by the Kaiser Family Foundation for 2017, uninsured immigrants represent only 11% of uninsured in this country, or 3 million uninsured individuals.
153. In attaching a dollar amount to the “uncompensated care costs”—in excess of “$35 billion in each of the last 10 years,” or “$7 million on average for each hospital in the United States”—the Proclamation provides no evidentiary support for these figures. Nor does it set forth any factual findings identifying what percentage of this total overall figure is attributable to the 75% of uninsured United States citizens versus the 11% uninsured immigrants in this country,

50 President Trump’s Proclamation Suspending Entry for Immigrants without Health Coverage, KAISER FAMILY FUND (Oct. 10, 2019) https://www.kff.org/disparities-policy/factsheet/president-trumps-proclamation-suspending-entry-for-immigrants-without-health-coverage/

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such that the continued entry of such uninsured immigrants to the United States “would be detrimental” to the interests of “protecting both [our health care system] and the American taxpayer from the burdens of uncompensated care.” 84 Fed. Reg. 53,991.
154. The Proclamation, moreover, sets forth no factual findings explaining how the conditions of its suspension further the stated goal of reducing the burden of uninsured health care costs. This is in stark contrast to the Muslim Ban, which articulated country-specific deficiencies in vetting and information-sharing; justifications for the suspension of specific visas from specific countries; and express instructions to the Secretary of State to engage in diplomatic efforts with these countries to improve the identified deficiencies, using the suspension of specific visas from those countries “to ensure that adequate standards are established to prevent infiltration by foreign terrorists.” 82. Fed. Reg. 13,213. The Proclamation, by contrast, imposes a far broader suspension, barring all immigrants worldwide except for the limited few who can arrange for certain types of United States-based health insurance or demonstrate an unspecified level of wealth at their visa interview. There are no factual findings explaining how, for example, the entry of an immigrant who would be fully insured with comprehensive coverage under the ACA after arrival—albeit with financial assistance—would be detrimental to the Proclamation’s express purpose of reducing the financial burden imposed by uninsured individuals. There are likewise no factual findings explaining how the entry of an immigrant who would be underinsured or effectively uninsured with visitor insurance or a short-term limited duration insurance plan would further this purpose.
155. Third, in infringing the Plaintiffs’ constitutional rights, the Proclamation’s policy of suspending entry for all new immigrants unless they can afford only certain types of health insurance, or demonstrate an unspecified level of wealth, is not plausibly related to the Government’s stated objective of “addressing the challenges facing our healthcare system,

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including protecting both it and the American taxpayer from the burdens of uncompensated care.” 84 Fed. Reg. 53,991.
156. As noted above, the Proclamation’s broad suspension on entry, combined with its limited array of “approved health insurance” options, effectively incentivizes—if not requires— most prospective immigrants to purchase non-comprehensive visitor insurance or short-term limited duration insurance to satisfy the Proclamation’s requirements. This is because the vast majority of immigrants entering the United States have historically been family-based visa applicants, who would not have access to “approved” employer-based insurance before entering the United States and obtaining work authorization. Many of the other “approved health insurance” plans under the Proclamation (i.e., Medicare, TRICARE, family members’ plans, and catastrophic and “unsubsidized” ACA plans) are not practically or legally available to most prospective immigrants outside of the country. Even for employment-based visa applicants, employersponsored insurance is far from guaranteed, as the vast majority of employers impose a waiting period before employees can be participate in employer-sponsored coverage, with waiting periods lasting 1.9 months on average.51 Visitors insurance and STLDI plans are, as a practical matter, the only options realistically available to most would-be immigrants, and those will generally not be available to cover preexisting conditions.
157. These options, however, provide extremely limited coverage and would likely leave individuals underinsured or uninsured for common needs such as prescription drugs, to say

51 2018 Employer Health Benefits Survey, KAISER FAMILY FUND (Oct. 3, 2018) https://www.kff.org/report-section/2018-employer-health-benefits-survey-section-3-employeecoverage-eligibility-and-participation/

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nothing of hospitalization or emergency care.52 The Proclamation, moreover, requires prospective immigrants to purchase such coverage for the maximum time period allowed, 364 days.53 Once that 364-day period expires, the immigrant would not be able to switch immediately to a regular, comprehensive plan, regardless of whether she wanted to and had the resources to do so, with or without financial assistance: instead, the immigrant would be required to wait until the next regular open enrollment period (November 1 through December 15 each year) to change coverage. Allowing and in fact encouraging the entry of immigrants covered by visitor and STLDI plans, and requiring that coverage for their first year in a new country or likely longer, contravenes the Proclamation’s goal of reducing uncompensated costs associated with uninsured health care.
158. In fact, although the Proclamation highlights the $35 billion in uncompensated care costs incurred by this nation’s hospitals, the American Hospital Association (“AHA”) criticized STLDI plans earlier this year when the Trump Administration proposed a new rule to make STLDI plans more available and longer in duration. The AHA warned that STLDI products “could end up costing a patient far more by covering fewer benefits and ensuring fewer critical protections, like covering pre-existing conditions,” such that patients “could find themselves responsible for their entire medical bill without any help from their ‘health plan.’”54 Accordingly, “[f]or providers,

52 Karen Pollitz et al., Understanding Short-Term Limited Duration Health Insurance, KAISER FAMILY FUND (Apr. 23, 2018) https://www.kff.org/health-reform/issue-brief/understandingshort-term-limited-duration-health-insurance/; https://www.commonwealthfund.org/blog/2018/short-term-health-plan-gaps-and-limits-leavepeople-risk
53 As noted above, see FN 51, STLDI plans lasting 364 days are only available in about half the states.
54 https://www.aha.org/press-releases/2018-08-01-aha-statement-final-rule-short-term-limitedduration-health-insurance

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[STLDI] products will lead to increased bad debt, with underinsured patients unable to afford the care they need but that is not covered,” and “[i]ncreased bad debt will further strain hospitals’ and health systems’ ability to provide a full range of services to their patients and communities, including the most vulnerable.”55 Other commenters to the final rule warned increasing the availability of STLDI plans that “are not qualifying health plans mandated to cover the essential benefits of the Affordable Care Act” could “lead to an increased reliance on emergency departments as consumers delay or do not seek primary care.”56 If President Trump sincerely wished to address the problem of uncompensated care costs borne by hospitals, especially “uncompensated emergency care costs” incurred by emergency rooms, driving new immigrants towards STLDI and similar non-comprehensive plans like visitor insurance is not a reasonable solution.
159. The Proclamation likewise fails to address why the Trump Administration, after laboring for a year to repeal the individual mandate of the Affordable Care Act and celebrating that repeal of the penalty associated with that statutory mandate for almost two years since, has now identified the “burdens of uncompensated care” for uninsured individuals as a problem that must be alleviated by imposing the individual mandate (and a stark penalty of inadmissibility into the country for failure to comply) specifically and solely on newly arriving immigrants— notwithstanding the fact that only 11% of uninsured individuals in this country are immigrants, while 75% of uninsured individuals are citizens.

55 Id.
56 Rick Pollack, AHA Statement on Final Rule on Short-Term, Limited-Duration Health Insurance Plans, AMERICAN HOSPITAL ASSOCIATION (Aug. 1, 2018) https://www.aha.org/pressreleases/2018-08-01-aha-statement-final-rule-short-term-limited-duration-health-insurance https://www.healthcarefinancenews.com/news/increase-uncompensated-hospital-care-could-beone-effect-short-term-coverage-rule

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160. Although the President’s authority to suspend entry under § 1182(f) may be broad, it is not absolute—especially not when the exercise of that authority does not comply with either the text of the statutory provision and is patently unrelated in any rational fashion to its stated objective. B. The Proclamation Does Not Pass Muster Under Equal Protection
161. The President’s § 1182(f) powers, moreover, do not give him license to run roughshod over the Constitution’s guarantee of equal protection. From the time he announced his candidacy through his entire tenure in the White House, President Trump has openly expressed antipathy toward not only all noncitizens, but also specifically toward immigrants seeking to come to the United States—particularly immigrants of color, including those from countries such as Mexico, Haiti, and Nigeria, and regions such as Central and Latin America, Africa, and the Middle East. The Proclamation is but the latest in an iterative string of attempts to deny immigrant visas to foreign nationals on the basis of their national origin or race—a motivation President Trump has expressed since he was a candidate.
162. Indeed, in the same speech in which he announced his presidential bid, thencandidate Trump declared: “When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you.” Rather, he warned his audience, “They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.” And, he added, “They’re not sending us the right people. It’s coming from more than Mexico. It’s coming from all over South and Latin America,

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and it’s coming probably—probably—from the Middle East. But we don’t know. Because we have no protection and we have no competence, we don’t know what’s happening.”57
163. Notwithstanding immediate public backlash to his remarks equating all Mexicans with “rapists,” then-candidate Trump doubled down shortly thereafter in an interview on CNN. When asked about the North American Free Trade Agreement, then-candidate Trump pivoted to the topic of immigration and volunteered: “I love the Mexican people. I do business with the Mexican people, but you have people coming through the border that are from all over. And they’re bad. They’re really bad.” He further clarified: “But you have people coming in and I’m not just saying Mexicans, I’m talking about people that are from all over that are killers and rapists and they’re coming into this country.”58
164. The themes that then-candidate Trump presented in these early statements of his candidacy have recurred in his public remarks about immigrants ever since. He has repeatedly and consistently associated immigrants with crime and a lack of national security.59 He has repeatedly and consistently presented immigrants as not only undesirable to this country,60 but also different

57 Full text: Donald Trump Announces a Presidential Bid, WASH. POST (June 16, 2015) https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trumpannounces-a-presidential-bid/
58 http://cnnpressroom.blogs.cnn.com/2015/06/28/donald-trump-on-cnns-state-of-the-union-imin-it-to-win-it-i-will-make-our-country-great-again/
59 “They’re rapists;” “It’s coming from all over” and “we have no protection;” see also Donald Trump on CNN’s State of the Union: “I’m in it to win it…I will make our country great again” CNN (June 28, 2015) https://www.whitehouse.gov/briefings-statements/president-donald-jtrumps-state-union-address/ (“In recent weeks, two terrorist attacks in New York were made possible by the visa lottery and chain migration. In the age of terrorism, these programs present risks we can no longer afford.”).
60 “When Mexico sends its people, they’re not sending their best;” “They’re not sending us the right people.” See also Alana Abramson, ‘I Can Be More Presidential Than Any Other President.’ Read Donald Trump’s Ohio Rally Speech, TIME (July 26, 2017)See also:

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from the American public.61 And he has repeatedly and consistently advanced the notion that these undesirable immigrants come from Latin America, the Middle East, or Africa62 and enter this country in an unregulated fashion because of the problems in the current immigration system.63
165. Indeed, in speeches, remarks to the press, and tweets, President Trump has consistently attacked the two primary ways that noncitizens from predominantly nonwhite countries receive immigrant visas: the family preference system, which allows United States citizens and lawful permanent residents to sponsor close family members for immigrant visas; and the diversity visa lottery, which was originally established in 1990 to diversify the country’s immigrant population by selecting immigrants from countries with historically low rates of immigration to the United States. The former accounts for approximately 65% of all immigrant

https://time.com/4874161/donald-trump-transcript-youngstown-ohio/ (criticizing “today’s lowskill system, just a terrible system where anybody comes in. People that have never worked, people that are criminals, anybody comes in. . . . We don’t want people that come into our country and immediately go on welfare and stay there for the rest of their lives.”).
61 “They’re not sending you.” See also President Trump Remarks at Conservative Political Action Conference, CSPAN (Feb. 23, 2018)See also https://www.c-span.org/video/?4415921/president-trump-pushes-concealed-carry-teachers-cpac-speech (describing the diversity visa lottery: “You have a country, they put names in. Do you think they are giving us the good people? Not too many of you people are going to be a lottery.”)
62 “It’s coming from more than Mexico. It’s coming from all over South and Latin America, and it’s coming probably—probably—from the Middle East.” See also @realdonaldtrump, Twitter https://twitter.com/realdonaldtrump/status/980961086546632705 (“Honduras, Mexico and many other countries that the U.S. is generous to, sends many of their people to our country through our WEAK IMMIGRATION POLICIES.”)
63 “It’s coming from all over,” but “[b]ecause we have no protection and we have no competence, we don’t know what’s happening.” See also https://twitter.com/realdonaldtrump/status/953406553083777029 (“We need to keep America safe, including moving away from a random chain migration and lottery system, to one that is merit-based.”)

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visas granted every year; the latter accounts for about 4.5%.64 President Trump has repeatedly criticized both family-based preferences and the diversity visa lottery by claiming that they admit immigrants through “random chance,”65 threatening the country’s economy and security66 and “put[ting] pressure on our social safety net and generous welfare programs.”67
166. For example, President Trump regularly portrays family-based immigration in derogatory terms, dismissing family preferences as “chain-based migration” that “can continue without limit,”68 even though the INA strictly limits the types and numbers of family-sponsored immigrants.69 In continually emphasizing “chain” metaphor, he raises the specter of a “virtually

64 Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2017, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2017/table10; Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2016, DHS https://www.dhs.gov/immigration-statistics/yearbook/2016/table10; Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2016, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2015/table10
65 Remarks by President Trump on Modernizing Our Immigration System for a Stronger America, WHITEHOUSE.GOV (May 16, 2019) https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-modernizing-immigration-system-stronger-america/
66 See, e.g., Remarks by President Trump and Vice President Pence in a Meeting on Immigration with Republican Members of the Senate, WHITEHOUSE.GOV (Jan. 4, 2018) See, e.g., https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-presidentpence-meeting-immigration-republican-members-senate/
67 Remarks by President Trump on Modernizing Our Immigration System for a Stronger America, WHITEHOUSE.GOV (May 16, 2019) https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-modernizing-immigration-system-stronger-america/
68 @realdonaldtrump, Twitter, https://twitter.com/realdonaldtrump/status/960907362109452288
69 David Bier, Five Myths about Chain Migration, CATO INST. (Feb. 14, 2018) https://www.cato.org/publications/commentary/five-myths-about-chain-migration

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unlimited”70 influx of “low-skilled and unskilled”71 migrants who “come in and just immediately go and collect welfare.”72 Chain migration,” according to President Trump, is “bringing many, many people with one, and often it doesn’t work out very well. Those many people are not doing us right.”73
167. Contrary to the President’s suppositions and assertions, the truth remains that nearly half of adults who receive family-based visas have college degrees (compared with less than a third of U.S. natives) and family-sponsored immigrants are the most upwardly mobile American workers.74
168. It is also a common set-piece in President Trump’s speeches for him to bring up the diversity visa lottery, play-act drawing names out of a hat, and characterize the “winners” as criminals and “the worst of the worst:”75 “The country puts the name in the basket and you pick people out of the lottery. This one is a murderer. This one robbed four banks. This one I better not

70 President Donald J. Trump’s State of the Union Address, WHITEHOUSE.GOV (Jan. 30, 2018) https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address/
71 President Donald J. Trump Backs RAISE Act, WHITEHOUSE.GOV (Aug. 2, 2017) https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-backs-raise-act/
72 Trump Administration Immigration Policy Announcement, CSPAN (Aug. 2, 2017) https://www.c-span.org/video/?432076-1/president-backs-gop-senators-skilled-basedimmigration-bill
73 Remarks by President Trump in Meeting with Bipartisan Members of Congress on Immigration, WHITEHOUSE.GOV (Jan. 9, 2018) https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-meeting-bipartisan-members-congress-immigration/
74 David Bier, Five Myths about Chain Migration, CATO INST. (Feb. 14, 2018) https://www.cato.org/publications/commentary/five-myths-about-chain-migration
75 Remarks by President Trump in Meeting with Bipartisan Members of Congress on Immigration, WHITEHOUSE.GOV (Jan. 9, 2018) https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-meeting-bipartisan-members-congress-immigration/

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say. This one another murderer. Ladies and gentlemen, another murderer.”76 President Trump regularly mischaracterizes the program as a way for countries to send their undesirable citizens to the United States, claiming, “[y]ou have a country, they put names in. Do you think they are giving us the good people? . . . They are not giving us their best people, folks. Use your heads.”77 He likewise routinely denigrates the diversity visa lottery as “a program that randomly hands out green cards without any regard for skill, merit, or the safety of our people”78—
169. The truth remains that individuals must apply for the diversity visa lottery and possess either a high school education or demonstrate two years of work experience in a sufficiently skilled occupation. Applicants must then pass the exact same criminal, national security, and medical checks as all other immigrants if they are so fortunate to win a diversity visa.79
170. Notably, most family-based visa immigrants in recent years have originated in Asia, Africa, and South America; most diversity visa lottery winners have originated in Africa and Asia.80 In other words, when attacking family-based or diversity visa immigration—both long-

76 President Trump in Cincinnati, Ohio, CSPAN (Aug. 1, 2019) https://www.cspan.org/video/?463078-1/president-trump-holds-campaign-rally-cincinnati-ohio&start=1937
77 See also President Trump Remarks at Conservative Political Action Conference, CSPAN (Feb. 23, 2018) https://www.c-span.org/video/?441592-1/president-trump-pushes-concealed-carryteachers-cpac-speech
78 President Donald J. Trump’s State of the Union Address, WHITEHOUSE.GOV (Jan. 30, 2018) https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address/
79 See generally Alex Nowrasteh, The Cheap Assault on the Immigration Visa Lottery, CATO INST. (Jan. 28, 2018) See generally https://www.cato.org/publications/commentary/cheapassault-immigration-visa-lottery
80 Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2017, DHS https://www.dhs.gov/immigration-

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standing features of the American immigration system—President Trump is attacking nonwhite immigration.
171. While criticizing family-based preferences and the diversity visa lottery as “outdated programs that hurt our national and economic security,”81 President Trump has also consistently advocated for a new, “merit-based” system. Such a system “admits people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country”82—in contrast with family-based and diversity immigrants, who are “mostly low-wage and low skilled,” and who “come into our country and immediately go onto welfare and stay there for the rest of their lives.”83 President Trump has constantly portrayed merit-based immigrants as people who “have skills, who can support themselves financially, and contribute to our economy,” and who will come to the country to “work hard.”84
172. Most employment-based immigrant visas in the current United States immigration system, which are awarded predominantly to highly skilled and white-collar workers with advanced degrees—i.e., the types of individuals President Trump’s proposed merit-based system

statistics/yearbook/2017/table10. In these statistics, figures for Africa include countries from the Middle
East.
81 @realdonaldtrump, Twitter, https://twitter.com/realdonaldtrump/status/960907362109452288
82 President Donald J. Trump’s State of the Union Address, WHITEHOUSE.GOV (Jan. 30, 2018) https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address/
83 Alana Abramson, ‘I Can Be More Presidential Than Any Other President.’ Read Donald Trump’s Ohio Rally Speech, TIME (July 26, 2017) https://time.com/4874161/donald-trumptranscript-youngstown-ohio/
84 President Trump Remarks at Conservative Political Action Conference, CSPAN (Feb. 23, 2018) https://www.c-span.org/video/?441592-1/president-trump-pushes-concealed-carryteachers-cpac-speech

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would favor—go to individuals from Europe and Asia.85 Employment-based immigrant visas represent approximately 13% of the immigrant visas granted annually by the United States.86
173. That President Trump divides immigrants into these two categories—undesirable family-based and diversity immigrants from predominantly non-white countries on the one hand, and employment- or “merit-” based immigrants who are either European or at least willing to “work hard” on the other—is no surprise in the context of other statements he has made evincing racial and nation-based animus grounded in ugly stereotypes.
174. During a White House briefing on how many immigrants had received visas to enter in 2017, for example, Trump reportedly grumbled that Haitians “all have AIDS” and that after seeing the United States, Nigerians would never “go back to their huts” in Africa once he heard how many immigrants from each country had been admitted.87 At a similar briefing on protections for Haiti, El Salvador, and African countries in 2018, President Trump is said to have asked, “Why are we having all these people from shithole countries come here?” He then suggested

85 Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2017, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2017/table10
86 Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2017, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2017/table10; Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2016, DHS https://www.dhs.gov/immigration-statistics/yearbook/2016/table10; Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2016, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2015/table10
87 Michael D. Shear and Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, NY TIMES (Dec. 23, 2017) https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html

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that the United States should bring in more people from countries such as Norway.88 More recently, he tweeted that four Congresswomen of color “originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world,” and “should go back and help fix the totally broken and crime infested places from which they came”—despite the fact that each Member of Congress is a United States citizen and only one, Ilhan Omar, had come to the United States as a child, fleeing from Somalia as a refugee.89
175. Taken in aggregate, President Trump’s public statements have repeatedly and consistently evinced an animus towards nonwhite immigrants. And since entering the White House, President Trump has tried various ways to effectuate his desire to limit nonwhite immigration by limiting family-based and diversity visa immigration.
176. Early in his presidency, for example, President Trump championed the RAISE Act, a bill that “favors applicants who can speak English, who can support themselves financially, and who demonstrate valuable skills that will strengthen our economy and strengthen our country.”90 The same bill would cut family-based immigration in half by eliminating many currently existing categories for family-sponsored immigration, and by permitting only spouses and minor children

88 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
89 Felicia Sonmez and Mike DeBonis, Trump Tells Four Liberal Congresswomen to ‘go back’ to Their Countries, Prompting Pelosi to Defend Them, WASH. POST (July 14, 2019) https://www.washingtonpost.com/politics/trump-says-four-liberal-congresswomen-should-goback-to-the-crime-infested-places-from-which-they-came/2019/07/14/b8bf140e-a638-11e9a3a6-ab670962db05_story.html
90 President Trump Rally in Huntington, West Virginia, CSPAN, https://www.cspan.org/video/?431931-1/president-trump-holds-rally-west-virginia

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of United States citizens and lawful permanent residents to seek immigrant visas—moves that would disproportionately affect nationals of the predominantly nonwhite countries of Mexico, the Dominican Republic, the Philippines, China, India, and Vietnam.91 The RAISE Act also introduced a point system for awarding visas, granting more points to intending immigrants for having a high-paying job offer, high English test scores, high educational attainment, or financial resources to invest over a million dollars in the United States.92 In addition, under the bill, “you cannot get welfare for five years when you come into our country. You can’t just come in like in past weeks, years, and decades you come in, immediately start picking up welfare.”93 In mid-2017, the RAISE Act failed in the Senate without a vote.
177. Around the same time that the Senate passed on voting on the RAISE Act, USCIS introduced the new Public Charge rule, another attempt by the Trump Administration to curtail the immigration of nonwhite individuals entering the country through family-based preferences or the diversity visa. Echoing the point system of the RAISE Act, the Public Charge rule places varying positive or negative weights on certain factors that are then assessed in determining whether an applicant should be deemed inadmissible on public charge grounds. Under one of the heavily weighted positive factors—having income or financial assets over 250% of the federal poverty line—“71% of Mexicans and Central Americans, 69% of Africans, and 52% of Asian immigrants

91 Julia Gelatt, The RAISE Act: Dramatic Change to Family Immigration, Less So for the Employment-Based System, MIGRATION POLICY INST. (Aug. 2017) https://www.migrationpolicy.org/news/raise-act-dramatic-change-family-immigration-less-soemployment-based-system
92 Id.
93 Factbase Videos, Weekly Address: Donald Trump - Washington, DC - August 25, 2017, YOUTUBE (Oct. 18, 2017)Video: https://www.youtube.com/watch?v=Mx7k8mk5PPo&t=54

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would fail to meet the threshold.” Accordingly, like the RAISE Act, the Public Charge rule “would have pronounced regional, national-origin and—by extension—racial effects on flows,” having the most negative impact on “Asian, Latin American, and African immigrants.”94
178. The Proclamation follows in the footsteps of the failed RAISE Act and the enjoined Public Charge rule. Like the RAISE Act and the Public Charge rule, the Proclamation has the potential to drastically cut family-based immigration. Unlike its predecessors, however, the Proclamation is promulgated by presidential fiat, and thus untethered to the legislative or administrative rulemaking processes. But although the RAISE Act, the Public Charge rule, and the Proclamation each takes a different form and function, the intended result of each is the same: to reduce immigration from predominantly nonwhite countries.
THE PROCLAMATION AND ITS IMPLEMENTATION HARM PLAINTIFFS 179. The Proclamation will go into effect at 12:01 am, Eastern daylight time, on Sunday,
November 3, 2019, and all publicly available information reflects that the State Department has been taking, and will take, definitive and concrete action to implement and enforce it. The press, for example, has reported that “[m]ore than two dozen health officials are wrestling with highly technical questions, like which health plans would comply with the new requirements,” and that some are “confused about numerous aspects of the proclamation.”95 Information made publicly available on the State Department’s website, moreover, expressly instructs would-be immigrants
94 Jeanne Batalova et al., Through the Back Door: Remaking the Immigration System via the Expected “Public Charge” Rule, MIGRATION POLICY INST. (Aug. 2018) https://www.migrationpolicy.org/news/through-back-door-remaking-immigration-systemexpected-public-charge-rule 95 Dan Diamond, Health Officials: Trump Immigration Order Could be Illegal, POLITICO (Oct 11, 2019) https://www.politico.com/news/2019/10/11/trump-immigrants-health-insuranceillegal-044716

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that “[i]f [they] are applying for an immigrant visa, including a diversity visa, on or after November 3, 2019,” they must satisfy the Proclamation’s requirements and that “[i]nability to meet this requirement will result in the denial of the visa application.96 The State Department information page further states that “[d]uring the visa interview, applicants should be able to demonstrate to the satisfaction of the consular officer” that they meet the Proclamation’s requirements, and that “[o]fficers will review the medical and financial documentation that is already part of the applicant’s case file and may request additional information or documentation as needed.”97 Such assertions reflect the fact, or at very least support the logical inference, that the State Department is already implementing and, starting on November 3, 2019, will enforce the Proclamation, resulting in a direct impact on the rights of qualified prospective immigrants.
180. When implemented and enforced, the Proclamation will cause Plaintiffs [and their members and clients] substantial, concrete, and particularized injury. The entry suspension of the Proclamation is indefinite; the Proclamation provides no waiver from its suspension; and the Proclamation provides no way to appeal the denial of a visa due to the Proclamation’s de facto wealth test. As a result, the Proclamation will permanently separate close family members and inflict irreparable harm.
181. John Doe #1, a U.S. citizen, can no longer work due to a disability. He has applied for wife, a Mexican citizen with an approved I-601A waiver, to obtain legal status so that she can live and work here in the United States, supporting both him and his fourteen-year-old United

96 Presidential Proclamation on Health Care, TRAVEL.STATE.GOV, https://travel.state.gov/content/travel/en/us-visas/immigrate/Presidential-Proclamation-onHealth-Care.html
97 Id.

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States citizen son. But he fears that his wife will not be able to show that she meets the Proclamation’s health insurance and financial resources requirements at her consular interview.
182. John Doe #1 has not worked since May 2018 and had heart surgery in July 2018. He currently has a pacemaker. Around April 2019, he received his Social Security Disability determination and since he stopped working, Social Security Disability benefits have been his only income source. Both he and his son have health insurance through the Oregon Health Plan, Oregon’s Medicaid program, but, because he can no longer work, he cannot obtain insurance through an employer or afford private health insurance.
183. Money is tight in John Doe #1’s family. After receiving approval for his wife’s family-based visa petition and her I-601A provisional unlawful presence, completing her application for an immigrant visa, submitting documents to the National Visa Center, and scheduling a consulate interview for Wednesday, November 6, 2019 in Ciudad Juarez, Chihuahua, Mexico, John Doe #1 thought that his wife would finally become a legal resident and would be able to work. He thought his family would finally be able to breathe a financial sigh of relief after enduring a significant medical hardship, as well as anxiety about her legal status.
184. But then they received news of the Proclamation. John Doe #1 does not believe that his wife will be eligible to receive a visa now; she does not have health insurance and they do not have sufficient financial resources, especially after his disability, to afford health insurance for her or pay her foreseeable health insurance costs.
185. The Proclamation will be destructive to John Doe #1’s family in many ways. He cannot imagine living apart from his wife. He and their son depend on her. Their son suffers from health complications and is currently in the hospital. Given his own health issues, John Doe #1 cannot care for his son by himself; he needs his wife. If granted a visa, she could work to support

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the family financially since John Doe #1 cannot work himself. Due to the significant medical issues facing John Doe #1 and his son, he does not know what he would do if his wife goes to her November 6th interview and her visa is denied.
186. Juan Ramon Morales, a U.S. citizen, would be able to enroll his wife, Vianca Morales, as a dependent in his employer’s health insurance plan, but the Proclamation makes both this and the prospect of acquiring an immigrant visa for her his impossible.
187. Mr. Morales’s employer told him that they could not add his wife as a dependent on his health insurance plan unless she obtained a Social Security Number; once she does so, she can be added. But she cannot do so until she receives legal status in the United States, and the Proclamation requires that she show proof, which she cannot obtain, that she would be enrolled in health insurance within 30 days of her admission into the United States. Through his research, Mr. Morales learned that Social Security Numbers and “Green Cards” are typically not mailed quickly enough to arrive within 30 days after admission to the U.S. is granted. Thus, even though Mr. Morales would be able to enroll his wife in health insurance were she to receive permanent residence, the Proclamation’s stringent requirements make it impossible.
188. Nor could the Morales family afford to purchase health insurance for Ms. Morales or her foreseeable medical expenses. Ms. Morales, who has lived in the U.S. since 2006, is diagnosed with leukemia and has had emergency brain surgery. She also is epileptic and suffers from seizures. To manage these, she pays for prescription medicine out of pocket. Mr. Morales likewise currently has significant medical costs; he carries significant debt due to back surgery he had. Mr. Morales’ daughter, a U.S. citizen, and his step-daughter, a legal permanent resident, both have subsidized health insurance that costs approximately $30 per month. Mr. Morales has

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researched health insurance options to cover his wife, but has not found any available plans that he could afford.
189. When Mr. Morales first learned about the Proclamation, he felt tremendous anxiety and despair. Mr. Morales and his family had already gone through a long and laborious journey to get to where they are today in the immigrant visa process: they had their I-130 petition approved in July 2017; Ms. Morales filed a provisional unlawful presence waiver application in May 2018 based on the extreme hardship Mr. Morales would suffer if she could not be able to obtain permanent residence in the U.S, and the application was approved in April 2019; Ms. Morales had completed all of the other required steps of the Consular Process; and now the family was waiting for her interview to be scheduled in Ciudad Juarez, Mexico. If his wife is denied permanent residency, Mr. Morales and his children will suffer extreme psychological, emotional, financial, and physical hardship. It was while waiting for this interview that the Morales family first heard about the Proclamation. Given the strict 30 day timeline, Ms. Morales’ health conditions, and Mr. Morales’ limited financial resources, Mr. Morales does not believe that Ms. Morales will have health insurance, that she will be able to prove that she will be able to obtain health insurance 30 days after her admittance into the U.S., or that she will be able to afford foreseeable medical costs at the time of her visa interview.
190. As part of Ms. Morales’ waiver application, Vianca demonstrated that Mr. Morales would suffer extreme hardship if Ms. Morales’ unlawful presence was not forgiven, including extreme psychological, emotional, financial, and physical hardship. If she is denied an immigrant visa, Mr. Morales would be separated from the love of his life and would have to raise his daughters alone. The thought that Ms. Morales may be denied her immigrant visa—and thus indefinitely separated from him—has caused Mr. Morales significant stress.

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191. As a single mother of two children and a victim of domestic abuse, Jane Doe #2, a U.S. citizen who was naturalized in 2018, has faced many obstacles in the United States. Yet, she has seen the beauty and opportunities that this country has to offer. The United States has given her a sense of hope and happiness for the future: even though she is not where she would like to be, she feels like she is getting there. She now wishes to bring her parents to the United States to be with her and their grandchildren, but fears she will not be able to do so if the Proclamation is in effect.
192. Her experiences as a victim of domestic abuse, a single mother, and an immigrant to the United States have often made Jane Doe #2 feel very alone. She particularly misses her parents. She has been living apart from her 59-year old parents, who live in Nicaragua, for 13 years. This separation has been exceptionally painful. She can only communicate with her parents twice a week, at most, because they live in a remote location. It has been extremely stressful and distressing to Jane Doe #2 to have experienced domestic violence without being able to turn to her parents for help. And the fact that they have not been able to witness the beautiful moments—like the birth of her children—breaks her heart. Not only has she been separated from her parents, but her children have never met their grandparents. Jane Doe #2 sponsored two immigrant visas for her parents to reunite with them in the United States to change that.
193. On or around December 19, 2018, Jane Doe #2 applied for her parents to come to the United States. The visa petitions were approved on or around July 9, 2019. Her parents have received the requisite letters from the National Visa Centers to proceed with the Consular Process. Her family is currently collecting information and documents to submit the DS-260 and immigrant documents. They were waiting for their interview when they heard news of the Proclamation.

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194. When she heard about the Proclamation, Jane Doe #2 felt crushed. She cannot explain the feeling of going through so many awful moments in her life and finally obtaining some hope of a light at the end of the tunnel by the possibility of reuniting with her family, only to have that hope ripped away from her by the Proclamation.
195. Currently, Jane Doe #2’s parents do not have health insurance. They go to clinics in Nicaragua for their medical needs. As a single mother of two, Jane Doe #2’s financial resources are limited. She has searched for an available health insurance option for them that she could afford, but has not been successful and does not believe an “approved” and available insurance option is affordable.
196. Jane Doe #3, a U.S. citizen, can no longer work due to a disability, which also makes it difficult for her to keep up with household tasks. After being separated from her husband for almost two years, she hopes that having her husband, a German citizen, with her in the U.S. will make things better. Living apart has been miserable for Jane Doe #3. Although they talk often, she rarely gets to see her husband, and she needs to incur debt whenever she goes to visit him in Germany. Having her husband in the U.S. would help in almost every way. But she now believes that her husband will not be able to meet the new requirements that the Proclamation created.
197. Jane Doe #3 met her husband in Los Angeles in 2006, and they were married in February 2018. After getting married, they decided to settle in the U.S. instead of Germany because of Jane Doe #3’s desire to stay close to her family. She lives nearby her immediate family, and is especially thankful to be able to leave near her grandmother, who is a Holocaust survivor. Accordingly, she filed an immigrant visa petition for her husband in July 2018, and he returned to Germany so that he would not overstay his visitor visa. The I-130 petition was approved in April

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2019, and since then, they have been gathering documents required for consular processing and looking forward to the time when they can be reunited.
198. The Proclamation has forced them to put their plans for a future together on hold. Jane Doe #3 does not know how her husband will be able to prove at a consular interview that he will have approved health insurance within 30 days of entering the United States. Jane Doe #3 is currently enrolled in California’s Medicaid program and she cannot add her husband to this coverage.
199. While her husband likely has good employment prospects in Los Angeles—he is an architect who currently teaches architectural theory and design and he speaks both English and German fluently—it is extremely difficult for him to secure employment without knowing when he will enter the United States. Even if he were to be able to obtain insurance through an employer, he would almost certainly not be able to secure such employment at the time of his consular interview. Furthermore, his current German health insurance will not cover him when he moves to the United States. In the past, when he has visited Jane Doe #3, he purchased traveler’s insurance, but it is his understanding that he would also not be eligible to receive such insurance if he moves permanently to the U.S. Doe’s husband has multiple sclerosis, and his treatments are expensive. She believes that she and her husband do not have the financial resources to afford health insurance for him or to pay his foreseeable medical expenses out of pocket.
200. Iris Angelina Castro, a U.S. citizen, is currently pregnant with her second child and separated from her husband, Hermogenes Castro Molina, a national and resident of the Dominican Republic. She wishes to reunite with her husband in the United States because when her first son became very ill, she was forced to quit her job to take care of him, and she is now unemployed with no income source.

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201. Ms. Castro was previously employed as a teacher, but she has since lost all her benefits when she stopped working to stay at home with her first son. Having Mr. Molina here in the United States will help their whole family; he can work while she cares for the children.
202. Ms. Castro filed an immigrant petition for her husband on November 14, 2018, which was approved on May 30, 2019. They have since been filing all the required documents so that they can schedule a consular interview.
203. News of the Proclamation devastated Ms. Castro. Because she is unemployed, she does not believe that they have sufficient financial resources to prove that Mr. Castro would be able to obtain health insurance within 30 days of his entry into the U.S. or pay for foreseeable medical costs. She has already been living apart from her husband for almost a year and that separation has been exceptionally painful. Furthermore, she is pregnant with their first child together. It is painful for her to think that her daughter’s father will not be here for her birth and that she will have to raise her daughter without her father. Without him and his potential financial support, she believes that she will be forced to use public benefits for survival.
204. Blake Doe, a U.S. citizen and senior college student at Oregon State University, lived with his parents, Mexican citizens, in Oregon from the time he was born until he went to college. His parents are amazing people, and he aspires to live up to the values of compassion, hard work, and responsibility that they have always tried to instill in him. Due to their sacrifices, Blake Doe will be the first person in his family to graduate from college in June 2020. He has approved I-130 petitions for his parents, but they are afraid that if they leave the country for their consular interview, they will be banned from coming back under the Proclamation.
205. Blake Doe is seeking to permanently unify his family in Oregon because it is where he has lived his whole life. He sponsored immigrant visas for his parents on or around April 17,

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2017, and on or around January 17, 2018, their I-I30 petitions were approved. On June 11, 2019, United States Citizenship and Immigration Services (USCIS) determined that members of his family would suffer an extreme hardship if his parents’ visas were denied, and accordingly, approved an extreme hardship waiver so that his parents could complete the immigration process. His parents are currently waiting to have an interview scheduled at the Consulate in Ciudad Juarez, Mexico.
206. Blake Doe’s mother’s health has declined recently. She has two painful conditions—rheumatoid arthritis and lupus erythematosus. She currently pays for medical care out of pocket; her treatment is necessary to allow her to live without pain. She has tried to obtain health insurance, but has been told she is ineligible due to her immigration status. Blake Doe’s father has tried to obtain health insurance for her, but has not been successful. Through research, Blake Doe has found that it would be very expensive for him to obtain health insurance for his mother and father.
207. As a full-time college student, Blake Doe has no income and has about $20,000 worth of student loan debt. He cannot afford health insurance for his parents. Therefore, Blake Doe does not believe that he has sufficient financial resources to prove that his parents would be able to obtain approved health insurance within 30 days of their admittance into the U.S. or pay for foreseeable medical costs.
208. Given that the Proclamation has no waiver or termination date, Blake Doe is resigned to the fact that his parents will not be able to complete the immigration process. He believes that they will continue to live in fear and that he will continue to live in fear every day of permanent separation from his parents. This fear is causing him feelings of depression and makes him constantly worried.

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209. Brenda Villarruel, a U.S. citizen, and her minor son, who is a United States citizen, have been separated from her husband and the child’s step-father, for almost two years. She now fears that the Proclamation will make that separation permanent.
210. Ms. Villarruel is employed as a licensed medical assistant, but does not have health insurance through her work and pays out of pocket for medical services when necessary. Ms. Villarruel has sponsored her husband, who currently resides in Mexico City, Mexico, for an immigrant visa and, after receiving an approved waiver, has been scheduled for his final immigrant interview on November 5, 2019.
211. Ms. Villarruel needs her husband, Mr. Gabino Soriano Castellanos, in the United States so that he can rejoin their thriving tattoo business and continue to be the father and caretaker of their son, who has battled depression due to the separation from the only father he has ever known. News of the Proclamation has devastated the entire family. Ms. Villarruel, having researched the costs of approved insurance, does not believe that the family has sufficient financial resources to prove that she and Mr. Castellanos would be able to obtain approved health insurance to comply with the President’s Proclamation within 30 days of Mr. Castellanos admittance into the U.S. or pay for foreseeable medical costs.
212. This is a time when Ms. And Mr. Castellanos should be building their thriving tattoo business and raising their son. Instead, they live in fear of living apart from each other indefinitely and being financially wiped-out due to the family separation.
213. Latino Network functions as an “immigration services navigator” to educate clients and connect them with legal-services providers who can assist with obtaining immigrant visas for family members, and provides information to low- and moderate-income immigrant families about options for health-care benefits. The Proclamation has and will continue to

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severely restrict and frustrate Latino Network’s ability to fulfill its objectives of counseling and referring low- and moderate-income immigrants to services that will enable them to obtain adequate health-care benefits.
214. The Proclamation has forced and will continue to force Latino Network to divert significant resources: to identify viable health-care options for members who need to comply with the Proclamation; to retrain Latino Network staff members, who had been previously trained to help members find free, low-cost, or subsidized health-care plans, and who must now learn to help members navigate the Proclamation’s terms; and to develop and publish information materials to inform our community. Latino Network’s need to devote resources to respond to the Proclamation and mitigate its effects on the Portland Latino community necessarily limit the resources available to carry out its core services and programs, and frustrate its ability to carry out its organizational purpose.
CLASS ALLEGATIONS 215. Individual Plaintiffs bring this action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1) and (b)(2), on behalf of themselves and all other persons for whom Defendants’ implementation of the Proclamation interferes with family reunification or the processing of their visa petitions in a manner consistent with applicable law. The individual plaintiffs seek certification of a class (the “Plaintiff Class”) consisting of:
a. Individuals in the United States who currently have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa, or who will soon file such a petition; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance”

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within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.” (“U.S. Petitioner Subclass”) b. Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.” (“Visa Applicant Subclass”) 216. This action meets all of the Rule 23(a) prerequisites for maintaining a class action. 217. The Plaintiff Class is so numerous that joinder is impracticable, satisfying Rule 23(a)(1). Analysis by the Migration Policy Institute, based on data from the Census Bureau’s 2014-16 American Community Survey (“ACS”), indicates that roughly 375,000 immigrants, mainly family-based immigrants, would be affected by the Proclamation each year. In addition, the class action is the only appropriate procedural avenue for the protections of the class members’ constitutional rights and rights under the APA. 218. The claims of the Plaintiff Class members share common issues of law, including whether the Defendants’ Proclamation and its implementation exceeds the statutory authority provided Defendants by the Immigration and Nationality Act; violates Plaintiff Class members’ rights under the APA; and violates Plaintiff Class members’ rights under the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution. 219. The claims of the Plaintiff Class members share common issues of fact, including, but not limited to:

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a. whether the Proclamation and Defendants’ actions taken to implement it were motivated by racial animus, sought to reduce immigration by people of color, or were otherwise based on the race, ethnicity, and/or national origin of the individuals affected;
b. whether Defendants fail to address the Proclamation’s discriminatory impact; c. whether, in issuing and implementing the Proclamation, Defendants relied on
factors Congress did not intend for it to consider; d. whether, in issuing and implementing the Proclamation, Defendants failed to
consider important aspects of the problem it is addressing; e. whether, in issuing and implementing the Proclamation, Defendants explained its
decision counter to the evidence before it; f. whether Defendants quantified or considered harms that would result from the
Proclamation and its implementation; g. whether Defendants failed to follow required procedures, including notice and
opportunity for public comment, before issuing and implementing the Proclamation; h. whether the Proclamation’s requirements are, in practice, irrational, vague and unworkable, rendering impossible the uniform application of the laws or review of decisions for consistency with facts and evidence; i. whether the Proclamation is being or will be enforced so as either to prevent class members from reuniting here in the United States, or to force their separation when a noncitizen family member must leave the country for a consular interview.

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j. whether class members have suffered harm as a result of the Proclamation and Defendants’ actions taken to implement it.
220. Because the claims of the Plaintiff Class members share common issues of law and fact, they will not require individualized determinations of the circumstances to any plaintiff, and satisfy Rule 23(a)(2).
221. The claims or defenses of the named Plaintiffs are typical of the claims or defenses of the members of the Plaintiff Class, satisfying Rule 23(a)(3). Like other members of the class, the Plaintiffs have been harmed, among other things, by Defendants’ failure to lawfully abide by statutory limitations on their actions. They have further been harmed by Defendants’ failure to proceed through proper notice-and-comment and other required procedures when issuing and implementing its Proclamation, thereby leading to arbitrary, capricious, and unlawful action that fails to account for important aspects of the supposed problems it is addressing. They have further been harmed by Defendants’ failure adequately to explain its decision to issue the Proclamation or describe its implementation in a manner that it may reasonably be followed by those it affects. They have been harmed by Defendants’ premising the Proclamation and its implementation on racial animus in violation of the equal protection guarantee of the Fifth Amendment. Each of these actions, independently and collectively, have caused harm to Plaintiffs and the Plaintiff Class members.
222. The named Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class, satisfying Rule 23(a)(4). The named Plaintiffs will defend the rights of all proposed class members fairly and adequately, and have no interest that is now or may be potentially antagonistic to the interests of the Plaintiff Class. The attorneys representing the named Plaintiffs include

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experienced civil rights and immigration attorneys who are considered able practitioners in federal constitutional litigation. These attorneys should be appointed as class counsel.
223. The members of the proposed class are readily ascertainable through Defendants’ records.
224. Through implementation and enforcement of the Proclamation at the center of the Plaintiff Class’s allegations, Defendants have acted, have threatened to act, and will act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate to the class as a whole. The Plaintiff Class may therefore by properly certified under Federal Rule of Civil Procedure 23(b)(2).
225. Prosecution of separate actions by individual members of the Plaintiff Class would create the risk of inconsistent or varying adjudications and would establish incompatible standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may therefore by properly certified under Federal Rule of Civil Procedure 23(b)(1).
CAUSES OF ACTION FIRST CLAIM FOR RELIEF (Violation of the Administrative Procedure Act) (On behalf of All Plaintiffs, including the Class) 226. The foregoing allegations are repeated and incorporated as though fully set forth herein. 227. The Proclamation will go into effect on November, 3, 2019. Defendants have stated that they will begin implementing the Proclamation on this date in the manner described on the State Department’s website. 228. Defendants have taken actions to implement the Proclamation, including informing visa applicants and consular officials of new requirements effective November 3, 2019, that will result in a direct impact on the rights of qualified prospective immigrants and constitute final

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agency action(s) within the meaning of the Administrative Procedure Act. See Bennett v. Spear, 520 U.S. 154 (1997).
229. Defendants’ actions constitute violations of the APA in at least the following respects:
a. Defendants failed to reasonably justify their departure from settled practice. b. Defendants failed to address conflicts with other laws and legislative intent,
including but not limited to the specific scheme Congress mandated in the INA through provisions such within 8 U.S.C. § 1151; 8 U.S.C. § 1153; 8 U.S.C § 1182; 8 U.S.C § 1182; 8 U.S.C § 1154; 8 USC § 1186; 8 U.S.C. § 245, and numerous health care laws, such as the ACA, PRWORA, CHIP and CHIPRA, and numerous regulations duly promulgated under these and other laws. c. Defendants implemented the Proclamation in a manner that is not “consistent with applicable law” for reasons including that their actions replaced a statutory totality of the circumstances test for public charge with a new test that is vague, arbitrary, and unsupported by the evidence. d. Defendants’ implementation of the Proclamation is pretextual because Defendants seek to reduce immigration by people of color. e. Defendants fail to address the Proclamation’s discriminatory impact. f. Defendants did not quantify or consider harms that will result. g. Defendants states requirements that are irrational, vague and unworkable, rendering impossible the uniform application of the laws or review of decisions for consistency with facts and evidence. h. Defendants acted in excess of statutory authority.

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i. Defendants’ actions exceed the delegation of statutory authority to the President in U.S.C. § 1182(f) for reasons including that Congress did not delegate unfettered discretion to indefinitely rewrite the immigration or health care laws, allow for suspensions that are unconstitutional and/or unsupported by adequate findings, create permanent and specific classes of inadmissibility, or eliminate the opportunity for visa applicants’ opportunity to show that they are unlikely to become a “public charge” by the terms Congressional mandated.
j. Defendants’ actions implement the Proclamation in a manner that is not consistent with 8 U.S.C. § 1182(a)(4) for reasons including that it replaces Congress’ specific scheme for assessing who may become a “public charge,” and when admission may be authorized for those who cannot show they are unlikely to become a public charge.
k. Defendants violate their own rules and regulations and binding norms to the prejudice of others. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).
l. Defendants failed to follow required procedures including notice and opportunity for public comment, particularly with respect to the Posting and Emergency Notice.
230. Defendants’ actions implementing the Proclamation are based on legal error; fail to consider all relevant factors; and lack a rational explanation, and are therefore arbitrary and capricious and an abuse of discretion, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

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231. Defendants’ actions implementing the Proclamation are contrary to constitutional rights, discriminating on the basis of national origin and race, thereby violating the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(B).
232. Defendants’ actions implementing the Proclamation are ultra vires and in excess of any authority granted by the Proclamation, regulation, or statute, and not otherwise in accordance with law in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(C).
233. Defendants’ actions implementing the Proclamation affect Plaintiffs’ substantive rights and were made without observance of procedure required by law in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D).
234. Defendants’ action are without good cause. 235. Defendants’ violation of the APA causes ongoing harm to Plaintiffs. 236. Plaintiffs have no adequate alternative to immediate review under the APA.
SECOND CLAIM FOR RELIEF (Equal Protection)
(On behalf of Resident Plaintiffs/U.S. Petitioners Subclass) 237. The foregoing allegations are repeated and incorporated as though fully set forth herein. 238. The Due Process Clause of the Fifth Amendment states that no person will “be deprived of life, liberty, or property, without due process of law.” 239. The Fifth Amendment prohibits Defendants from intentionally discriminating against Plaintiffs and Class Members based on race, ethnicity, and/or national origin. 240. The Proclamation and Defendants’ actions taken to implement the Proclamation are unconstitutional because they burden a fundamental right of Plaintiffs and Class Members

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and were motivated by intentional discrimination and/or animus based on race, ethnicity, and/or national origin.
241. The Proclamation furthers no legitimate purpose, let alone a compelling one. THIRD CLAIM FOR RELIEF (Ultra Vires)
(On behalf of All Plaintiffs, including the Class) 242. The foregoing allegations are repeated and incorporated as though fully set forth herein. 243. The Proclamation is illegal and is therefore ultra vires. 244. Courts “ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 (1986). 245. The President’s attempt to indefinitely ban certain immigrants based on the inability to obtain specific types of health insurance or pay for medical care, and to create a new ground of inadmissibility that Congress has previously considered and chosen not to include in the INA, exceeds Congress’s delegated power to the President's power to suspend the entry of noncitizens and issue reasonable rules for the entry of noncitizens. 246. The President’s attempt to ban certain immigrants based on the inability to obtain specific types of health insurance or pay for medical care violates constitutional separation of powers principles because it contravenes Congress’s expressed intent to provide a certain minimum level of coverage to all legal immigrants and citizens in the United States and to extend certain health care-related benefits to legal immigrants.

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FOURTH CLAIM FOR RELIEF (Procedural Due Process)
(On behalf of Resident Plaintiffs/U.S. Petitioners Subclass) 247. Plaintiffs repeat and incorporate by reference each of the foregoing allegations as if fully set forth herein. 248. The Proclamation state that an individual seeking an immigrant visa must demonstrate, “to a consular officer’s satisfaction,” that she either “will be covered by approved health insurance” within 30 days of her entry to the United States, or “possesses the financial resources to pay for reasonably foreseeable medical costs.” The Emergency Notice and Posting published by the Department of States confirm that consular officers will be questioning visa applicants and asking for medical and financial documentation. The Emergency Notice, furthermore, specifies that “reasonably foreseeable medical expenses” are “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.” 249. A prospective immigrant’s entry to the United States therefore depends on a determination made by a consular officer with no medical training to accurately assess existing medical conditions and health issues existing at the time of the visa adjudication. 250. The Due Process Clause of the Fifth Amendment to the U.S. Constitution provides that “[n]o person . . . shall be deprived of life, liberty, or property, without due process of law.” 251. Congress has created statutory rights related to the petitioning for and issuance of visas and other immigration benefits. 252. Federal agencies have created regulatory rights related to the petitioning for and issuance of visas and other immigration benefits. 253. Individuals must be given due process prior to the deprivation of these statutory and regulatory rights.

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254. Additionally, United States citizens and lawful permanent residents have constitutionally protected liberty interests in family reunification. Individuals must be given due process prior to any deprivation of these liberty interests.
255. Defendants’ actions, as set forth above, deprive individuals, including Plaintiffs and their members or clients, of the aforementioned statutory and regulatory rights, and liberty interests, without due process.
256. Defendants’ actions, as set forth above, thus violate the procedural due process guarantee of the Due Process Clause of the Fifth Amendment.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: A. A preliminary and permanent injunction enjoining Defendants, their officials, agents,
employees, assigns, and all persons acting in concert or participating with them from implementing or enforcing any part of the Proclamation; B. A declaration pursuant to 28 U.S.C. § 2201 that the Proclamation is, in its entirety, unlawful and invalid; C. An order awarding Plaintiffs costs of suit, and reasonable attorneys’ fees and expenses pursuant to any applicable law; D. Such other relief as this Court deems equitable, just and proper.

Dated: October 30, 2019
Karen C. Tumlin* karen.tumlin@justiceactioncenter.org Esther Sung* esther.sung@justiceactioncenter.org JUSTICE ACTION CENTER
CLASS ACTION COMPLAINT

Respectfully Submitted, /s/ Stephen W Manning Stephen Manning (SBN 013373) smanning@ilgrp.com Nadia Dahab (SBN 125630) nadia@innovationlawlab.org INNOVATION LAW LAB
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P.O. Box 27280 Los Angeles, CA 90027 Telephone: +1 323 316-0944

333 SW Fifth Avenue #200 Portland, OR 97204 Telephone: +1 971 801-6034 Facsimile: +1 503 241-7733
Scott D. Stein* sstein@sidley.com Kevin M. Fee* kfee@sidley.com SIDLEY AUSTIN LLP One South Dearborn St. Chicago, IL 60603 Telephone: +1 312 853-7520 Facsimile: +1 312 853-7036
Jesse Bless* jbless@aila.org AMERICAN IMMIGRATION LAWYERS ASSOCIATION 1301 G. Street, Ste. 300 Washington, D.C. 20005 Telephone: +1 781 704-3897 Facsimile: +1 202 783-7853

* Application for admission Pro Hac Vice forthcoming

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JOHN DOE #1; et al.,

Case No. 3:19-cv-1743-SI

Plaintiffs,

OPINION AND ORDER

v.

DONALD TRUMP, et al.,

Defendants.

Stephen Manning and Nadia Dahab, INNOVATION LAW LAB, 333 SW Fifth Avenue, Suite 200, Portland, OR 97204; Karen C. Tumlin and Esther H. Sung, JUSTICE ACTION CENTER, PO Box 27280, Los Angeles, CA 90027; Scott D. Stein and Naomi Igra, SIDLEY AUSTIN LLP, One South Dearborn Street, Chicago IL 60603. Of Attorneys for Plaintiffs.

Joseph H. Hunt, Assistant Attorney General; Billy J. Williams, United States Attorney for the District of Oregon; August E. Flentje, Special Counsel; William C. Peachey, Director, Office of Immigration Litigation; Brian C. Ward, Senior Litigation Counsel; Courtney E. Moran, Trial Attorney; U.S. DEPARTMENT OF JUSTICE, PO Box 868, Ben Franklin Station, Washington D.C., 20044. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

On October 4, 2019, the President of the United States issued Proclamation No. 9945,

titled “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will

Financially Burden the United States Healthcare System” (the “Proclamation”). The question

presented in this case is not whether it is good public policy to require applicants for immigrant

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visas to show proof of health insurance before they may enter the United States legally, as the President directed in the Proclamation. Under our constitutional system of separation of powers, that is a question for the elected branches of government. Instead, the principal question before the Court is whether the Constitution assigns to Congress or to the President the responsibility for deciding that policy question. Under Article I, section 8 of the United States Constitution, clause 3 gives Congress the power to “regulate Commerce with foreign Nations” and clause 4 states that Congress shall establish a “uniform Rule of Naturalization.” Under Article II of the Constitution, section 1, clause 1 provides that “[t]he executive Power shall be vested in a President of the United States,” and section 3 directs that the President “shall take Care that the Laws be faithfully executed.”
At various times in our nation’s history, Congress established a uniform rule of naturalization. Most recently, Congress did so in the Immigration and Nationality Act of 1965 (“INA”), as amended. In that law, including later amendments, Congress comprehensively established the immigration policy of the United States. Last year, in the case of Trump v. Hawaii, 138 S. Ct. 2392 (2018), the Supreme Court confirmed that although Congress may delegate certain powers to the Executive Branch, the President may not execute those powers in a way that “expressly override[s] particular provisions” of the INA. Id. at 2411. For the reasons explained in the following pages, the President’s Proclamation requiring legal immigrants to show proof of health insurance before being issued a visa by the State Department is inconsistent with the INA. In addition, and independently, the Proclamation was not issued under any properly delegated authority. It is, therefore, the duty of the Court in this case to preliminarily enjoin enforcement of that Proclamation.
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STANDARDS A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit’s earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction). The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s alternative “serious questions” test. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
STATUTORY FRAMEWORK A. The Immigration and Nationality Act
Congress has legislated immigration since 1882. See An Act to Regulate Immigration, 22 Stat. 214 (1882). Since then, Congress amended the immigration laws several times, until passing the Immigration and Nationality Act of 1952. This statute was significantly revised by the Immigration and Nationality Act of 1965, the early version of the current INA. Aspects of this law has been amended many times through the passage of other laws, but most significantly
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through direct amendments in the Immigration Reform and Control Act of 1986, the Immigration Act of 1990, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Congress adopted an immigrant visa system to further four principal goals: reunifying families, admitting immigrants with skills that are useful to the United States economy, protecting refugees and others in need of humanitarian resettlement, and promoting diversity. Congress gave priority, however, to family reunification when it established the current immigration system. The allocation of visas reflects this goal. The INA authorizes an unlimited number of permanent visas to “immediate relatives,” who are defined as “the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.” 8 U.S.C. § 1151(b). These visas are granted regardless of country of national origin, even though other visa categories have caps based on country of national origin and total number of allocated visas. Other family-based preference categories, such as those for adult children, siblings, and relatives of Legal Permanent Residents, are capped at 480,000 per year (with a statutory minimum of 226,000), as compared to 140,000 maximum annual employment immigrant visas and 55,000 maximum annual diversity immigrant visas. 8 U.S.C. § 1151(c)-(e). Family-based petitions account for 65 percent of immigrant visas granted each year.
The first step in both the family-based and employment visa application process is for a relative or employer in the United States to file a sponsorship petition on behalf of the prospective immigrant. After the sponsorship petition is approved, the prospective immigrant applies for a visa and submits supporting documentation. When the U.S. Citizenship and Immigration Services (“USCIS”) deems the application complete, the immigrant visa applicant is interviewed. Applicants who are outside the United States must interview at a United States
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consulate abroad. For applicants who are inside the United States, some may be eligible to apply for immigrant visas domestically, without having to travel to a consulate, but others must leave the country to appear for a consular interview abroad. Individuals in this latter category include noncitizens who have accrued more than 180 days of unlawful presence in the United States but have obtained an I-601A waiver of inadmissibility to excuse the unlawful presence bar under 8 U.S.C. § 1182(a)(9)(B). See 8 C.F.R. § 212.7(e). To obtain an I-601A waiver, applicants must show that refusal of admission of the immigrant applicant and would cause “extreme hardship” to eligible family members. See 8 C.F.R. § 212.7(e)(3)(vi) (incorporating the “extreme hardship” standard of 8 U.S.C. § 1182(a)(9)(B)(v)). Diversity visas are available through a lottery to individuals from countries with historically low rates of immigration to the United States; the lottery winners self-petition and apply to a consulate for their visa.
At the interview, the consular officer determines whether the immigrant visa applicant is eligible for admission to the United States. In the INA, Congress established ten categories of “Inadmissible Aliens” who are “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a). If the visa applicant falls into one of these categories, his or her application will be denied. Most relevant to the pending lawsuit is the “public charge” category: “Any alien who, in the opinion of the consular officer at the time of application for a visa . . . is likely to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). Congress’s 1996 amendment to the INA clarified how consular officers should make the public charge determination.
An early proposed House bill in the 1996 amendment required a visa applicant to demonstrate to a consular officer based on “age, health, family status, assets, resources, financial status, education, skills, or a combination thereof, or an affidavit of support” that the visa
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applicant would not become a public charge. H.R. Rep. 104-469, 89 (1996). This proposed bill also defined “public charge” to include an immigrant who received any of six categories of noncash public benefits, including Medicaid, for an aggregate of 12 months within seven years from the date of entry. Id. at 90. An early proposed Senate bill designated an immigrant as a public charge based on receipt of any means-tested cash or non-cash public benefits for an aggregate of 12 months during the immigrant’s first five years in the United States. See S. Rep. 104-249, 48 (1996). Congress ultimately, however, rejected receipt of non-cash benefits as determinative, and instead outlined five relevant factors that must be considered. At a minimum, the INA now requires consideration of the applicant’s (1) age; (2) health; (3) family status; (4) assets, resources, and financial status, and (5) education and skills. 8 U.S.C. § 1182(a)(4)(B)(i). The consular officer also may consider any affidavit of support filed with the application. Id. § (a)(4)(B)(ii). In addition, after listing specific categories of inadmissibility, Congress provided that the President may, upon finding that the entry of any aliens or class of aliens into the United States “would be detrimental to the interests of the United States,” by proclamation suspend the entry of any class of aliens as immigrants or impose on the entry of aliens any additional restrictions he may deem to be appropriate. Id. § 1182(f).
If the consular officer denies the applicant’s immigrant visa at the interview, the applicant must navigate the complex reconsideration process while remaining outside the United States. When an application is denied, I-601A waivers are automatically revoked. Applicants for whom family separation was found by USCIS to create an extreme hardship will be separated. They cannot return to the United States until they either obtain reconsideration of their visa denial, or obtain a new provisional waiver.
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B. Statutes Governing Healthcare for Immigrants in the United States Other statutes besides the INA also apply to legal immigrants, including those affected by
the Proclamation. These laws include the Personal Responsibility and Work Opportunity Act of 1996 (“PRWORA”), the Children’s Health Insurance Program Reauthorization Act of 2009 (“CHIPRA”), and the Patient Protection and Affordable Care Act of 2010 (“ACA”). Both PRWORA and CHIPRA contemplate that states would use funds to provide benefits to newly arrived legal immigrants. PRWORA limits the availability of means-tested federal benefits to legal newly arrived immigrants, but authorizes states to use state funds to offer means-tested state benefits. CHIPRA is more explicit, providing states with federal funding to provide medical coverage to newly arrived legal immigrant children. The ACA is also explicit in its support of legal immigrants, affirmatively allowing newly arrived legal immigrants to use premium tax credits to buy insurance offered on local, state-based markets (or “exchanges”). Indeed, premium tax credits are more broadly available to legal immigrants than they are to United States citizens. All plans on the exchanges must cover certain “essential health benefits.”
FACTUAL BACKGROUND A. The Proclamation
1. Overview of the Proclamation On October 4, 2019, President Donald J. Trump issued the Proclamation. It barred otherwise qualified legal immigrants, visa applicants primarily seeking reunification with family members, from entering the United States unless they can show the consular officer that they will not financially burden the United States healthcare system. President Trump directed that the Proclamation become effective at 12:01 a.m. eastern daylight time on November 3, 2019. On November 2, 2019, the Court entered a Temporary Restraining Order (“TRO”), temporarily
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enjoining Defendants from taking any action to implement or enforce the Proclamation through November 30, 2019, and setting a preliminary injunction hearing for November 22, 2019.
The Proclamation estimated “uncompensated [health] care costs” at more than $35 billion in each of the last 10 years. The Proclamation measured these costs as “unreimbursed services that hospitals give their patients.” The Proclamation does not explain the source of this figure or how it was calculated. For example, it is not clear whether the underlying “unreimbursed services” costs are the amount billed by hospitals—which is often substantially higher than the cost actually paid by insurance companies or patients who individually pay their bills—or a “market” figure such as an average “allowed amount” that insurance plans would have paid for such care. It is also not clear whether all of these “unreimbursed services” are for uninsured persons or whether they also include amounts not paid from insured persons who are unable to pay co-insurance amounts, co-pays, or deductibles.
The Proclamation links the burden of “uncompensated care costs” to legal immigrants with a single unsourced sentence: “data show that lawful immigrants are about three times more likely than US citizens to lack health insurance.” Based on this, the President concluded that allowing certain otherwise qualified legal immigrants into the United States would “saddle” the U.S. healthcare system and the American taxpayer with increases costs. Under the Proclamation, a visa applicant intending lawfully to immigrate to the United States will presumptively financially burden the healthcare system and American taxpayers unless the applicant “will be covered by approved health insurance . . . within 30 days of the [applicant’s] entry into the United States,” or “unless the [applicant] possesses the financial resources to pay for reasonably foreseeable healthcare costs.”
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The Proclamation does not discuss any data or provide any estimate regarding how much of the estimated $35 billion in “uncompensated costs” actually stems from recent uninsured legal immigrants or how often recent uninsured legal immigrants use the nation’s healthcare system. On the other hand, Plaintiffs provide the opinion of an expert, Dr. Leighton Ku, a Professor of Health Policy and Management and Director of the Center for Health Policy Research at the Milken Institute School of Public Health, George Washington University in Washington, DC., with more than 25 years of experience as a health policy researcher. ECF 54. Dr. Ku opines that recent uninsured immigrants use less than one-tenth of one percent (0.06 percent) of total American medical resources and only 0.08 percent of emergency room services. Id. at 10. If only legal uninsured immigrants were considered (the group included in the Proclamation), the numbers would be even lower. Id.1
2. Types of Approved Health Insurance and Barriers to Access The Proclamation lists eight types of approved health insurance: (1) employer-sponsored plans; (2) “unsubsidized” ACA market plans on state exchanges; (3) Short Term Limited Duration Insurance (“STLDI”) plans effective for at least 364 days; (4) catastrophic plans; (5) family member plans; (6) TRICARE and the like; (7) visitor health plans effective for at least 364 days; and (8) Medicare. The Proclamation does not clarify what is meant by “unsubsidized” ACA market plans, but the Court assumes that it refers to plans purchased without the assistance of premium tax credits. Many of these approved plans are legally or practically unavailable to intending, or prospective, immigrants. Employer-sponsored plans are often not an option for family-based visa
1 Amici cite to an American Medical Association letter stating that immigrants’ overall healthcare expenditures are generally one-half to two-thirds those of U.S. born individuals, across all age groups. ECF 88 at 20.
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applicants, who are unlikely to have a job offer waiting before arriving in the United States. Family-based visa applicants have difficulty applying for jobs before entry because when they might receive approval to enter the United States is unknown and approval may take years. Even those fortunate enough to have secured employment may fall short. Most employers impose a waiting period before coverage begins, and the average waiting period is longer than the Proclamation’s 30-day coverage deadline. Market-rate ACA plans can be prohibitively expensive and have high deductibles. The Proclamation does not explain why “unsubsidized” ACA plans are allowed yet “subsidized” ACA plans are not.
STLDI plans are banned or restricted in California, Massachusetts, New Jersey, New York, and Rhode Island. Twenty states have contract term limitations making STLDI plans ineligible under the Proclamation. Nineteen states limit the contract term to 11 months or less and Maine requires that the insurance contract end on December 31st, making it highly unlikely the contract term will last for 364 days. STLDI plans also do not cover essential health benefits and are thus unavailable on exchanges. Unlike exchange plans, STDLI plans can deny coverage based on preexisting conditions and impose dollar caps on core coverage.
There are additional barriers to the other “approved” plans. Family-member plans are only available to applicants younger than 27 years old. Visitor’s insurance plans are designed for short-term visits, have caps on individual coverage and lifetime benefits, and often exclude preexisting conditions, mental health conditions, and maternity care. Such plans often result in significant uncompensated care. People who receive insurance through state Medicaid programs may not be able to add their family members to their plan. Catastrophic plans are only available to people who are already legally present. Even then, only people under 30 (or who obtain a special hardship exemption) are eligible to enroll. TRICARE is available only to members of the
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United States military and their close relatives. Medicare is perhaps the least feasible option— only intending immigrants older than 65 who have already been living continuously in the United States for five years may enroll. B. The Named Plaintiffs in this Putative Class Action
1. Latino Action Network Latino Action Network (“Latino Network”) is an organization that provides programs aimed at educating and empowering Multnomah County Latinos. The Proclamation has already significantly affected Latino Network’s ability to accomplish its mission. Latino Network employs an “Immigration Navigator,” who helps clients move through the complicated immigrant visa process. After the President issued the Proclamation, the workload of Latino Network’s Immigration Navigator dramatically increased. Normally, the Immigration Navigator connects families with low-cost legal services and develops educational workshops on immigration legal services. He has put these duties on hold since the Proclamation was issued and has had to postpone individual intake interviews and cancel workshops to serve essentially as a consultant on how the Proclamation will affect worried families. The Proclamation’s burden falls upon other Latino Network employees as well. The Executive Director had to reassign the Early Childhood Director to coordinate Latino Network’s response to the Proclamation. As a result, Latino Network’s childhood development programs are essentially on hold. Latino Network’s Executive Director estimates that responding to the Proclamation will consume up to 15 percent of paid staff members’ weekly time. Training staff and conducting the necessary research will cost Latino Network almost $14,000—money not in their budget. The time and money that Latino Network employees spend responding to the Proclamation is time and money they are unable to spend fulfilling their core mission.
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2. Individual Named Plaintiffs The individual named plaintiffs submitted declarations describing their personal circumstances, health, and financial situation and explaining why they and their relatives would not be able to comply with the requirements of the Proclamation. These plaintiffs are United States citizens who are sponsoring immediate family members for immigrant visas. They seek only legally to reunite with their family members. Plaintiff John Doe #1 is a U.S. citizen who lives in Oregon with his U.S. citizen son and noncitizen wife. He and his son have coverage through the Oregon Health Plan, Oregon’s Medicaid program. He sponsored an immigrant visa for his wife, a national of Mexico. Her application was approved in July 2017. She also received an I-601A conditional waiver. John Doe #1 is no longer able to work due to a disability. He had heart surgery in 2018 and is receiving social security disability benefits. The family expects that after his wife receives lawful immigrant status, she will work and help financially support the family. Additionally, given the health problems of John Doe #1 and his son, his wife currently takes care of both of them. If her I-601A visa is revoked, it will result in extreme difficulty for the family. She had a consulate interview scheduled for November 6, 2019, in Mexico, but on November 1, 2019, she requested the interview be postponed because of the Proclamation and her fear that her immigrant visa would be denied and her waiver would be revoked. John Doe #1 and his wife have reviewed the Proclamation’s acceptable insurance plans, and they are either unavailable to them or unaffordable. Plaintiff Juan Ramon Morales is a U.S. citizen who lives in New York with his U.S. citizen daughter, lawful permanent resident step-daughter, and noncitizen wife. He sponsored an immigrant visa for his wife, a national of Mexico. Her application was approved in July 2017. She also received an I-601A waiver in April 2019. He and his wife are both currently employed.
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He and his children all have health insurance coverage. His children are covered by subsidized plans and he is covered by a catastrophic plan through his employer. His wife’s employer does not provide health insurance. Mr. Morales is not able to add his wife to his plan until she has a social security number. Thus, after she has received her immigrant visa, she can be added, but until then she cannot be added to his plan. He has asked his employer for documentation to this effect, but there is nothing that guarantees that she will have coverage within 30 days of her eligibility to be added to his employer-sponsored plan. Mr. Morales has reviewed the other options allowable through the Proclamation and they are either unavailable to his wife or unaffordable. His wife had emergency brain surgery in 2010 and suffers from seizures and headaches. Her preexisting conditions make other available insurance and her reasonably anticipated medical expenses cost prohibitive.
Plaintiff Jane Doe #2 is a United States citizen who lives in California and is a single mother to her two U.S. citizen children. She is insured through Medi-Cal, California’s Medicaid program. She sponsored immigrant visas for her parents, who currently reside in Nicaragua. Their petitions were approved in July 2019. They are collecting the necessary information for the visa application process. Jane Doe #2 has reviewed the Proclamation and the available medical options and does not believe that she and her parents can afford any of the options. Her parents do not currently have health insurance.
Plaintiff Jane Doe #3 is a United States citizen who lives in California. Her husband is an architect who teaches architectural theory and design and is a German national, living in Germany. She and her husband have been apart for more than two years. Her sponsorship petition for her husband was approved earlier this year. Jane Doe #3 has a disability, is unable to work, and has health insurance through Medi-Cal. Because it is unknown when her husband may
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be permitted entry into the United States, he is unable to apply for jobs before entry. His employment prospects are good and part of the benefit of having him living in this country is his expected financial support as well as family reunification and emotional, psychological, and physical support. He is unable, however, to show that he will be employed and have health insurance within 30 days of entry. He also has multiple sclerosis, which requires expensive treatments. They do not have the resources to show that they can pay cash for his reasonably anticipated medical expenses or to purchase “acceptable” insurance given his preexisting conditions, because it is unknown exactly when he will be employed. Thus, he is likely to be denied entry as a result of the Proclamation.
Plaintiff Iris Angelina Castro is a U.S. Citizen living in Massachusetts with her U.S. citizen son. She recently had to leave her job as a teacher when her son became sick. She currently has MassHealth insurance, Massachusetts’s Medicaid. She sponsored an immigrant visa for her husband, who currently lives in and is a national of the Dominican Republic. His visa application was approved in May 2019. Ms. Castro anticipates that her husband will have all necessary paperwork submitted by mid-November, and notes that the consulate in the Dominican Republic generally is quick to schedule an interview after all paperwork has been submitted. Without her job, she does not believe she and her husband can show the necessary financial resources to pay for health care costs and without her health insurance benefits her Medicaid plan is not an approved plan. She contacted insurance companies when she learned of the Proclamation, but the price quotes were more than she could afford, and were plans that provided incomplete coverage. She currently is pregnant and desires to have her husband living with her to help emotionally, physically, mentally, and financially.
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Plaintiff Blake Doe attends Oregon State University as a senior, studying civil engineering. His wife works full time. His noncitizen parents also live in Oregon, but are nationals of Mexico. He sponsored his parent’s family visa petition in 2017, and the State Department approved that petition in January 2018. On June 11, 2019, USCIS granted Blake Doe’s parents an I-601A provisional unlawful status waiver. Blake has reviewed the approved health insurance options, and he and his parents cannot afford any of them. His mother has health conditions and he does not believe that his parents will be able to show that they have the resources to pay for reasonably anticipated medical costs, despite the fact that his father is employed. His father’s employer does not provide medical insurance.
Plaintiff Brenda Villarruel is a U.S. citizen living in Illinois with her U.S. citizen son and parents and noncitizen husband. She sponsored an immigrant visa for her husband, who is a national of and currently lives in Mexico. His application was approved in September 2016. Ms. Villarruel works part-time as a medical assistant and part-time at her husband’s tattoo shop, in his absence. Her husband is a professional tattoo artist who used to live with her in Chicago but has been in Mexico since March 2018. He has more than 100 customers awaiting his return to have him place their tattoos. Ms. Villarruel’s husband had his consular interview scheduled for November 5, 2019, but after learning of the Proclamation and researching the acceptable insurance plans, they requested that the interview be postponed. They did not believe that they could meet the terms of the Proclamation because the acceptable plans are either not available or unaffordable.
ANALYSIS A. Likelihood of Success on the Merits
At the preliminary injunction stage, Plaintiffs carry the burden for the same elements that they must prove at trial, and Defendants carry the burden for the elements and affirmative
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defenses that they must prove at trial. Gonzales v. O Centro Espirita Beneficente UNIAO do Vegetal, 546 U.S. 418, 429 (2006) (“The point remains that the burdens at the preliminary injunction stage track the burdens at trial.”). Plaintiffs argue that they are likely to succeed on the merits in proving their challenges to the Proclamation and to agency action implementing and incorporating the Proclamation.
The President issued the Proclamation under authority delegated to him by Congress in 8 U.S.C. §§ 1182(f) and 1185(a).2 Plaintiffs argue that if the President’s delegated authority is as broad as Defendants’ assert, it violates the nondelegation doctrine. Plaintiffs also argue that the Proclamation is unconstitutional because it violates the fundamental principle of separation of powers. Plaintiffs further argue that the Proclamation violates their due process rights under the Fifth Amendment. Plaintiffs also challenge agency action implementing the Proclamation as violating the Administrative Procedure Act (“APA”).
Defendants respond that Plaintiffs’ claims challenging the Proclamation are judicially not reviewable, and even if they were, Plaintiffs would not be able to succeed on their challenges to the Proclamation. Defendants argue that the President exercised properly-delegated and inherently broad authority under 8 U.S.C. § 1182(f) to issue the Proclamation, that the Proclamation does not contravene any provision of the INA but instead properly supplements that statute, and that the Proclamation does not violate Plaintiffs’ due process rights because it was issued based on a facially legitimate and bona fide reason. Defendants further contend that
2 Although Defendants note that the President issued the Proclamation under authority delegated by Congress in both 8 U.S.C. § 1182(f) and 1185(a), Defendants do not assert any separate arguments under § 1185(a) and instead focus their arguments on the President’s authority under § 1182(f). The Court, therefore, will focus its analysis on § 1182(f). See Trump v. Hawaii, 138 S. Ct. 2392, 2407 n.1 (2018) (noting that the two provisions substantially overlap and that the Supreme Court need not resolve the relationship between the two provisions).
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the agencies’ actions are not final and reviewable, and even if they were, they do not violate the APA. The Court begins by evaluating the likelihood of success of Plaintiffs’ claims challenging the Proclamation.
1. Justiciability Defendants cite to Fiallo v. Bell, 430 U.S. 787 (1977), for their argument that Plaintiffs’ claims challenging the Proclamation are not judicially reviewable. Fiallo involved a challenge to certain provisions of the INA. Id. at 788. The Supreme Court noted that “it is important to underscore the limited scope of judicial inquiry into immigration legislation.” Id. at 792. (emphasis added). The Supreme Court continued, discussing earlier cases that had noted that the types of decisions involved in immigration cases “are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary” and that those types of cases “dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” Id. at 796 (quotation marks omitted). The court in Fiallo, however, expressly rejected the government’s argument that the plaintiff’s challenges to the INA were not reviewable, noting that “[o]ur cases reflect acceptance of a limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens.” Id. at 793 n.5. Fiallo, therefore, does not support Defendants’ contention that a Presidential proclamation involving immigration is not reviewable by a court when it is alleged to be unconstitutional or to contravene the INA, among other federal statutes. Despite emphasizing the complete legislative power of Congress in the field of immigration, the Supreme Court in Fiallo nevertheless reviewed the challenge on the merits. Id. at 797-99. Moreover, the Supreme Court has reviewed on the merits challenges to Presidential proclamations involving immigration,
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including proclamations under § 1182(f). See, e.g., Trump v. Hawaii, 138 S. Ct. 2392 (2018) (“Hawaii”); Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993).
Defendants argue, however, that the permissible review is only for constitutional challenges and that any non-constitutional claims are unreviewable. Defendants contend that Plaintiffs’ separation of powers claim is merely a statutory claim—a claim that the Proclamation contravenes the INA and other statutes—and is not a constitutional claim. The Supreme Court addressed a similar argument in Hawaii. 138 S.Ct. at 2407. In that case, the court noted that in Sale it had reviewed such a challenge on the merits over the government’s justiciability argument and that there is no provision of the INA that strips the court of its jurisdiction over such claims, concluding that it could therefore “assume without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue.” Id.
Additionally, the Ninth Circuit has expressly addressed and rejected this argument. Hawaii v. Trump, 859 F.3d 741, 768 (9th Cir. 2017) (“Hawaii II”), rev’d on other grounds and remanded, 138 S. Ct. 2392 (2018); Washington v. Trump, 847 F.3d 1151, 1162-63 (9th Cir.), reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017), reconsideration en banc denied, 858 F.3d 1168 (9th Cir. 2017), and cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448, 199 L. Ed. 2d 331 (2017). The Ninth Circuit noted that when a plaintiff challenges a President’s promulgation of sweeping immigration policy, “[c]ourts can and do review both constitutional and statutory ‘challenges to the substance and implementation of immigration policy.’” Hawaii II, 859 F.3d at 768 (quoting Washington, 847 F.3d at 1163). The Ninth Circuit further explained:
This case is justiciable because Plaintiffs seek judicial review of EO2, contending that EO2 exceeds the statutory authority
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delegated by Congress and constitutional boundaries. “This is a familiar judicial exercise.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). We reject the Government’s argument that the Order is not subject to judicial review. Although “[t]he Executive has broad discretion over the admission and exclusion of aliens, [ ] that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations. It is the duty of the courts, in cases properly before them, to say where those statutory and constitutional boundaries lie.” Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987).
Whatever deference we accord to the President’s immigration and national security policy judgments does not preclude us from reviewing the policy at all. See Rostker v. Goldberg, 453 U.S. 57, 70 (1981) (“[D]eference does not mean abdication.”); Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010) (“Our precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role.”).
Id. at 768-69.
Plaintiffs also dispute Defendants’ characterization of Plaintiffs’ separation of powers
challenge as non-constitutional and merely statutory. The Ninth Circuit’s holding that both
statutory and constitutional challenges to executive orders regarding immigration issues are
reviewable by a court, however, has not been disturbed by the Supreme Court and remains
binding on this Court. Moreover, the Court sees no reason to forego review on the merits when
the Supreme Court has twice engaged in such review. Accordingly, regardless of how Plaintiffs’
separation of powers claim is characterized, it is judicially reviewable.
2. Nondelegation Doctrine
Congress “may not transfer to another branch ‘powers which are strictly and exclusively
legislative.’” Gundy v. United States, 139 S. Ct. 2116, 2123 (2019) (quoting Wayman v.
Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)). Congress may, however, “obtain the assistance
of its coordinate Branches” and may “confer substantial discretion” on the Executive branch. Id.
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(alteration and quotation marks omitted). Thus, “a statutory delegation is constitutional as long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.’” Id. (alterations in original) (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). “The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee’s use of discretion.” Id. “In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928). “[T]he degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman v. Am. Trucking Associations, 531 U.S. 457, 475 (2001).3
“Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. . . . that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Galvan v. Press, 347 U.S. 522, 531 (1954). The Supreme 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.” Fiallo, 430 U.S. at 792 (quotation marks omitted). Congress established in § 1182(a) “classes of aliens ineligible for visas or admission.” Specific subsections bar immigrants based on numerous specific grounds, including health-related grounds, criminal-related grounds, whether the visa applicant would cause “potentially serious adverse foreign policy
3 Concerns with broad delegations of unconstrained discretion are applicable to the President. See, e.g., Panama Ref. Co. v. Ryan, 293 U.S. 388, 414-15 (1935).
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consequences,” participation in acts of genocide or torture, membership in a totalitarian political party, or whether the visa applicant would become a “public charge.” 8 U.S.C. § 1182(a).
Congress delegated authority to the President to make additional limitations or to suspend entry of aliens. The delegation of authority in § 1182(f) provides, in relevant part:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 8 U.S.C. § 1182(f) (emphasis added). On its face, this provision provides no guidance whatsoever for the exercise of discretion by the President. The only limit to the President’s discretion is the requirement to make the finding that entry would be “detrimental to the interests of the United States.” There is no “intelligible principle” provided as to what it means to be “detrimental,” what the “interests” of the United States are, what degree of finding is required, or what degree of detriment is required. This is the type of unrestrained delegation of legislative power that the Supreme Court has invalidated. See, e.g., Whitman, 531 U.S. at 474 (noting that statutes have been stricken under the nondelegation doctrine when they have “provided literally no guidance for the exercise of discretion” or they have “conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition’”). It is “a standard so indefinite as to confer an unlimited power.” Fed. Radio Comm’n v. Nelson Bros. Bond & Mortg. Co. (Station WIBO), 289 U.S. 266, 285 (1933). Defendants argue that this delegation of authority does not present nondelegation concerns because the Supreme Court has already addressed the issue in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). In Shaughnessy, the Supreme Court evaluated the
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lawfulness of the delegation of authority to the President in a precursor statute to the INA. This
precursor statute, however, delegated to the President authority as follows:
When the United States is at war or during the existence of the national emergency proclaimed by the President on May 27, 1941, or as to aliens whenever there exists a state of war between, or among, two or more states, and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this Act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful . . . .
338 U.S. at 540 n.1.
In evaluating this delegation of authority, which was applicable only in times of war or
the 1941 national emergency, the Supreme Court stated that excluding aliens was not only a
legislative function but also “inherent in the executive power to control the foreign affairs of the
nation.” Id. at 542. The Supreme Court thus concluded:
the decision to admit or to exclude an alien may be lawfully placed with the President . . . . Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency.
Id. at 543 (emphasis added).
The Supreme Court mentioned the President’s authority under § 1182(f) in Sale. In that
case, however, the Supreme Court did not address the specific issue of nondelegation. Further,
that case involved the Haitian immigrant crisis that arose after a military coup in 1991 deposed
that country’s first democratically-elected President, Jean Bertrand Aristide. 509 U.S. at 162.
The number of immigrants from Haiti rose dramatically and could not safely be processed on
U.S. Coast Guard cutters as they had been for the previous decade, or in Guantanamo. Id. at 163.
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The immigrants were attempting to arrive in unseaworthy vessels and many drowned. Id. Allowing screening of the immigrants for refugee status on U.S. soil would defeat the attempt to control illegal immigration, impede diplomatic efforts to restore the democratic government Haiti, and posed a life-threatening danger to the immigrants attempting to arrive in dangerous craft. Id. at 164. Refusing to screen the immigrants at all would deny them potential refuge at a politically tumultuous time. Id.
Ultimately, President George H.W. Bush ordered the Coast Guard to “intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they may qualify as refugees.” Id. at 158. The Supreme Court held that “neither § 243(h) [of the INA] nor Article 33 of the United Nations Protocol Relating to the Status of Refugees applies to action taken by the Coast Guard on the high seas.” Id. at 159 (footnote omitted). In so holding, the Supreme Court noted that under § 1182(f) the President had “ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores” and that whether the President’s chosen method of dealing with this immigrant emergency “poses a greater risk of harm to Haitians who might otherwise face a long and dangerous return voyage is irrelevant to the scope of his authority to take action that neither the Convention nor the statute clearly prohibits.” Id. at 187-88. The Supreme Court then noted that Congressional statutes generally do not have extraterritorial application unless such intent is clearly manifested and this presumption is particularly applicable when “construing treaty and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility.” Id. at 188. Notably, Sale did not turn on the question of the President’s power under § 1182(f), because the question presented
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in Sale related to § 1253(d) of the INA. The Supreme Court’s discussion of § 1182(f), therefore, was dicta.
The Supreme Court directly analyzed the President’s authority under § 1182(f) in Hawaii. Again, however, the Supreme Court did not specifically address the nondelegation doctrine. The Supreme Court noted the “comprehensive delegation” of authority in § 1182(f) and that § 1182(f) “exudes deference” to the President. Hawaii, 138 S. Ct. at 2408. That case involved the President’s proclamation resulting in the “travel” or “Muslim” ban. That proclamation “sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present ‘public safety threats’” and “placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.” Id. at 2404. It “reflect[ed] the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.” Id. at 2421. In discussing the sufficiency of the President’s findings under § 1182(f), the Supreme Court quoted Sale regarding the deference given to a President in his “chosen method” for dealing with foreign relations problems and stated that “when the President adopts ‘a preventive measure . . . in the context of international affairs and national security,’ he is ‘not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” Id. at 2409 (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010)).
In evaluating the nondelegation issues raised by § 1182(f), the Court considers what these three cases addressing the authority granted to the President in § 1182(f) and a similar earlier provision instruct. Knauff does not support the conclusion that the current version of § 1182(f) does not present any nondelegation issues. Knauff involved a much narrower delegation of
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authority, only in time of war or national emergency. The discussion in Knauff regarding immigration involving both executive and legislative power, although not limited to times of war or national emergency, was focused on the President’s authority to govern “foreign affairs.” The proclamation in Knauff was also issued during a time of war, when the President’s authority is at its zenith. Sale involved several issues relating to foreign affairs in an emergency and extraterritorial context. These included the diplomatic concerns in trying to restore a democratic government in Haiti and concerns regarding the lives of tens of thousands of Haitians, most of whom were not going to qualify for refugee status, who were risking their lives attempting to travel by boat to the United States in dangerous crafts. This was a political and humanitarian emergency occurring beyond the borders of the United States. Hawaii also involved important issues of national security and foreign affairs. The proclamation at issue was an attempt to enhance detection of “terrorists” and other similar “public safety threats.” 138 S. Ct. at 2404-05. It also involved activities occurring beyond the borders of the United States, because it dealt with vetting processes taking place in foreign countries.
The Court extrapolates from these cases that when Congress delegates authority to the President in the immigration context and that authority involves foreign relations or national security, especially in an emergency or extraterritorial context, then the nondelegation concerns are lessened because the President has his own inherent powers under Article I. That appears to be the intent of Congress in enacting the broad authority of § 1182(f). It also appears to be how § 1182(f) has been previously exercised, until now.4 The Proclamation, however, uses § 1182(f) to engage in domestic policymaking, without addressing any foreign relations or national
4 Based on the proclamations discussed by the parties. The Court did not conduct an independent review of all proclamations issued under § 1182(f) or earlier, similar provisions.
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security issue or emergency. In this wholly domestic context, the delegation by Congress is without any intelligible principle and thus fails under the nondelegation doctrine.
Defendants argue that because immigrants come from foreign countries, anything to do with immigration is inherently “foreign relations.” The Court, however, does not accept such a broad construction. As the text of Article I and more than two centuries of legislative practice and judicial precedent make clear, the Constitution vests Congress, not the President, with the power to set immigration policy. If the fact that immigrants come from other countries inherently made their admission foreign relations subject to the President’s Article II power, then all of this law would be superfluous.
3. Separation of Powers Even if the Proclamation is not an unconstitutional exercise of domestic lawmaking authority under the nondelegation doctrine, it would still be unconstitutional under separation of powers. Plaintiffs contend that the Proclamation is an unconstitutional attempt to rewrite a key provision of the INA through “executive fiat.” Plaintiffs argue that they are likely to succeed on their claims that the President’s exercise of his discretion in issuing the Proclamation violates the Constitution’s bedrock principle of separation of powers because the Proclamation contravenes or overrides specific provisions of the INA. Defendants respond that this claim is not a constitutional claim, but a statutory claim that the Proclamation was issued outside the President’s authority delegated by Congress in § 1182(f) of the INA. Whether the claim is evaluated as a statutory claim or a constitutional separation of powers claim, the result is the same. The Supreme Court has stated that when the President exercises his authority under § 1182(f), the Court “may assume that § 1182(f) does not allow the President to expressly override particular provisions of the INA.” Hawaii, 138 S. Ct. at 2411.
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Thus, if the Proclamation contravenes a provision of the INA, it is both a statutory violation and a constitutional violation of separation of powers.
The constitutional principle of separation of powers embodies “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.” Mistretta v. United States, 488 U.S. 361, 380 (1989). Separation-of-powers concerns are primarily aimed at preventing aggrandizement by one branch encroaching into the sphere of authority of another. Id. at 382 (“It is this concern of encroachment and aggrandizement that has animated our separationof-powers jurisprudence[.]”); Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam) (“The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.”). Accordingly, the Supreme Court has “not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.” Mistretta, 488 U.S. at 382.
“The Constitution and its history evidence the ‘unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.’” City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1232 (9th Cir. 2018) (quoting I.N.S. v. Chadha, 462 U.S. 919, 959 (1983)). Thus, “[t]he power to enact statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’” Clinton v. City of New York, 524 U.S. 417, 439-40 (1998) (quoting Chadha, 462 U.S. at 951). Further, “[t]here is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Clinton, 524 U.S. at 438.
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The President issued the Proclamation purportedly based on authority granted to him by Congress in § 1182(f) of the INA. The President may not, however, exercise his discretion granted under § 1182(f) to “override” a provision of the INA. Hawaii, 138 S. Ct. at 2411. Thus, the primary question is whether the Proclamation overrides, contravenes, or is otherwise incompatible with any provision of the INA. As explained by Justice Jackson in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer:
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring); see also Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083 (2015) (“In considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-638 (1952) (concurring opinion).”). Plaintiffs assert that the Proclamation conflicts with 8 U.S.C. § 1182(a)(4), the “public charge” provision of the INA. Plaintiffs argue that the Proclamation impermissibly establishes healthcare insurance as the sole factor determining inadmissibility based on creating a “financial burden” to the United States, even though the public charge provision directly legislates inadmissibility based on the concern of creating a financial burden on the United States. The public charge provision enumerates a list of factors that must be considered “at a minimum” in evaluating whether a visa applicant will become a public charge, including: age; health; family status; assets, resources, and financial status; and education and skills, and the consular officer
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also may consider whether an affidavit of support was filed. 8 U.S.C. § 1182(a)(4)(B)(i)-(ii). These factors were expressly added to the INA by Congress in 1996.
Before the 1996 legislation was passed, some legislators proposed having public charge inadmissibility tied to the receipt of certain non-cash public benefits, but that effort failed. These non-cash benefits included Medicaid, Supplemental Security Income, Aid to Families with Dependent Children, supplemental nutrition assistance, and other means-tested public assistance. See H.R. Rep. 104-469, 89. In 2013, the U.S. Senate voted down two proposed amendments to the public charge provision. One would have expanded the criteria for public charge to include the requirement that visa applicants show that they were not likely to receive benefits under Medicaid or the Children’s Health Insurance Program. See S. Rep. No. 113-40, at 42 (2013); see also City and Cty. of San Francisco v. U.S. Citizenship and Immig. Svcs. (“USCIS”), --- F. Supp. 3d ---, 2019 WL 5100718, at * 25 (N.D. Cal. Oct. 11, 2019). The second would have expanded the definition of “public charge” to ensure that persons who received non-cash health benefits could not become permanent legal residents and that visa applicants who would be likely to receive such benefits in the future would be denied entry. See S. Rep. No. 113-40, at 63 (2013); see also USCIS, 2019 WL 5100718, at *26.
The public charge provision as amended in 1996 mandates that the consular officer or the Attorney General “shall at a minimum consider” all of the enumerated factors. 8 U.S.C. § 1182(a)(4)(B)(i). This codified the longstanding practice of evaluating the “totality of the circumstances” of the applicant. USCIS, 2019 WL 5100718, at *21, 25. That subsection ensures that no one single factor is dispositive.
Defendants argue that the Proclamation does not contravene or supplant the public charge provision, but instead merely supplements it. Defendants argue that the focus of the
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Proclamation is not on whether on an applicant will become a public charge, but on fixing the burden to the healthcare infrastructure and taxpayers. Defendants note that a visa applicant now must meet the requirements of both the public charge provision of the INA and the Proclamation. Defendants’ arguments are not persuasive.
The Proclamation discusses the burden on the national healthcare infrastructure and its effect on American taxpayers. The Proclamation supplants § 1182(a)(4)(B), however, because it is designed to stop immigrants from being a burden on taxpayers by using public resources such as Medicaid, subsidized ACA plans, and free emergency room and medical services. This is the purview of the public charge provision. Additionally, the primary concern of the Proclamation is the burden on taxpayers and not the burden on private industry. The Proclamation states: “Immigrants who enter this country should not further saddle our healthcare system, and subsequently American taxpayers, with higher costs.” This also is the purview of the public charge provision.
The Proclamation does not create an additional factor, health insurance, to be considered in the totality of the circumstances that Congress has mandated be considered in evaluating whether a visa applicant will create an undue burden on the resources of the United States. Instead, it makes the ability to pay for anticipated care needs a single, dispositive factor, first by requiring an assessment of the applicant’s available health insurance, a new factor, and then by requiring an assessment only of the applicant’s health and financial resources, which are two of many factors that Congress has mandated must all be considered.
Moreover, the Proclamation is executive lawmaking in a manner that Congress expressly rejected in the public charge provision. The Proclamation excludes in its permissible insurance plans mean-tested health benefits such as Medicaid and subsidized plans under the ACA,
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notwithstanding the fact that Congress has repeatedly refused to include Medicaid and other mean-tested non-cash public benefits in the public charge inadmissibility standards. See Youngstown, 343 U.S. at 588 (“[T]he President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President.”); cf. Hawaii, 138 S. Ct. at 2411 (finding that the travel ban executive order “supports Congress’s individualized approach for determining admissibility”). The Proclamation does not, therefore, support the INA’s approach for determining admissibility but instead essentially amends or supplants the INA in a manner similar to which Congress has previously refused, contravening Congress’s will.
The Proclamation also purports to “impose on the entry of aliens [a] restriction[]” the President deems necessary under § 1182(f). In effect, however, it actually bars entry from an entire class of immigrants—those who cannot afford health insurance or afford to pay for reasonably necessary medical costs. There are two problems with this restriction.
The first problem is that this bar to entry is not a “suspension” as is authorized by § 1182(f), but is indefinite. The President expressly cites the reason for the suspension as the widespread problem of “uncompensated costs” in the nationwide healthcare system. There is no reasonable interpretation of the Proclamation showing that this intractable problem is going to end any time soon, particularly when the only evidence in the record supports that recent immigrant use of medical services is less than one-tenth of one percent. The Proclamation, therefore, is unlikely to make any meaningful difference to address the problem and its implementation will not result in a reduction to the problem that would then, in turn, result in the restriction no longer being necessary. Moreover, the President provides no guidance in the Proclamation for determining under what circumstances the necessity for the Proclamation
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would be over. This is unlike the travel ban Proclamation, which involved specific deficiencies in a handful of country’s vetting systems that triggered that proclamation—if those deficiencies all were cured, that proclamation would no longer be needed. See Hawaii, 138 S. Ct. at 2410 (“[T]he Proclamation makes clear that its ‘conditional restrictions’ will remain in force only so long as necessary to ‘address’ the identified ‘inadequacies and risks’ within the covered nations.”). The restrictions to entry were directly connected to the problem that triggered that proclamation and there were identifiable solutions that would result in the revocation of the suspension to entry. Here, the identified “inadequacies and risks” are a massive, estimated $35 billion-per-year domestic systemic health care problem. That is the “triggering condition.” The Supreme Court held in Hawaii that a proclamation may be a proper “suspension” of entry so long as in the proclamation the President “may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition.” Id. at 2410. The Proclamation, however, contains no guidance for how this domestic problem of $35 billion in “uncompensated costs” can or will be solved any time in the foreseeable future. Thus, despite the fact that the President instructs in the Proclamation for a report on the “continued necessity” of the “suspension and limitation” contained in the Proclamation within 180 days and then annually thereafter, that instruction may not reasonably be interpreted as providing any possible foreseeable end date. Therefore, the Proclamation may not reasonably be interpreted as imposing merely “conditional restrictions.” It may only reasonably be interpreted as a categorical exclusion for any affected immigrant who cannot afford health insurance or reasonably anticipated medical costs. Such an indefinite bar to entry is not within the President’s authority under § 1182(f). See Hawaii, 138 S. Ct. at 2409-10.
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The second problem is that this bar to entry is reinstating a bar that Congress expressly eliminated from the INA—the bar to “paupers.” In the 1891 amendment to the immigration law, Congress provided that: “That the following classes of aliens shall be excluded from admission into the United States . . . : All idiots, insane persons, paupers or persons likely to become a public charge . . . .” An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens Under Contract or Agreement to Perform Labor, 26 Stat. 1084, Chap. 551 § 1 (1891). “Paupers” continued to be included in the classes of aliens that were excluded for decades. Congress, however, expressly removed, among others, “paupers” from the categories of aliens excluded from § 1182 in the 1990 amendments to the INA. See Immigration Act of 1990, 104 Stat. 4978, Title 6 § 601 (1990).5 The President simply does not have the constitutional authority to amend a statute. Clinton, 524 U.S. at 438.
The Proclamation also contravenes and overrides § 1182(a)(4)(E).6 Congress exempted from the public charge financial burden restriction certain victims of violent crime or domestic violence and their family members. The Proclamation does not provide the same broad exemption. Defendants argue that very few applicants will actually fall within the exemption of § 1182(a)(4)(E) and be effected by the Proclamation, but nonetheless at least some will.7 The
5 Whether the United States should categorically exclude “paupers” from entry as immigrants is a policy decision that Congress may make in its law-making capacity, using its “step-by-step, deliberate and deliberative process,” Chadha, 462 U.S. at 959, and its “single, finely wrought and exhaustively considered, procedure.” Clinton, 524 U.S. at 439-40 (quotation marks omitted). Such decisions are not for the President to make in his law-executing capacity, particularly when Congress has already explicitly rejected that categorical exclusion.
6 The Court expresses no opinion at this stage of the litigation about whether the Proclamation also contravenes or overrides various healthcare laws and other immigration laws and provisions, as argued by Plaintiffs.
7 Defendants also argue that no named Plaintiffs falls within the category of persons affected by this subsection, but Plaintiffs are seeking in this putative class action a uniform injunctive remedy that would apply to all putative class members, and are not requesting any
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Proclamation stands in direct contravention to a statute passed by Congress after Congress’s “exhaustively considered,” Clinton, 524 U.S. at 439-40, and “deliberate and deliberative process.” Chadha, 462 U.S. at 959.
The Proclamation is anticipated to affect approximately 60 percent of all immigrant visa applicants. The President offers no national security or foreign relations justification for this sweeping change in immigration law. Instead, the President attempts to justify the Proclamation based on an asserted burden to the United States healthcare system and federal taxpayers. Whether a visa applicant is a burden on the resources of the United States and, thus, taxpayers, however, is precisely the sphere governed by § 1182(a)(4).
Further, the Proclamation is, significantly, unlike the executive order at issue in Hawaii. In that case, the executive order was challenged as being inconsistent with a completely different provision of the INA, § 1152(a)(1)(A), and the Supreme Court found that the two provisions “operate in different spheres.” 138 S. Ct. at 2414. The Proclamation, however, contravenes two provisions of § 1182(a)(4), which operate in the same sphere as § 1182(f). Indeed, it has been noted that “[t]he President’s sweeping proclamation power thus provides a safeguard against the danger posed by any particular case of class of cases that is not covered by one of the categories in section 1182(a).” Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986 (Ginsburg, J.) (emphasis added).
The Court finds that § 1182(a)(4) and 1182(f) are in the same sphere. Congress has already spoken in § 1182(a)(4) on the issue of limiting immigrant admissibility based on the potential financial burden on the resources of the United States, and the Proclamation
specific relief under the Violence Against Women Act or § 1182(a)(4)(E). At this stage of the litigation, the Court is treating Plaintiffs as adequate class representatives for all putative class members. See Section D, infra.
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contravenes and overrides Congress’s explicitly stated direction and will. As previously stated, the President may not take action to “enact, to amend, or to repeal statutes.” Clinton, 524 U.S. at 438. Plaintiffs, therefore, have shown a likelihood of success on the merits on their claim that the Proclamation violates the Constitution’s principle of separation of powers and is outside the scope of the President’s authority granted in § 1182(f). Because the Court finds that Plaintiffs have shown a likelihood of success on the merits of this claim (as well as serious questions going to the merits) and their argument that the Proclamation violates the nondelegation doctrine, the Court does not at this time reach Plaintiffs’ due process challenge to the Proclamation or challenges to agency action under the APA. B. Likelihood of Irreparable Harm
“A plaintiff seeking preliminary relief must ‘demonstrate that irreparable injury is likely in the absence of an injunction.’” California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (quoting Winter, 555 U.S. at 22). “A threat of irreparable harm is sufficiently immediate to warrant preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a decision on the merits can be rendered.’” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quoting Winter, 555 U.S. at 22).
Defendants argue that Plaintiffs will not suffer irreparable harm because their family members’ visas will only be “delayed.” The Ninth Circuit already has rejected a very similar argument. See Hawaii v. Trump, 878 F.3d 662, 699 (9th Cir. 2017) (“Hawaii III”), rev’d on other grounds and remanded, 138 S. Ct. 2392 (2018) (holding that the immigrant family member plaintiffs’ claims of “prolonged separation from family members” constituted “indefinite delay” sufficient to satisfy irreparable harm to support preliminary injunction); Washington, 847 F.3d at 1169 (identifying “separated families” as among the substantial and irreparable harms); cf. Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503-04 (1977) (explaining that “the
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Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition”).
Rejection of Defendants’ argument is particularly appropriate in this case. At least two named Plaintiffs had interviews scheduled that were postponed due to the Proclamation. It is likely that those interviews will be rescheduled before a decision on the merits. Those Plaintiffs are not likely to meet the requirements of the Proclamation, and there is no indication that they will otherwise fail any of the requirements of § 1182(a). One of those Plaintiffs risks having his wife’s I601-A waiver automatically revoked if she is denied a visa at the interview. She will be unable to return to the United States and live with him and their son. She takes care of both of them, who suffer from health problems. Other Plaintiffs also have I601-A waivers for their sponsored family members, who risk being forced to leave the United States for an indefinite period of time. These are immigrant applicants for whom it has already been determined it would be an “extreme hardship” on family members for them to be separated.
Defendants also argue that Plaintiffs can avoid harm simply by purchasing insurance. Plaintiffs, however, have stated that they cannot afford the plans that are available to them. Defendants also argue that an applicant who is “healthy” can easily meet the Proclamation’s requirements because there will not be an “reasonably necessary medical expenses.” Many Plaintiffs, however, describe existing health problems that will result in reasonably medical expenses. The Court finds that the individual Plaintiffs have shown a likelihood that they will suffer sufficiently immediate irreparable harm. It is also likely that putative class members will suffer similar irreparable harm.
Additionally, Defendants do not address the irreparable harm claimed by Plaintiff Latino Network. Latino Network has had to divert significant resources to deal with the Proclamation
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even before it went into effect, preventing Latino Network from engaging in its core mission. Latino Network would have to continue to divert resources and abandon a significant portion of its core mission if the Proclamation were allowed to go into effect. This qualifies as sufficient irreparable harm. See E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018) (“Given the injuries described above, the Organizations ‘have established a likelihood of irreparable harm’ based on their showing of serious ‘ongoing harms to their organizational missions,’ including diversion of resources and the non-speculative loss of substantial funding from other sources.” (citation omitted)). C. Balancing the Equities and Public Interest
In weighing equities, a court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (citation omitted). When the government is the defendant, generally the balancing of the equities and the public interest factors merge. See, e.g., League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). When determining the public interest, a court “primarily addresses impact on non-parties rather than parties.” Id. (quoting Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 947 (9th Cir. 2002). When the alleged action by the government violates federal law, the public interest factor generally weighs in favor of the plaintiff. See Valle del Sol, 732 F.3d at 1029; see also Inland Empire-Immigrant Youth Collective v. Nielsen, 2018 WL 1061408, at *21 (C.D. Cal. Feb. 26, 2018) (“In addition, the Court again notes the public interest that exists in ensuring that the government complies with its obligations under the law and follows its own procedures.” (quotation marks omitted)); Coyotl v. Kelly, 261 F. Supp. 3d 1328, 1344 (N.D. Ga. 2017) (“[T]he public has an interest in government agencies being required to comply with their own written guidelines instead of engaging in arbitrary decision making.”).
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Twenty-one states,8 the District of Columbia, and the City of New York City (collectively “Government Amici”) filed an amici brief outlining their interests and the significant harm these states and other governmental entities will suffer if the Proclamation is allowed to go into effect. They explain that immigrants “are vital to the economic, civic, and social fabric of our states and city.” They describe how family reunification benefits the economic, social, and psychological well-being of the affected individuals, while family separation results in myriad harms, including mental and behavioral health issues, lower academic achievement among children, toxic stress, cognitive impairment, and symptoms of post-traumatic stress disorder. They quote the 1981 Select Commission on Immigration and Refugee Policy, a congressionally-appointed commission tasked with studying immigration policy, describing the necessity of family reunification:
[R]eunification . . . serves the national interest not only through the humaneness of the policy itself, but also through the promotion of the public order and well being of the nation. Psychologically and socially, the reunion of family members with their close relatives promotes the health and welfare of the United States. ECF 88 at 13. Government Amici also describe how immigrants benefit economies. They note that immigrants have “enriched our country’s social and cultural life, injecting new ideas into our intellectual fabric, offering path-breaking contributions in science, technology, and other fields, and ultimately making our diverse communities engines of innovation and more desirable places to live.” They explain that because the Proclamation will dramatically decrease the number of lawful immigrants, it will “cause substantial economic harm to Amici, including by diminishing
8 The states are California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.
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revenue collection, dampening small business creation, and reducing employment in key sectors of the economy.”
Government Amici detail that immigrants pay nationally more than $405.4 billion in taxes, and immigrant-owned companies employ more than 7.9 million workers. Government Amici detail the billions in taxes paid and spending power exercised in each state by immigrants. For example, in 2014 immigrant-led households paid more than $26 billion in state and local taxes in California, $1.1 billion in state and local taxes in Minnesota, and $736.6 million in state and local taxes in Oregon. These households exercised more than $240 billion in spending power in California, $8.9 billion in spending power in Minnesota, and $7.4 billion in spending power in Oregon. With respect to New York City, immigrants contributed $195 billion, or 22 percent, to the gross domestic product of 2017. Immigrants own 52 percent of businesses in New York City, creating jobs and providing essential goods and services.
Government Amici further detail the harm to certain employment sectors, which are disproportionately filled with immigrants. For example, in California, more than two-thirds of the jobs in agricultural sectors, 45.6 percent of manufacturing positions, 43 percent of the construction workers, and 41 percent of workers in computer and mathematical sciences are filled by immigrants. In Oregon 39.5 percent of workers in the farming, fishing and forestry sector, nearly 20 percent of the workers in manufacturing positions, and 18.4 percent of accommodation and food service workers are filled by immigrants.
Finally, Government Amici explain how the Proclamation likely will harm their interests with respect to the state-based health insurance marketplace. The ACA authorized the creation of exchanges presenting affordable insurance coverage choices for consumers in order to “increase the number of Americans covered by health insurance and decrease the cost of health care.”
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Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012). The ACA provides premium tax credits for purchasing insurance on the exchange to help offset the cost. 26 U.S.C. § 36B. Congress extended those tax credits to any taxpayer who “is an alien lawfully present in the United States . . .” Id. at § 36B(c)(1)(B)(ii). The Proclamation only allows “unsubsidized” ACA plans, which although undefined, appears to mean plans that do not utilize the tax credit.
Government Amici describe how the fact that legal immigrants will be unable to obtain comprehensive plans under the ACA, and will instead be forced to buy unregulated plans such as STLDI and some of the other “approved” plans will result in the immigrants being left underinsured. This underinsurance will, in turn, burden local and state governments because underinsured persons are at higher risk of uncompensated cost than if they were permitted to purchase a comprehensive subsidized plan under the ACA. For example, Government Amici discuss how STLDI plans typically exclude coverage of preexisting conditions or charge exorbitant premiums to cover those conditions, and that one recent study shows that 43 percent of such plans did not cover mental health services, 62 percent did not cover substance abuse treatment, 71 percent did not cover outpatient prescription drugs, and 100 percent did not cover maternity care.
Legal immigrants also may be subject to deceptive marketing and fraudulent insurance products in response to the Proclamation, which will result in Government Amici having an increased regulatory burden to increase oversight to protect consumers. The proliferation of nonACA compliant plans may make it difficult or impossible for states to regulate such plans, increasing harm to consumers and the insurance market and resulting in greater uncompensated care and costs.
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Nine nonprofit organizations9 (collectively, “Nonprofit Amici”) also filed an amici brief in support of the Court issuing a preliminary injunction. They describe the effect the issuance of the Proclamation has had on their ability to provide their services, and how if the Proclamation were to go into effect it would further erode their ability to provide services. For example, Virginia Garcia Memorial Health Center provides health care services for Washington and Yamhill County, with a focus on seasonal and migrant workers. They have already seen patients refusing to obtain care out of fear of the changing rules and requirements for immigrant status, including a pregnant woman declining maternity care.
Nonprofit Amici describe the fear and anxiety they encounter in the immigrant communities they serve, the increasing family separation they have witnessed in the past few years, and how it effects their constituents and services. This includes immigrants refusing services and the Nonprofit Amici having to work harder to provide services that previously were welcomed, even services as important as food benefits.
Defendants’ only argument with respect to the balance of the equities and the public interest is that the $35 billion problem of uncompensated health care costs is a serious national problem and thus the Proclamation should be allowed to go into effect. Defendants, however, provide no evidence that the Proclamation will have any effect in reducing the asserted $35 billion in uncompensated costs. The Proclamation did not make such a finding. The Proclamation merely noted that legal immigrants are more likely to be uninsured than U.S. citizens, but that statistic says nothing about whether and in what amount recent legal immigrants
9 The nonprofit organizations are Adelante Mujeres, Catholic Charities Immigration Legal Services, Causa, Centro Latino Americano, El Programa Hispano Católico, The Immigrant and Refugee Community Organization, Oregon Interfaith Movement for Immigrant Justice, Virginia Garcia Memorial Health Center, and VIVA Inclusive Migrant Network.
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use national health care resources, or whether they make any meaningful contribution to the $35 billion in uncompensated costs. There is no evidence in the record that immediate implementation of the Proclamation is necessary to help the “national interest” of reducing uncompensated healthcare costs. On the other hand, there is significant evidence that allowing the Proclamation to go into immediate effect will have an irreparably harmful effect on Plaintiffs, putative class members, state and local governments, and amici. Weighing all the interests, the balance of the equities and the public interest tips sharply in favor of Plaintiffs, and supports preserving the status quo until the Court renders its decision on the merits. D. Conclusion
All four Winter factors weigh in favor of granting a preliminary injunction. Plaintiffs have met their burden to demonstrate a need for preliminary injunctive relief until the Court decides the merits of this case. E. Scope of Injunctive Relief
Plaintiffs have moved for certification of a nationwide class, consisting of two subclasses, as follows: U.S. Petitioner Subclass
Individuals in the United States who currently have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa, or who will soon file such a petition; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs”; and Visa Applicant Subclass Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the
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satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.” The motion for class certification has not yet been fully briefed, had a hearing, or been resolved. Defendants argue that they should be permitted additional time to engage in some discovery relating to the named Plaintiffs, and assert that they did not have sufficient time to prepare their brief in response to the motion for class certification. Plaintiffs seek to include additional plaintiffs in the motion for class certification, and have not yet been able to move to amend their complaint to add those plaintiffs given the expedited process for the preliminary injunction. Thus, items remain outstanding with respect to class certification. Defendants argue that the if the Court finds that a preliminary injunction is appropriate at this time, the Court should only enter an injunction with respect to the specific named Plaintiffs and not a “nationwide” or “universal” injunction because the Court has not yet certified this lawsuit as a nationwide class action. This argument is not persuasive considering the conduct and harm alleged in this case. “[T]he scope of [a] remedy is determined by the nature and extent of the . . . violation.” Milliken v. Bradley, 433 U.S. 267, 270 (1977). “[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). “An injunction may extend ‘benefit or protection’ to nonparties ‘if such breadth is necessary to give prevailing parties the relief to which they are entitled.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quoting Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987)). Although in 2018 and 2019 the Ninth Circuit has remanded some cases for specific findings relating to the scope of an injunction, that court has also reaffirmed that “[i]n immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” Id. (citing Regents of
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the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018), cert.
granted sub nom. Dep’t of Homeland Sec. v. Regents of the Univ. of California, 139 S. Ct. 2779
(2019); Hawaii III, 878 F.3d at 701; Washington, 847 F.3d at 1166-67).
Additionally, when a plaintiff requests preliminary injunctive relief before class
certification has been decided, a court may consider the harm to the putative class and grant
classwide appropriate preliminary injunctive relief to preserve the status quo, particularly when,
as in this case, there is alleged classwide harm and conduct aimed at a class of persons. See J.L.
v. Cissna, 341 F. Supp. 3d 1048, 1070 (N.D. Cal. 2018) (granting a classwide injunction when
“preliminary injunctive relief is necessary to preserve the status quo and to prevent irreparable
harm for all Plaintiffs and the putative class”); Chhoeun v. Marin, 306 F. Supp. 3d 1147, 1164
(C.D. Cal. 2018) (granting a classwide injunction before certification when “an injunction is
necessary to forestall harm to putative class members that is likely to transpire before the parties
can litigate a motion for class certification”); see also Just Film, Inc. v. Merch. Servs., Inc., 474
F. App’x 493, 495 (9th Cir. 2012) (affirming the scope of a class-wide preliminary injunction
that was “tailored to maintain the status quo where class certification is pending and a class-wide injunction is necessary to remedy the alleged class-wide harm”).10 “This relief may be narrowed
10 District courts outside the Ninth Circuit have similarly reached this same conclusion. See Abdi v. Duke, 280 F. Supp. 3d 373, 400 (W.D. N.Y. 2017) (“Under appropriate circumstances, a court may grant preliminary injunctive relief in favor of putative class members before class certification, and correspondingly, assess the harm to putative class members when considering the preliminary injunction motion.”); Hamama v. Adducci, 261 F. Supp. 3d 820, 840 n.13 (E.D. Mich. 2017) (issuing a classwide preliminary injunction and stating: “The Court notes that its issuance of a preliminary injunction comes prior to a decision on class certification. However, the Sixth Circuit has held that ‘there is nothing improper about a preliminary injunction preceding a ruling on class certification.’” (quoting Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402, 433 (6th Cir. 2012))); Planned Parenthod of Kansas v. Mosier, Medicare & Medicaid P 305668, 2016 WL 3597457, at *26 (D. Kan. July 5, 2016) (“[C]ase law supports this Court’s authority to issue classwide injunctive relief based on its general equity powers before deciding a class certification motion.”); Rodriguez v. Providence Cmty. Corrections, Inc., 155 F. Supp. 3d 758, 767 (M.D. Tenn. 2015) (“[A] district court may, in its discretion, award appropriate classwide injunctive
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in the event Plaintiffs are unable to justify certification of a class.” Cissna, 341 F. Supp. 3d at 1070; see also Just Film, 474 F. App’x at 495 (noting that a court should “review the continued existence and the scope of the preliminary injunction, if and when a class is certified”).
Providing such preliminary classwide relief does not first require that the Court engage in some version of an analysis under Rule 23 of the Federal Civil Rules of Civil Procedure, as argued by Defendants. As the authorities cited above show, the important question for imposing classwide relief is whether it is necessary to prevent classwide harm for alleged classwide conduct. Here, the Proclamation is directed against a class of persons and would cause the same alleged harm to the entire putative class—being forced to meet the dispositive requirement of purchasing health insurance or showing sufficient financial resources or face an inadmissibility determination. Having putative class members suffer this alleged irreparable harm merely because the preliminary injunction had to be litigated in an expedited fashion before class certification could be fully litigated is contrary to the purposes behind class actions and preliminary injunctive relief to preserve the status quo. Thus, classwide relief at this stage is appropriate.
relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers.” (alteration in original) (quoting Thomas v. Johnston, 557 F. Supp. 879, 917 (W.D. Tex. 1983))); Lee v. Orr, 2013 WL 6490577, *2 (N.D. Ill. 2013) (“The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.” (quoting Illinois League of Advocates for the Developmentally, Disabled v. Illinois Dept. of Human Services, 2013 WL 3287145, *3 (N.D. Ill. 2013))); N.Y. State Nat. Org. For Women v. Terry, 697 F. Supp. 1324, 1336 (S.D.N.Y. 1988) (holding that “the Court acted in the only reasonable manner it could under the circumstances, ruling on the continuation of [the] temporary restraining order and leaving the question of class certification for another day”).
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The record evidence sufficiently shows the significant harm the Proclamation would cause to 21 states, the District of Columbia, and New York City, and the putative class members that reside in these locations. The record also sufficiently shows the harm to the named Plaintiffs, their families, and additional persons who are members of the putative class (and willing to serve as additional class representatives).
The record further shows irreparable harm to Plaintiff Latino Network, which an injunction limited to only the individual Plaintiffs would not redress. There also currently are not any other pending lawsuits addressing the Proclamation, eliminating the concern some commentators and court opinions have expressed that a “universal” injunction “would unnecessarily ‘stymie novel legal challenges and robust debate’ arising in different judicial districts.” E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029 (9th Cir. 2019) (quoting Trump, 897 F.3d at 1243-44). An injunction only affecting, for example, named Plaintiffs and immigrants intending to come to Oregon or sponsored by someone in Oregon (to address the harm to Plaintiff Latino Network), or some other subset of persons, also would create significant administrative difficulties. See, e.g., E. Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974, 985 (N.D. Cal. 2019). It would lead to uneven enforcement. It may also lead to unintended consequences for the State of Oregon. This is unlike the more narrowly-crafted injunctions that involved a specific border crossing entry point, which could more easily be geographically segregated.
A comprehensive injunction precluding enforcement of the Proclamation, thus, is necessary to provide Plaintiffs and putative class members with relief at this stage of the litigation and to preserve the status quo. The Court may revisit such relief after Plaintiffs’ motion for class certification has been decided.
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F. Stay Defendants request that if the Court were to issue an injunction, the Court stay the
injunction pending interlocutory appeal. The Court denies Defendants’ request for a stay of the injunction. The Proclamation does not involve an issue of national security, sensitive diplomatic relations, or even general foreign relations. The Proclamation also does not contain any specific findings supporting the conclusion that its implementation will have any effect on the problem that it is purporting to address, the claimed $35 billion in domestic uncompensated health care costs, and certainly not during the time needed for appellate review. The irreparable harm to Plaintiffs and the putative class, however, is immediate and significant. Accordingly, a stay is not appropriate. G. Bond
Rule 65 of the Federal Rules of Civil Procedure directs that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). Federal courts, however, have discretion as to the amount of security and may even dispense with the security requirement altogether. See Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (“‘Rule 65(c) invests the district court with discretion as to the amount of security required, if any.’” (quoting Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003))); Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005) (“‘The district court has discretion to dispense with the security requirement, or to request mere nominal security, where requiring security would effectively deny access to judicial review.’” (quoting Cal. ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985))). The Court has considered
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the relative hardships and the likelihood of success on the merits and concludes that to require any security in this case would be unjust. Thus, the Court waives the requirement of a bond.
PRELIMINARY INJUNCTION Plaintiffs’ Motion for a Preliminary Injunction (ECF 46) is GRANTED. Until the Court resolves this case on the merits or orders otherwise, or until such time as the parties agree in writing to amend, supersede, or terminate this Preliminary Injunction, IT IS ORDERED that Defendants are enjoined from taking any action to implement or enforce Presidential Proclamation No. 9945, “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.” DATED this 26th day of November, 2019.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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 Case 3:19-cv-01743-SB Document 33 Filed 11/02/19 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JOHN DOE #1; JUAN RAMON MORALES; JANE DOE #2; JANE DOE #3; IRIS ANGELINA CASTRO; BLAKE DOE; BRENDA VILLARRUEL; and LATINO NETWORK,
Plaintiffs,
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KEVIN MCALEENAN, in his official capacity as Acting Secretary of the Department of Homeland Security; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; ALEX M. AZAR II, in his official capacity as Secretary of the Department of Health and Human Services; U.S. DEPARTMENT OF STATE; MICHAEL POMPEO, in his official capacity as Secretary of State; and UNITED STATES OF AMERICA,
Defendants.

Case No. 3:19-cv-01743-SB
TEMPORARY RESTRAINING ORDER

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Michael H. Simon, District Judge. On October 4, 2019, the President of the United States issued Proclamation No. 9945,
titled “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”). President Donald J. Trump directed that the Proclamation become effective at 12:01 a.m. eastern daylight time on November 3, 2019. On October 29, 2019, the U.S. Department of State issued a “Notice of Information Collection” for “Emergency Review” (the “Emergency Notice”), which was published in the Federal Register on October 30, 2019, and provided a comment period of less than 48 hours. The Emergency Notice states that “to implement [the Proclamation] when it goes into effect on November 3, 2019,” consular officers “will verbally ask immigrant visa applicants covered by [the Proclamation] whether they will be covered by health insurance in the United States within 30 days of entry to the United States and, if so, for details relating to such insurance.” If the applicant says yes, “consular officers will ask for applicants to identify the specific health insurance plan, the date coverage will begin, and such other information related to the insurance plan as the consular officer deems necessary.” The Emergency Notice further adds that visa applicants will not be suspended “if they do not have coverage but possess financial resources to pay for reasonably foreseeable medical expenses.” It defines “reasonably foreseeable medical expenses” as “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.”
On October 30, 2019, seven U.S. citizens and a nonprofit organization (collectively, “Plaintiffs”) filed a nationwide class action complaint against the President, the U.S. Department of Homeland Security, the U.S. Department of Health and Human Services, the U.S. Department of State, and related Cabinet Secretaries (collectively, “Defendants”), challenging both the
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Proclamation and the Emergency Notice. Plaintiffs contend that the Proclamation is contrary to law. Plaintiffs also argue that the Emergency Notice is “arbitrary and capricious” under the Administrative Procedure Act (“APA”) and also fails to follow the “notice and comment” procedures required by the APA. On November 1, 2019, Plaintiffs filed a Motion for Temporary Restraining Order (“TRO”), seeking to preserve the status quo and prevent Defendants from implementing or enforcing the Proclamation, at least until after the Court can hear and decide a motion for preliminary injunction. On Saturday, November 2, 2019, at 2:00 p.m. Pacific daylight time, the Court held a hearing pursuant to Rule 65(b) of the Federal Rules of Civil Procedure to consider Plaintiffs’ TRO motion. All parties appeared through counsel, although Defendants have not yet had an opportunity to submit their arguments in writing.
At this early stage of the proceedings, the Court is satisfied that Plaintiffs have shown either a substantial likelihood of success on the merits or at least serious questions going to the merits regarding their arguments that the Proclamation and its plan of implementation and enforcement conflict with the “public charge” provisions in Congress’ Immigration and Nationality Act (“INA”) and related federal health care statutes. Plaintiffs have also shown, at least at this stage of the litigation, serious questions going to the merits regarding whether the Emergency Notice was arbitrary and capricious and, thus, in violation of the APA. At this time, the Court declines to reach whether the Emergency Notice also violated the procedural “notice and comment” requirements of the APA. Further, Plaintiffs have shown, at least thus far, that they are likely to suffer irreparable harm in the absence of temporary relief, that the balance of hardships tips sharply toward Plaintiffs, and temporary relief is in the public interest. Accordingly, Plaintiffs’ motion for TRO is granted, for a period not to exceed 28 days, to allow the parties sufficient time to brief and argue whether the Court should issue a preliminary
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injunction suspending the implementation and enforcement of the Proclamation until the issues presented in this lawsuit have been resolved on the merits.
STANDARDS In deciding whether to grant a motion for TRO, courts look to substantially the same factors that apply to a court’s decision on whether to issue a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit’s earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction). The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s alternative “serious questions” test. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).
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DISCUSSION A. Overview of the Immigration and Nationality Act and National Healthcare Statutes
The INA has, through a series of congressional amendments since its enactment in 1952, created a system that allows the United States to grant up to 675,000 permanent immigrant visas each year, as well as an unlimited number of permanent immigrant visas for the admission of U.S. citizens’ spouses, parents, and children. Congress adopted this system to further four principal goals: reunifying families, admitting immigrants with skills that are useful to the United States economy, protecting refugees and others in need of humanitarian resettlement, and promoting diversity.
Consistent with these goals, Congress has set allocations for “family-based visas” (a minimum of 266,000), “employment-based visas” (a minimum of 144,000) and “diversitybased” visas (a maximum of 55,000). 8 U.S.C. § 1151. In addition to these allocations, Congress has set certain per-country limits on the numbers of visas that can be granted, so that no single nation can receive more than 7% of the total green cards issued in a year. 8 U.S.C. § 1152. In recognition of the singular importance of family reunification, however, Congress has prioritized visas for “immediate relatives,” which are defined as “the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.” 8 U.S.C. § 1151(b). There are no limits on the number of visas granted to such individuals, regardless of their country of national origin. Id. Under this system set out in the INA, family-based petitions account for approximately 65% of the immigrant visas granted every year. The diversity lottery visa system accounts for approximately 4.5%.
U.S.-based family members and employers may sponsor a noncitizen for an immigrant visa. Once a sponsorship petition is approved, the noncitizen may apply for an immigrant visa. If the applicant is outside the United States, she must apply to a U.S. consulate abroad and appear
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for a consular interview. For applicants inside the United States, some may be eligible to apply for immigrant visas domestically, without having to travel to a consulate, but others must leave the country to appear for a consular interview abroad. Individuals in this latter category include noncitizens who have accrued more than 180 days of unlawful presence in the United States but have obtained an I-601A waiver of inadmissibility to excuse the unlawful presence bar under 8 U.S.C. § 1182(a)(9)(B). See 8 C.F.R. § 212.7(e). Diversity visas are available through a lottery to individuals from countries with historically low rates of immigration to the United States; the lottery winners self-petition and apply to a consulate for their visa.
Before the issuance of an immigrant visa, the noncitizen must establish that she is eligible for admission to the country. Section 1182 of Title 8 is titled “Inadmissible Aliens” and sets forth ten classes of noncitizens “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a) (prescribing the inadmissibility of, among others, noncitizens with a communicable disease of public health significance, those convicted of two or more criminal offenses, and those who engaged in terrorist activities). In addition, several related and interacting healthcare statutes, including the Affordable Care Act (“ACA”), the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), and the Children’s Health Insurance Plan Reauthorization Act, reflect Congress’s intent to expand access to meaningful and affordable health insurance coverage for all U.S. residents, including legal immigrants, at a guaranteed minimum level of coverage. B. The Proclamation
Under the Proclamation, an intending immigrant who has satisfied all statutory requirements set out in the INA will nevertheless be permanently barred from entering the United States if that person cannot show, to the satisfaction of a consular officer, that he or she either “will be covered by approved health insurance” within 30 days of entering the United
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States, or “possesses the financial resources to pay for reasonably foreseeable medical costs.” With narrow exceptions, such as certain special Immigrant Visa applicants specifically from Iraq and Afghanistan, and unaccompanied biological and adopted children, the Proclamation will be applied to all intending immigrants. The Proclamation is set to go into effect at 12:01 am eastern daylight time on November 3, 2019. The Proclamation is expected to affect nearly two-thirds of all legal immigrants, with a disproportionate impact on immigrants from Latin America, Africa, and Asia.
The Proclamation provides eight specific types of “approved health insurance” for an intending immigrant: (1) an employer-sponsored plan; (2) an “unsubsidized health plan offered in the individual market within a State;” (3) a short-term limited duration insurance (“STLDI”) plan “effective for a minimum of 364 days;” (4) a catastrophic plan; (5) a family member’s plan; (6) TRICARE and similar plans made available to the U.S. military; (7) a visitor health insurance plan “that provides adequate coverage for medical care for a minimum of 364 days;” and (8) Medicare. A prospective immigrant may also obtain a “health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee,” but the Proclamation provides no guidance as to how “adequate coverage” is defined. Similarly, “catastrophic plan” is undefined, and the Proclamation is unclear whether this term refers generically to certain high-deductible plans or specifically to catastrophic plans defined by the ACA with certain coverage parameters and eligibility requirements. In addition, although the ACA provides various forms of financial assistance based on an enrollee’s income level, the ACA does not refer to any of these forms of financial assistance as a “subsidy,” and the Proclamation does not clarify what forms of assistance would render a plan “subsidized” and therefore not “approved.” The Proclamation excludes from the scope of “approved health
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insurance” any “subsidized” healthcare offered in the individual market within a State under the

ACA, as well as Medicaid for individuals over 18 years of age, even though some states have

chosen to make Medicaid available to certain adults over 18 years of age, including certain new

and recently arrived immigrants.

The Proclamation also contains exceptions for noncitizens “whose entry would further

important United States law enforcement objectives,” or “whose entry would be in the national

interest,” as “determined by the Secretary of State or his designee.” Proclamation § 2(b)(vii),

(viii). The Proclamation, however, provides no procedure for would-be immigrants either to

learn or to demonstrate how they would qualify for such exceptions. For the following reasons,

the Proclamation’s eight types of “approved health insurance” are legally or practically

unavailable to many immigrants, including most immigrants seeking family-based visas:

•

Medicare is effectively an impossible option: it is unavailable to

immigrants unless they are more than 65 years old and have been living

continuously in the United States for five years.

•

TRICARE plans and other similar plans are only available to

members of the United States military, their spouses, and children up to 26

years of age.

•

Family member plans are often only available, if at all, to spouses

and children under 27 years old. Any other relation, such as a parent and a

child over 27, is not normally considered a “dependent” eligible to be

included in a family health insurance plan.

•

Employer-sponsored plan: Approximately two thirds of immigrant

visa applicants are family-based visa applicants and therefore exceedingly

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unlikely to have an offer of employment before arriving in the United

States and acquiring work authorization. Even immigrants with employer-

sponsored visas may not be able to show, to a consular officer’s

satisfaction, that they will have employer-sponsored health insurance

within 30 days of their arrival. Employers are permitted under federal law

to impose a waiting period of up to 90 days before new employees can be

covered by employer-sponsored coverage. One survey showed that 71% of

employers impose a waiting period, with waiting periods on average

lasting 1.9 months.

•

Catastrophic and “unsubsidized” insurance bought on an ACA

marketplace are only available to individuals residing within the United

States. Catastrophic insurance, moreover, is only available to individuals

under 30 years old and those who qualify for a hardship or affordability

exception.

•

STLDI plans may not be available to individuals who are not a

United States citizen or resident. They are often unavailable to individuals

with pre-existing conditions. Half of the states do not offer STLDI plans

with coverage for 364 days, the minimum required by the Proclamation.

•

Visitor plans often do not cover individuals with pre-existing

conditions.

The only viable options for “approved health insurance” under the Proclamation appear

to be visitor insurance plans and possibly STLDI plans. Neither of these types of plans, however,

are offered or purchased on ACA Exchanges. The fact that they are not offered on ACA

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Exchanges means that they are less regulated and non-comprehensive. Unlike plans available on ACA Exchanges, visitor and STLDI plans are not required to provide “essential health benefits,” which include hospitalization, prescription drugs, emergency services, and maternity and newborn care. Moreover, they often leave individuals underinsured or effectively uninsured because they are non-comprehensive. Because visitor and STLDI plans, however, are the most realistically accessible “approved health insurance” plans available to comply with the Proclamation, the Proclamation effectively incentivizes, if not requires, prospective immigrants to purchase a non-comprehensive plan that will likely leave the immigrant underinsured. Indeed, although an immigrant who receives financial assistance under the ACA to purchase comprehensive health insurance would be better insured than an immigrant who purchases noncomprehensive visitor or STLDI insurance, the Proclamation bars the former and allows the latter.
If an intending immigrant cannot demonstrate that she will have “approved health insurance” within 30 days of her arrival, she must show that she has sufficient “financial resources to pay for reasonably foreseeable medical costs.” The Proclamation, however, does not define what “reasonably foreseeable medical costs” are, and it does not indicate how a consular officer with no medical training should evaluate what medical costs may be “reasonably foreseeable” for a specific prospective immigrant, or how the consular officer should assess whether that individual has sufficient “financial resources” to cover such costs. The Emergency Notice simply provides that a consular officer shall verbally ask questions and make the required assessment, and defines “reasonably foreseeable medical expenses” as “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.”
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C. Plaintiffs Plaintiff John Doe #1 is a United States citizen of Mexican origin who resides in
Beaverton, Oregon, with his wife, a Mexican citizen, and his fourteen-year-old United States citizen son. John Doe #1, who is not able to work due to a disability, sponsored an immigrant visa for his wife so that she can have legal status to live and work in the United States. Her immigrant visa consular interview is scheduled for November 6, 2019. Under the Proclamation and Defendants’ implementation of its requirements, John Doe #1 and his wife cannot afford or qualify for an “approved” health insurance option for her and he fears that they lack sufficient financial resources to pay foreseeable medical costs out of pocket. ECF 1, ¶ 14; ECF 28.
Plaintiff Juan Ramon Morales is a United States citizen originally from Puerto Rico who now resides in Liberty, New York with his wife, Vianca Morales, a Mexican citizen; their daughter; and Ramon’s step-daughter. Mr. Morales has sponsored his wife for an immigrant visa and she is waiting to schedule her consular interview, but he is not able to add his wife to his employer-sponsored health insurance or obtain another “approved” health insurance plan under the Proclamation due to cost. ECF 1, ¶ 15; ECF 26.
Jane Doe #2 is a United States citizen of Nicaraguan origin and a single mother of two children who resides in Rancho Cucamonga, California. She has an approved I-130 petition for her parents, who are living in Nicaragua and waiting to schedule their consular interview. She has been unable to find available and affordable health insurance for her parents that complies with the Proclamation, and it is unlikely that they will be able to show the ability to pay for reasonably foreseeable medical costs as required under the Proclamation and Defendants’ implementation of its provisions. ECF 1, ¶ 16; ECF 29.
Plaintiff Jane Doe #3 is a U.S. citizen who currently resides in Los Angeles, California. She is unable to work due to a disability and has insurance through Medi-Cal, California’s
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Medicaid program. Jane Doe #3 has an approved I-130 petition for her husband, a German citizen who currently resides in Berlin, Germany and is an architect who teaches architectural theory and design. Although he is gathering documents for consular processing, Jane Doe #3 does not believe that her husband will be able to prove at a consular interview that he would be covered by approved health insurance within 30 days of his entry into the United States because they do not believe that they have the financial resources to afford “approved” health insurance as defined in the Proclamation or to pay his foreseeable medical expenses out of pocket as required by the Proclamation and Defendants’ implementation of it. ECF 1, ¶ 17; ECF 30.
Plaintiff Iris Angelina Castro is a United States citizen who lives in Springfield, Massachusetts with her son, who is a U.S. citizen. She recently became unemployed and currently has state health insurance. She has an approved I-130 visa petition for her husband, Hermogenes Castro Molina, a Dominican citizen, so that they can reunite in the United States. He is currently in the process of filing all necessary documents so that they can schedule a consular interview, but they do not believe that he will be able to prove that he can obtain available and affordable “approved” health insurance within 30 days of entering the U.S. or pay for foreseeable medical costs as required under the Proclamation and Defendants’ implementation of its provisions. ECF 1, ¶ 18; ECF 24.
Plaintiff Blake Doe is a U.S. citizen living in Corvallis, Oregon, with his wife. He has approved I-130 immigrant petitions for his parents, both Mexican citizens, with whom he had lived his entire life in Oregon until going to college at Oregon State University to study civil engineering. Blake Doe’s parents are currently waiting to have their consular interview scheduled in Ciudad Juarez, Mexico. Blake Doe and his parents do not believe that they would be able to prove that his parents would be able to obtain available and affordable “approved”
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health insurance within 30 days of their entry into the U.S. or to pay foreseeable medical expenses out of pocket as required under the Proclamation and Defendants’ implementation of its provisions. ECF 1, ¶ 19; ECF 27.
Plaintiff Brenda Villarruel is a U.S. citizen who currently resides in Chicago, Illinois, with her United States citizen son and United States citizen parents. Ms. Villarruel works part time as a licensed medical assistant. She does not have medical insurance and receives health care, when necessary, through a clinic that charges based on income. Ms. Villarruel has sponsored an immigrant visa for her husband, a Mexican citizen who currently resides in Mexico City, Mexico, and is awaiting consular processing. Ms. Villarruel and her husband do not have the resources to obtain “approved” health insurance coverage for him or to pay his foreseeable medical expenses out of pocket as required under the Proclamation and Defendants’ implementation of its provisions. ECF 1, ¶ 20; ECF 25.
Plaintiff Latino Network is a non-profit organization based in Portland, Oregon. Latino Network’s organization mission is to educate and empower Multnomah County Latinos to achieve physical and mental health, safe housing, sustainable financial stability, and social support. Latino Network does so by offering a variety of programs and services, including early childhood services, community-based programs, school-based programs, arts and culture programs for youth, health and wellness programs, and civic leadership programs. The impending effective date of the Proclamation has forced Latino Network to divert resources from its core activities to address the Proclamation’s fallout within the community the organization serves. ECF 1, ¶ 21; ECF 23. D. Delay
Defendants argue that Plaintiffs unreasonably delayed in filing their motion for a TRO, creating their own “emergency” and making it impossible for Defendants to have a reasonable
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opportunity to respond. Defendants argue that Plaintiffs primarily challenge the Proclamation, which was issued on October 4, 2019. Defendants assert that because Plaintiffs did not file their Complaint until October 30, 2019, and their motion for a TRO until November 1, 2019, only two days before the Proclamation was to go into effect, the motion should not be granted and should instead be converted to a motion for preliminary injunction.
The Ninth Circuit has noted that “[d]elay by itself is not a determinative factor in whether the grant of interim relief is just and proper.” Aguayo ex rel. NLRB v. Tomco Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988). The Ninth Circuit also has noted that delay is most relevant when it “suggests that ‘the harm has occurred and the parties cannot be returned to the status quo.’” Miller ex rel. NLRB v. Cal. Pac. Med. Ctr., 991 F.2d 536, 544 (9th Cir. 1993), vacated on rehearing en banc on other grounds, 19 F.3d 449 (9th Cir. 1994) (quoting Tomco, 853 F.2d at 750). Additionally, the court has emphasized that a “long delay” before seeking injunctive relief “implies a lack of urgency and irreparable harm.” Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985).
The Court does not find that the delay in this case was unreasonable given the complexity of the factual and legal issues presented. The Complaint includes allegations on behalf of several Plaintiffs residing throughout the United States, and the Court accepts that it takes time to locate such persons willing to be plaintiffs in a federal lawsuit and obtain the facts needed to support their claims. The Court also does not find the 26-day was lengthy or created unfair prejudice to Defendants. Plaintiffs’ Complaint and motion were filed before the alleged harm had occurred, and Defendants had the opportunity to respond at oral argument. E. Satisfaction of TRO Standards
The Proclamation relies on a single dispositive factor—the health care insurance status of an individual—to determine whether the individual will “financially burden” the United States.
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If an individual lacks an “approved” health care insurance plan and cannot otherwise demonstrate that he or she currently has the financial resources to pay for medical care, while deliberately excluding from consideration insurance plans (such as ACA plans) that would otherwise be available to that person after he or she enters the country, that individual is deemed to be a financial burden and the applicant will not be admitted. The Proclamation’s reliance on the health care insurance status of an individual as the sole factor for determining inadmissibility as a public charge conflicts with 8 U.S.C. § 1182(a)(4) in at least five ways. First, Congress has spoken directly to the circumstances in which an individual may be deemed to become a “financial burden” to the United States and has rejected the Proclamation’s core premise. See 8 U.S.C. § 1182(a)(4)(A). This provision states 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)(B)(i). When determining whether an individual may become a public charge, the statute enumerates the factors that are to be considered “at a minimum” to include the applicant’s age; health; family status; assets, resources, and financial status; and education and skills. The statute outlines the permissible factors in the public charge determination and nowhere mentions an individual’s health care insurance status as one of the permissible factors. Given the statute’s enumeration of age and health, the statute’s omission of “health care insurance status” is important.
Second the statute precludes any single factor from being a dispositive factor. Indeed, the statute requires a totality of the circumstances test to be applied. “[A]t a minimum” an individual’s age, health, family status, assets, resources, financial status, education and skills must be must considered to determine whether an individual will “financially burden” the United
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States. The totality of the circumstances test has long been a feature of the public charge ground even before Congress statutorily mandated it in 1996. See, e.g., Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974). The Proclamation, however, conflicts with the statutory text by deeming an individual to be a financial burden based solely on her health care insurance status and eschewing all the other statutory factors including, perhaps most incongruously, the health of the individual herself.
Third, the Proclamation’s dispositive reliance on health care insurance status contravenes decades of agency interpretation. Fourth, the Proclamation’s reliance on an individual’s accessing short-term health care benefits as a reason to find the person a “financial burden” has been expressly rejected. City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 2019 WL 5100718, at *28 (N.D. Cal. Oct. 11, 2019) (the public charge statute has had a “longstanding allowance for short-term aid”). Fifth, the Proclamation revives a test for financial burden—the receipt of non-cash benefits—that Congress has rejected. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674-75 (1996), which amended the INA by codifying five factors relevant to a public charge determination. The Senate rejected the effort to include previously unconsidered, non-cash public benefits in the public charge test and to create a bright-line framework of considering whether the immigrant has received public benefits for an aggregate of twelve months as “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet.” S. Rep. No. 104-249, at *63-64 (1996) (Senator Leahy’s remarks). Accordingly, in its final bill, Congress did not include the receipt of Medicaid, Children’s Health Insurance Plan, supplemental food assistance, Supplemental
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Security Income, and other means-tested public benefits as determinative of a public charge. See 8 U.S.C. § 1182(a)(4)(A).
For these reasons, Plaintiffs have shown, at least at this stage of the litigation, a substantial likelihood of success, or at least serious questions going to the merits, on whether Defendants’ actions are ultra vires and also “not in accordance with law” under the APA. 5 U.S.C. § 706 (2)(A); see East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (2018) (concluding that an agency had unlawfully done what the “Executive cannot do directly; amend the INA”). Further, for similar reasons, Plaintiffs have satisfied their burden of showing Defendants’ implementation of the Proclamation likely constitutes final agency action that is “arbitrary, capricious, [or] an abuse of discretion.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (en banc) (quoting 5. U.S.C. 706(2)(A))).
In addition, Plaintiffs have shown a substantial likelihood that many, if not all, of the options the Proclamation provides as “approved health insurance” are legally or practically impossible for the individual Plaintiffs and the members and clients of Latino Network to acquire. Plaintiffs also have shown irreparable harm. Defendants argue that because any visa applicant who is denied a visa during the time period before any preliminary injunction might issue could file for reconsideration, Plaintiffs cannot suffer irreparable harm. Facing a likely risk of being separated from their family members and a delay in obtaining a visa to which family members would otherwise be entitled is irreparable harm. This is particularly true for Plaintiffs whose family members have already obtained an I-601A waiver, which means that they have already demonstrated an extreme hardship if the visa applicant were to be separated from family members.
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Also, when the federal government is a party, the balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Plaintiffs have sufficiently shown that temporary injunctive relief is in the public interest because of the widespread detrimental effects that the Proclamation will cause if it takes effect before the parties can be heard on whether the Court should issue a preliminary injunction pending a final resolution on the merits.
TEMPORARY RESTRAINING ORDER 1. Defendants are hereby temporarily restrained and enjoined from taking any action to implement or enforce Presidential Proclamation No. 9945 (“Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System”). 2. In the interest of justice, Plaintiffs need not provide any security and all requirements under Rule 65(c) of the Federal Rules of Civil Procedure are waived. 3. The Court will hold a hearing on Friday, November 22, 2019, at 1:00 p.m. in Courtroom 15B of the Mark O. Hatfield United States Courthouse in Portland, Oregon to determine whether a preliminary injunction should be issued. The Court will set a briefing schedule by separate order. 4. This Order shall expire twenty-eight (28) days after entry, unless otherwise extended by stipulation of the parties or by further order of the Court. IT IS SO ORDERED. DATED this 2nd day of November, 2019, at 4:15 p.m.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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 Case 3:19-cv-01743-SI Document 100 Filed 11/27/19 Page 1 of 100

Stephen Manning (SBN 013373) stephen@innovationlawlab.org Nadia Dahab (SBN 125630) nadia@innovationlawlab.org Tess Hellgren (SBN 191622) tess@innovationlawlab.org INNOVATION LAW LAB 333 SW Fifth Avenue #200 Portland, OR 97204 Telephone: +1 503 241-0035 Facsimile: +1 503 241-7733

Karen C. Tumlin (admitted pro hac vice) karen.tumlin@justiceactioncenter.org Esther H. Sung (admitted pro hac vice) esther.sung@justiceactioncenter.org JUSTICE ACTION CENTER P.O. Box 27280 Los Angeles, CA 90027 Telephone: +1 323 316-0944

Attorneys for Plaintiffs (Additional counsel listed on signature page.)

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JOHN DOE #1; JUAN RAMON MORALES; JANE DOE #2; JANE DOE #3; IRIS ANGELINA CASTRO; BLAKE DOE; BRENDA VILLARRUEL; GABINO SORIANO CASTELLANOS; and LATINO NETWORK,

Case No.: 3:19-cv-01743-SI

Plaintiffs, v.

DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KEVIN MCALEENAN, in his official capacity as Acting Secretary of the Department of Homeland Security; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; ALEX M. AZAR II, in his official capacity as Secretary of the Department of Health and Human Services; U.S. DEPARTMENT OF STATE; MICHAEL POMPEO, in his official capacity as Secretary of State; and UNITED STATES OF AMERICA,

FIRST AMENDED CLASS ACTION COMPLAINT

Defendants.

Case 3:19-cv-01743-SI Document 100 Filed 11/27/19 Page 2 of 100

TABLE OF CONTENTS INTRODUCTION ............................................................................................................................. 1
JURISDICTION AND VENUE ......................................................................................................... 6 PARTIES.......................................................................................................................................... 6
PLAINTIFFS ................................................................................................................................ 6 DEFENDANTS ............................................................................................................................. 9
FACTUAL ALLEGATIONS ........................................................................................................... 10 A. The Proclamation ................................................................................................................. 10
B. Agency Implementation of the Proclamation .......................................................................... 14 C. The Proclamation is Vague, Internally Contradictory, and Inconsistent with Existing Law in Ways State Department Action has Not Addressed ...................... 18
1. The Proclamation Uses Unclear, Undefined Terms and Standards ........................................ 18 2. Very Few, if Any of the Proclamation’s “Approved Health Plans” Are Available to Visa Applicants .............................................................................................. 21 3. The Proclamation Is Internally Inconsistent with Its Stated Goals......................................... 27 THE PROCLAMATION IMPERMISSIBLY RESHAPES THE NATION’S CONGRESSIONALLYENACTED HEALTH BENEFIT SYSTEM FOR IMMIGRANTS BY PRESIDENTIAL FIAT.............................................................................................................. 30
A. The Immigration and Nationality Act (“INA”)........................................................................ 30 B. The Personal Responsibility Work Opportunity Reconciliation Act of 1996 ............................. 37
C. The Children’s Health Insurance Plan (“CHIP”) and CHIP Reauthorization Act ....................... 38 D. The Affordable Care Act....................................................................................................... 40
REGULATORY BACKGROUND ................................................................................................... 43 THE PROCLAMATION, LIKE THE RECENT PUBLIC CHARGE RULE, ATTEMPTS TO RADICALLY REWRITE CONGRESS’ CHOICES ON WHICH IMMIGRANTS MAY ENTER THE COUNTRY, BASED ON WEALTH CONSIDERATIONS........................................................ 44 THE PROCLAMATION AND ITS IMPLEMENTATION ARE UNLAWFUL................................... 55
A. The Proclamation Does Not Pass Muster Under Section 212(f) or Rational Basis Review ................................................................................................................. 55

FIRST AMENDED CLASS ACTION COMPLAINT

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B. The Proclamation Does Not Pass Muster Under Equal Protection ............................................ 65
THE PROCLAMATION AND ITS IMPLEMENTATION HARM PLAINTIFFS ............................... 75
CLASS ALLEGATIONS................................................................................................................. 86
CAUSES OF ACTION .................................................................................................................... 90
FIRST CLAIM FOR RELIEF (Violation of the Administrative Procedure Act) (On behalf of All Plaintiffs, including the Class) ............................................................................ 90
SECOND CLAIM FOR RELIEF (Equal Protection) (On behalf of Resident Plaintiffs/U.S. Petitioners Subclass) ............................................................ 93 THIRD CLAIM FOR RELIEF (Ultra Vires) (On behalf of All Plaintiffs, including the Class) ............................................................................ 94 FOURTH CLAIM FOR RELIEF (Procedural Due Process) (On behalf of Resident Plaintiffs/U.S. Petitioners Subclass) ............................................................ 95
PRAYER FOR RELIEF................................................................................................................... 96

FIRST AMENDED CLASS ACTION COMPLAINT

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INTRODUCTION 1. Late on Friday night, October 4, 2019, President Trump issued a presidential proclamation that, effective November 3, 2019, will block nearly two thirds of all prospective legal immigrants, mostly from predominantly nonwhite countries, from receiving visas and coming to the United States. 2. The “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”) bars qualified immigrant visa applicants from receiving visas and entering the United States unless they can establish, “to the satisfaction of a consular officer,” that they either “will be covered by approved health insurance” within 30 days after entry or are wealthy enough—and/or healthy enough—“to pay for reasonably foreseeable medical costs.” 3. The Proclamation seeks to unilaterally rewrite this country’s immigration laws, imposing a new ground of inadmissibility that Congress has expressly rejected, and creating requirements that will be extremely difficult, or impossible, for most otherwise qualified immigrant visa applicants to satisfy. In doing so, the Proclamation contravenes well-established and duly enacted immigration and healthcare laws, exceeds the scope of the President’s statutory authority, and violates Constitutional separation of powers and equal protection principles. 4. In implementing the Proclamation, the U.S. Department of State has publicly announced on its website that, beginning November 3, 2019, all applicants for immigrant visas who are subject to the Proclamation “must demonstrate to the consular officer at the time of interview” that they will be covered by “approved” health insurance under the Proclamation within 30 days of entry or have the financial resources to pay for reasonably foreseeable medical costs”— and that “[i]nability to meet this requirement will result in the denial of the visa application.”

FIRST AMENDED CLASS ACTION COMPLAINT

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5. In addition to imposing new requirements for immigrant visa applicants that are unmoored from the existing statutory and regulatory framework, the Proclamation and agency implementation actions provide staggeringly few options to satisfy this barrier. While the Proclamation lists a number of health insurance options that would-be immigrants ostensibly could obtain in order to satisfy the new requirement, it in fact provides few or even no options that are available to these individuals in reality. First, most of the “approved health insurance” plans that are listed as satisfying the Proclamation’s requirement are not actually legally or practically available to the vast majority of prospective immigrants—like Medicare, which requires a recipient to have lived in the United States for five years, or any plan available under the Affordable Care Act, with or without financial assistance, because such plans are only available to individuals living in the United States. Second, under the Proclamation, any kind of coverage involving common federal- or state-provided health insurance benefits, such as premium tax credits under the Affordable Care Act (“ACA”) for plans sold on the individual market or Medicaid coverage for any individual over age 18, does not allow prospective immigrants to surmount this new barrier to entry. By imposing these restrictions on “approved” types of health insurance, the Proclamation excludes benefits and assistance that Congress has specifically and explicitly made available by statute to certain immigrants in the United States. Third, a number of the “approved” health insurance options are not available in all states, or, in many cases, allow denials and exclusions based on pre-existing conditions, such that many would-be immigrants would not qualify for or have access to such plans. Fourth, the coverage provided under certain “approved” options is limited and does not provide for “minimum essential coverage” as defined under the ACA.
6. The Proclamation is therefore poised to create a new class of otherwise qualified immigrants who are barred from entry on the sole ground of the health insurance requirement, as

FIRST AMENDED CLASS ACTION COMPLAINT

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well as a new class of underinsured individuals with non-comprehensive coverage in the United States. These effects frustrate both existing immigration laws and established healthcare laws, and create further concerns for public health and the healthcare system. Under its terms and agency implementation actions, the Proclamation would ban an immigrant who would receive financial assistance under the ACA to purchase comprehensive individual health insurance coverage, but would allow an immigrant who purchased an “approved,” non-comprehensive visitor or short-term limited duration insurance plan, even though the former would be better insured and far less likely to incur uncompensated care costs than the latter. In effect, the Proclamation and its implementation incentivize, if not require, would-be immigrants to purchase non-comprehensive plans to satisfy the Proclamation’s health insurance requirement because those plans are in many cases the most realistically accessible to immigrants. In doing so, the Proclamation and its implementation undermine not only Congress’s intent, as expressed through the ACA, to provide a certain minimum level of coverage to all legal immigrants and citizens in the United States, but also the Proclamation’s own stated goal of addressing the burdens of uncompensated care provided to uninsured individuals.
7. The Proclamation and its implementation are similar (yet even more egregious) in effect to the Administration’s recently promulgated—and currently enjoined by several courts— “Public Charge” Rule, which attempts to redefine what it means for an immigrant to be a “public charge” and therefore inadmissible to the United States. Both the Proclamation requirements and the Public Charge Rule provisions are tools that the Trump Administration is seeking to use in order to exclude prospective immigrants who have satisfied all statutory requirements under the Immigration and Nationality Act (“INA”) to enter the United States; both favor so-called “unsubsidized” ACA health insurance over subsidized; both consider the use of Medicaid to be a

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negative or disqualifying factor for individuals age 18 and over; and both involve some analysis on the part of a consular officer as to whether an intending immigrant has sufficient financial resources to cover “reasonably foreseeable medical costs.” The Public Charge rule, while still problematic and under challenge on various grounds (as reflected in the pending lawsuits challenging the rule and the preliminary injunction orders recently issued by several courts), was at least promulgated through a notice and comment rulemaking process, as required by the Administrative Procedure Act. The Proclamation did not go through any such a process and seeks to impose the same, or even a heightened, draconian effect on the immigration system through presidential fiat and corresponding agency action to carry out the new requirement.
8. Indeed, the Proclamation is unprecedented in its scope and impact, the largest ever suspension on the entry of immigrants of its kind. It will affect mostly immigrants from Latin America, Africa, and Asia, by drastically reducing, if not eliminating, the numbers of immigrants who enter the United States with family-sponsored visas, humanitarian visas, or diversity visas. With no termination point or procedure by which a prospective immigrant may seek a waiver of the Proclamation’s suspension on entry, the Proclamation will separate families—especially nonwhite families—indefinitely, in contravention of one of the bedrock principles of this country’s immigration system.
9. Such anticipated effects of the Proclamation are striking, but perhaps hardly surprising. Like the Public Charge Rule (and the failed RAISE Act of 2017), the Proclamation reflects the President’s often expressed belief that, unlike immigrants who would enter via a “merit-based” system, immigrants who currently enter the country through family-based and diversity visas do not contribute to the United States but instead present a threat to the country’s economy and security. “Why are we having all these people from shithole countries come here?”

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he reportedly asked during a 2018 Oval Office discussion of protections for immigrants from Haiti, El Salvador, and certain African countries. “Why do we need more Haitians?” he asked. During that same discussion, he suggested that the United States should instead bring more people from countries like Norway—which is regularly ranked as one of the wealthiest countries in the world.
10. The Proclamation is but the latest effort of the Trump Administration to unilaterally rewrite Congressionally enacted laws governing who may come to this country as an immigrant. It is also the one of the most drastic. Based on the latest data, up to an estimated 375,000 immigrants are at risk each year of being banned due to a lack of “approved” health insurance coverage, or close to two-thirds of all qualified immigrant visa applicants, many of whom are people of color. This is repugnant not only to our values, but also our nation’s laws and Constitution.
11. Plaintiffs challenge the Proclamation and Defendants’ implementation of its requirements under this Court’s inherent authority to review executive actions that exceed statutory grants of authority, the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)–(D), and the equal protection guarantee of the Due Process Clause of the Fifth Amendment. Plaintiffs respectfully request that the Court issue appropriate declaratory relief and preliminarily and permanently enjoin the Proclamation as a whole.

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JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343 over Plaintiffs’ claims under the U.S. Constitution and federal statutes. The Court has additional remedial authority under 28 U.S.C. §§ 2201–02. 13. Venue is proper under 28 U.S.C. § 1391 and Local Rule 3.2. Defendants are officers or employees of the United States acting in their official capacities, and agencies of the United States. Plaintiff John Doe #1 resides in the Portland Division of this District and Plaintiff Latino Network is a non-profit organization based in Portland. Moreover, on information and belief, the proposed class includes numerous members residing in this District who will be affected by the actions of Defendants. No real property is involved in this action.
PARTIES PLAINTIFFS 14. Plaintiff John Doe #1 is a United States citizen of Mexican origin who resides in Beaverton, Oregon, with his wife, a Mexican citizen, and his fourteen-year-old United States citizen son. John Doe #1, who is not able to work due to a disability, sponsored an immigrant visa for his wife so that she can have legal status to live and work in the United States. Her immigrant visa consular interview is scheduled for November 6, 2019. Under the Proclamation and Defendants’ implementation of its requirements, John Doe #1 and his wife cannot afford or qualify for an “approved” health insurance option for her and fears that they lack sufficient financial resources to pay foreseeable medical costs out of pocket. 15. Plaintiff Juan Ramon Morales is a United States citizen originally from Puerto Rico who now resides in Liberty, New York with his wife, Vianca Morales, a Mexican citizen; their daughter; and Ramon’s step-daughter. Mr. Morales has sponsored his wife for an immigrant visa

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and she is waiting to schedule her consular interview, but he is not able to add his wife to his employer-sponsored health insurance or obtain another “approved” health insurance plan under the Proclamation due to cost.
16. Jane Doe #2 is a United States citizen of Nicaraguan origin and a single mother of two children who resides in Rancho Cucamonga, California. She has an approved I-130 petition for her parents, who are living in Nicaragua and waiting to schedule their consular interview. She has been unable to find available and affordable health insurance for her parents that complies with the Proclamation, and it is unlikely that they will be able to show the ability to pay for reasonably foreseeable medical costs as required under the Proclamation and Defendants’ implementation of its provisions.
17. Plaintiff Jane Doe #3 is a U.S. citizen who currently resides in Los Angeles, California. She is unable to work due to a disability and has insurance through Medi-Cal, California’s Medicaid program. Jane Doe #3 has an approved I-130 petition for her husband, a German citizen who currently resides in Berlin, Germany and is an architect who teaches architectural theory and design. Although he is gathering documents for consular processing, Jane Doe #3 does not believe that her husband will be able to prove at a consular interview that he would be covered by approved health insurance within 30 days of his entry into the United States because they do not believe that they have the financial resources to afford “approved” health insurance as defined in the Proclamation or to pay his foreseeable medical expenses out of pocket as required by the Proclamation and Defendants’ implementation of it.
18. Plaintiff Iris Angelina Castro is a United States citizen who lives in Springfield, Massachusetts with her son, who is a U.S. citizen. She recently became unemployed and currently has state health insurance. She has an approved I-130 visa petition for her husband, Hermogenes

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Castro Molina, a Dominican citizen, so that they can reunite in the United States. He is currently in the process of filing all necessary documents so that they can schedule a consular interview, but they do not believe that he will be able to prove that he can obtain available and affordable “approved” health insurance within 30 days of entering the U.S. or pay for foreseeable medical costs as required under the Proclamation and Defendants’ implementation of its provisions.
19. Plaintiff Blake Doe is a U.S. citizen living in Corvallis, Oregon, with his wife. He has approved I-130 immigrant petitions for his parents, both Mexican citizens, with whom he had lived his entire life in Oregon until going to college at Oregon State University to study civil engineering. Blake Doe’s parents are currently waiting to have their consular interview scheduled in Ciudad Juarez, Mexico. Blake Doe and his parents do not believe that they would be able to prove that his parents would be able to obtain available and affordable “approved” health insurance within 30 days of their entry into the U.S. or to pay foreseeable medical expenses out of pocket as required under the Proclamation and Defendants’ implementation of its provisions.
20. Plaintiff Brenda Villarruel is a U.S. citizen who currently resides in Chicago, Illinois, with her United States citizen son and United States citizen parents. Ms. Villarruel works part time as a licensed medical assistant. She does not have medical insurance and receives health care, when necessary, through a clinic that charges based on income. Ms. Villarruel has sponsored an immigrant visa for her husband, a Mexican citizen who currently resides in Mexico City, Mexico, and is awaiting consular processing. Ms. Villarruel and her husband do not have the resources to obtain available and affordable “approved” health insurance coverage for him or to pay his foreseeable medical expenses out of pocket as required under the Proclamation and Defendants’ implementation of its provisions.

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21. Plaintiff Gabino Soriano Castellanos is a citizen of Mexico married to Plaintiff Brenda Villarruel, a U.S. citizen. Mr. Castellanos is currently awaiting his immigrant visa interview after Ms. Villarruel sponsored his application. Mr. Castellenos has followed the necessary procedures for obtaining the visa, including filing an I-601, which was approved. However, after the announcement of the Proclamation, Mr. Castellanos postponed his interview because he and Ms. Villarruel do not qualify for or cannot afford each of the approved health plans under the Proclamation. Mr. Castellenos will not be able to join his wife and stepson in the U.S. due to the Proclamation’s restrictions on health insurance options.
22. Plaintiff Latino Network is a non-profit organization based in Portland, Oregon. Latino Network’s organization mission is to educate and empower Multnomah County Latinos to achieve physical and mental health, safe housing, sustainable financial stability, and social support. Latino Network does so by offering a variety of programs and services, including early childhood services, community-based programs, school-based programs, arts and culture programs for youth, health and wellness programs, and civic leadership programs. The impending effective date of the Proclamation has forced Latino Network to divert resources from its core activities to address the Proclamation’s fallout within the community the organization serves.
DEFENDANTS 23. Defendant Donald Trump is the President of the United States. He is sued in his official capacity. In that capacity, he issued the Proclamation. 24. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level department of the United States federal government. The Proclamation assigns DOS a variety of responsibilities regarding its implementation and enforcement.

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25. Defendant Kevin McAleenan is the Acting Secretary of Homeland Security and has responsibility for overseeing enforcement and implementation of the Proclamation by all Department of Homeland Security staff. He is sued in his official capacity.
26. Defendant U.S. Department of Health and Human Services (“DHHS”) is a cabinetlevel department of the United States federal government. The Proclamation assigns DHHS a variety of responsibilities regarding its implementation and enforcement.
27. Defendant Alex M. Azar II is the Secretary of Health and Human Services and has responsibility for overseeing enforcement and implementation of the Proclamation by all Department of Health and Human Services staff. He is sued in his official capacity.
28. Defendant U.S. Department of State (“DOS”) is a cabinet-level department of the United States federal government. DOS is responsible for the issuance of immigrant visas abroad. The Proclamation assigns DOS a variety of responsibilities regarding its implementation and enforcement.
29. Michael Pompeo is the Secretary of State and has responsibility for overseeing enforcement and implementation of the Proclamation by all Department of State staff. He is charged by statute with the administration and enforcement of the Immigration and Naturalization laws, including those related to the powers, duties, and functions of consular officers not reserved to the officers themselves. 8 U.S.C. § 1104. He is sued in his official capacity.
FACTUAL ALLEGATIONS A. The Proclamation
30. Late on Friday night, October 4, 2019, President Trump signed the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”). A copy of the Proclamation can be viewed at

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https://www.whitehouse.gov/presidential-actions/presidential-proclamation-suspension-entryimmigrants-will-financially-burden-united-states-healthcare-system/ and is attached as Exhibit 1.
31. Beginning at 12:01 a.m. eastern daylight time on November 3, 2019, the Proclamation will ban would-be immigrants from receiving visas and entering the United States unless they can demonstrate, “to the satisfaction of a consular officer,” that they will be able to obtain “approved” health insurance coverage within 30 days after arriving in the United States, or are wealthy enough to “pay for reasonably foreseeable medical costs.”
32. The Proclamation, by its own terms, was not issued for national security reasons. Ostensibly, the Proclamation is meant to “address[] the challenges facing our healthcare system, including protecting both it and the American taxpayer from the burdens of uncompensated care” given to “people who lack health insurance or the ability to pay for their healthcare.” The Proclamation notes that hospitals and other health care providers “often administer care to the uninsured without any hope of receiving reimbursement from them.” Such uncompensated costs “are passed on to the American people in the form of higher taxes, higher premiums, and higher fees for medical services.” The Proclamation further states that uninsured individuals “strain Federal and State government budgets through their reliance on publicly funded programs, which ultimately are financed by taxpayers,” and rely on emergency care for non-emergency conditions, “causing overcrowding and delays for those who truly need emergency services.”
33. Given these challenges, the Proclamation asserts that “the United States Government is making the problem worse by admitting thousands of aliens who have not demonstrated any ability to pay for their healthcare costs,” and claims that “data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance.” Accordingly, the Proclamation declares that “[c]ontinuing to allow entry into the United States of

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certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental to these interests.” If a prospective immigrant will not “be covered by approved health insurance” “within 30 days of the alien’s entry into the United States,” or if the immigrant does not have “the financial resources to pay for reasonably foreseeable medical costs,” the immigrant is deemed to be someone who will “financially burden the United States healthcare system” and whose entry into the United States is therefore “suspended.”
34. Simply put, under the Proclamation, a lack of “approved” insurance, or the inability to prove that an intending immigrant can pay for “reasonably foreseeable” medical care, absolutely bars the entry of that individual to the United States who meets all qualifications mandated by Congress in the Immigration and Nationality Act.
35. The Proclamation sets out a narrow range of health insurance plans that qualify as “approved health insurance.” No “subsidized” health plan offered in the individual market within a State under the ACA qualifies. Proclamation § 1(b)(ii). Nor does Medicaid qualify as “approved health insurance” for any individual over 18, Proclamation § 1(c), even though some states have chosen to make Medicaid available to certain adults over 18, including certain new and recently arrived immigrants. “Approved health insurance” under the Proclamation includes only:
• employer-sponsored plans (Proclamation § 1(b)(i)); • catastrophic plans (Proclamation § 1(b)(iv)); • certain health plans available to the U.S. military (Proclamation § 1(b)(vi)); • the health plans of family members (Proclamation § 1(b)(v)); • Medicare (Proclamation § 1(b)(viii)); • short-term, limited duration health policies effective for at least 364 days (Proclamation §
1(b)(iii)); and

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• visitor health insurance plans that provide “adequate coverage for medical care,” also for at least 364 days (Proclamation § 1(b)(vii)).
As explained below, the Proclamation’s “approved” health insurance plans are not practically or legally available to most or all prospective immigrants residing outside the country or within their first 30 days of arrival.
36. A prospective immigrant may also obtain a “health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee,” but the Proclamation provides no guidance as to how “adequate coverage” is defined. (Proclamation § 1(b)(ix)).
37. Subject to limited exceptions, the Proclamation applies to nearly all individuals seeking to enter the United States with an immigrant visa. Indeed, based on insurance coverage alone, most adults who were granted green cards over the last three years would have been banned had the Proclamation been in effect.1 The only exceptions from the Proclamation’s suspension of entry cover very small populations, including:
• certain Special Immigrant Visa applicants specifically from Iraq and Afghanistan (Proclamation § 2(b)(ii));
• green card holders returning to the U.S. on a “Returning Resident” visa after remaining abroad for more than one year (Proclamation § 2(b)(v));
• biological and adopted children under 21, but only if those children are not accompanying a parent who is also immigrating to the United States and is subject to the Proclamation (Proclamation § 2(b)(iii), (vi)); and
1 Nicole Narea, Trump just quietly cut legal immigration by up to 65%, VOX, https://www.vox.com/2019/10/9/20903541/trump-proclamation-legal-immigration-healthinsurance (last visited Oct. 27, 2019).

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• parents of U.S. citizen children over the age of 21 arriving with an IR-5 visa, but only if the parent or the U.S. citizen-child sponsor “demonstrates to the satisfaction of the consular officer that the [parent’s] healthcare will not impose a substantial burden on the United States healthcare system” (Proclamation § 2(b)(iv)).
With respect to this last exception, the Proclamation provides no guidance as to how the parent or U.S. citizen-child sponsor must demonstrate, nor how a consular officer should evaluate, whether the parent’s health care will impose a “substantial burden on the United States healthcare system.”
38. Notably, certain types of plans that qualify as “approved” coverage under the Proclamation provide only very limited benefits and/or allow exclusions based on preexisting conditions, such that they may be either unavailable to many individuals or may result in “underinsurance”—which has itself been shown to impose a “substantial burden on the United States healthcare system.” Yet, the Proclamation would encourage underinsurance among newly arrived immigrants.
39. The Proclamation also contains exceptions for noncitizens “whose entry would further important United States law enforcement objectives,” or “whose entry would be in the national interest,” as “determined by the Secretary of State or his designee.” Proclamation § 2(b)(vii), (viii). Again, however, the Proclamation provides no procedure for would-be immigrants either to learn or to demonstrate how they would qualify for such exceptions. B. Agency Implementation of the Proclamation
40. In implementing the Proclamation, the Department of State created a page on its website that informs and instructs visa applicants and consular officers of their new obligations under the Proclamation (“Posting”), available at https://travel.state.gov/content/travel/en/usvisas/immigrate/Presidential-Proclamation-on-Health-Care.html (Exhibit 2).

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41. The Posting states definitively that “if you are applying for an immigrant visa” on or after November 3, 2019 “you must demonstrate at the time of the interview” that you meet the Proclamation’s requirements. It also specifies that an “inability” to meet the Proclamation’s requirements at the time of the interview “will result in the denial of the visa application.” The Posting then lists the same exceptions that appear in the Proclamation and the same list of approved health insurances. Under the heading “Requirement at visa interview,” the Posting specifies that “[d]uring the visa interview,” applicants will need to demonstrate that they satisfy the requirements of the Proclamation. It informs that applicants that consular officers “will review the medical and financial documentation that is already part of the applicant’s case file and may request additional information or documentation as needed.” The Posting also includes a link to the Proclamation itself.
42. By its terms, the Posting unequivocally makes clear not only that visa applicants have the obligation to satisfy the Proclamation’s requirements or be denied a visa, but also that consular officers will enforce the Proclamation, which has significant legal and practical consequences for visa applicants and their families. It did so without satisfying any of the requirements for agency action under the Administrative Procedure Act (“APA”) or demonstrating good cause for diverging from standard agency practice.
43. Eleventh-hour action by the State Department purports to offer the opportunity for notice and comment for “information collection” related to the Proclamation, but this only highlights the agency’s failure to act according to the requirements of the APA. Just yesterday, on October 29, 2019, the Department of State issued a “Notice of Information Collection” for

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“Emergency Review”2 (the “Emergency Notice”), which was published in the Federal Register today (October 30, 2019) and purports to announce a “methodology” established by the Secretary of State, as authorized by Section 3 of the Proclamation, “to establish standards and procedures for governing such determinations.” 84 Fed. Reg. 58199 (Oct. 30, 2019); see also Advance Print Emergency Notice (issued Oct. 29, 2019), available at https://s3.amazonnews.com/publicinspection.federalregister.gov/2019-23639. The Emergency Notice states that “to implement [the Proclamation] when it goes into effect on November 3, 2019,” consular officers “will verbally ask immigrant visa applicants covered by [the Proclamation] whether they will be covered by health insurance in the United States within 30 days of entry to the United States and, if so, for details relating to such insurance.” If the applicant says yes, “consular officers will ask for applicants to identify the specific health insurance plan, the date coverage will begin, and such other information related to the insurance plan as the consular officer deems necessary.” The Emergency Notice further adds that visa applicants will not be suspended “if they do not have coverage, but possess financial resources to pay for reasonably foreseeable medical expenses.” It defines “reasonably foreseeable medical expenses” as “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.”
44. The Emergency Notice provides a comment period of less than 48 hours, an unusually short period of time, stating that “[a]ll public comments must be received by October 31, 2019.” It notes that the Proclamation “was signed on October 4, 2019, and emergency review of this information collection is necessary for the Department to prepare consular officers to

2 60-Day Notice of Proposed Information Collection: Public Charge Questionnaire, FED. REGISTER, https://www.federalregister.gov/documents/2019/10/24/2019-23219/60-day-noticeof-proposed-information-collection-public-charge-questionnaire (last visited on Oct. 27, 2019). https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-23639.pdf

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implement [the Proclamation] when it goes into effect on November 3, 2019.”3 The Emergency Notice was not, however, implemented in direct response to any particular event impacting foreign relations.
45. Taken together, the Emergency Notice and the Posting make clear that, effective November 3, consular officers are empowered to determine whether prospective immigrants meet the Proclamation’s requirements, resulting in a direct impact on the rights of immigrants and their families. These are definitive actions that reflect the consummation of the agency’s decisionmaking process and that affect the substantive rights and obligations of regulated individuals.
46. The Posting and the last-minute Emergency Notice confirm press reports that government officials were scrambling earlier this month to implement and enforce the Proclamation by its effective date. On information and best belief, these efforts necessarily include DOS officials as well as DHHS and DHS officials. For example, as indicated above, the DHHS Secretary “or his designee” has authority under the Proclamation to determine whether a “health plan . . . provides adequate coverage for medical care” (though provides no guidance as to how “adequate coverage” is defined for such purpose). Proclamation § 1(b)(ix). According to one media report published a week after the Proclamation was signed, government health officials “are

3 The late posting of the Emergency Notice and extremely short notice-and-comment period stand in stark contrast to a “60-Day Notice of Proposed Information Collection” in the Federal Register six days prior on October 24, 2019 (the “Notice”). That Notice proposed and solicited public comments on a new written form, DS-5540, that would ostensibly collect information intended to assist consular officers “in assessing whether an applicant is likely to become a public charge,” but stated that a consular officer could ask a visa applicant to fill out certain questions on the same form to assess whether the applicant meets the Proclamation’s requirements. See 60-Day Notice of Proposed Information Collection: Public Charge Questionnaire, FED. REGISTER, https://www.federalregister.gov/documents/2019/10/24/201923219/60-day-notice-of-proposed-information-collection-public-charge-questionnaire (last visited on Oct. 27, 2019).https://s3.amazonaws.com/public-inspection.federalregister.gov/201923219.pdf

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wrestling with highly technical questions” as they attempt to implement the Proclamation, despite “concerns” that its mandate “may be unworkable and even illegal.”4 Indeed, officials “are confused about numerous aspects of the proclamation, such as whether implementing the new health insurance requirements would fall to [the Center for Consumer Information and Insurance Oversight, within the Department of Health and Human Services] or the State Department.”5 None of these deliberations or concerns, which have a direct impact on the legal rights of visa applicants, have been presented to the public as part of any administrative process.
47. It is no surprise that officials were at least initially confused about how to implement the Proclamation, given that the Proclamation is inconsistent with existing immigration and healthcare laws, contrary to core constitutional principles, and, moreover, is riddled with undefined terms and imprecise standards and appears to ignore many of the practical realities of both this country’s immigration and health care systems. C. The Proclamation is Vague, Internally Contradictory, and Inconsistent with
Existing Law in Ways State Department Action has Not Addressed 1. The Proclamation Uses Unclear, Undefined Terms and Standards 48. The Proclamation’s list of “approved health insurance” plans includes several options that are unclear and undefined. “Catastrophic health insurance,” for example, is one “approved” option, but the term can be used generically, to refer to certain high-deductible plans, or specifically, as defined by the ACA with certain coverage parameters and eligibility

4 Dan Diamond, Health officials: Trump immigration order could be illegal, POLITICO, https://www.politico.com/news/2019/10/11/trump-immigrants-health-insurance-illegal-044716 (last visited on Oct. 27, 2019).
5 Id.

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requirements. The Proclamation does not specify what it means when it allows “catastrophic health insurance” as “approved health insurance.”
49. Likewise, a variety of forms of financial assistance under the ACA are broadly available to individuals seeking health insurance on the ACA Exchanges—indeed, an Exchange enrollee may qualify for some level of assistance if she has a household income from 100 to 400 percent of the federal poverty level (“FPL”),6 and lawfully present immigrants qualify for assistance even if their household income is below 100% FPL if they are not otherwise eligible for Medicaid. Such financial assistance can take the form of “premium tax credits” offered to eligible enrollees, as well as certain cost-sharing reductions tied to specific “silver” plans, for which eligibility is based on income. The ACA, however, does not define either of these forms of financial assistance as a “subsidy.” The Proclamation is silent as to which forms of assistance would render a plan “subsidized,” and therefore not “approved,” health insurance.
50. In addition, the Proclamation states that “an alien will financially burden the United States healthcare system . . . unless the alien possesses the financial resources to pay for reasonably foreseeable medical costs”—but provides no guidance on what might constitute a “reasonably foreseeable medical cost.” Nor does the Proclamation indicate how a consular officer with no medical training should evaluate what medical costs may be “reasonably foreseeable” for a specific prospective immigrant, or how the consular offer should assess whether that individual has sufficient “financial resources” to cover such costs. The State Department’s Emergency Notice, published today in the Federal Register, defines “reasonably foreseeable medical expenses” as

6 In 2019, the income level necessary for a family of four to qualify for financial assistance ranged from $25,100 at 100% FPL to $100,400 at 400% FPL.

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“those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication” but, again, does not clarify how consular officers are to make that assessment.
51. Likewise, the Proclamation states that a visitor health insurance plan may qualify as an “approved” health plan if it provides “adequate coverage for medical care”—but provides no standards or definitions that would enable either a would-be immigrant or a non-medically trained consular officer to assess what coverage qualifies as “adequate.” Similarly, the Secretary of Health and Human Services may approve “any other health plan that provides adequate coverage for medical care,” but the Proclamation is devoid of guidance as to how the Secretary should determine that a plan’s coverage is “adequate,” to say nothing of guidance that would enable prospective immigrants to evaluate whether a potential plan not already enumerated in the Proclamation provides sufficiently “adequate” coverage to qualify as “approved.”
52. The Proclamation does provide exceptions to the entry suspension for immigrants “whose entry would be in the national interest,” as determined by the Secretary of State, or “whose entry would further important United States law enforcement objectives,” as determined by the Secretary of State based on a recommendation of the Attorney General. But the Proclamation does not explain what such terms as “national interest” or “important United States law enforcement objectives” mean. There is no indication, in either the text of the Proclamation or the Department of State website, of how a prospective immigrant may seek such a determination from the Secretary of State or demonstrate her qualifications for such a determination.
53. When making an exception for immigrants whose entry would further “law enforcement objectives,” moreover, the Proclamation makes no mention of a special visa, the U visa, which exists specifically for victims of certain crimes who are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Although the INA

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specifically allows U visa holders to petition to bring certain family members to the United States on immigrant visas, the Proclamation is silent as to whether such family members are excepted from the Proclamation, either under the “law enforcement” provision or otherwise. At best, such silence on the topic creates uncertainty for U-derivative immigrant family members; at worst, it indicates that such family members are subject to the Proclamation’s requirements, notwithstanding the fact that the INA expressly provides for the reunification of U visa families.
2. Very Few, if Any of the Proclamation’s “Approved Health Plans” Are Available to Visa Applicants
54. Beyond the Proclamation’s vague and ill-defined terminology, most of the Proclamation’s “approved” health insurance plans are not practically or legally available to most or all prospective immigrants residing outside the country or within their first 30 days of arrival.
55. Medicare plans, for example, are an approved type of health insurance under the Proclamation, Proclamation § 1(b)(viii), but such coverage is unavailable to immigrants unless they are over 65 years old and have been living continuously in the United States for five years.
56. TRICARE plans and other related coverage, “approved” under § 1(b)(iv) of the Proclamation, are only available to members of the United States military, their spouses, and children up to 26 years of age.
57. Employer-sponsored plans also constitute “approved plans” under the Proclamation § 1(b)(i), but employers are permitted under federal law to impose a waiting period of up to 90 days before new employees can be covered by employer-sponsored coverage.7 Seventy-one

7 42 U.S.C. § 300gg-7.

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percent of employers impose a waiting period, with waiting periods on average lasting 1.9 months.8 Beyond that, over two-thirds of immigrants are the beneficiaries of family petitions or other nonemployment-based visa applications, and therefore are unlikely to have an employer-sponsored plan before even arriving in the United States and acquiring valid work authorization.
58. Although a “family member’s plan” is “approved” under the Proclamation, § 1(b)(v), it is highly unlikely that most immigrants will be able to obtain coverage through a family member unless they are a spouse or a child under 27. All other relations are not usually considered a “dependent” eligible to be included in a family health insurance plan.9
59. The Proclamation states that a “catastrophic health plan” may constitute an approved plan, Proclamation § 1(b)(iv), but under the ACA, “catastrophic” plans are available only to individuals living in the United States, and eligible enrollees must be either under 30 years of age or have qualified for a hardship or affordability exemption. 42 U.S.C. § 18022(e).10
60. The list of “approved” health insurance includes “an unsubsidized health plan offered in the individual market within a State,” Proclamation § 1(b)(ii), but an intending immigrant would not be able to obtain such coverage from abroad. Like an ACA-compliant catastrophic plan, any other “unsubsidized” health plan offered in an ACA marketplace is only

8 2018 Employer Health Benefits Survey, KAISER FAMILY FUND, (Oct. 3, 2018), https://www.kff.org/report-section/2018-employer-health-benefits-survey-section-3-employeecoverage-eligibility-and-participation/
9 An employer health plan is only a benefit excludable from income tax if it limits eligibility to spouses, children who have not yet attained age 27, and tax dependents. 26 U.S.C. § 105(b), 26 C.F.R. § 1.106-1(a). Employers are permitted to limit eligibility further, and indeed, coverage of family members other than children and spouses or domestic partners is very rare. See https://www.theabdteam.com/blog/eligibility-parents-group-health-plan/
10 Are You Eligible to Use the Marketplace?, HEALTHCARE.GOV, https://www.healthcare.gov/quick-guide/eligibility/

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available to individuals living in the United States, in the marketplace’s service area. 45 C.F.R. § 155.305(a)(3)(i).
61. Further logistics could impede the immigrant’s ability to acquire not only an “unsubsidized health plan” but also a “catastrophic health plan” (whether through the ACA Exchanges or outside of them) within 30 days of entering the United States. Under rules governing an insurance policy’s effective date, a newly purchased policy becomes effective on the first day of the next month after purchase—but only if the policy was purchased before the fifteenth day of the current month.11 Otherwise, the effective date rolls to the first day of the subsequent month. In other words, if an immigrant is so fortunate as to enter the United States under the Proclamation, but unluckily arrives on the 20th of the month, her insurance coverage will not take effect until well after 30 days of arriving in the country. The Proclamation is silent on whether such a possibility would prevent a prospective immigrant from satisfying the “approved health insurance” requirement to gain entry.
62. When accounting for the fact that Medicare, TRICARE and other military plans, employer-sponsored plans, family members’ plans, and unsubsidized and catastrophic plans available under the ACA are all practically or legally impossible for most prospective immigrants to acquire, the two remaining options for “approved health insurance” under the Proclamation are visitor insurance plans or short-term limited duration insurance (“STLDI”) plans, which in either case must last for a minimum of 364 days. But STLDI plans lasting the minimum required 364 days are not available in almost half the states,12 and many disqualify an individual from coverage

11 See 45 C.F.R. § 155.420(b)(1); 45 C.F.R. § 147.104(b)(2).
12 Is Short-term Health Insurance Right for You?, HEALTHINSURANCE.ORG, https://www.healthinsurance.org/short-term-health-insurance/

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if that person is not a United States citizen or resident.13 Neither visitor plans nor STLDI plans,
moreover, are required to cover individuals with preexisting conditions or pregnant women, and many do not.14 Such plans can also adjust premiums based on an individual’s health history,
gender, or (outside specified parameters) age and make them prohibitively, and exploitatively, expensive.15 Indeed, many states are concerned that unscrupulous insurance brokers and STLDI
insurers provide misleading information about the costs, deductibles, and coverage associated with these plans.16
63. Even assuming prospective immigrants can acquire visitor insurance plans or
STLDI plans, it remains unclear that such insurance plans actually further the Proclamation’s goal
of “addressing the challenges facing our healthcare system, including protecting both it and the
American taxpayer from the burdens of uncompensated care.” Visitor and STLDI plans are not
required under the ACA to provide “essential health benefits,” such as hospitalization, prescription
drugs, emergency services, and maternity and newborn care. Indeed, the fine print of such policies
can exclude coverage for prescription drugs, a tonsillectomy, hernia surgery, prenatal care,
treatment of pre-existing conditions an individual does not know about, or even “treatment of
injury resulting from participation in organized sports,” like care for a concussion a child receives
13 Short Term Health Insurance Eligibility Information for Short Term Health Insurance, or STM, ELIGIBILITY.COM (Updated Jan. 28, 2019), https://eligibility.com/short-term-healthinsurance 14 Id. 15 Id.; see also Rachel Schwab, Coming Up Short: The Problem with Counting Short-Term, Limited Duration Insurance as Coverage, CHIRBLOG.ORG (June 7, 2019), Id.; see also http://chirblog.org/coming-short-problem-counting-short-term-limited-duration-insurancecoverage/ 16 S. Corlette et al., The Marketing of Short-Term Health Plans, ROBERT WOOD JOHNSON FOUNDATION (Jan. 31, 2019) https://www.rwjf.org/en/library/research/2019/01/the-marketing-ofshort-term-health-plans.html

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during soccer.17 As a result, the coverage provided by such plans can leave an individual effectively uninsured for relatively mundane needs like prescriptions or a prenatal checkup, as well as for hospital interventions.
64. A Pennsylvania man, for example, was hospitalized for an abnormal heartbeat but was denied coverage under his STLDI plan because of a previous doctor visit for high blood pressure, which led the insurer to claim his hospitalization was actually for a preexisting condition.18 Similarly, a Washington, D.C. man’s STLDI plan had a stated maximum payout of $750,000, but it paid only $11,780 towards a $211,690 hospitalization bill for heart surgery, in part due to a denial of coverage based on his father’s medical history.19 In another case, a woman from Illinois went to the hospital with heavy vaginal bleeding and ended up needing a hysterectomy and a five-day hospital stay. She was denied coverage under her STLDI plan on the ground that her menstrual cycle constituted a pre-existing condition.20
65. Indeed, a substantial share of uncompensated care costs are due to underinsured individuals with high deductibles, excluded services, or low annual limits, which are all common characteristics of visitor and STLDI plans.21 Even the insurers who offer short-term limited

17 https://www.cbpp.org/research/health/key-flaws-of-short-term-health-plans-pose-risks-toconsumers 18 Sarah Lueck, Key Flaws of Short-Term Health Plans Pose Risks to Consumers, CTR. ON BUDGET AND POLICY PRIORITIES (Sept. 20, 2018) https://www.cbpp.org/research/health/keyflaws-of-short-term-health-plans-pose-risks-to-consumers
19 Cheryl Fish-Parcham, Families USA, to Alex Azar et al., “Comments on Short-Term Limited Duration Insurance Proposed Rule (CMS-9924-P),” Apr. 23, 2018 (https://www.regulations.gov/document?D=CMS-2018-0015-8801).
20 Id.
21 Susan Morse, Increase in Uncompensated Hospital Care Could be One Effect of Short-term Coverage Rule, HEALTHCARE FINANCE NEWS (Aug. 1, 2018) https://www.healthcarefinancenews.com/news/increase-uncompensated-hospital-care-could-be-

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duration insurance or visitor coverage do not consider it to be a replacement for ordinary health insurance.22
66. The table below summarizes the options for “approved health insurance” under the Proclamation and the reasons why such plans are not attainable at all, or attainable by an insignificant number of intending immigrants:

Approved Health Insurance Limitations on Availability Plans

Additional Barriers to Enrollment

Employer-sponsored plan

Available only to individuals who have an offer of employment that includes employer-sponsored insurance, as well as work authorization.

Most employers impose a waiting period before a new employee can be covered by employer-sponsored insurance; waiting periods last on average for 1.9 months, or well over 30 days.

Unsubsidized health plan offered in the individual market within a State

Available only to individuals living in the United States.

Newly arrived immigrants may not be enrolled within 30 days based on their date of arrival and the effective date that their coverage begins.

Short-term limited duration health policy effective for a minimum of 364 days

Available only in about half the States with the 364-day minimum; often not available to individuals living outside the United States.

Usually not available to individuals with pre-existing conditions.

one-effect-short-term-coverage-ruleRick Pollack, AHA Statement on Final Rule on Short-Term, Limited-Duration Health Insurance Plans, AMERICAN HOSPITAL ASSOCIATION (Aug. 1, 2018); https://www.aha.org/press-releases/2018-08-01-aha-statement-final-rule-short-term-limitedduration-health-insurance
22 Comment of American Cancer Society Cancer Action Network et al., Apr. 23, 2018, at 3 (noting that sellers of short-term limited duration insurance plans “acknowledge that such plans are ‘designed solely to provide temporary insurance during unexpected coverage gaps’”) (citation omitted).

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Catastrophic plan

Available only to individuals living in the United States who are either 30 or younger or who have a hardship/affordability exemption

Newly arrived immigrants may not be enrolled within 30 days based on their date of arrival and the effective date that their coverage begins.

Family member’s plan

Generally available only to spouses and children 26 or younger.

Medical Plan under 10 U.S.C. § 55, including TRICARE

Available only to members of the U.S. military, their spouses, and children 26 or younger.

Visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days

Usually not available to individuals with pre-existing conditions.

Medicare

Available only to individuals at least 65 years old who have been living continuously in the United States for 5 years.

3. The Proclamation Is Internally Inconsistent with Its Stated Goals 67. The Proclamation provides no explanation for how incentivizing—if not effectively requiring—immigrants to buy non-comprehensive or STLDI plans, many of which will likely leave an immigrant underinsured after she arrives, is likely to shield taxpayers or hospitals from such uncovered emergency costs, which the Proclamation decries as “driv[ing] hospitals into insolvency” and “saddl[ing] our healthcare system, and subsequently American taxpayers, with higher costs.” 68. Indeed, the Proclamation appears to be even more self-defeating considering its exclusion of “subsidized” ACA health insurance from the list of “approved health insurance” plans

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that would enable immigrants to enter the United States. Unlike visitor insurance or short-term limited duration insurance plans, any ACA-marketplace health insurance plan that also offers financial assistance is a comprehensive plan that covers a wide range of essential health benefits, including prescription drugs, hospitalization, prenatal and maternity care, and mental health care. Financial assistance to purchase such qualified health plans is available to individuals with household incomes of 100 to 400 percent FPL. Indeed, when passing the ACA, Congress extended the same benefits to immigrants on even more permissive terms, explicitly making assistance available to legally present immigrants even with incomes under 100 percent FPL, including newly arrived immigrants in their first five years in the country, who are otherwise generally excluded from most other federal means-tested benefits. But, although Congress expressly made such benefits available to newly arrived immigrants—and in fact intended for such immigrants to arrive, through this country’s legislatively enacted immigration system—the Proclamation operates to ban those immigrants who would benefit from assistance provided under the ACA.
69. Although an immigrant who receives financial assistance under the ACA to purchase comprehensive health insurance would be better insured than an immigrant who purchases non-comprehensive visitor or STLDI insurance, the Proclamation bars the former and allows the latter, in the name of protecting this nation’s health care system from uncompensated costs incurred by uninsured individuals.
70. Viewed as a whole, the Proclamation is far less than the sum of its parts. Its standards and terse language are opaque when they are not vague or ill-defined. The Proclamation’s array of various “approved health insurance” options are, for a significant majority of intending immigrants, merely a set of legal or practical impossibilities. When taken to their logical consequence, the incentives it creates for prospective immigrants lead to results that almost

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certainly will not further the Proclamation’s goal of reducing the burden of uncompensated care for uninsured individuals. At best, these disparate parts form an internally inconsistent whole; at worst, they smack of bad faith.
71. Given the draconian sweep of the Proclamation—indeed, by some estimates, it has the potential to reduce legal immigration by nearly two thirds and affect most, if not nearly all, family-based and diversity immigrants—the structure, text, and import of the Proclamation all suggest that its ostensible purpose of addressing the burden that uninsured individuals place on this country’s health care system is merely a pretext to rework this country’s immigration system in the manner that the President sees fit, in contravention of the laws passed by Congress.
72. The Proclamation, moreover, does not operate in a vacuum. It will be enforced in a legal landscape already shaped by numerous Congressional enactments, including the Immigration and Nationality Act, the Public Responsibility and Work Opportunity Reconciliation Act, the Illegal Immigration Reform and Immigrant Responsibility Act, the Children’s Health Insurance Program Reauthorization Act, and the Affordable Care Act; and the regulations of the Administration’s recently promulgated “public charge rule,” which establishes new criteria for determining whether a would-be immigrant may be deemed inadmissible because she is likely to become a “public charge”. As set out in more detail below, the Proclamation is in tension, if not direct conflict, with each of these statutory and regulatory schemes, and therefore also with Congress’s legislative intent.
73. The Proclamation, moreover, is but the latest link in a long chain of statements and actions by this President and his Administration expressing antipathy toward all noncitizens, but also specifically toward immigrants seeking to come to the United States—particularly immigrants of color, from Central and Latin America, Africa, and the Middle East. Since the early days of his

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Administration, the President has consistently called for eliminating the two main ways that immigrants from predominantly nonwhite countries receive visas—the family preference system and the diversity visa lottery. After a legislative attempt—the RAISE Act—that failed in 2017, and an administrative attempt—the public charge rule—that received overwhelmingly negative public comment, and which has since been enjoined, the Proclamation now appears to be an attempt by presidential fiat. The laws and the Constitution of this country do not countenance such executive overreach.
THE PROCLAMATION IMPERMISSIBLY RESHAPES THE NATION’S CONGRESSIONALLY-ENACTED HEALTH BENEFIT SYSTEM FOR IMMIGRANTS
BY PRESIDENTIAL FIAT A. The Immigration and Nationality Act (“INA”)
74. The Immigration and Nationality Act (“INA”) was originally enacted in 1952 and has since been amended significantly multiple times. Although it now represents “a long series of legislative accretions,”23 it nevertheless creates a system by which this country may grant up to 675,000 permanent immigrant visas each year, as well as an unlimited number of permanent immigrant visas for the admission of U.S. citizens’ spouses, parents, and children under the age of 21. In doing so, the INA, 8 U. S. C. § 1101 et seq., expresses and reflects Congress’s intent that foreign nationals who meet certain qualifications may immigrate to the United States, in furtherance of the goals of reunifying families, admitting immigrants with skills that are useful to the United States economy, and promoting diversity.24

23 Adam B. Cox & Christina M. Rodriguez, The President and Immigration Law Redux, 125 YALE L.J. 104, 158-59 (2015).
24 See Elkins v. Moreno, 435 U.S. 647, 664 (1978).

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75. A series of related and interacting statutes, including the Public Responsibility and Work Opportunity Reconciliation Act (“PRWORA”), the Children’s Health Insurance Program Reauthorization Act (“CHIPRA”), and the Affordable Care Act (“ACA”), likewise express and reflect Congress’s intent to extend certain health care-related benefits to legal immigrants. Through PRWORA, Congress made significant changes to health care eligibility for noncitizens and simultaneously devolved substantial power to the states to allow the states to replace benefits to legal immigrants through Medicaid, and later through the Children’s Health Insurance Programs (“CHIP”), and to receive federal matching funds when providing such coverage. Through CHIPRA, Congress affirmatively provided federal dollars to fund care for newly arrived legal immigrant children and legal immigrant pregnant women during their first five years in this country. And through the ACA, Congress made financial assistance in the form of premium tax credits available to both United States citizens and legal immigrants to purchase comprehensive health coverage.
76. The interaction of these statutes reflects Congress’ intent to keep important health care benefits available to both newly arrived immigrants and qualified foreign nationals, especially the spouses, children, and parents of United States citizens, to ensure that such individuals are allowed to immigrate to the United States in the first instance to reunite with family, contribute their skills to the United States economy, be afforded humanitarian protections, and/or promote diversity.
77. In rendering inadmissible all immigrants who are unable either to purchase certain enumerated kinds of health insurance or pass an opaque wealth test through categorizing such individuals as “detrimental to the United States”—particularly immigrants who would otherwise be eligible to enter the United States and receive health insurance benefits like Medicaid, CHIP,

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or financial assistance under the ACA—the Proclamation expressly contravenes Congress’s legislative intent.
78. The bedrock pillars of U.S. immigration law allow immigration for family reunification, for business purposes, for humanitarian considerations, and to promote diversity. To that end, Congress has set forth a comprehensive system to allow limited “worldwide immigration” based on an allocation of “family-based visas,” “employment-based visas” and “diversity-based” visas. 8 U.S.C. § 1151(a). Section 1151 of the INA sets an annual minimum family-sponsored preference limit of 226,000; the worldwide level for annual employment-based preference immigrants is at least 140,000. A maximum of fifty-five thousand visas each year are available through a diversity visa lottery, open to nationals of countries with historically low rates of immigration to the United States.
79. A family member or employer seeking to “sponsor” a noncitizen for an immigrant visa must first file either a Form I-130, Petition for Alien Relative, or Form I-140, Petition for Alien Workers, with the United States Citizenship and Immigration Service on behalf of the “beneficiary.” This form establishes the necessary family or employer-employee relationship that exists to allow for an immigrant visa. Once the beneficiary of an approved immigrant petition has an immigrant visa number that is immediately available, there are two ways to apply for lawful permanent resident status (“Green Card”). If the beneficiary is outside of the United States, he or she must apply at a U.S. Department of State consulate abroad for an immigrant visa in order to come to the United States and be admitted as a permanent resident. This pathway is referred to as consular processing. If the beneficiary is already in the United States, she may attempt to apply for

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permanent resident status without having to return to her home country to complete processing. This process is called adjustment of status.25 See 8 U.S.C. § 1255(a).
80. Section 1152 of the INA prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. This means that no single nation can receive more than 7 percent of the total green cards issued in a year (unless they would otherwise go unused).
81. Among family-based immigrants, Congress has prioritized the admission of “immediate relatives,” which is defined as “the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.” 8 U.S.C. § 1151(b). These familial relations have been carved out of certain exceptions to the various numerical limitations on immigrant visas, and thus visas are always and immediately available for these qualifying family members
82. The allocation of immigrant visas subject to the numerical limitations is governed by 8 U.S.C. § 1153. Subsection (a) sets forth preference allocations for family-sponsored immigrants; subsection (b) sets forth the preference allocations for employment-based visas. See,

25 If an individual present in the United States does not qualify for adjustment of status, she must travel abroad for a consular interview to obtain her immigrant visa. Some applicants who have accrued more than 180 days of unlawful presence while in the United States, but have no other bars to admissibility, may obtain an I-601A waiver of inadmissibility to overcome the unlawful presence bars under 8 U.S.C. § 1182(a)(9)(B) before they can return. The I-601A waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees) who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States and remain with their family members before they depart for their immigrant visa interview abroad. See 8 C.F.R. § 212.7(e).

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e.g., 8 U.S.C. § 1153(a)(1) (“Qualified Immigrants who are the unmarried sons and daughters of citizens of the United States shall be allocated visas in a number not to exceed 23,400.”).
83. Section 1153(e) provides that family-sponsored and employment-based preference visas “shall” be issued to eligible immigrants in the order in which a petition on behalf of each has been filed, that is, according to the “priority date” of the visa petition.
84. A family member or employee may not apply for lawful permanent residence abroad until a visa is immediately available. The Department of State issues a monthly Visa Bulletin organized according to country of origin and visa preference category.26
85. If there are sufficient visas available for applicants from a specific country and of a specific preference category, then the Visa Bulletin lists that combination as “current,” and all applicants matching that combination may file an application regardless of their priority date, or the date the visa was received by the agency. If there are insufficient visas available for all known applicants of a specific combination, however, the Visa Bulletin lists a cut-off date, and only those applicants who have priority dates earlier than the cut-off date may file an application. Sometimes, a cut-off date may retrogress, meaning that fewer visas are available than previously projected. When that happens to an applicant whose application is already filed, the applicant is forced to wait until the cut-off date again progresses past his priority date for his application to be adjudicated.
86. Before the issuance of an immigrant visa, the noncitizen must establish that she is eligible for admission to the country. Section 1101(a)(13)(A) of Title 8 defines “admission” to

26 See, e.g., Visa Bulletin for November 2019, TRAVEL.STATE.GOV, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-fornovember-2019.html (last visited Oct. 27, 2019).

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mean “the lawful entry of a noncitizen into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
87. Section 1182 of Title 8, INA § 212, is titled “Inadmissible Aliens” and sets forth ten classes of noncitizens “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a) (prescribing the inadmissibility of, inter alia, noncitizens who have a communicable disease of public health significance, those convicted of two or more criminal offenses, those who engaged in terrorist activities).
88. Under the system set out in the INA, family-based petitions account for approximately 65% of the immigrant visas granted every year. The diversity lottery visa system accounts for approximately 4.5%.
89. In addition to the comprehensive system for the allocation of family-based, employment-based, and diversity visas, Congress has authorized multiple special categories for immigrants from abroad based on specific humanitarian considerations. For example, a qualifying battered spouse, child or parent may file an immigrant visa petition under the Immigration and Nationality Act (INA), as amended by the Violence Against Women Act (VAWA). See generally 8 U.S.C. § 1154(a)(1), 8 U.S.C. § 1186(c)(4). Among other sympathetic considerations to victims of abuse, VAWA created special provisions in United States immigration law to protect victims of abuse who are not citizens of the United States. Id. In cases of domestic violence, US immigration law allows certain victims of abuse who are not citizens to obtain lawful status without having to rely on their abuser to petition. Id. Qualifying applicants may apply self-petition for an immigrant visa abroad and subsequently enter the United States as immigrants if the abuser is an employee of the U.S. government, the abuser is a member of the uniformed services, or the

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applicant was subjected to battery or extreme cruelty in the United States. 8 U.S.C. §§ 1154(a)(1)(A)(v), (a)(1)(B)(iv).
90. In addition, the U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity; it provides a pathway to lawful permanent residence and subsequently citizenship after 3 years of residence in the United States. See generally 8 U.S.C. § 101(a)(15)(U). Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women Protection Act, Pub. L. 106-386) in October 2000. Under the provisions of this statute, a U nonimmigrant may also petition for certain family members to receive a “derivative U visa.” While many such eligible family members will already have entered the United States with a derivative U visa before the principal U nonimmigrant receives a green card after three years of residence, those family members who do not may apply for an immigrant visa abroad. See 8 U.S.C. § 245(m)(3) (upon the approval of an adjustment of status application for a principal U nonimmigrant, “the Secretary of Homeland Security may adjust the status or issue an immigrant visa to a spouse, a child, or in the case of an alien child, a parent who did not receive a [derivative U visa] under section 101(a)(15)(U)(ii)” of the INA.); 8 C.F.R. § 245.24(g).
91. The Proclamation’s suspension of entry does violence to this legislatively enacted immigration scheme that synthesizes considerations of national origin, merit, race, humanitarian, and family-based preferences—principles that have formed the bedrock of this nation’s immigration system for decades—and replaces it with a single inquiry: does the prospective immigrant have a specific kind of health insurance or sufficient financial resources to pay for what a consular officer considers to be reasonably foreseeable medical costs? The United States

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immigration system has never countenanced anything approaching such a standard for admission, which would disproportionately affect immigrants who are from predominantly nonwhite countries and either seeking to reunite with family already here in the United States, or fear being separated from family in the United States when they leave for a consular interview. Once effective, the Proclamation will ban nearly two thirds of all noncitizens legally permitted under the INA to immigrate to the United States, and will separate thousands of families indefinitely.
92. In effectively barring most legal and otherwise qualified immigrants from entering the country because they cannot afford health care completely out of pocket, the Proclamation thwarts the carefully considered Congressional scheme that provides health care-related benefits to new and recently arrived immigrants via a combination of federal and state-elected programs. Over the past two decades, Congress—and the States, at Congressional behest—have acted to provide certain benefits specifically to such immigrants. But the Proclamation would ban most immigrants from entering the United States precisely because they would be entitled to such benefits if they came. B. The Personal Responsibility Work Opportunity Reconciliation Act of 1996
93. Under the Personal Responsibility Work Opportunity Reconciliation Act (“PRWORA”), passed in 1996, Congress restricted the availability of certain means-tested benefits for newly arrived immigrants, but gave states the ability to fill in this gap by electing to provide coverage to such individuals. Before PRWORA’s enactment, legal immigrants living in the United States were eligible for public benefits on similar terms as citizens. After enactment, however, PRWORA has generally barred all new legal immigrants, excepting certain humanitarian categories, including but not limited to asylees and refugees, from receiving federal means-tested

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public benefits, such as Medicaid, TANF, SNAP, and SSI, for five years after their arrival in the United States.
94. Despite redrawing immigrant eligibility for federal benefits, PRWORA expressly devolved broad new powers to the states, in relevant part authorizing, but not requiring, states to use state-only funds to offer food, cash, and health-related benefit programs as a substitute for lost federal benefits for legal immigrants. A number of states took advantage of this “gap-filling” authority to use state funds to provide TANF, SNAP, SSI, and/or Medicaid to legal immigrants subject to the five-year bar. States were, for example, given the option under PRWORA to use state funds to continue coverage to immigrants under Medicaid during their first five years in the country. C. The Children’s Health Insurance Plan (“CHIP”) and CHIP Reauthorization Act
95. Congress subsequently reinforced PRWORA’s grant of power to the states to provide health care-related benefits to legal immigrants under federal health care programs through the Children’s Health Insurance Plan (“CHIP”). The original State Children’s Health Insurance Program was enacted in 1997 with bi-partisan support to act as a complement to Medicaid, the nation’s major health coverage for low-income children, by giving states financial support to provide coverage to uninsured, low-income children who do not qualify for Medicaid. The program was reauthorized on February 4, 2009, through the Children’s Health Insurance Program Reauthorization Act (“CHIPRA”), which passed with bi-partisan support and was one of the first pieces of legislation signed by President Obama.
96. The original CHIP expanded health insurance coverage to low-income children ineligible for Medicaid by providing block grants to states that must be matched with state dollars. Under the law, states could use their federal CHIP funds to finance coverage for children whose

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family incomes are too high to qualify for Medicaid, either by expanding their already existing Medicaid programs, creating a separate CHIP program, or a combination of those two approaches. Indeed, under the matching rates required under the program, the federal government bears a higher percentage of the overall cost of CHIP than it does under Medicaid. All states, plus the District of Columbia, currently use CHIP funds to expand publicly funded health insurance coverage to uninsured children who are ineligible for Medicaid; most states cover children up to or above 200% of the federal poverty level.27 In the same vein as PRWORA, the original CHIP also authorized States to provide coverage to newly arrived legal immigrant children, who were otherwise ineligible to enroll in either Medicaid or CHIP for their first five years in the country, but States doing so had to fund such coverage with state-only dollars.
97. CHIPRA reauthorized CHIP and provided states with significant new funding, new programmatic options such as dental coverage, and a range of new incentives to provide Medicaid and CHIP coverage to uninsured, low-income children, especially those who may be eligible for Medicaid or CHIP but who are not enrolled. CHIPRA also established new options and federal funding for states to cover pregnant women, as well as legal immigrant children and legal immigrant pregnant women during their first five years in the country. Thirty-one states, plus the District of Columbia, now cover legal immigrant children, legal immigrant pregnant women, or

27 Medicaid/CHIP Coverage of Lawfully-Residing Immigrant Children and Pregnant Women, KAISER FAMILY FUND, https://www.kff.org/health-reform/state-indicator/medicaid-chipcoverage-of-lawfully-residing-immigrant-children-and-pregnantwomen/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22: %22asc%22%7D. Medicaid currently covers children at 133% of the federal poverty level; Where Are States Today? Medicaid and CHIP Eligibility Levels for Children, Pregnant Women, and Adults, KAISER FAMILY FOUND., https://www.kff.org/medicaid/fact-sheet/where-are-statestoday-medicaid-and-chip/. Medicaid currently covers children at 138% of the federal poverty level. Id.

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both under CHIPRA.28 Under the Proclamation, however, Medicaid is expressly excluded from the “approved” types of health insurance coverage for all individuals over the age of 18, even though CHIPRA expressly extends CHIP coverage eligibility to children up to age 19, and Medicaid eligibility to individuals up to age 21 and to pregnant women, including immigrants lawfully residing in the United States within their first five years of having legal status. D. The Affordable Care Act
98. In 2010, Congress passed comprehensive health reform, the Patient Protection and Affordable Care Act (“PPACA”), as amended by the Health Care and Education Reconciliation Act (“HCERA”) (together, the “Affordable Care Act” or “ACA,” or “Obamacare”) into law. 124 Stat. 119. The PPACA contains 10 titles covering over 900 pages, as well as additional provisions under the HCERA. In at least three relevant ways, the ACA was intended to expand access to meaningful and affordable health insurance coverage for all U.S. residents, including legal immigrants, at a guaranteed minimum level of coverage.
99. First, to facilitate broad health insurance enrollment nationwide, the ACA required the creation of a marketplace, or exchange, in each state so that residents can shop for insurance. These marketplaces took the form of state-run-exchanges, a federally facilitated exchange available at the healthcare.gov website, or a hybrid of the two.29

28 Medicaid and CHIP Coverage of Lawfully Residing Children and Pregnant Women, MEDICAID.GOV, https://www.medicaid.gov/medicaid/outreach-and-enrollment/lawfullyresiding/index.html
29 As enacted, the ACA required most United States citizens and legal residents to purchase and maintain health insurance or pay a penalty. However, President Trump and a Republicancontrolled Congress eliminated the financial penalty that an individual would incur if she failed to maintain health insurance as part of the Tax Cuts and Jobs Act of 2017 (see https://www.congress.gov/115/bills/hr1/BILLS-115hr1enr.pdf).

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100. Second, to ensure a certain standard of coverage, the ACA required health insurers, including those who participated in the state and federal Exchanges and those selling plans outside of it, to provide plans that cover “essential health benefits,” including hospitalization, prescription drugs, mental health services, ambulatory patient services, maternity and newborn care, mental health and substance use disorder services, preventive and wellness services, and pediatric services, including oral and vision care. 42 U.S.C. § 18022(b)(1). All individual market plans, including ACA-defined and regulated catastrophic health plans, must provide such essential health benefits, must cover preexisting conditions and may not impose annual or lifetime dollar limits on core coverage.30 Short-term limited duration insurance plans, however, are ACA-exempt and cannot be offered or purchased on ACA exchanges. As a result, they are non-comprehensive and do not provide the full range of essential health benefits, can and often do deny coverage based on preexisting conditions, and can and often do impose annual or lifetime dollar limits on core coverage.
101. Third, the ACA provides financial assistance in the form of income-related, premium-based tax credits (“PTCs” or “APTCs”) to individuals with household incomes between 100 and 400% of the federal poverty line. 26 U.S.C. § 36B. For newly arrived legal immigrants who are subject to PRWORA’s five-year bar on means-tested public benefits, the ACA allows PTCs on more permissive terms, also including individuals below 100% of the federal poverty line. 26 U.S.C. § 36(b)(c)(1)(B). In 2019, under DHHS Federal Poverty Guidelines, the income level necessary for a family of four to qualify for financial assistance ranged from $25,100 at 100% FPL to $100,400 at 400% FPL.

30 42 U.S.C. § 300gg-3, 300gg-11.

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102. Taken together, these three components of the ACA promote the overarching goals of robust nationwide enrollment, protections for consumers through coverage that is comprehensive and does not bar eligibility based on preexisting conditions, and increased affordability for health insurance coverage. Robust enrollment in comprehensive coverage plans promotes insurance market stability and more affordable premiums across the market, as the robust enrollment of healthy individuals allows distributing costs for less healthy individuals across a larger pool of enrollees. More affordable premiums, in turn, spurs more robust enrollment.
103. The ACA’s structure and operation also evinces Congress’s intent that legal immigrants, including newly and recently arrived immigrants, be able to participate fully in the ACA marketplace to enroll in comprehensive health care and to receive financial assistance if necessary. The benefits available under the ACA, especially when considered in connection with the benefits that the states and federal government have made available to newly and recently arrived legal immigrants under PRWORA and CHIPRA, make clear that Congress intended for legal immigrants to be able to receive specific health care-related benefits to ensure a minimum level of health care coverage upon their arrival in the United States.
104. The Proclamation directly conflicts with this benefits scheme, disqualifying “subsidized” health insurance offered on ACA Exchanges as “approved health insurance” that would permit entry to the United States. The effect of the Proclamation is to prevent would-be immigrants, who would otherwise be fully qualified under the INA to come to the United States, from entering and receiving the benefits Congress expressly intended for them to have.
105. Moreover, as noted above, visitor insurance and STLDI plans are the only two options for “approved health insurance” that are realistically and feasibly available to most prospective immigrants outside the United States, especially those who are not entering with an

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offer of employment that includes employer-sponsored health insurance. Because such plans are less regulated under the ACA than individual market plans, carriers of such plans will no doubt rise to meet the new demand the Proclamation will invariably create. But in driving a majority of new immigrants towards these non-comprehensive plans—for a minimum of 364 days, no less, or their first year in the United States—the Proclamation undermines not only the ACA’s goal of providing a certain minimum level of coverage to all legal immigrants in the United States, but also its own stated goal of addressing the burdens of uncompensated care provided to uninsured individuals.
REGULATORY BACKGROUND 106. In addition to entering a stage already set by PRWORA, CHIPRA, and the ACA, the Proclamation follows hot on the heels of the Trump Administration’s recently promulgated (and recently enjoined) “Public Charge Rule,” which attempts to change what it means to be deemed a “public charge,” one of the ten enumerated grounds of inadmissibility under the INA. Ignoring decades of legislation and case law, the new Rule attempts to redefine the term “public charge” and reshape the “totality of circumstances” framework that immigration officials apply to determine whether a person seeking admission is likely to become a public charge. The new Rule was enjoined from taking effect on October 15, 2019 by numerous courts. Each court found the new definition of “public charge” contrary to Congress’ plain meaning and intent.31

31 New York v. U.S. Dep’t of Homeland Security, No. 19 Civ. 7777 (GBD), 2019 U.S. Dist. LEXIS 177323 (S.D.N.Y. Oct. 11, 2019); Make the Rd. N.Y. v. Cuccinelli, 19 Civ. 7993 (GBD), 2019 U.S. Dist. LEXIS 177316 (S.D.N.Y. Oct. 11, 2019);)) City & Cty. of San Francisco v. U.S.US Citizenship & Immigration Servs., No. 4:19-cv-0471704980-PJH, 2019 U.S. Dist. LEXIS 177379 (N.D. Cal. Oct. 11, 2019); Washington v. Dep’t Homeland Security, No. 4:19-cv05210-RMP, 2019 U.S. Dist. LEXIS 178854 (E.D. Wash. Oct. 11, 2019); Cook Cty. v. McAleenan, No. 19 C 6344, 2019 U.S. Dist. LEXIS 177759 (N.D. Ill. Oct. 14, 2019); Casa De Md., Inc. v. Trump, No. PWG-19-2715, 2019 U.S. Dist. LEXIS 177797 (D. Md. Oct. 14, 2019).

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107. Both the Proclamation and the new Rule effectively turn the question of
admissibility to the United States into a receipt-of-benefits issue. The Rule was promulgated by
the Department of Homeland Security via formal notice-and-comment rulemaking under the APA;
the Proclamation was not.
THE PROCLAMATION, LIKE THE RECENT PUBLIC CHARGE RULE, ATTEMPTS TO RADICALLY REWRITE CONGRESS’ CHOICES ON WHICH IMMIGRANTS MAY ENTER THE COUNTRY, BASED ON WEALTH CONSIDERATIONS 108. The State Department’s actions to implement the Proclamation without satisfying
the requirements of notice and comment rulemaking layer one form of lawlessness on another. The
Proclamation, like the recent Public Charge Rule, attempts to radically rewrite Congressional
decision about which immigrants may enter the country based on wealth considerations.
109. The nation’s immigration laws have long included a prohibition on admitting non-
citizens deemed to be a “public charge” on the country. This definition has evolved over time but
has never erected the kind of broad entry barrier that the Proclamation permits.
110. In 1882, Congress enacted the country’s first immigration laws, which refused
foreign nationals permission “to land” in the United States “if on such examination there shall be
found among such passengers any convict, lunatic, idiot, or any person unable to take care of
himself or herself without becoming a public charge.” See An Act to Regulate Immigration, 22
Stat. 214, Chap. 376 § 2 (1882) (“1882 Act”) (emphasis added).
111. In 1891, Congress amended the 1882 Act to provide, in part,
That the following classes of aliens shall be excluded from admission into the United States . . . : All idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists, and . . . .

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An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens
Under Contract or Agreement to Perform Labor, 26 Stat. 1084, Chap. 551 (“1891 Act”) §§ 1, 11
(1891).
112. Congress subsequently amended immigration laws in 1903, 1907, and 1910 without
materially altering the authorization to refuse entry to a noncitizen deemed a “public charge.”32
The 1910 Act provided, for example:
That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease; persons not comprehended within any of the foregoing excluded classes who are . . . mentally or physically defective, such mental or physical defect being of a nature which may affect the ability of such alien to earn a living; persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude; polygamists, or . . . .”
1910 Act § 2.
113. In 1915, The Supreme Court considered a “single question, . . . whether an alien
can be declared likely to become a public charge on the ground that the labor market in the city of
his immediate destination is overstocked.” See Gegiow v. Uhl, 239 U.S. 3, 9-10 (1915).
114. In answering “no” to the question, the Supreme Court interpreted the term “Persons
likely to become a public charge” in context, that is, as “mentioned between paupers and
professional beggars, and along with idiots, persons dangerously diseased, persons certified by the

32 An Act to Regulate the Immigration of Aliens Into the United States, 32 Stat. 1213, Chap. 1012 § 2 (1903); An Act to Regulate the Immigration of Aliens Into the United States, 34 Stat. 898, Chap. 1134 § 2 (1907); An Act to Amend an Act entitled An Act to Regulate the Immigration of Aliens Into the United States, 36 Stat. 263, Chap. 128 § 2 (1910).

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examining surgeon to have a mental or physical defect of a nature to affect their ability to earn a living, convicted felons, prostitutes and so forth.” Id. The Court held that “[t]he persons enumerated in short are to be excluded on the ground of permanent personal objections accompanying them irrespective of local conditions,” and thus not according to local or temporary conditions impacting their self-sufficiency. Id. at 10.
115. After Gegiow, federal courts and immigration officials universally understood the term public charge as referring to persons with “a mental or physical defect of a nature to affect their ability to make a living,” that is, those substantially, if not entirely, dependent on government assistance on a long-term basis.33
116. In the century since the Gegiow decision, Congress has made numerous changes to immigration law, most notably the Immigration and Nationality Act of 1952. An Act to Revise the Laws Relating to Immigration, Naturalization, and Nationality; and for Other Purposes, 66 Stat. 163, 183, Title 2, Chap. 2 (“1952 Act”) § 212 (1952). It has continued to use “public charge” as a basis for denying entry to noncitizens, but it has never offered its own definition of the term. It has, however, rejected attempts to adopt a definition contrary to the understanding developed in legislative history and case law.
117. In 1996, for example, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674-75 (1996), which amended the INA by codifying five factors relevant to a public charge

33 See, e.g., United States ex rel. De Sousa v. Day, 22 F.2d 472, 473-74 (2d Cir. 1927); United States ex rel. La Reddola v. Tod, 299 F. 592, 592-93 (2d Cir. 1924); Howe v. United States ex rel. Savitsky, 247 F. 292, 294 (2d Cir. 1917); Ng Fung Ho v. White, 266 F. 765, 769 (9th Cir. 1920), rev’d on other grounds, 259 U.S. 276 (1922); Ex parte Horn, 292 F. 455, 457 (W.D. Wash. 1923); In re Martinez-Lopez, 10 I. & N. Dec. 409, 421–22 (B.I.A. 1962); In re Harutunian, 14 I. & N. Dec. 583, 589 (B.I.A. 1974); In re Perez, 15 I. & N. Dec. 136, 137 (B.I.A. 1974).

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determination. In the course of enacting IIRIRA, members of Congress debated whether to expand the public charge definition to include use of non-cash public benefits such as Medicaid and CHIP. See Immigration Control & Financial Responsibility Act of 1996, H.R. 2202, 104th Cong. § 202 (1996) (early House bill that would have defined public charge for purposes of removal to include receipt by a non-citizen of Medicaid, supplemental food assistance, SSI, and other means-tested public benefits). The Senate, however, rejected the effort to include previously unconsidered, noncash public benefits in the public charge test. It also rebuffed the attempt to create a bright-line framework of considering whether the immigrant has received public benefits for an aggregate of twelve months as “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet.” S. Rep. No. 104-249, at *63−64 (1996) (Senator Leahy’s remarks). Accordingly, in its final bill, Congress did not include the receipt of Medicaid, CHIP, supplemental food assistance, SSI, and other means-tested public benefits. as determinative of a public charge.34 See 8 U.S.C. § 1182(a)(4)(A).
118. The public charge ground of inadmissibility, as amended in IIRIRA, provides: “[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.”35 8 U.S.C. § 1182(a)(4)(A). When determining whether an applicant is inadmissible as a public charge, the statute instructs the officer to consider “at a minimum” the applicant’s age; health; family status; assets, resources, and

34 Congress rejected a similar attempt to expand the public charge definition in 1994 when considering the Immigration Stabilization Act, see S. 1923 (103rd), § 501 (https://www.govtrack.us/congress/bills/103/s1923/text).
35 Certain groups of noncitizens, such as asylum seekers and refugees, are not subject to exclusion based on an assessment that they are likely to become a public charge. See 8 U.S.C. § 1157 (refugee); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1159(c) (refugee).

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financial status; and education and skills. 8 U.S.C. § 1182(a)(4)(B)(i). The officer “may also consider any affidavit of support under section 213A [8 U.S.C. § 1183a] for purposes of exclusion” on the public charge ground. 8 U.S.C. § 1182(a)(4)(B)(ii).
119. In 1999, the Immigration and Naturalization Service (“INS”), a precursor to the US Citizenship and Immigration Services (“USCIS”), issued a notice of proposed rulemaking and field guidance intended to “summarize longstanding law with respect to public charge and provide new guidance on public charge determinations” following the passage of IIRIRA. 64 Fed. Reg. 26,689 (May 26, 1999) (the “Field Guidance”). Notice of Proposed Rulemaking, Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676 (May 26, 1999) (to be codified at 8 C.F.R., pts. 212 & 237) (“1999 Proposed Rule”); Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (Mar. 26, 1999) ("1999 Field Guidance"). The 1999 Proposed Rule and Field Guidance defined “public charge” to mean “an alien 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 purposes, or (ii) Institutionalization for long-term care at Government expense (other than imprisonment for conviction of a crime).” 1999 Proposed Rule, 64 Fed. Reg. at 28,681; 1999 Field Guidance, 64 Fed. Reg. at 28,689. The 1999 Rulemaking clarified in particular that the INS had adopted this definition “based on the plain meaning of the word ‘charge,’ the historical context of public dependency when the public immigration provisions were first enacted more than a century ago, and the expertise of the benefit-granting agencies that deal with subsistence issues.” 64 Fed. Reg. at 28,677.
120. The Field Guidance further directed service officers “to assess the financial responsibility of the alien by examining the ‘totality of the alien's circumstances’ at the time of his

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or her application * * * The existence or absence of a particular factor should never be the sole criterion for determining if an alien is likely to become a public charge.” 1999 Field Guidance, 64 Fed. Reg. at 28,690 (emphasis in original).
121. The 1999 Field Guidance, which was made consistent with the Department of State’s understanding, reaffirmed 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. The nature of the public program must be considered. 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.” 1999 Field Guidance, 64 Fed. Reg. at 28,692 (citing FAM § 40.41 n.9.1 (1999)).
122. The 1999 Field Guidance also emphasized that the purpose in issuing the proposed rule and field guidance was intended to end “confusion about the relationship between the receipt of public benefits and the concept of ‘public charge’ [that] has 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. This reluctance to access benefits has an adverse impact not just on the potential recipients, but on public health and the general welfare.” 1999 Field Guidance, 64 Fed. Reg. at 28,692.
123. The 1999 Field Guidance specifically exempted “Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care” from public charge determinations. 1999 Field Guidance, 64 Fed. Reg. at 28,693.

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124. Although the 1999 Proposed Rule was never finalized, the 1999 Field Guidance has governed public charge admissibility determinations since that time—nearly two decades.
125. On October 10, 2018, DHS published a notice of proposed rulemaking (the “Rule” or the “Public Charge Rule”), Inadmissibility on Public Charge Grounds, which rescinded the 1999 Rulemaking, redefined “public charge,” and amended the totality-of-the-circumstances standard prescribed by the 1999 Field Guidance. 83 Fed. Reg. 51,114 (Oct. 10, 2018) (to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245 and 248).
126. The proposed rule followed President Trump’s failed attempt to garner broad congressional support for the 2017 the Reforming American Immigration for a Strong Economy (RAISE) Act, which would have eliminated the INA’s system of allocating immigration visas according to family, employment, and diversity categories and replacing it with a points-based “merit” system “to prioritize immigrants based on the skills they bring to our Nation while safeguarding the jobs of American workers.”36
127. After a 60-day notice-and-comment period, in which it received 266,077 comments, DHS finalized and issued the Rule on August 14, 2019, notwithstanding the fact that the “vast majority of [comments] . . . opposed the rule.” 84 Fed. Reg. at 41,304. The Rule was scheduled to become effective on October 15, 2019.
128. The Rule redefined a “public charge” to include any noncitizen “who receives one or more public benefits . . . for more than 12 months in the aggregate within any 36 month period (such that, for instance, receipt of two benefits in one month counts as two months).” 84 Fed. Reg. 41,501 (to be codified at 8 C.F.R. § 212.21(a)). Unlike the previous Field Guidance definition of

36 President Donald J. Trump Backs RAISE Act, WHITEHOUSE.GOV (Aug. 2, 2017) https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-backs-raise-act/

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“public charge,” which focused specifically on the receipt of cash benefits or long-term institutionalization, the Rule defines “public benefit” as both cash benefits and noncash benefits, including Temporary Assistance for Needy Families (“TANF”), Supplemental Nutrition Assistance Program (“SNAP,” also known as “food stamps”), Medicaid, and public housing and Section 8 housing assistance. Id.; see also 8 C.F.R. § 212.21(b).
129. The Rule also significantly altered the totality-of-the-circumstances framework, assigning different weights to certain factors labeled as positive, negative, heavily positive, and heavily negative, which a DHS officer must weigh “individually and cumulatively.” 84 Fed. Reg. at 41,397; see also id. at 41,502-04.
130. A prospective immigrant is given heavy negative weight if, for example, she has a medical condition requiring “extensive medical treatment” and is “uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition.” 84 Fed. Reg. 41,504; see also 8 C.F.R. § 212.22(c)(1)(i), (iii). A prospective immigrant would receive heavy positive weight for “an annual income . . . of at least 250 percent of the [Federal Poverty Guidelines] for the alien’s household size” or for “private health insurance that is not subsidized under the Affordable Care Act.” See 8 C.F.R. § 212.22(c)(2)(ii), (iii). The consular officer must also consider, among other things, the immigrant’s age; household income; household size; credit score; education; occupational skills, certifications, or licenses; and English fluency. See 8 C.F.R. § 212.22(b).
131. As Trump Administration officials have acknowledged, the cumulative effect of these changes would substantially burden immigrants with disabilities and lower incomes—and in particular, non-white immigrants who are not from Europe—to demonstrate their admissibility. When Ken Cuccinelli, acting director of USCIS, was asked whether the proposed Rule conflicted

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with the New Colossus poem by Emma Lazarus inscribed at the base of the Statue of Liberty, he
amended the poem as follows: “Give me your tired and your poor who can stand on their own two
feet, and who will not become a public charge.” 37 Shortly thereafter, he clarified his understanding
that New Colossus “was referring to people coming from Europe.”38
132. Expert analysis confirmed that the Rule “could shift legal immigration away from
Latin America and towards Europe” due to its emphasis on income.39 The Migration Policy
Institute, for example, examined immigrants who had received legal permanent residence within
the last five years to explore the potential scope of the Rule’s impact. MPI analysts found that 69%
of immigrants who had received legal permanent residence within the last five years had at least
one negative factor under the Rule, and that the Rule would have “a disproportionate effect on
women, children, and the elderly.”40 In particular, among “recently arrived legally present
noncitizens[,] 71 percent of Mexicans and Central Americans, 69 percent of Africans, and 52
percent of Asian immigrants would fail to meet the threshold” of incomes or financial assets above
250% of the federal poverty line, a heavily weighted factor under the Rule.41 In short, “the impact
37 Jacey Fortin, ‘Huddled Masses’ in Statue of Liberty Poem Are European, Trump Official Says, NY TIMES (Aug. 14, 2019) https://www.nytimes.com/2019/08/14/us/cuccinelli-statue-libertypoem.html 38 Id. 39 Randy Capps et al., Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. Immigration, MIGRATION POLICY INST. (Nov. 2018) https://www.migrationpolicy.org/research/impact-dhs-public-charge-rule-immigration 40 Id.; see also Abigail Hauslohner et al., Trump Officials Move to Deny Green Cards, Path to Citizenship for Poor Immigrants, WASH. POST (Aug. 12, 2019) Id.; see also https://www.washingtonpost.com/immigration/trump-administration-aims-to-make-citizenshipmore-difficult-for-immigrants-who-rely-on-public-assistance/2019/08/12/fe3f8162-b565-11e98949-5f36ff92706e_story.html 41 Jeanne Batalova et al., Through the Back Door: Remaking the Immigration System via the Expected “Public Charge” Rule, MIGRATION POLICY INST. (Aug. 2018)

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of the new standard would fall most heavily upon Asian, Latin American, and African immigrants, making the proposal something of a modern-day version of the National Origins Quota Act of 1924. That since-repudiated law sought to tilt immigration to Western Europe.”42
133. Although multiple courts have since enjoined the Rule, it nevertheless constitutes an attempt to radically reshape what it means to be a public charge, and by doing so, constitutes an attempt to radically reshape which noncitizens are allowed to immigrate to or adjust status in the United States. Analysis of the characteristics of recent green-card recipients, compared with the negative and heavily weighted negative factors in the public charge test, reveals that 69% had at least one negative factor and 43% had at least two.43 More significantly, the effects of the rule “are likely to be less for Europe, Canada, and Oceana, where 27 percent had two or more negative factors.”44 In contrast, “impacts will be far greater for Central America and Mexico, where 60 percent had two or more such factors,”45 and in general for “Latin America and Africa, where incomes are generally lower than the rest of the world.”46 Researchers have predicted that “people

https://www.migrationpolicy.org/news/through-back-door-remaking-immigration-systemexpected-public-charge-rule. Notably, MPI also found that 40 percent of US-born citizens would fail to meet this threshold and would be at risk of being deemed a public charge under the Rule.
42 Jeanne Batalova et al., Through the Back Door: Remaking the Immigration System via the Expected “Public Charge” Rule, MIGRATION POLICY INST. (Aug. 2018) https://www.migrationpolicy.org/news/through-back-door-remaking-immigration-systemexpected-public-charge-rule
43 Jeanne Batalova et al., Millions Will Feel Chilling Effects of U.S. Public-Charge Rule That is Also Likely to Reshape Legal Immigration, MIGRATION POLICY INST., (Aug. 2019) https://www.migrationpolicy.org/news/chilling-effects-us-public-charge-rule-commentary
44 Id.
45 Id.
46 Abigail Hauslohner et al., Trump Officials Move to Deny Green Cards, Path to Citizenship for Poor Immigrants, WASH. POST (Aug. 12, 2019) https://www.washingtonpost.com/immigration/trump-administration-aims-to-make-citizenship-

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who are granted green cards – the major step towards winning citizenship – will become wealthier but their numbers will shrink.”47 In other words, “[m]ore green cards will go to immigrants with a good education and a measure of self-sufficiency; fewer will be granted simply because someone has a family member in the United States”48—a result President Trump has long championed when promoting a “merit-based” immigration system to replace the current one.
134. The anticipated effects of the Proclamation are similar to those of the now-enjoined Rule. This can hardly be surprising, given that both share significant similarities: Both favor “unsubsidized” ACA coverage over subsidized; the use of Medicaid is a negative or disqualifying factor for adults 18 and over; and both involve some analysis on the part of a consular officer as to whether an intending immigrant has sufficient financial resources to cover “reasonably foreseeable medical costs.”
135. How the Rule and the Proclamation achieve these effects, however, is where the two differ. When promulgating the Rule, the Trump Administration made at least some attempt to comply with the strictures of the Administrative Procedure Act—just as Senators Tom Cotton and David Perdue, two allies of the President in the Senate, attempted to comply with the legislative processes of Congress when sponsoring the RAISE Act. The Proclamation, by contrast, is an improper attempt to legislate by presidential fiat, followed by invalid agency action to implement those improper orders. Here, with a single sweep of the President’s pen, the Proclamation attempts

more-difficult-for-immigrants-who-rely-on-public-assistance/2019/08/12/fe3f8162-b565-11e98949-5f36ff92706e_story.html
47 Michael D. Shear et al., Trump’s Policy Could Alter the Face of the American Immigrant, NY TIMES (Aug. 14, 2019) https://www.nytimes.com/2019/08/14/us/immigration-public-chargewelfare.html
48 Id.

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to overwrite and overturn more than a century of Congressional intent to admit qualified noncitizens as immigrants, regardless of wealth, health, race, or national origin.
THE PROCLAMATION AND ITS IMPLEMENTATION ARE UNLAWFUL A. The Proclamation Does Not Pass Muster Under Section 212(f) or Rational Basis
Review 136. The Proclamation purports to be grounded in the President’s authority under 8 U.S.C. § 1182(f), which allows the President to “suspend the entry of all aliens or any class of aliens” whenever the President “finds that the entry” of such “aliens into the United States would be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). But in suspending the entry of potentially two thirds of all legal immigrants to the United States, the Proclamation represents an unprecedented abuse of the §1182(f) power. Although the Supreme Court found that the Muslim Ban represented a permissible exercise of the President’s broad authority to impose entry restrictions under § 1182(f) based on national security considerations, the Proclamation strains even the generous analysis of Trump v. Hawaii, 138 S. Ct. 2392 (2018). 137. Indeed, the Supreme Court’s decision in Hawaii is bound up in the circumstances of the proclamation at issue in that case, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” The Court took pains to note, for example, that the Muslim Ban “supports Congress’s individualized approach for determining inadmissibility” because it was intended to “promote[] the effectiveness of the [consular officer] vetting process by helping to ensure the availability” of “sufficient (and sufficiently reliable) information” to assess a visa applicant’s admissibility. Hawaii, 138 S. Ct. at 2411. It also observed that previous suspensions under § 1182(f) often involved foreign policy judgments: Some such suspensions “broadly suspended entry on the basis of nationality due to ongoing diplomatic disputes;” others “were directed at subsets of aliens from

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the countries at issue;” but as a general rule, the Court found that previous Presidents “repeatedly suspended entry” under § 1182(f) “to retaliate for conduct by their governments that conflicted with foreign policy interests.” Id. at 2413.
138. Within this context, the Court found that the President had satisfied the “sole requisite set forth in § 1182(f)”—i.e., that the President “find that the entry of covered aliens would be detrimental to the interests of the United States.”8 U.S.C. § 1182(f). As the Court observed, the President had ordered DHS and other agencies “to conduct a comprehensive evaluation,” then “set[] forth extensive findings” justifying why “it was in the national interest to restrict entry of aliens who could not be vetted with adequate information—both to protect national security and public safety, and to induce improvement by their home countries.” The Court also highlighted language in the Muslim Ban noting that the Administration had “crafted country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, while securing the Nation until such time as improvements occur.” Indeed, the Court found that “[t]he 12-page Muslim Ban—which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions—is more detailed than any prior order a President has issued under § 1182(f).” Hawaii, 138 S. Ct. at 2409.
139. Given these findings, especially within a national security setting, the Court found that the Muslim Ban “is squarely within the scope of Presidential authority under the INA.” Id. at 2415.
140. The Court also noted, however, that it “has engaged in a circumscribed inquiry when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.” Id. at 2419. The limits on such an inquiry, pursued under Kleindienst v. Mandel, have “particular force in admission and immigration cases that overlap with the area of national security” for two reasons:

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First, judicial inquiry into national security concerns potentially “intrud[es] on the President’s constitutional responsibilities in the area of foreign affairs,” raising separation of powers concerns. Id. at 2398. Second, the courts are not well positioned “when it comes to collecting evidence and drawing inferences on questions of national security.” Id.
141. Thus, when evaluating the Plaintiffs’ constitutional challenges to the Ban, the Court articulated a standard of review that “considers whether the entry policy is plausibly related to the Government’s stated objective.” Id. at 2420.
142. Although the Supreme Court found that the Muslim Ban ultimately met this standard, it was careful to note that its analysis was grounded in the national security context. It was this context that allowed the Court to find that “the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility,” Id. at 2421, despite acknowledging “a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation,” Id. at 2417. In so finding, the Court gave express deference to “the Executive’s evaluation of the underlying facts . . .particularly in the context of litigation involving ‘sensitive and weighty interests of national security and foreign affairs.’” Id. at 2422.
143. In addition, the Court credited three specific features of the Ban and its predecessors that “support the Government’s claim of a legitimate national security interest.” Id. at 2402.
144. First, three Muslim-majority countries had already been removed from the list of banned countries, and the Proclamation stated that for countries remaining on the list, the tailored entry suspensions would “remain in force only so long as necessary to address” the security concerns posed by each country. Id. at 2410.
145. Second, the Ban “includes significant exceptions for various categories of foreign nationals,” permitting “nationals from nearly every covered country to travel to the United States

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on a variety of nonimmigrant visas,” which make up the majority of visas issued to nationals from the banned countries. Id. at 2422.
146. Third, “the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants,” and “directs DHS and the State Department to issue guidance elaborating upon the circumstances that would justify a waiver.” Id. at 2422-23. The Court found this program, which identifies specific eligibility criteria, to be similar to humanitarian exceptions set forth in a similar country-specific suspension imposed by President Carter during the Iran hostage crisis.
147. Given these considerations, the Court held that the plaintiffs had failed to demonstrate a likelihood of success on the merits of their constitutional claims because “the Government has set forth a sufficient national security justification to survive rational basis review,” and remanded the case to the lower courts for further proceedings. Id. at 2423.
148. The Supreme Court found that § 1182(f) “grants the President broad discretion to suspend the entry of aliens into the United States.” Id. at 2408. But such authority is not limitless. If the Proclamation is allowed to ban two thirds of immigrants whom Congress has expressly permitted to seek and receive immigrant visas based on wealth or self-sufficiency, such a reading of § 1182(f) would provide the President with unfettered discretion to rewrite the INA as he sees fit. Such a reading cannot muster under even the most generous reading of Hawaii.
149. As an initial matter, unlike the Muslim Ban, the Proclamation does nothing to “support[] Congress’s individualized approach for determining admissibility” under the INA. There is nothing in the text of the Proclamation indicating that one of its purposes is to “improve the screening and vetting protocols and procedures associated with” the visa-issuance process. 82 Fed. Reg. 45162 (Sept. 27, 2017). To the contrary, the Proclamation expressly has nothing to do

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with national security, bearing a “HEALTHCARE” label on the White House website.49 By its terms, the Proclamation’s purpose is to protect the country’s health care system and taxpayers “from the burdens of uncompensated care” by suspending the “entry into the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare.” Thus, instead of a relatively targeted, country-specific approach intended to “encourage foreign governments to improve their . . . practices” in vetting and information sharing, the Proclamation sweeps far more broadly and indiscriminately, affecting hundreds of thousands of immigrants solely on the basis of their ability to afford health insurance. 82 Fed. Reg. 45,162.
150. Second, the Proclamation does not even attempt to set forth factual findings justifying its sweeping ban on nearly two thirds of all prospective immigrants seeking to enter the United States. Unlike the Muslim Ban, the Proclamation is not grounded in any comparable multiagency, comprehensive evaluation that led to “extensive findings” set forth in the Proclamation, justifying why it is in the national interest to restrict the entry of aliens through country-specific restrictions crafted to “encourage cooperation given each country’s distinct circumstances.” Hawaii, 138 S. Ct. at 2409 (citation and internal quotations omitted).
151. Instead, in a short preamble that ostensibly justifies the details of the suspension that follows, the Proclamation merely claims that uninsured individuals burden the country’s health care system for two main reasons: because “[h]ealthcare providers and taxpayers bear substantial costs in paying for medical expenses incurred by people who lack health insurance;” and because “uninsured individuals often use emergency rooms to seek remedies for a variety of

49 Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, WHITEHOUSE.GOV (Oct. 4, 2019) https://www.whitehouse.gov/presidential-actions/presidential-proclamation-suspension-entryimmigrants-will-financially-burden-united-states-healthcare-system/

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non-emergency conditions,” which burdens taxpayers, “who reimburse hospitals for a portion of their uncompensated emergency care costs.” 84 Fed. Reg. 53,991. According to an unsupported assertion in the preamble, “[i]n total, uncompensated care costs – the overall measure of unreimbursed services that hospitals give their patients – have exceeded $35 billion in each of the last 10 years.” Id. The Proclamation then asserts that “data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance.” Id. The Proclamation does not provide or cite to any support for these claims.
152. It is these unsupported assertions alone that purport to justify the Proclamation’s indiscriminate ban on hundreds of thousands of prospective immigrants across the globe.
153. The lack of factual support for the Proclamation’s entry suspension is evident. While claiming that “lawful immigrants are about three times more likely than United States citizens to lack health insurance,” the Proclamation ignores the fact that United States citizens actually account for 75% of the total 27.4 million uninsured in this country, or 20.55 million uninsured individuals.50 In comparison, according to figures provided by the Kaiser Family Foundation for 2017, uninsured immigrants represent only 11% of uninsured in this country, or 3 million uninsured individuals.
154. In attaching a dollar amount to the “uncompensated care costs”—in excess of “$35 billion in each of the last 10 years,” or “$7 million on average for each hospital in the United States”—the Proclamation provides no evidentiary support for these figures. Nor does it set forth any factual findings identifying what percentage of this total overall figure is attributable to the 75% of uninsured United States citizens versus the 11% uninsured immigrants in this country,

50 President Trump’s Proclamation Suspending Entry for Immigrants without Health Coverage, KAISER FAMILY FUND (Oct. 10, 2019) https://www.kff.org/disparities-policy/factsheet/president-trumps-proclamation-suspending-entry-for-immigrants-without-health-coverage/

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such that the continued entry of such uninsured immigrants to the United States “would be detrimental” to the interests of “protecting both [our health care system] and the American taxpayer from the burdens of uncompensated care.” 84 Fed. Reg. 53,991.
155. The Proclamation, moreover, sets forth no factual findings explaining how the conditions of its suspension further the stated goal of reducing the burden of uninsured health care costs. This is in stark contrast to the Muslim Ban, which articulated country-specific deficiencies in vetting and information-sharing; justifications for the suspension of specific visas from specific countries; and express instructions to the Secretary of State to engage in diplomatic efforts with these countries to improve the identified deficiencies, using the suspension of specific visas from those countries “to ensure that adequate standards are established to prevent infiltration by foreign terrorists.” 82. Fed. Reg. 13,213. The Proclamation, by contrast, imposes a far broader suspension, barring all immigrants worldwide except for the limited few who can arrange for certain types of United States-based health insurance or demonstrate an unspecified level of wealth at their visa interview. There are no factual findings explaining how, for example, the entry of an immigrant who would be fully insured with comprehensive coverage under the ACA after arrival—albeit with financial assistance—would be detrimental to the Proclamation’s express purpose of reducing the financial burden imposed by uninsured individuals. There are likewise no factual findings explaining how the entry of an immigrant who would be underinsured or effectively uninsured with visitor insurance or a short-term limited duration insurance plan would further this purpose.
156. Third, in infringing the Plaintiffs’ constitutional rights, the Proclamation’s policy of suspending entry for all new immigrants unless they can afford only certain types of health insurance, or demonstrate an unspecified level of wealth, is not plausibly related to the Government’s stated objective of “addressing the challenges facing our healthcare system,

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including protecting both it and the American taxpayer from the burdens of uncompensated care.” 84 Fed. Reg. 53,991.
157. As noted above, the Proclamation’s broad suspension on entry, combined with its limited array of “approved health insurance” options, effectively incentivizes—if not requires— most prospective immigrants to purchase non-comprehensive visitor insurance or short-term limited duration insurance to satisfy the Proclamation’s requirements. This is because the vast majority of immigrants entering the United States have historically been family-based visa applicants, who would not have access to “approved” employer-based insurance before entering the United States and obtaining work authorization. Many of the other “approved health insurance” plans under the Proclamation (i.e., Medicare, TRICARE, family members’ plans, and catastrophic and “unsubsidized” ACA plans) are not practically or legally available to most prospective immigrants outside of the country. Even for employment-based visa applicants, employersponsored insurance is far from guaranteed, as the vast majority of employers impose a waiting period before employees can be participate in employer-sponsored coverage, with waiting periods lasting 1.9 months on average.51 Visitors insurance and STLDI plans are, as a practical matter, the only options realistically available to most would-be immigrants, and those will generally not be available to cover preexisting conditions.
158. These options, however, provide extremely limited coverage and would likely leave individuals underinsured or uninsured for common needs such as prescription drugs, to say

51 2018 Employer Health Benefits Survey, KAISER FAMILY FUND (Oct. 3, 2018) https://www.kff.org/report-section/2018-employer-health-benefits-survey-section-3-employeecoverage-eligibility-and-participation/

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nothing of hospitalization or emergency care.52 The Proclamation, moreover, requires prospective immigrants to purchase such coverage for the maximum time period allowed, 364 days.53 Once that 364-day period expires, the immigrant would not be able to switch immediately to a regular, comprehensive plan, regardless of whether she wanted to and had the resources to do so, with or without financial assistance: instead, the immigrant would be required to wait until the next regular open enrollment period (November 1 through December 15 each year) to change coverage. Allowing and in fact encouraging the entry of immigrants covered by visitor and STLDI plans, and requiring that coverage for their first year in a new country or likely longer, contravenes the Proclamation’s goal of reducing uncompensated costs associated with uninsured health care.
159. In fact, although the Proclamation highlights the $35 billion in uncompensated care costs incurred by this nation’s hospitals, the American Hospital Association (“AHA”) criticized STLDI plans earlier this year when the Trump Administration proposed a new rule to make STLDI plans more available and longer in duration. The AHA warned that STLDI products “could end up costing a patient far more by covering fewer benefits and ensuring fewer critical protections, like covering pre-existing conditions,” such that patients “could find themselves responsible for their entire medical bill without any help from their ‘health plan.’”54 Accordingly, “[f]or providers, [STLDI] products will lead to increased bad debt, with underinsured patients unable to afford the

52 Karen Pollitz et al., Understanding Short-Term Limited Duration Health Insurance, KAISER FAMILY FUND (Apr. 23, 2018) https://www.kff.org/health-reform/issue-brief/understandingshort-term-limited-duration-health-insurance/; https://www.commonwealthfund.org/blog/2018/short-term-health-plan-gaps-and-limits-leavepeople-risk
53 As noted above, see FN 51, STLDI plans lasting 364 days are only available in about half the states.
54 https://www.aha.org/press-releases/2018-08-01-aha-statement-final-rule-short-term-limitedduration-health-insurance

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care they need but that is not covered,” and “[i]ncreased bad debt will further strain hospitals’ and health systems’ ability to provide a full range of services to their patients and communities, including the most vulnerable.”55 Other commenters to the final rule warned increasing the availability of STLDI plans that “are not qualifying health plans mandated to cover the essential benefits of the Affordable Care Act” could “lead to an increased reliance on emergency departments as consumers delay or do not seek primary care.”56 If President Trump sincerely wished to address the problem of uncompensated care costs borne by hospitals, especially “uncompensated emergency care costs” incurred by emergency rooms, driving new immigrants towards STLDI and similar non-comprehensive plans like visitor insurance is not a reasonable solution.
160. The Proclamation likewise fails to address why the Trump Administration, after laboring for a year to repeal the individual mandate of the Affordable Care Act and celebrating that repeal of the penalty associated with that statutory mandate for almost two years since, has now identified the “burdens of uncompensated care” for uninsured individuals as a problem that must be alleviated by imposing the individual mandate (and a stark penalty of inadmissibility into the country for failure to comply) specifically and solely on newly arriving immigrants— notwithstanding the fact that only 11% of uninsured individuals in this country are immigrants, while 75% of uninsured individuals are citizens.

55 Id.
56 Rick Pollack, AHA Statement on Final Rule on Short-Term, Limited-Duration Health Insurance Plans, AMERICAN HOSPITAL ASSOCIATION (Aug. 1, 2018) https://www.aha.org/pressreleases/2018-08-01-aha-statement-final-rule-short-term-limited-duration-health-insurance https://www.healthcarefinancenews.com/news/increase-uncompensated-hospital-care-could-beone-effect-short-term-coverage-rule

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161. Although the President’s authority to suspend entry under § 1182(f) may be broad, it is not absolute—especially not when the exercise of that authority does not comply with either the text of the statutory provision and is patently unrelated in any rational fashion to its stated objective. B. The Proclamation Does Not Pass Muster Under Equal Protection
162. The President’s § 1182(f) powers, moreover, do not give him license to run roughshod over the Constitution’s guarantee of equal protection. From the time he announced his candidacy through his entire tenure in the White House, President Trump has openly expressed antipathy toward not only all noncitizens, but also specifically toward immigrants seeking to come to the United States—particularly immigrants of color, including those from countries such as Mexico, Haiti, and Nigeria, and regions such as Central and Latin America, Africa, and the Middle East. The Proclamation is but the latest in an iterative string of attempts to deny immigrant visas to foreign nationals on the basis of their national origin or race—a motivation President Trump has expressed since he was a candidate.
163. Indeed, in the same speech in which he announced his presidential bid, thencandidate Trump declared: “When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you.” Rather, he warned his audience, “They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.” And, he added, “They’re not sending us the right people. It’s coming from more than Mexico. It’s coming from all over South and Latin America,

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and it’s coming probably—probably—from the Middle East. But we don’t know. Because we have no protection and we have no competence, we don’t know what’s happening.”57
164. Notwithstanding immediate public backlash to his remarks equating all Mexicans with “rapists,” then-candidate Trump doubled down shortly thereafter in an interview on CNN. When asked about the North American Free Trade Agreement, then-candidate Trump pivoted to the topic of immigration and volunteered: “I love the Mexican people. I do business with the Mexican people, but you have people coming through the border that are from all over. And they’re bad. They’re really bad.” He further clarified: “But you have people coming in and I’m not just saying Mexicans, I’m talking about people that are from all over that are killers and rapists and they’re coming into this country.”58
165. The themes that then-candidate Trump presented in these early statements of his candidacy have recurred in his public remarks about immigrants ever since. He has repeatedly and consistently associated immigrants with crime and a lack of national security.59 He has repeatedly and consistently presented immigrants as not only undesirable to this country,60 but also different

57 Full text: Donald Trump Announces a Presidential Bid, WASH. POST (June 16, 2015) https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trumpannounces-a-presidential-bid/
58 http://cnnpressroom.blogs.cnn.com/2015/06/28/donald-trump-on-cnns-state-of-the-union-imin-it-to-win-it-i-will-make-our-country-great-again/
59 “They’re rapists;” “It’s coming from all over” and “we have no protection;” see also Donald Trump on CNN’s State of the Union: “I’m in it to win it…I will make our country great again” CNN (June 28, 2015) https://www.whitehouse.gov/briefings-statements/president-donald-jtrumps-state-union-address/ (“In recent weeks, two terrorist attacks in New York were made possible by the visa lottery and chain migration. In the age of terrorism, these programs present risks we can no longer afford.”).
60 “When Mexico sends its people, they’re not sending their best;” “They’re not sending us the right people.” See also Alana Abramson, ‘I Can Be More Presidential Than Any Other President.’ Read Donald Trump’s Ohio Rally Speech, TIME (July 26, 2017). See also

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from the American public.61 And he has repeatedly and consistently advanced the notion that these undesirable immigrants come from Latin America, the Middle East, or Africa62 and enter this country in an unregulated fashion because of the problems in the current immigration system.63
166. Indeed, in speeches, remarks to the press, and tweets, President Trump has consistently attacked the two primary ways that noncitizens from predominantly nonwhite countries receive immigrant visas: the family preference system, which allows United States citizens and lawful permanent residents to sponsor close family members for immigrant visas; and the diversity visa lottery, which was originally established in 1990 to diversify the country’s immigrant population by selecting immigrants from countries with historically low rates of immigration to the United States. The former accounts for approximately 65% of all immigrant

https://time.com/4874161/donald-trump-transcript-youngstown-ohio/ (criticizing “today’s lowskill system, just a terrible system where anybody comes in. People that have never worked, people that are criminals, anybody comes in. . . . We don’t want people that come into our country and immediately go on welfare and stay there for the rest of their lives.”).
61 “They’re not sending you.” See also President Trump Remarks at Conservative Political Action Conference, CSPAN (Feb. 23, 2018). See also https://www.c-span.org/video/?4415921/president-trump-pushes-concealed-carry-teachers-cpac-speech (describing the diversity visa lottery: “You have a country, they put names in. Do you think they are giving us the good people? Not too many of you people are going to be a lottery.”)
62 “It’s coming from more than Mexico. It’s coming from all over South and Latin America, and it’s coming probably—probably—from the Middle East.” See also @realdonaldtrump, Twitter https://twitter.com/realdonaldtrump/status/980961086546632705 (“Honduras, Mexico and many other countries that the U.S. is generous to, sends many of their people to our country through our WEAK IMMIGRATION POLICIES.”)
63 “It’s coming from all over,” but “[b]ecause we have no protection and we have no competence, we don’t know what’s happening.” See also https://twitter.com/realdonaldtrump/status/953406553083777029 (“We need to keep America safe, including moving away from a random chain migration and lottery system, to one that is merit-based.”)

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visas granted every year; the latter accounts for about 4.5%.64 President Trump has repeatedly criticized both family-based preferences and the diversity visa lottery by claiming that they admit immigrants through “random chance,”65 threatening the country’s economy and security66 and “put[ting] pressure on our social safety net and generous welfare programs.”67
167. For example, President Trump regularly portrays family-based immigration in derogatory terms, dismissing family preferences as “chain-based migration” that “can continue without limit,”68 even though the INA strictly limits the types and numbers of family-sponsored immigrants.69 In continually emphasizing “chain” metaphor, he raises the specter of a “virtually

64 Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2017, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2017/table10; Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2016, DHS https://www.dhs.gov/immigration-statistics/yearbook/2016/table10; Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2016, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2015/table10
65 Remarks by President Trump on Modernizing Our Immigration System for a Stronger America, WHITEHOUSE.GOV (May 16, 2019) https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-modernizing-immigration-system-stronger-america/
66 See, e.g., Remarks by President Trump and Vice President Pence in a Meeting on Immigration with Republican Members of the Senate, WHITEHOUSE.GOV (Jan. 4, 2018) See, e.g., https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-presidentpence-meeting-immigration-republican-members-senate/
67 Remarks by President Trump on Modernizing Our Immigration System for a Stronger America, WHITEHOUSE.GOV (May 16, 2019) https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-modernizing-immigration-system-stronger-america/
68 @realdonaldtrump, Twitter, https://twitter.com/realdonaldtrump/status/960907362109452288
69 David Bier, Five Myths about Chain Migration, CATO INST. (Feb. 14, 2018) https://www.cato.org/publications/commentary/five-myths-about-chain-migration

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unlimited”70 influx of “low-skilled and unskilled”71 migrants who “come in and just immediately go and collect welfare.”72 Chain migration,” according to President Trump, is “bringing many, many people with one, and often it doesn’t work out very well. Those many people are not doing us right.”73
168. Contrary to the President’s suppositions and assertions, the truth remains that nearly half of adults who receive family-based visas have college degrees (compared with less than a third of U.S. natives) and family-sponsored immigrants are the most upwardly mobile American workers.74
169. It is also a common set-piece in President Trump’s speeches for him to bring up the diversity visa lottery, play-act drawing names out of a hat, and characterize the “winners” as criminals and “the worst of the worst:”75 “The country puts the name in the basket and you pick people out of the lottery. This one is a murderer. This one robbed four banks. This one I better not

70 President Donald J. Trump’s State of the Union Address, WHITEHOUSE.GOV (Jan. 30, 2018) https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address/
71 President Donald J. Trump Backs RAISE Act, WHITEHOUSE.GOV (Aug. 2, 2017) https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-backs-raise-act/
72 Trump Administration Immigration Policy Announcement, CSPAN (Aug. 2, 2017) https://www.c-span.org/video/?432076-1/president-backs-gop-senators-skilled-basedimmigration-bill
73 Remarks by President Trump in Meeting with Bipartisan Members of Congress on Immigration, WHITEHOUSE.GOV (Jan. 9, 2018) https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-meeting-bipartisan-members-congress-immigration/
74 David Bier, Five Myths about Chain Migration, CATO INST. (Feb. 14, 2018) https://www.cato.org/publications/commentary/five-myths-about-chain-migration
75 Remarks by President Trump in Meeting with Bipartisan Members of Congress on Immigration, WHITEHOUSE.GOV (Jan. 9, 2018) https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-meeting-bipartisan-members-congress-immigration/

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say. This one another murderer. Ladies and gentlemen, another murderer.”76 President Trump regularly mischaracterizes the program as a way for countries to send their undesirable citizens to the United States, claiming, “[y]ou have a country, they put names in. Do you think they are giving us the good people? . . . They are not giving us their best people, folks. Use your heads.”77 He likewise routinely denigrates the diversity visa lottery as “a program that randomly hands out green cards without any regard for skill, merit, or the safety of our people”78—
170. The truth remains that individuals must apply for the diversity visa lottery and possess either a high school education or demonstrate two years of work experience in a sufficiently skilled occupation. Applicants must then pass the exact same criminal, national security, and medical checks as all other immigrants if they are so fortunate to win a diversity visa.79
171. Notably, most family-based visa immigrants in recent years have originated in Asia, Africa, and South America; most diversity visa lottery winners have originated in Africa and Asia.80 In other words, when attacking family-based or diversity visa immigration—both long-

76 President Trump in Cincinnati, Ohio, CSPAN (Aug. 1, 2019) https://www.cspan.org/video/?463078-1/president-trump-holds-campaign-rally-cincinnati-ohio&start=1937
77 See also President Trump Remarks at Conservative Political Action Conference, CSPAN (Feb. 23, 2018) https://www.c-span.org/video/?441592-1/president-trump-pushes-concealed-carryteachers-cpac-speech
78 President Donald J. Trump’s State of the Union Address, WHITEHOUSE.GOV (Jan. 30, 2018) https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address/
79 See generally Alex Nowrasteh, The Cheap Assault on the Immigration Visa Lottery, CATO INST. (Jan. 28, 2018) See generally https://www.cato.org/publications/commentary/cheapassault-immigration-visa-lottery
80 Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2017, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2017/table10. In these statistics, figures for Africa include countries from the Middle East.

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standing features of the American immigration system—President Trump is attacking nonwhite immigration.
172. While criticizing family-based preferences and the diversity visa lottery as “outdated programs that hurt our national and economic security,”81 President Trump has also consistently advocated for a new, “merit-based” system. Such a system “admits people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country”82—in contrast with family-based and diversity immigrants, who are “mostly low-wage and low skilled,” and who “come into our country and immediately go onto welfare and stay there for the rest of their lives.”83 President Trump has constantly portrayed merit-based immigrants as people who “have skills, who can support themselves financially, and contribute to our economy,” and who will come to the country to “work hard.”84
173. Most employment-based immigrant visas in the current United States immigration system, which are awarded predominantly to highly skilled and white-collar workers with advanced degrees—i.e., the types of individuals President Trump’s proposed merit-based system

81 @realdonaldtrump, Twitter, https://twitter.com/realdonaldtrump/status/960907362109452288
82 President Donald J. Trump’s State of the Union Address, WHITEHOUSE.GOV (Jan. 30, 2018) https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address/
83 Alana Abramson, ‘I Can Be More Presidential Than Any Other President.’ Read Donald Trump’s Ohio Rally Speech, TIME (July 26, 2017) https://time.com/4874161/donald-trumptranscript-youngstown-ohio/
84 President Trump Remarks at Conservative Political Action Conference, CSPAN (Feb. 23, 2018) https://www.c-span.org/video/?441592-1/president-trump-pushes-concealed-carryteachers-cpac-speech

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would favor—go to individuals from Europe and Asia.85 Employment-based immigrant visas represent approximately 13% of the immigrant visas granted annually by the United States.86
174. That President Trump divides immigrants into these two categories—undesirable family-based and diversity immigrants from predominantly non-white countries on the one hand, and employment- or “merit-” based immigrants who are either European or at least willing to “work hard” on the other—is no surprise in the context of other statements he has made evincing racial and nation-based animus grounded in ugly stereotypes.
175. During a White House briefing on how many immigrants had received visas to enter in 2017, for example, Trump reportedly grumbled that Haitians “all have AIDS” and that after seeing the United States, Nigerians would never “go back to their huts” in Africa once he heard how many immigrants from each country had been admitted.87 At a similar briefing on protections for Haiti, El Salvador, and African countries in 2018, President Trump is said to have asked, “Why are we having all these people from shithole countries come here?” He then suggested

85 Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2017, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2017/table10
86 Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2017, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2017/table10; Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2016, DHS https://www.dhs.gov/immigration-statistics/yearbook/2016/table10; Table 10. Persons Obtaining Lawful Permanent Resident Status by Broad Class of Admission and Region and Country of Birth: Fiscal Year 2016, DHS https://www.dhs.gov/immigrationstatistics/yearbook/2015/table10
87 Michael D. Shear and Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, NY TIMES (Dec. 23, 2017) https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html

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that the United States should bring in more people from countries such as Norway.88 More recently, he tweeted that four Congresswomen of color “originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world,” and “should go back and help fix the totally broken and crime infested places from which they came”—despite the fact that each Member of Congress is a United States citizen and only one, Ilhan Omar, had come to the United States as a child, fleeing from Somalia as a refugee.89
176. Taken in aggregate, President Trump’s public statements have repeatedly and consistently evinced an animus towards nonwhite immigrants. And since entering the White House, President Trump has tried various ways to effectuate his desire to limit nonwhite immigration by limiting family-based and diversity visa immigration.
177. Early in his presidency, for example, President Trump championed the RAISE Act, a bill that “favors applicants who can speak English, who can support themselves financially, and who demonstrate valuable skills that will strengthen our economy and strengthen our country.”90 The same bill would cut family-based immigration in half by eliminating many currently existing categories for family-sponsored immigration, and by permitting only spouses and minor children of United States citizens and lawful permanent residents to seek immigrant visas—moves that

88 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
89 Felicia Sonmez and Mike DeBonis, Trump Tells Four Liberal Congresswomen to ‘go back’ to Their Countries, Prompting Pelosi to Defend Them, WASH. POST (July 14, 2019) https://www.washingtonpost.com/politics/trump-says-four-liberal-congresswomen-should-goback-to-the-crime-infested-places-from-which-they-came/2019/07/14/b8bf140e-a638-11e9a3a6-ab670962db05_story.html
90 President Trump Rally in Huntington, West Virginia, CSPAN, https://www.cspan.org/video/?431931-1/president-trump-holds-rally-west-virginia

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would disproportionately affect nationals of the predominantly nonwhite countries of Mexico, the Dominican Republic, the Philippines, China, India, and Vietnam.91 The RAISE Act also introduced a point system for awarding visas, granting more points to intending immigrants for having a high-paying job offer, high English test scores, high educational attainment, or financial resources to invest over a million dollars in the United States.92 In addition, under the bill, “you cannot get welfare for five years when you come into our country. You can’t just come in like in past weeks, years, and decades you come in, immediately start picking up welfare.”93 In mid-2017, the RAISE Act failed in the Senate without a vote.
178. Around the same time that the Senate passed on voting on the RAISE Act, USCIS introduced the new Public Charge rule, another attempt by the Trump Administration to curtail the immigration of nonwhite individuals entering the country through family-based preferences or the diversity visa. Echoing the point system of the RAISE Act, the Public Charge rule places varying positive or negative weights on certain factors that are then assessed in determining whether an applicant should be deemed inadmissible on public charge grounds. Under one of the heavily weighted positive factors—having income or financial assets over 250% of the federal poverty line—“71% of Mexicans and Central Americans, 69% of Africans, and 52% of Asian immigrants would fail to meet the threshold.” Accordingly, like the RAISE Act, the Public Charge rule “would

91 Julia Gelatt, The RAISE Act: Dramatic Change to Family Immigration, Less So for the Employment-Based System, MIGRATION POLICY INST. (Aug. 2017) https://www.migrationpolicy.org/news/raise-act-dramatic-change-family-immigration-less-soemployment-based-system
92 Id.
93 Factbase Videos, Weekly Address: Donald Trump - Washington, DC - August 25, 2017, YOUTUBE (Oct. 18, 2017)Video: https://www.youtube.com/watch?v=Mx7k8mk5PPo&t=54

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have pronounced regional, national-origin and—by extension—racial effects on flows,” having the most negative impact on “Asian, Latin American, and African immigrants.”94
179. The Proclamation follows in the footsteps of the failed RAISE Act and the enjoined Public Charge rule. Like the RAISE Act and the Public Charge rule, the Proclamation has the potential to drastically cut family-based immigration. Unlike its predecessors, however, the Proclamation is promulgated by presidential fiat, and thus untethered to the legislative or administrative rulemaking processes. But although the RAISE Act, the Public Charge rule, and the Proclamation each takes a different form and function, the intended result of each is the same: to reduce immigration from predominantly nonwhite countries.
THE PROCLAMATION AND ITS IMPLEMENTATION HARM PLAINTIFFS 180. The Proclamation will go into effect at 12:01 am, Eastern daylight time, on Sunday,
November 3, 2019, and all publicly available information reflects that the State Department has been taking, and will take, definitive and concrete action to implement and enforce it. The press, for example, has reported that “[m]ore than two dozen health officials are wrestling with highly technical questions, like which health plans would comply with the new requirements,” and that some are “confused about numerous aspects of the proclamation.”95 Information made publicly available on the State Department’s website, moreover, expressly instructs would-be immigrants that “[i]f [they] are applying for an immigrant visa, including a diversity visa, on or after November

94 Jeanne Batalova et al., Through the Back Door: Remaking the Immigration System via the Expected “Public Charge” Rule, MIGRATION POLICY INST. (Aug. 2018) https://www.migrationpolicy.org/news/through-back-door-remaking-immigration-systemexpected-public-charge-rule
95 Dan Diamond, Health Officials: Trump Immigration Order Could be Illegal, POLITICO (Oct 11, 2019) https://www.politico.com/news/2019/10/11/trump-immigrants-health-insuranceillegal-044716

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3, 2019,” they must satisfy the Proclamation’s requirements and that “[i]nability to meet this requirement will result in the denial of the visa application.96 The State Department information page further states that “[d]uring the visa interview, applicants should be able to demonstrate to the satisfaction of the consular officer” that they meet the Proclamation’s requirements, and that “[o]fficers will review the medical and financial documentation that is already part of the applicant’s case file and may request additional information or documentation as needed.”97 Such assertions reflect the fact, or at very least support the logical inference, that the State Department is already implementing and, starting on November 3, 2019, will enforce the Proclamation, resulting in a direct impact on the rights of qualified prospective immigrants.
181. When implemented and enforced, the Proclamation will cause Plaintiffs [and their members and clients] substantial, concrete, and particularized injury. The entry suspension of the Proclamation is indefinite; the Proclamation provides no waiver from its suspension; and the Proclamation provides no way to appeal the denial of a visa due to the Proclamation’s de facto wealth test. As a result, the Proclamation will permanently separate close family members and inflict irreparable harm.
182. John Doe #1, a U.S. citizen, can no longer work due to a disability. He has applied for wife, a Mexican citizen with an approved I-601A waiver, to obtain legal status so that she can live and work here in the United States, supporting both him and his fourteen-year-old United States citizen son. But he fears that his wife will not be able to show that she meets the Proclamation’s health insurance and financial resources requirements at her consular interview.

96 Presidential Proclamation on Health Care, TRAVEL.STATE.GOV, https://travel.state.gov/content/travel/en/us-visas/immigrate/Presidential-Proclamation-onHealth-Care.html
97 Id.

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183. John Doe #1 has not worked since May 2018 and had heart surgery in July 2018. He currently has a pacemaker. Around April 2019, he received his Social Security Disability determination and since he stopped working, Social Security Disability benefits have been his only income source. Both he and his son have health insurance through the Oregon Health Plan, Oregon’s Medicaid program, but, because he can no longer work, he cannot obtain insurance through an employer or afford private health insurance.
184. Money is tight in John Doe #1’s family. After receiving approval for his wife’s family-based visa petition and her I-601A provisional unlawful presence, completing her application for an immigrant visa, submitting documents to the National Visa Center, and scheduling a consulate interview for Wednesday, November 6, 2019 in Ciudad Juarez, Chihuahua, Mexico, John Doe #1 thought that his wife would finally become a legal resident and would be able to work. He thought his family would finally be able to breathe a financial sigh of relief after enduring a significant medical hardship, as well as anxiety about her legal status.
185. But then they received news of the Proclamation. John Doe #1 does not believe that his wife will be eligible to receive a visa now; she does not have health insurance and they do not have sufficient financial resources, especially after his disability, to afford health insurance for her or pay her foreseeable health insurance costs.
186. The Proclamation will be destructive to John Doe #1’s family in many ways. He cannot imagine living apart from his wife. He and their son depend on her. Their son suffers from health complications and is currently in the hospital. Given his own health issues, John Doe #1 cannot care for his son by himself; he needs his wife. If granted a visa, she could work to support the family financially since John Doe #1 cannot work himself. Due to the significant medical issues

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facing John Doe #1 and his son, he does not know what he would do if his wife goes to her November 6th interview and her visa is denied.
187. Juan Ramon Morales, a U.S. citizen, would be able to enroll his wife, Vianca Morales, as a dependent in his employer’s health insurance plan, but the Proclamation makes both this and the prospect of acquiring an immigrant visa for her his impossible.
188. Mr. Morales’s employer told him that they could not add his wife as a dependent on his health insurance plan unless she obtained a Social Security Number; once she does so, she can be added. But she cannot do so until she receives legal status in the United States, and the Proclamation requires that she show proof, which she cannot obtain, that she would be enrolled in health insurance within 30 days of her admission into the United States. Through his research, Mr. Morales learned that Social Security Numbers and “Green Cards” are typically not mailed quickly enough to arrive within 30 days after admission to the U.S. is granted. Thus, even though Mr. Morales would be able to enroll his wife in health insurance were she to receive permanent residence, the Proclamation’s stringent requirements make it impossible.
189. Nor could the Morales family afford to purchase health insurance for Ms. Morales or her foreseeable medical expenses. Ms. Morales, who has lived in the U.S. since 2006, is diagnosed with leukemia and has had emergency brain surgery. She also is epileptic and suffers from seizures. To manage these, she pays for prescription medicine out of pocket. Mr. Morales likewise currently has significant medical costs; he carries significant debt due to back surgery he had. Mr. Morales’ daughter, a U.S. citizen, and his step-daughter, a legal permanent resident, both have subsidized health insurance that costs approximately $30 per month. Mr. Morales has researched health insurance options to cover his wife, but has not found any available plans that he could afford.

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190. When Mr. Morales first learned about the Proclamation, he felt tremendous anxiety and despair. Mr. Morales and his family had already gone through a long and laborious journey to get to where they are today in the immigrant visa process: they had their I-130 petition approved in July 2017; Ms. Morales filed a provisional unlawful presence waiver application in May 2018 based on the extreme hardship Mr. Morales would suffer if she could not be able to obtain permanent residence in the U.S, and the application was approved in April 2019; Ms. Morales had completed all of the other required steps of the Consular Process; and now the family was waiting for her interview to be scheduled in Ciudad Juarez, Mexico. If his wife is denied permanent residency, Mr. Morales and his children will suffer extreme psychological, emotional, financial, and physical hardship. It was while waiting for this interview that the Morales family first heard about the Proclamation. Given the strict 30 day timeline, Ms. Morales’ health conditions, and Mr. Morales’ limited financial resources, Mr. Morales does not believe that Ms. Morales will have health insurance, that she will be able to prove that she will be able to obtain health insurance 30 days after her admittance into the U.S., or that she will be able to afford foreseeable medical costs at the time of her visa interview.
191. As part of Ms. Morales’ waiver application, Vianca demonstrated that Mr. Morales would suffer extreme hardship if Ms. Morales’ unlawful presence was not forgiven, including extreme psychological, emotional, financial, and physical hardship. If she is denied an immigrant visa, Mr. Morales would be separated from the love of his life and would have to raise his daughters alone. The thought that Ms. Morales may be denied her immigrant visa—and thus indefinitely separated from him—has caused Mr. Morales significant stress.
192. As a single mother of two children and a victim of domestic abuse, Jane Doe #2, a U.S. citizen who was naturalized in 2018, has faced many obstacles in the United States. Yet, she

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has seen the beauty and opportunities that this country has to offer. The United States has given her a sense of hope and happiness for the future: even though she is not where she would like to be, she feels like she is getting there. She now wishes to bring her parents to the United States to be with her and their grandchildren, but fears she will not be able to do so if the Proclamation is in effect.
193. Her experiences as a victim of domestic abuse, a single mother, and an immigrant to the United States have often made Jane Doe #2 feel very alone. She particularly misses her parents. She has been living apart from her 59-year old parents, who live in Nicaragua, for 13 years. This separation has been exceptionally painful. She can only communicate with her parents twice a week, at most, because they live in a remote location. It has been extremely stressful and distressing to Jane Doe #2 to have experienced domestic violence without being able to turn to her parents for help. And the fact that they have not been able to witness the beautiful moments—like the birth of her children—breaks her heart. Not only has she been separated from her parents, but her children have never met their grandparents. Jane Doe #2 sponsored two immigrant visas for her parents to reunite with them in the United States to change that.
194. On or around December 19, 2018, Jane Doe #2 applied for her parents to come to the United States. The visa petitions were approved on or around July 9, 2019. Her parents have received the requisite letters from the National Visa Centers to proceed with the Consular Process. Her family is currently collecting information and documents to submit the DS-260 and immigrant documents. They were waiting for their interview when they heard news of the Proclamation.
195. When she heard about the Proclamation, Jane Doe #2 felt crushed. She cannot explain the feeling of going through so many awful moments in her life and finally obtaining some

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hope of a light at the end of the tunnel by the possibility of reuniting with her family, only to have that hope ripped away from her by the Proclamation.
196. Currently, Jane Doe #2’s parents do not have health insurance. They go to clinics in Nicaragua for their medical needs. As a single mother of two, Jane Doe #2’s financial resources are limited. She has searched for an available health insurance option for them that she could afford, but has not been successful and does not believe an “approved” and available insurance option is affordable.
197. Jane Doe #3, a U.S. citizen, can no longer work due to a disability, which also makes it difficult for her to keep up with household tasks. After being separated from her husband for almost two years, she hopes that having her husband, a German citizen, with her in the U.S. will make things better. Living apart has been miserable for Jane Doe #3. Although they talk often, she rarely gets to see her husband, and she needs to incur debt whenever she goes to visit him in Germany. Having her husband in the U.S. would help in almost every way. But she now believes that her husband will not be able to meet the new requirements that the Proclamation created.
198. Jane Doe #3 met her husband in Los Angeles in 2006, and they were married in February 2018. After getting married, they decided to settle in the U.S. instead of Germany because of Jane Doe #3’s desire to stay close to her family. She lives nearby her immediate family, and is especially thankful to be able to leave near her grandmother, who is a Holocaust survivor. Accordingly, she filed an immigrant visa petition for her husband in July 2018, and he returned to Germany so that he would not overstay his visitor visa. The I-130 petition was approved in April 2019, and since then, they have been gathering documents required for consular processing and looking forward to the time when they can be reunited.

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199. The Proclamation has forced them to put their plans for a future together on hold. Jane Doe #3 does not know how her husband will be able to prove at a consular interview that he will have approved health insurance within 30 days of entering the United States. Jane Doe #3 is currently enrolled in California’s Medicaid program and she cannot add her husband to this coverage.
200. While her husband likely has good employment prospects in Los Angeles—he is an architect who currently teaches architectural theory and design and he speaks both English and German fluently—it is extremely difficult for him to secure employment without knowing when he will enter the United States. Even if he were to be able to obtain insurance through an employer, he would almost certainly not be able to secure such employment at the time of his consular interview. Furthermore, his current German health insurance will not cover him when he moves to the United States. In the past, when he has visited Jane Doe #3, he purchased traveler’s insurance, but it is his understanding that he would also not be eligible to receive such insurance if he moves permanently to the U.S. Doe’s husband has multiple sclerosis, and his treatments are expensive. She believes that she and her husband do not have the financial resources to afford health insurance for him or to pay his foreseeable medical expenses out of pocket.
201. Iris Angelina Castro, a U.S. citizen, is currently pregnant with her second child and separated from her husband, Hermogenes Castro Molina, a national and resident of the Dominican Republic. She wishes to reunite with her husband in the United States because when her first son became very ill, she was forced to quit her job to take care of him, and she is now unemployed with no income source.

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202. Ms. Castro was previously employed as a teacher, but she has since lost all her benefits when she stopped working to stay at home with her first son. Having Mr. Molina here in the United States will help their whole family; he can work while she cares for the children.
203. Ms. Castro filed an immigrant petition for her husband on November 14, 2018, which was approved on May 30, 2019. They have since been filing all the required documents so that they can schedule a consular interview.
204. News of the Proclamation devastated Ms. Castro. Because she is unemployed, she does not believe that they have sufficient financial resources to prove that Mr. Castro would be able to obtain health insurance within 30 days of his entry into the U.S. or pay for foreseeable medical costs. She has already been living apart from her husband for almost a year and that separation has been exceptionally painful. Furthermore, she is pregnant with their first child together. It is painful for her to think that her daughter’s father will not be here for her birth and that she will have to raise her daughter without her father. Without him and his potential financial support, she believes that she will be forced to use public benefits for survival.
205. Blake Doe, a U.S. citizen and senior college student at Oregon State University, lived with his parents, Mexican citizens, in Oregon from the time he was born until he went to college. His parents are amazing people, and he aspires to live up to the values of compassion, hard work, and responsibility that they have always tried to instill in him. Due to their sacrifices, Blake Doe will be the first person in his family to graduate from college in June 2020. He has approved I-130 petitions for his parents, but they are afraid that if they leave the country for their consular interview, they will be banned from coming back under the Proclamation.
206. Blake Doe is seeking to permanently unify his family in Oregon because it is where he has lived his whole life. He sponsored immigrant visas for his parents on or around April 17,

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2017, and on or around January 17, 2018, their I-I30 petitions were approved. On June 11, 2019, United States Citizenship and Immigration Services (USCIS) determined that members of his family would suffer an extreme hardship if his parents’ visas were denied, and accordingly, approved an extreme hardship waiver so that his parents could complete the immigration process. His parents are currently waiting to have an interview scheduled at the Consulate in Ciudad Juarez, Mexico.
207. Blake Doe’s mother’s health has declined recently. She has two painful conditions—rheumatoid arthritis and lupus erythematosus. She currently pays for medical care out of pocket; her treatment is necessary to allow her to live without pain. She has tried to obtain health insurance but has been told she is ineligible due to her immigration status. Blake Doe’s father has tried to obtain health insurance for her but has not been successful. Through research, Blake Doe has found that it would be very expensive for him to obtain health insurance for his mother and father.
208. As a full-time college student, Blake Doe has no income and has about $20,000 worth of student loan debt. He cannot afford health insurance for his parents. Therefore, Blake Doe does not believe that he has sufficient financial resources to prove that his parents would be able to obtain approved health insurance within 30 days of their admittance into the U.S. or pay for foreseeable medical costs.
209. Given that the Proclamation has no waiver or termination date, Blake Doe is resigned to the fact that his parents will not be able to complete the immigration process. He believes that they will continue to live in fear and that he will continue to live in fear every day of permanent separation from his parents. This fear is causing him feelings of depression and makes him constantly worried.

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210. Brenda Villarruel, a U.S. citizen, and her minor son, who is a United States citizen, have been separated from her husband and the child’s stepfather, Gabino Soriano Castellanos, for almost two years. She now fears that the Proclamation will make that separation permanent.
211. Ms. Villarruel is employed as a licensed medical assistant but does not have health insurance through her work and pays out of pocket for medical services when necessary. Ms. Villarruel has sponsored her husband, who currently resides in Mexico City, Mexico, for an immigrant visa and, after receiving an approved waiver, has been scheduled for his final immigrant interview on November 5, 2019.
212. Ms. Villarruel needs her husband, Mr. Castellanos, in the United States so that he can rejoin their thriving tattoo business and continue to be the father and caretaker of their son, who has battled depression due to the separation from the only father he has ever known. News of the Proclamation has devastated the entire family. Ms. Villarruel, having researched the costs of approved insurance, does not believe that the family has sufficient financial resources to prove that she and Mr. Castellanos would be able to obtain approved health insurance to comply with the President’s Proclamation within 30 days of Mr. Castellanos admittance into the U.S. or pay for foreseeable medical costs.
213. This is a time when Ms. Villarruel and Mr. Castellanos should be building their thriving tattoo business and raising their son. Instead, they live in fear of living apart from each other indefinitely and being financially wiped-out due to the family separation.
214. Latino Network functions as an “immigration services navigator” to educate clients and connect them with legal-services providers who can assist with obtaining immigrant visas for family members, and provides information to low- and moderate-income immigrant

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families about options for health-care benefits. The Proclamation has and will continue to severely restrict and frustrate Latino Network’s ability to fulfill its objectives of counseling and referring low- and moderate-income immigrants to services that will enable them to obtain adequate health-care benefits.
215. The Proclamation has forced and will continue to force Latino Network to divert significant resources: to identify viable health-care options for members who need to comply with the Proclamation; to retrain Latino Network staff members, who had been previously trained to help members find free, low-cost, or subsidized health-care plans, and who must now learn to help members navigate the Proclamation’s terms; and to develop and publish information materials to inform our community. Latino Network’s need to devote resources to respond to the Proclamation and mitigate its effects on the Portland Latino community necessarily limit the resources available to carry out its core services and programs, and frustrate its ability to carry out its organizational purpose.
CLASS ALLEGATIONS 216. Individual Plaintiffs bring this action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1) and (b)(2), on behalf of themselves and all other persons for whom Defendants’ implementation of the Proclamation interferes with family reunification or the processing of their visa petitions in a manner consistent with applicable law. The individual plaintiffs seek certification of a class (the “Plaintiff Class”) consisting of:
a. Individuals in the United States who currently have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa, or who will soon file such a petition; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular

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officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.” (“U.S. Petitioner Subclass”) b. Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.” (“Visa Applicant Subclass”) 217. This action meets all of the Rule 23(a) prerequisites for maintaining a class action. 218. The Plaintiff Class is so numerous that joinder is impracticable, satisfying Rule 23(a)(1). Analysis by the Migration Policy Institute, based on data from the Census Bureau’s 2014-16 American Community Survey (“ACS”), indicates that roughly 375,000 immigrants, mainly family-based immigrants, would be affected by the Proclamation each year. In addition, the class action is the only appropriate procedural avenue for the protections of the class members’ constitutional rights and rights under the APA. 219. The claims of the Plaintiff Class members share common issues of law, including whether the Defendants’ Proclamation and its implementation exceeds the statutory authority provided Defendants by the Immigration and Nationality Act; violates Plaintiff Class members’ rights under the APA; and violates Plaintiff Class members’ rights under the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution. 220. The claims of the Plaintiff Class members share common issues of fact, including, but not limited to:

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a. whether the Proclamation and Defendants’ actions taken to implement it were motivated by racial animus, sought to reduce immigration by people of color, or were otherwise based on the race, ethnicity, and/or national origin of the individuals affected;
b. whether Defendants fail to address the Proclamation’s discriminatory impact; c. whether, in issuing and implementing the Proclamation, Defendants relied on
factors Congress did not intend for it to consider; d. whether, in issuing and implementing the Proclamation, Defendants failed to
consider important aspects of the problem it is addressing; e. whether, in issuing and implementing the Proclamation, Defendants explained its
decision counter to the evidence before it; f. whether Defendants quantified or considered harms that would result from the
Proclamation and its implementation; g. whether Defendants failed to follow required procedures, including notice and
opportunity for public comment, before issuing and implementing the Proclamation; h. whether the Proclamation’s requirements are, in practice, irrational, vague and unworkable, rendering impossible the uniform application of the laws or review of decisions for consistency with facts and evidence; i. whether the Proclamation is being or will be enforced so as either to prevent class members from reuniting here in the United States, or to force their separation when a noncitizen family member must leave the country for a consular interview.

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j. whether class members have suffered harm as a result of the Proclamation and Defendants’ actions taken to implement it.
221. Because the claims of the Plaintiff Class members share common issues of law and fact, they will not require individualized determinations of the circumstances to any plaintiff, and satisfy Rule 23(a)(2).
222. The claims or defenses of the named Plaintiffs are typical of the claims or defenses of the members of the Plaintiff Class, satisfying Rule 23(a)(3). Like other members of the class, the Plaintiffs have been harmed, among other things, by Defendants’ failure to lawfully abide by statutory limitations on their actions. They have further been harmed by Defendants’ failure to proceed through proper notice-and-comment and other required procedures when issuing and implementing its Proclamation, thereby leading to arbitrary, capricious, and unlawful action that fails to account for important aspects of the supposed problems it is addressing. They have further been harmed by Defendants’ failure adequately to explain its decision to issue the Proclamation or describe its implementation in a manner that it may reasonably be followed by those it affects. They have been harmed by Defendants’ premising the Proclamation and its implementation on racial animus in violation of the equal protection guarantee of the Fifth Amendment. Each of these actions, independently and collectively, have caused harm to Plaintiffs and the Plaintiff Class members.
223. The named Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class, satisfying Rule 23(a)(4). The named Plaintiffs will defend the rights of all proposed class members fairly and adequately, and have no interest that is now or may be potentially antagonistic to the interests of the Plaintiff Class. The attorneys representing the named Plaintiffs include

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experienced civil rights and immigration attorneys who are considered able practitioners in federal constitutional litigation. These attorneys should be appointed as class counsel.
224. The members of the proposed class are readily ascertainable through Defendants’ records.
225. Through implementation and enforcement of the Proclamation at the center of the Plaintiff Class’s allegations, Defendants have acted, have threatened to act, and will act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate to the class as a whole. The Plaintiff Class may therefore by properly certified under Federal Rule of Civil Procedure 23(b)(2).
226. Prosecution of separate actions by individual members of the Plaintiff Class would create the risk of inconsistent or varying adjudications and would establish incompatible standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may therefore by properly certified under Federal Rule of Civil Procedure 23(b)(1).
CAUSES OF ACTION FIRST CLAIM FOR RELIEF (Violation of the Administrative Procedure Act) (On behalf of All Plaintiffs, including the Class) 227. The foregoing allegations are repeated and incorporated as though fully set forth herein. 228. The Proclamation will go into effect on November, 3, 2019. Defendants have stated that they will begin implementing the Proclamation on this date in the manner described on the State Department’s website. 229. Defendants have taken actions to implement the Proclamation, including informing visa applicants and consular officials of new requirements effective November 3, 2019, that will result in a direct impact on the rights of qualified prospective immigrants and constitute final

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agency action(s) within the meaning of the Administrative Procedure Act. See Bennett v. Spear, 520 U.S. 154 (1997).
230. Defendants’ actions constitute violations of the APA in at least the following respects:
a. Defendants failed to reasonably justify their departure from settled practice. b. Defendants failed to address conflicts with other laws and legislative intent,
including but not limited to the specific scheme Congress mandated in the INA through provisions such within 8 U.S.C. § 1151; 8 U.S.C. § 1153; 8 U.S.C § 1182; 8 U.S.C § 1182; 8 U.S.C § 1154; 8 USC § 1186; 8 U.S.C. § 245, and numerous health care laws, such as the ACA, PRWORA, CHIP and CHIPRA, and numerous regulations duly promulgated under these and other laws. c. Defendants implemented the Proclamation in a manner that is not “consistent with applicable law” for reasons including that their actions replaced a statutory totality of the circumstances test for public charge with a new test that is vague, arbitrary, and unsupported by the evidence. d. Defendants’ implementation of the Proclamation is pretextual because Defendants seek to reduce immigration by people of color. e. Defendants fail to address the Proclamation’s discriminatory impact. f. Defendants did not quantify or consider harms that will result. g. Defendants states requirements that are irrational, vague and unworkable, rendering impossible the uniform application of the laws or review of decisions for consistency with facts and evidence. h. Defendants acted in excess of statutory authority.

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i. Defendants’ actions exceed the delegation of statutory authority to the President in U.S.C. § 1182(f) for reasons including that Congress did not delegate unfettered discretion to indefinitely rewrite the immigration or health care laws, allow for suspensions that are unconstitutional and/or unsupported by adequate findings, create permanent and specific classes of inadmissibility, or eliminate the opportunity for visa applicants’ opportunity to show that they are unlikely to become a “public charge” by the terms Congressional mandated.
j. Defendants’ actions implement the Proclamation in a manner that is not consistent with 8 U.S.C. § 1182(a)(4) for reasons including that it replaces Congress’ specific scheme for assessing who may become a “public charge,” and when admission may be authorized for those who cannot show they are unlikely to become a public charge.
k. Defendants violate their own rules and regulations and binding norms to the prejudice of others. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).
l. Defendants failed to follow required procedures including notice and opportunity for public comment, particularly with respect to the Posting and Emergency Notice.
231. Defendants’ actions implementing the Proclamation are based on legal error; fail to consider all relevant factors; and lack a rational explanation, and are therefore arbitrary and capricious and an abuse of discretion, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

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232. Defendants’ actions implementing the Proclamation are contrary to constitutional rights, discriminating on the basis of national origin and race, thereby violating the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(B).
233. Defendants’ actions implementing the Proclamation are ultra vires and in excess of any authority granted by the Proclamation, regulation, or statute, and not otherwise in accordance with law in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(C).
234. Defendants’ actions implementing the Proclamation affect Plaintiffs’ substantive rights and were made without observance of procedure required by law in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(D).
235. Defendants’ action are without good cause. 236. Defendants’ violation of the APA causes ongoing harm to Plaintiffs. 237. Plaintiffs have no adequate alternative to immediate review under the APA.
SECOND CLAIM FOR RELIEF (Equal Protection)
(On behalf of Resident Plaintiffs/U.S. Petitioners Subclass) 238. The foregoing allegations are repeated and incorporated as though fully set forth herein. 239. The Due Process Clause of the Fifth Amendment states that no person will “be deprived of life, liberty, or property, without due process of law.” 240. The Fifth Amendment prohibits Defendants from intentionally discriminating against Plaintiffs and Class Members based on race, ethnicity, and/or national origin. 241. The Proclamation and Defendants’ actions taken to implement the Proclamation are unconstitutional because they burden a fundamental right of Plaintiffs and Class Members

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and were motivated by intentional discrimination and/or animus based on race, ethnicity, and/or national origin.
242. The Proclamation furthers no legitimate purpose, let alone a compelling one. THIRD CLAIM FOR RELIEF (Ultra Vires)
(On behalf of All Plaintiffs, including the Class) 243. The foregoing allegations are repeated and incorporated as though fully set forth herein. 244. The Proclamation is illegal and is therefore ultra vires. 245. Courts “ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 (1986). 246. The President’s attempt to indefinitely ban certain immigrants based on the inability to obtain specific types of health insurance or pay for medical care, and to create a new ground of inadmissibility that Congress has previously considered and chosen not to include in the INA, exceeds Congress’s delegated power to the President's power to suspend the entry of noncitizens and issue reasonable rules for the entry of noncitizens. 247. The President’s attempt to ban certain immigrants based on the inability to obtain specific types of health insurance or pay for medical care violates constitutional separation of powers principles because it contravenes Congress’s expressed intent to provide a certain minimum level of coverage to all legal immigrants and citizens in the United States and to extend certain health care-related benefits to legal immigrants.

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FOURTH CLAIM FOR RELIEF (Procedural Due Process)
(On behalf of Resident Plaintiffs/U.S. Petitioners Subclass) 248. Plaintiffs repeat and incorporate by reference each of the foregoing allegations as if fully set forth herein. 249. The Proclamation state that an individual seeking an immigrant visa must demonstrate, “to a consular officer’s satisfaction,” that she either “will be covered by approved health insurance” within 30 days of her entry to the United States, or “possesses the financial resources to pay for reasonably foreseeable medical costs.” The Emergency Notice and Posting published by the Department of States confirm that consular officers will be questioning visa applicants and asking for medical and financial documentation. The Emergency Notice, furthermore, specifies that “reasonably foreseeable medical expenses” are “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.” 250. A prospective immigrant’s entry to the United States therefore depends on a determination made by a consular officer with no medical training to accurately assess existing medical conditions and health issues existing at the time of the visa adjudication. 251. The Due Process Clause of the Fifth Amendment to the U.S. Constitution provides that “[n]o person . . . shall be deprived of life, liberty, or property, without due process of law.” 252. Congress has created statutory rights related to the petitioning for and issuance of visas and other immigration benefits. 253. Federal agencies have created regulatory rights related to the petitioning for and issuance of visas and other immigration benefits. 254. Individuals must be given due process prior to the deprivation of these statutory and regulatory rights.

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255. Additionally, United States citizens and lawful permanent residents have constitutionally protected liberty interests in family reunification. Individuals must be given due process prior to any deprivation of these liberty interests.
256. Defendants’ actions, as set forth above, deprive individuals, including Plaintiffs and their members or clients, of the aforementioned statutory and regulatory rights, and liberty interests, without due process.
257. Defendants’ actions, as set forth above, thus violate the procedural due process guarantee of the Due Process Clause of the Fifth Amendment.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: A. A preliminary and permanent injunction enjoining Defendants, their officials, agents,
employees, assigns, and all persons acting in concert or participating with them from implementing or enforcing any part of the Proclamation; B. A declaration pursuant to 28 U.S.C. § 2201 that the Proclamation is, in its entirety, unlawful and invalid; C. An order awarding Plaintiffs costs of suit, and reasonable attorneys’ fees and expenses pursuant to any applicable law; D. Such other relief as this Court deems equitable, just and proper.

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DATED this 27th day of November, 2019.
Karen C. Tumlin (admitted pro hac vice) karen.tumlin@justiceactioncenter.org Esther H. Sung (admitted pro hac vice) esther.sung@justiceactioncenter.org JUSTICE ACTION CENTER P.O. Box 27280 Los Angeles, CA 90027 Telephone: +1 323 316-0944

INNOVATION LAW LAB
/s/ Nadia Dahab Stephen Manning (SBN 013373) stephen@innovationlawlab.org Nadia Dahab (SBN 125630) nadia@innovationlawlab.org Tess Hellgren (SBN 191622) tess@innovationlawlab.org 333 SW Fifth Avenue #200 Portland, OR 97204 Telephone: +1 503 241-0035 Facsimile: +1 503 241-7733
-and-
Jesse Bless (admitted pro hac vice) jbless@aila.org AMERICAN IMMIGRATION LAWYERS ASSOCIATION 1301 G. Street, Ste. 300 Washington, D.C. 20005 Telephone: +1 781 704-3897 Facsimile: +1 202 783-7853
-and-
Scott D. Stein (admitted pro hac vice) sstein@sidley.com Kevin M. Fee (admitted pro hac vice) kfee@sidley.com SIDLEY AUSTIN LLP One South Dearborn St. Chicago, IL 60603 Telephone: +1 312 853-7520 Facsimile: +1 312 853-7036
Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JOHN DOE #1; et al.,

Case No. 3:19-cv-1743-SI

Plaintiffs,

OPINION AND ORDER

v.

DONALD TRUMP, et al.,

Defendants.

Stephen Manning and Nadia Dahab, INNOVATION LAW LAB, 333 SW Fifth Avenue, Suite 200, Portland, OR 97204; Karen C. Tumlin and Esther H. Sung, JUSTICE ACTION CENTER, PO Box 27280, Los Angeles, CA 90027; Scott D. Stein and Kevin M. Fee, SIDLEY AUSTIN LLP, One South Dearborn Street, Chicago IL 60603; and Jesse Bless, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, 1301 G. Street, Suite 300, Washington D.C. 20005. Of Attorneys for Plaintiffs.

Joseph H. Hunt, Assistant Attorney General; Billy J. Williams, United States Attorney for the District of Oregon; August E. Flentje, Special Counsel; William C. Peachey, Director, Office of Immigration Litigation; Brian C. Ward, Senior Litigation Counsel; Courtney E. Moran, Trial Attorney; U.S. DEPARTMENT OF JUSTICE, Office of Immigration Litigation, District Court Section, PO Box 868, Ben Franklin Station, Washington D.C., 20044. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

On October 4, 2019, the President of the United States issued Proclamation No. 9945,

titled “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will

Financially Burden the United States Healthcare System” (the “Proclamation”). The

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Proclamation requires certain immigrants to show proof of health insurance or sufficient financial resources to pay for the costs of anticipated health care before those immigrants may qualify for immigrant visas. On October 30, 2019, Plaintiffs filed their putative class action complaint, alleging that: (1) Defendants violated the Administrative Procedure Act (“APA”); (2) Defendants violated the Fifth Amendment Due Process clause’s requirement of equal protection based on race, ethnicity, and national origin; (3) Defendants’ actions are ultra vires, including that the President’s issuance of the Proclamation violates the separation of powers doctrine and is outside the authority delegated to him in 8 U.S.C. § 1182(f); and (4) Defendants violated the Fifth Amendment Due Process clause’s procedural due process guarantee.
On November 2, 2019, the Court entered a Temporary Restraining Order, temporarily enjoining Defendants from taking any action to implement or enforce the Proclamation through November 30, 2019. On November 26, 2019, the Court entered a preliminary injunction order, enjoining Defendants from taking any action to implement or enforce the Proclamation until the Court resolves this case on the merits. The Court then permitted discovery relating to Plaintiffs’ motion for class certification and allowed supplemental briefing on that motion. Plaintiffs’ motion for class certification is now before the Court. Plaintiffs request certification of two subclasses: (1) a subclass of United States citizens who are petitioners sponsoring a visa for family members; and (2) a subclass of foreign nationals who are visa applicants. For the reasons discussed below, Plaintiffs’ motion is GRANTED, with a modest modification of the requested definition of the subclass of United States citizen petitioners.
STANDARDS Federal class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. The plaintiff “must be prepared to prove” that each of the applicable requirements of the rule is satisfied. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rule 23 sets forth more than
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a “mere pleading standard.” Id. Rule 23 also provides district courts with broader discretion to certify a class than to deny certification. See Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 956 (9th Cir. 2013).
A party seeking class certification must satisfy each of the four requirements of Rule 23(a) and at least one requirement of Rule 23(b). Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013). Under Rule 23(a), a district court may certify a class only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). In other words, a proposed class must meet the requirements of numerosity, commonality, typicality, and adequacy of representation. Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012). Along with the requirements of Rule 23(a), a party seeking to maintain a class action also must “satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). Plaintiffs seek to certify the proposed class under Rule 23(b)(2) or, alternatively, Rule 23(b)(1)(A). Under Rule 23(b)(2), a class action may proceed if “the party opposing the class has acted or refuses to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Under Rule 23(b)(1)(A), a class action may proceed if “prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A).
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The Rule 23 analysis is “rigorous” and may “entail some overlap with the merits of the plaintiff’s underlying claim.” Wal-Mart, 564 U.S. at 351 (quotation marks omitted); Comcast, 569 U.S. at 33-34. That said, Rule 23 “grants courts no license to engage in freeranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013). “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. A district court, however, “must consider the merits if they overlap with the Rule 23(a) requirements.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (emphasis in original).
BACKGROUND A. Immigration and Nationality Act
Congress began legislating immigration in 1882. See An Act to Regulate Immigration, 22 Stat. 214 (1882). Since then, Congress amended the immigration laws several times. In 1952, Congress passed the Immigration and Nationality Act of 1952. Congress later significantly amended this statute when it enacted the Immigration and Nationality Act of 1965 (“INA”). Aspects of the INA have been amended many times through the passage of other laws, but most significantly through direct amendments in the Immigration Reform and Control Act of 1986, the Immigration Act of 1990, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Congress adopted an immigrant visa system to further four main goals: reunifying families, admitting immigrants with skills that are useful to the United States economy, protecting refugees and others in need of humanitarian resettlement, and promoting diversity. Congress gave priority, however, to family reunification when it established the current immigration system. The method of allocating visas reflects this goal. The INA authorizes an
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unlimited number of permanent visas to “immediate relatives,” who are defined as “the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.” 8 U.S.C. § 1151(b). These visas are granted regardless of country of national origin, even though other visa categories have limits, or caps, based on country of national origin and total number of allocated visas. Other family-based preference categories, such as those for adult children, siblings, and relatives of Legal Permanent Residents, are capped at 480,000 per year (with a statutory minimum of 226,000), as compared to 140,000 maximum annual employment immigrant visas and 55,000 maximum annual diversity immigrant visas. 8 U.S.C. § 1151(c)-(e). Family-based petitions account for 65 percent of immigrant visas granted each year.
The first step in both the family-based and employment visa application process is for a relative or employer in the United States to file a sponsorship petition on behalf of the prospective immigrant. After the sponsorship petition is approved, the prospective immigrant applies for a visa and submits supporting documentation. Thus, this Opinion and Order references the “petition” (from the sponsoring family member) and the “application” (from the immigrant). These differing terms also are important in the context of the two different proposed subclasses.
When the U.S. Citizenship and Immigration Services (“USCIS”) finds the application complete, the immigrant visa applicant is interviewed. Applicants who are outside the United States must interview at a United States consulate abroad. For applicants who are inside the United States, some may be eligible to apply for immigrant visas domestically, without having to travel to a consulate, but others must leave the country to appear for a consular interview abroad. Individuals in this latter category include noncitizens who have accrued more than 180 days of
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unlawful presence in the United States but have obtained an I-601A waiver of inadmissibility to excuse the unlawful presence bar under 8 U.S.C. § 1182(a)(9)(B). See 8 C.F.R. § 212.7(e). To obtain an I-601A waiver, applicants must show that refusal of admission of the immigrant applicant would cause “extreme hardship” to eligible family members. See 8 C.F.R. § 212.7(e)(3)(vi) (incorporating the “extreme hardship” standard of 8 U.S.C. § 1182(a)(9)(B)(v)). Diversity visas are available through a lottery to individuals from countries with historically low rates of immigration to the United States; the lottery winners self-petition and apply to a consulate for their visa.
At the interview, the consular officer determines whether the immigrant visa applicant is eligible for admission to the United States. As part of the INA, Congress established ten categories of “Inadmissible Aliens” who are “ineligible to receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a). If a visa applicant falls into one of these categories, his or her application will be denied. In addition, after listing specific categories of inadmissibility, Congress provided that the President may, upon finding that the entry of any aliens or class of aliens into the United States “would be detrimental to the interests of the United States,” by proclamation suspend the entry of any class of aliens as immigrants or impose on the entry of aliens any additional restrictions he may deem to be appropriate. Id. § 1182(f).
If the consular officer denies the applicant’s immigrant visa at the interview, the applicant may choose to attempt to navigate the complex reconsideration process while remaining outside the United States. When an application is denied, I-601A waivers are automatically revoked. Applicants for whom family separation was found by USCIS to create an extreme hardship thus will be separated. They cannot return to the United States until they either obtain reconsideration of their visa denial, or obtain a new provisional waiver.
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B. Proclamation 1. Overview of the Proclamation On October 4, 2019, President Donald J. Trump issued the Proclamation. It barred
otherwise qualified legal immigrants, visa applicants primarily seeking reunification with family members, from entering the United States unless they can show the consular officer that they will not financially burden the United States healthcare system. President Trump directed that the Proclamation become effective at 12:01 a.m. eastern daylight time on November 3, 2019. Before the Proclamation went into effect, the Court preliminarily enjoined Defendants from taking any action to implement or enforce the Proclamation, first with the Temporary Restraining Order and then with the Preliminary Injunction Order.
The Proclamation estimated “uncompensated [health] care costs” at more than $35 billion in each of the last 10 years. The Proclamation measured these costs as “unreimbursed services that hospitals give their patients.” The Proclamation does not explain the source of this figure or how it was calculated. For example, it is not clear whether the underlying “unreimbursed services” costs are the amount billed by hospitals—often much higher than the cost actually paid by insurance companies or patients who individually pay their bills—or a “market” figure such as an average “allowed amount” that insurance plans would have paid for the care. It is also unclear whether all of these “unreimbursed services” are for uninsured persons or whether they also include amounts not paid from insured persons who are unable to pay co-insurance amounts, co-pays, or deductibles.
The Proclamation links the burden of “uncompensated care costs” to legal immigrants with a single unsourced sentence: “data show that lawful immigrants are about three times more likely than US citizens to lack health insurance.” Based on this, the President concluded that allowing certain otherwise qualified legal immigrants into the United States would “saddle” the
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U.S. healthcare system and the American taxpayer with increased costs. Under the Proclamation, a visa applicant intending lawfully to immigrate to the United States will presumptively financially burden the healthcare system and American taxpayers unless the applicant “will be covered by approved health insurance . . . within 30 days of the [applicant’s] entry into the United States,” or “unless the [applicant] possesses the financial resources to pay for reasonably foreseeable healthcare costs.”
The Proclamation does not discuss any data or provide any estimate for how much of the estimated $35 billion in “uncompensated costs” stems from recent uninsured legal immigrants or how often recent uninsured legal immigrants use the nation’s healthcare system. On the other hand, Plaintiffs provide the opinion of an expert, Dr. Leighton Ku, who has more than 25 years of experience as a health policy researcher.1 ECF 54. Dr. Ku opines that recent uninsured immigrants use less than one-tenth of one percent (0.06 percent) of total American medical resources and only 0.08 percent of emergency room services. Id. at 10. Moreover, if only legal uninsured immigrants were considered (the group included in the Proclamation), the numbers would be even lower. Id.
2. Types of Approved Health Insurance and Barriers to Access The Proclamation lists eight types of approved health insurance: (1) employer-sponsored plans; (2) “unsubsidized” ACA market plans on state exchanges; (3) Short Term Limited Duration Insurance (“STLDI”) plans effective for at least 364 days; (4) catastrophic plans; (5) family member plans; (6) TRICARE and the like; (7) visitor health plans effective for at least 364 days; and (8) Medicare. The Proclamation does not clarify what is meant by
1 Dr. Ku is a Professor of Health Policy and Management and Director of the Center for Health Policy Research at the Milken Institute School of Public Health of George Washington University in Washington, D.C.
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“unsubsidized” ACA market plans, but the Court assumes that it refers to plans bought without the help of premium tax credits.
Many of these approved plans are legally or practically unavailable to intending, or prospective, immigrants. Employer-sponsored plans are often not an option for family-based visa applicants, who are unlikely to have a job offer waiting before arriving in the United States. Family-based visa applicants have difficulty applying for jobs before entry because when they might receive approval to enter the United States is unknown and approval may take years. Even those fortunate enough to have secured employment may fall short. Most employers impose a waiting period before coverage begins, and the average waiting period is longer than the Proclamation’s 30-day coverage deadline. Market-rate ACA plans can be prohibitively expensive and have high deductibles. The Proclamation does not explain why “unsubsidized” ACA plans are allowed yet “subsidized” ACA plans are not.
STLDI plans are banned or restricted in California, Massachusetts, New Jersey, New York, and Rhode Island. Twenty states have contract term limitations making STLDI plans ineligible under the Proclamation. Nineteen states limit the contract term to 11 months or less and Maine requires that the insurance contract end on December 31st, making it improbable the contract term will last for 364 days. STLDI plans also do not cover essential health benefits and are thus unavailable on exchanges. Unlike exchange plans, STDLI plans can deny coverage based on preexisting conditions and impose dollar caps on core coverage.
There are additional barriers to the other “approved” plans. Family-member plans are only available to applicants younger than 27 years old. Visitor’s insurance plans are designed for short-term visits, have caps on individual coverage and lifetime benefits, and often exclude preexisting conditions, mental health conditions, and maternity care. Such plans often result in
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Case 3:19-cv-01743-SI Document 132 Filed 04/07/20 Page 10 of 37
significant uncompensated care. People who receive insurance through state Medicaid programs may not be able to add their family members to their plan. Catastrophic plans are only available to people who are already legally present. Even then, only people under 30 (or who obtain a special hardship exemption) are eligible to enroll. TRICARE is available only to members of the United States military and their close relatives. Medicare is perhaps the least feasible option— only intending immigrants older than 65 who have already been living continuously in the United States for five years may enroll. C. Named Plaintiffs in this Putative Class Action
1. Latino Network Latino Network is an organization that provides programs aimed at educating and empowering Multnomah County Latinos. The Proclamation has already significantly affected Latino Network’s ability to accomplish its mission. Latino Network employs an “Immigration Navigator,” who helps clients move through the complicated immigrant visa process. After the President issued the Proclamation, the workload of Latino Network’s Immigration Navigator ballooned. Normally, the Immigration Navigator connects families with low-cost legal services and develops educational workshops on immigration legal services. He has put these duties on hold since the Proclamation was issued and has had to postpone individual intake interviews and cancel workshops to serve essentially as a consultant on how the Proclamation will affect worried families. The Proclamation’s burden falls upon other Latino Network employees as well. The Executive Director had to reassign the Early Childhood Director to coordinate Latino Network’s response to the Proclamation. As a result, Latino Network’s childhood development programs are essentially on hold. Latino Network’s Executive Director estimates that responding to the Proclamation will consume up to 15 percent of paid staff members’ weekly time. Training staff and conducting the
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necessary research will cost Latino Network almost $14,000—money not in its budget. The time and money that Latino Network employees spend responding to the Proclamation is time and money they are unable to spend fulfilling its core mission.
2. Individual Named Plaintiffs The individual named plaintiffs submitted declarations describing their personal circumstances, health, and financial situation and explaining why they and their relatives would not be able to comply with the requirements of the Proclamation. Defendants also submitted interrogatory responses provided by the named plaintiffs. Other than Plaintiff Gabino Soriano Castellanos, added as a Plaintiff in the First Amended Class Action Complaint, the named plaintiffs are United States citizens who are sponsoring immediate family members for immigrant visas. Mr. Castellanos is a foreign national visa applicant who is the husband of a U.S. citizen, another named plaintiff, who sponsored the petition for Mr. Castellanos’s visa. All Plaintiffs seek only legally to reunite with their family members. Plaintiff John Doe #1 is a U.S. citizen who lives in Oregon with his U.S. citizen son and noncitizen wife. He and his son have coverage through the Oregon Health Plan, Oregon’s Medicaid program. He sponsored an immigrant visa for his wife, a national of Mexico. Her application was approved in July 2017. She also received an I-601A conditional waiver. John Doe #1 is no longer able to work due to a disability. He had heart surgery in 2018 and is receiving social security disability benefits. The family expects that after his wife receives lawful immigrant status, she will work and help financially support the family. Additionally, given the health problems of John Doe #1 and his son, his wife currently takes care of both of them. If her I-601A visa is revoked, it will cause extreme hardship for the family. She had a consulate interview scheduled for November 6, 2019, in Mexico, but on November 1, 2019, she requested the interview be postponed because of the Proclamation and her fear that her immigrant visa
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would be denied and her waiver would be revoked. The interview is now scheduled for May 28, 2020. John Doe #1 investigated potential approved insurance options with his attorney and could not find an available and reasonably affordable plan. John Doe #1 also contacted some insurers himself, and was quoted unaffordable premiums, including premiums of $450 and $500 per month. John Doe #1 cannot add his wife to his plan because he is on Medicare.
Plaintiff Juan Ramon Morales is a U.S. citizen who lives in New York with his U.S. citizen daughter, lawful permanent resident step-daughter, and noncitizen wife. He sponsored an immigrant visa for his wife, a national of Mexico. Her application was approved in July 2017. She also received an I-601A waiver in April 2019. The National Visa Center has informed Mr. Morales and his wife that they have received all the requested documentation and his wife is “in the queue” for an interview. He and his wife are both currently employed. He and his children all have health insurance coverage. His children, however, are covered by subsidized plans, and he is covered by a catastrophic plan through his employer. His wife’s employer does not provide health insurance. Mr. Morales is not able to add his wife to his plan until she has a social security number. Thus, after she has received her immigrant visa, she can be added, but until then she cannot be added to his plan. He has asked his employer for documentation to this effect, but nothing guarantees that she will have coverage within 30 days of her eligibility to be added to his employer-sponsored plan. Mr. Morales called at least three different health insurance companies about buying a plan for his wife, but he could not purchase a plan for her without her having a social security number. Mr. Morales investigated potential approved insurance options with his attorney and could not find an available and reasonably affordable plan. His wife had emergency brain surgery in 2010 and suffers from seizures and headaches.
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Her preexisting conditions make other available insurance and her reasonably anticipated medical expenses cost prohibitive.
Plaintiff Jane Doe #2 is a United States citizen who lives in California and is a single mother to her two U.S. citizen children. She is insured through Medi-Cal, California’s Medicaid program. She sponsored immigrant visas for her parents, who currently reside in Nicaragua. Their petitions were approved in July 2019. They are collecting the necessary information for the visa application process. Jane Doe #2 investigated potential approved insurance options with her attorney and could not find an available and reasonably affordable plan for her parents.
Plaintiff Jane Doe #3 is a United States citizen who lives in California. Her husband is an architect who teaches architectural theory and design and is a German national, living in Germany. She and her husband have been apart for more than two years. Her sponsorship petition for her husband was approved in April 2019. The documents for his application have been submitted but no interview had yet been scheduled. Jane Doe #3 has a disability, is unable to work, and has health insurance through Medi-Cal. Because it is unknown when her husband may be permitted entry into the United States, he is unable to apply for jobs before entry. His employment prospects are good and part of the benefit of having him living in this country is his expected financial support as well as family reunification and emotional, psychological, and physical support. He is unable, however, to show that he will be employed and have health insurance within 30 days of entry. He also has multiple sclerosis (“MS”), which requires treatment. They cannot show that they can pay cash for his reasonably anticipated medical expenses or can purchase “acceptable” insurance given his preexisting conditions, because it is unknown exactly when he will be employed. Jane Doe #3 researched different insurance options and discovered that she cannot add her husband to her Medi-Cal plan, TriCare is not an option
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because she never served in the military, and STLDI plans are unavailable in California. Her husband researched options from German insurance companies, but they would not cover his chronic condition of MS, only would cover emergencies, and required his residence be in Germany. Jane Doe #3 also researched unsubsidized plans on the California exchange, which were unaffordable. These plans premiums ranging from $350 to $500 per month. Jane Doe #3 and her husband can afford a subsidized plan, but those are not approved under the Proclamation.
Plaintiff Iris Angelina Castro is a U.S. Citizen living in Massachusetts with her U.S. citizen son. She had to leave her job as a teacher when her son became sick. She currently has MassHealth insurance, Massachusetts’s Medicaid. She sponsored an immigrant visa for her husband, who currently lives in and is a national of the Dominican Republic. Ms. Castro’s petition was approved in May 2019. Ms. Castro and her husband believe they have submitted all necessary paperwork as of December 2019. Ms. Castro notes that the consulate in the Dominican Republic generally promptly schedules an interview after all paperwork has been submitted. Without her job, Ms. Castro does not believe that she and her husband can show the necessary financial resources to pay for health care costs, and without her health insurance benefits her Medicaid plan is not an approved plan. Ms. Castro investigated potential approved insurance options with her attorney and could not find an available and reasonably affordable plan. She also contacted insurance companies on her own, but the prices quoted were more than she could afford and were plans that provided incomplete coverage. For example, one plan would cost $315 per month but would not cover mental health care or maternity care. At the time Ms. Castro filed her declaration, she was pregnant. She also was unemployed and could not afford the premium. Ms. Castro desires to have her husband living with her to help emotionally, physically, mentally, and financially.
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Plaintiff Blake Doe attends Oregon State University, studying civil engineering. His wife works full time. His noncitizen parents also live in Oregon, but are nationals of Mexico. He sponsored his parent’s family visa petition in 2017, and the State Department approved that petition in January 2018. On June 11, 2019, USCIS granted Blake Doe’s parents an I-601A provisional unlawful status waiver. As of February 2020, Blake and his parents were informed that all of his parents’ necessary paperwork has been received and they are “queued” for an interview. Blake investigated insurance options with his attorney and could not find an available and reasonably affordable plan for his parents. Quoted premiums were $2,500 or more per month. His mother has health conditions, and he does not believe that his parents will be able to show that they have the resources to pay for reasonably anticipated medical costs, even though his father is employed. His father’s employer does not provide medical insurance. His parents cannot be added to his student insurance or his wife’s insurance through her employment.
Plaintiff Brenda Villarruel is a U.S. citizen living in Illinois with her U.S. citizen son and parents and noncitizen husband. She sponsored an immigrant visa for her husband, Plaintiff Gabino Soriano Castellanos, who is a citizen of Mexico. Her petition was approved in September 2016. Ms. Villarruel works part-time as a medical assistant and part-time at her husband’s tattoo shop. Mr. Soriano is a professional tattoo artist who previously lived with Ms. Villarruel in Chicago but went to Mexico in March 2018. Mr. Castellanos had more than 100 customers awaiting his return for tattoos. Mr. Castellanos had his interview scheduled for November 5, 2019, but after learning of the Proclamation and researching insurance plans, he and Ms. Villarruel requested that his interview be postponed. They did not believe that they could meet the terms of the Proclamation. The interview was rescheduled for January 28, 2020. At that time, the consular officer granted Mr. Castellanos’s application for an immigrant visa.
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ANALYSIS A. Class Certification
Plaintiffs move to certify the following two subclasses:
(1) Individuals in the United States who currently have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa, or who will soon file such a petition; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs” (“U.S. Petitioner Subclass”); and (2) Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs” (“Visa Applicant Subclass”). Defendants argue that certification is inappropriate because: (1) Mr. Castellanos received
his visa, mooting his claims and rendering the Visa Applicant Subclass without a class
representative; (2) Plaintiffs in the U.S. Petitioner Subclass lack standing; and (3) the U.S.
Petitioner Subclass does not satisfy the requirements of Rules 23(a), 23(b)(2), or 23(b)(1)(a) of
the Federal Rules of Civil Procedure.
1. Visa Applicant Subclass—Representative Plaintiffs moved for class certification on November 8, 2019, noting that they would be
filing an amended complaint adding Plaintiff Gabino Soriano Castellanos to represent the Visa
Applicant Subclass. Plaintiffs included Mr. Castellanos’s declaration with their materials
supporting the motion for class certification. When filing their amended complaint on
November 27, 2019, Plaintiffs noted that they filed it as a matter of course under
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Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure, because Defendants had not yet filed an answer or otherwise responded to Plaintiffs’ original complaint, citing American Realty Investors, Inc. v. Prime Income Asset Mgmt., LLC, 2013 WL 5663069, at *5 (D. Nev. Oct. 15, 2013) (“A complaint is a pleading to which a responsive pleading is required. Therefore, under Rule 15(a)(1)(B), a party has an absolute right to amend its complaint at any time from the moment the complaint is filed until 21 days after the earlier of the filing of a responsive pleading or a motion under Rule 12(b), (e), or (f).” (quoting Villery v. Dist. of Columbia, 277 F.R.D. 218, 219 (D.D.C. 2011)). Plaintiffs filed their reply brief in support of their motion for class certification on November 27, 2019, the same day that Plaintiffs filed their First Amended Class Action Complaint.
The Court issued its Opinion and Order granting Plaintiffs’ motion for preliminary injunction on November 26, 2019. On November 27, 2019, the Court issued a scheduling order, requesting that the parties confer on a schedule for class discovery and supplemental briefing on the motion for class certification. On December 26, 2019, the Court issued a case management scheduling order, permitting discovery relating class certification and setting a deadline of February 24, 2020 for Defendants to file a supplemental surresponse in opposition to Plaintiffs’ motion for class certification and March 9, 2020 for Plaintiffs’ to file their surreply in support of their motion. On January 29, 2019, Plaintiffs filed a “Notice of Additional Facts,” which described certain changed circumstances since they filed their motion and supporting documents in November 2019, including that Mr. Castellanos had been approved for his immigrant visa during his January 2020 interview.
Defendants argue in their surresponse that the changed circumstance of Mr. Castellanos receiving his immigrant visa moots his claim in this lawsuit and renders him an invalid class
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representative. This, argue Defendants, “dooms” Plaintiffs’ request to certify the Visa Applicant Subclass. Defendants note that when “the plaintiff’s claim becomes moot before the district court certifies the class, the class action normally also becomes moot.” Slayman v. FedEx Ground Package Sys. Inc., 765 F.3d 1033, 1048 (9th Cir. 2014). Defendants further argue that because Plaintiffs invoked no exception to mootness, such as that the class claims are “inherently transitory,” Plaintiffs may not invoke such an exception in their surreply.
The Court rejects Defendants’ argument that Plaintiffs waived their opportunity to invoke the inherently transitory mootness exception. Plaintiffs added Mr. Castellanos in their First Amended Complaint, filed November 27, 2019, the same day that Plaintiffs filed their reply in support of their motion for class certification. Plaintiffs had no reason to argue a mootness exception to Mr. Castellanos’s claims in that reply—Plaintiffs had just added Mr. Castellanos as a named plaintiff. He did not even have a consular interview scheduled at that time. The next brief that Plaintiffs filed in which they could raise a mootness exception was their surreply filed on March 9, 2020, and in which Plaintiffs’ invoked the exception. Plaintiffs, therefore, did not waive the inherently transitory mootness exception.
In their surreply, Plaintiffs cite the Supreme Court’s discussion of the inherently transitory mootness exception in Nielsen v. Preap, 139 S. Ct. 954 (2019). In Nielsen, two classes of aliens brought a class action complaint challenging the INA’s provision relating to mandatory detention without bond. Id. at 960-61. The government argued that because the putative class representatives had “obtained either cancellation of removal or bond hearings” by the time of class certification, the class action was moot. Id. at 963. The Supreme Court noted, “Class actions are ‘[n]ormally . . . moot if no named class representative with an unexpired claim
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remain[s] at the time of class certification.’” Id. at 962 (alterations in original). The Court concluded, however, “that general norm is no hurdle here.” Id.
The Supreme Court held that there was at least one plaintiff with a live claim at the time that the class was certified. Id. at 963. The Court explained:
Even if that had not been so, these cases would not be moot because the fact that a class “was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction” when, as in these cases, the harms alleged are transitory enough to elude review. Respondents claim that they would be harmed by detention without a hearing pending a decision on their removal. Because this type of injury ends as soon as the decision on removal is made, it is transitory. So the fact that the named plaintiffs obtained some relief before class certification does not moot their claims. Id. (citations omitted). Like the immigration decisions in Nielsen, the type of injury alleged here ends as soon as the consular interview is held and the visa decision is made at the interview. It is transitory. Thus, the fact that Mr. Castellanos obtained some relief before class certification does not moot his claims and does not render the Visa Applicant Subclass unable to be adjudicated. Id.; see also Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1087, 1089-90 (9th Cir. 2011). 2. U.S. Petitioner Subclass—Standing Defendants argue that the U.S. Petitioner Subclass named plaintiffs lack standing. Defendants’ primary argument relating to standing, like arguments they assert against many of the Rule 23 factors, is that these plaintiffs lack standing because the Court enjoined Defendants from enforcing or applying the Proclamation before it went into effect and thus no consular officer applied the Proclamation to any immigrant. Defendants’ argument is premised on an assumption that only immigrants against whom the Proclamation has actually been applied or their sponsoring family members have standing. This argument is rejected.
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To demonstrate standing to seek injunctive relief under Article III,
a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
A plaintiff may not assert claims that are “imaginary or speculative,” but “it is not
necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to
challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v.
Thompson, 415 U.S. 452, 459 (1974); see also Italian Colors Rest. v. Becerra, 878 F.3d 1165,
1171 (9th Cir. 2018) (“The injury requirement does not force a plaintiff to ‘await the
consummation of threatened injury to obtain preventive relief.’” (quoting Blanchette v. Conn.
Gen. Ins. Corps., 419 U.S. 102, 143 (1974))). As the Ninth Circuit has explained:
It is well-established that, although a plaintiff “must demonstrate a realistic danger of sustaining a direct injury as a result of a statute’s operation or enforcement,” a plaintiff “does not have to await the consummation of threatened injury to obtain preventive relief.” Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979) (internal quotation marks omitted). Thus, Santiago need not await prosecution to challenge § 13-2929. Id. (“[I]t is not necessary that [the plaintiff] first expose himself to actual arrest or a prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.”) (internal quotation marks omitted). “[I]t is ‘sufficient for standing purposes that the plaintiff intends to engage in a ‘course of conduct arguably affected with a constitutional interest’ and that there is a credible threat that the provision will be invoked against the plaintiff.’” Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000) (quoting Babbitt, 442 U.S. at 298)).
Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 (9th Cir. 2013) (alterations in original); see
also Nat. Res. Def. Council v. EPA, 735 F.3d 873, 878 (9th Cir. 2013 (holding that a “‘credible
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threat’ that a probabilistic harm will materialize” is enough to support standing) (quoting Covington v. Jefferson Cty., 358 F.3d 626, 641 (9th Cir. 2004)).
Defendants also argue that the U.S. Petitioner Subclass Plaintiffs have not established that the threatened injury from the Proclamation is sufficiently imminent, because they have not shown that a consular officer would apply the Proclamation to deny their family members a visa. These Plaintiffs, however, do not have to prove that their family members will be denied visas to establish standing. Plaintiffs need only prove that based on their course of conduct, there is a “realistic danger” or a “credible threat” that operation or enforcement of the Proclamation would cause them injury. Valle del Sol, 732 F.3d at 1015; Nat. Res. Def. Council, 735 F.3d at 878. These Plaintiffs’ visa petitions have been approved for sponsored family members. Their family members have completed applications and are all awaiting interviews, one of which is scheduled for May 2020, to see if their visas will be granted or denied. The U.S. Petitioner Plaintiffs’ declarations and answers to interrogatories are sufficient to show that their family members have health issues and financial constraints. In their declarations and responses to interrogatories, these Plaintiffs also describe that they or their family members investigated various health insurance options approved under the Proclamation and those options are not reasonably available or affordable.2
Defendants highlight certain named plaintiffs who responded to interrogatories by describing low out-of-pocket health care costs for their sponsored immigrant family members in
2 Defendants dispute the thoroughness with which Plaintiffs investigated insurance options, arguing that Plaintiffs need to show that they could not obtain any possible insurance that may somehow conceivably fall within the parameters of the Proclamation. Defendants cite no authority for such a stringent standard to show injury for standing. Plaintiffs describe multiple attempts at researching possible insurance options and describe injury that is imminent and not hypothetical or conjectural. That is what is required to support standing. Summers, 555 U.S. at 493.
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the preceding year. Defendants argue that it is likely those named plaintiffs would not be injured by the Proclamation because their sponsored family members would be found by a consular officer to be able to pay for their own anticipated health care costs. Those named plaintiffs, however, describe how their sponsored immigrant visa applicant family members have certain health concerns or conditions and that they were unable to seek medical care for those concerns or conditions because of costs. Thus, there is a realistic danger that a consular officer would find that there are anticipated health care costs associated with those medical concerns and conditions and would evaluate the immigrant visa applicant’s ability to pay for those anticipated costs. These Plaintiffs describe how they would be unable to afford the associated medical costs. Considering the record, the Court finds that the U.S. Petitioner Plaintiffs have shown a credible threat or realistic danger of injury from the Proclamation.
Finally, Defendants argue that even if unadjudicated visa petitions could provide standing, all the named plaintiffs in the U.S. Petitioner Subclass, except one based on newly changed circumstances, lack standing because their claims are not ripe. Defendants assert that these Plaintiffs’ claims are unripe because their immigrant family members do not have interviews scheduled with a consular officer.3 It is Defendants, however, that schedule the consular interviews. Many Plaintiffs and their family members have submitted all the requested documentation and are waiting for the interview of their family members to be scheduled—the
3 Defendants’ concept of justiciability is quite narrow. Defendants argue that the claim is moot for the Visa Applicant Subclass Plaintiff who kept his interview and the claims are unripe for Plaintiffs whose family members do not have an interview. This allows standing only for persons during the narrow window of time between when an interview is scheduled and when it takes place, or if the visa is denied at the interview and the harm has then occurred. This view of standing, as discussed above, is rejected because a plaintiff does not have to wait for a credibly threatened threat of injury to occur to have standing, and the requirement that standing is conferred only in the months between an interview being scheduled and it taking place is unreasonably narrow and incompatible with the purposes of a Rule 23(b)(2) class.
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scheduling is outside their control. Others are gathering additional documents requested. In any event, Plaintiffs in this subclass face the same imminent injury, with or without an interview currently scheduled for the visa applicant. They are all persons who have sponsored an immigrant whose petition has been approved, the sponsored immigrant’s application is complete or nearly complete, and the immigrant is waiting for an interview at which time the visa will be approved or denied. That approval decision will be significantly affected by whether the Proclamation is in force at the time of the interview. As discussed above, a plaintiff “does not have to await the consummation of threatened injury to obtain preventive relief.” Valle del Sol, 732 F.3d at 1015 (quoting Babbitt, 442 U.S. at 298). Based on Plaintiffs’ course of conduct, there is a credible threat that the Proclamation will cause them injury, and that is sufficient for standing. Id.
3. Rule 23(a) Requirements a. Numerosity
In this district, there is a “rough rule of thumb” that 40 class members is sufficient to meet the numerosity requirement. Giles v. St. Charles Health Sys., Inc., 294 F.R.D. 585, 590 (D. Or. 2013); see also Wilcox Dev. Co. v. First Interstate Bank of Or., N.A., 97 F.R.D. 440, 443 (D. Or. 1983) (same); 1 McLaughlin on Class Actions § 4:5 (15th ed.) (“The rule of thumb adopted by most courts is that proposed classes in excess of 40 generally satisfy the numerosity requirement.”). Further, when plaintiffs seek injunctive or declaratory relief, “the numerosity requirement is relaxed and plaintiffs may rely on the reasonable inference arising from plaintiffs’ other evidence that the number of unknown and future members of [the proposed class] is sufficient to make joinder impracticable.” Sueoka v. United States, 101 F. App’x 649, 653 (9th Cir. 2004); see also Nightingale v. U.S. Citizenship & Immigration Servs., 333 F.R.D. 449, 457 (N.D. Cal. 2019).
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Defendants argue that this element is not met because no person currently is affected by the Proclamation because the Court enjoined the Proclamation before it went into effect. Defendants’ argument is based on Defendants’ theory that no one has standing to challenge the Proclamation until it is enforced against an immigrant. Because the Court rejects this theory, Defendants’ contention that numerosity is not met also is rejected. Defendants concede that the Proclamation will apply to tens of thousands, if not hundreds of thousands, of immigrants. It is a reasonable inference, as Defendants assert in their arguments about purported conflicts (arguing that the subclasses will be extremely large), that many of those immigrants will fall within the definition of the putative subclasses. Given the “relaxed” numerosity standard in cases requesting injunctive and declaratory relief and the fact that Plaintiffs may rely on the reasonable inference of unknown and future members, numerosity is met in this case.
b. Commonality To satisfy the commonality requirement, a representative plaintiff must show that the putative class members suffered the “same injury,” i.e., that their claims depend on a “common contention.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quotation marks omitted). “That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. But class members need not have every issue in common: Commonality requires only “a single significant question of law or fact” in common. Mazza v. Am. Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012); see also Wal-Mart, 564 U.S. at 359 (“We quite agree that for purposes of Rule 23(a)(2) even a single common question will do.” (alterations and quotation marks omitted)). “[C]ommon questions may center on ‘shared legal issues with divergent factual predicates [or] a common core of salient facts coupled with disparate legal remedies.’” Jimenez
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v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (first alteration added, second alteration in original) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)); see also Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) (“Where the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists.”); Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (“Differences among the class members with respect to the merits of their actual document fraud cases, however, are simply insufficient to defeat the propriety of class certification. What makes the plaintiffs’ claims suitable for a class action is the common allegation that the INS’s procedures provide insufficient notice.”). Thus, the Ninth Circuit has rejected arguments that factual variations preclude a finding of commonality, particularly in civil rights cases, explaining: “We have previously held, in a civil-rights suit, that commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001), overruled on other grounds by Johnson v. California, 543 U.S. 499 (2005); see also Parsons v. Ryan, 754 F.3d 657, 682 (9th Cir. 2014) (“In a civil rights suit such as this one . . . commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members. Under such circumstances, individual factual differences among class members pose no obstacle to commonality.” (quoting Rosas v. Baca, 2012 WL 2061694, at *3 (C.D. Cal. June 7, 2012) (Pregerson, J.))
Plaintiffs’ alleged harm is that they and all putative class members will be subject to the Proclamation, which Plaintiffs allege is unconstitutional and the implementation and enforcement of which Plaintiffs allege violates Constitution and the APA. Plaintiffs also seek the same relief for themselves and the putative class—a permanent injunction preventing
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implementation and enforcement of the Proclamation. Defendants focus on the fact that Plaintiffs and the individual visa applicants have varying factual circumstancing relating to their financial and medical circumstances, and thus there will be differing circumstances for consular officers to consider when making specific visa determinations.4 That, however, is not the dispositive question for commonality in this case. Plaintiffs are not challenging specific visa determinations. Plaintiffs are challenging the legality of the implementation and enforcement of a broadlyapplicable change to how immigration visas are to be processed and whether the President violated the Constitution in issuing the Proclamation.
There are many alleged common issues of law and fact. These include: (1) whether in issuing the Proclamation President Trump violated the doctrine of separation of powers, such as by the Proclamation conflicting with provisions of the INA; (2) whether in issuing the Proclamation President Trump exceeded the powers delegated to him in 8 U.S.C. § 1182(f), such as by being indefinite or otherwise not complying with the statutory authority granted to the President by Congress; (3) whether under the circumstances of this case and this exercise of authority, the Proclamation, by relating only to domestic, non-national security issues, violated the non-delegation doctrine; (4) whether Defendants violated the APA; (5) whether Defendants violated Plaintiffs’ rights under the Equal Protection Clause; (5) whether Defendants violated Plaintiffs’ rights under the Due Process Clause; (6) whether the Proclamation contains terms that
4 Defendants also assert that commonality is lacking because Plaintiffs “have not asserted that they have researched every health insurance plan available in every single state, district, and territory in the United States, or in every single country in the world, and that there are no options available to any of them—nor could they make such an assertions.” Commonality does not require such an assertion. Commonality requires “common contentions whose truth or falsity can be determined in one stroke” and that are the “‘glue’ that holds together the putative class,” meaning that each of the challenged “policies and practices is unlawful as to every [class member] or it is not.” Parsons, 754 F.3d at 678. Those parameters are met in this case.
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are vague or unworkable, rendering uniform application impossible; (7) whether the Proclamation was self-executing or required agency action; and (8) whether the Proclamation was motived by racial animus. These, and other, common issues are not determined by any individual plaintiff’s factual circumstances. They are all subject to classwide resolution. Moreover, resolving these issues is central to the validity of Plaintiffs’ claims and will “drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350. Finally, the remedy sought is the same for Plaintiffs and the putative class members.
The Court finds, however, that there is not commonality among the U.S. Petitioner Subclass named plaintiffs, whose petitions were approved sponsoring family members for an immigrant visa, and those putative class members who may “soon” file a petition but have not yet filed a petition. It is too speculative whether the alleged injury will befall persons who may soon file a petition but have not yet done so. Someone who may intend to file a petition may not actually file a petition and then will not be subject to the Proclamation. Plaintiffs assert that their intent in including such persons in the class definition was to ensure that future petitioners would be included in the class. Future U.S. citizens who actually file a petition, however, would then be persons who have a pending petition, and they would fall within the subclass definition of persons who have a petition pending. Plaintiffs’ concern can be resolved by adding “will have” to the class definition, ensuring that future persons who actually file petitions will be in the class. Deleting persons who will “soon” file a petition excludes persons who are only intending to file petitions but may not file them for some reason.5 This results in a modified subclass definition of:
5 The Court does not find the same problem with the subclass definition for the Visa Applicant subclass, which also includes applicants who will soon apply for a visa. This is because members of this subclass apply after their U.S. citizen sponsor’s petition has been
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Individuals in the United States who currently have or will have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.” This modified definition creates a subclass not frozen in time and allows for future putative class members that are similarly situated to join the class as the case progresses. See Rodriguez v. Hayes, 591 F.3d 1105, 1118, 1124 (9th Cir. 2010) (“The inclusion of future class members in a class is not itself unusual or objectionable.”) (collecting cases); accord Ms. L. v. U.S. Immigration & Customs Enf’t, 331 F.R.D. 529, 541 (S.D. Cal. 2018) (certifying a class of adults who “have been, are, or will be detained in immigration custody” and “have a minor child who is or will be separated from them”); Inland Empire-Immigrant Youth Collective v. Nielsen, 2018 WL 1061408, at *7-8 (C.D. Cal. Feb. 26, 2018) (certifying a class that includes those who “will have their DACA terminated without notice or process”). “[D]istrict courts have broad discretion to modify class definitions.” Nevarez v. Forty Niners Football Co., LLC, 326 F.R.D. 562, 575 (N.D. Cal. 2018) (alteration in original) (quoting Williams v. City of Antioch, 2010 WL 3632199, at *3 (N.D. Cal. Sept. 2, 2010) and Powers v. Hamilton County Public Defender Com’n, 501 F.3d 592, 619 (6th Cir. 2007)); see also 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1759 (3d ed.).The Court therefore modifies the definition of the U.S. Petitioner Subclass as set forth above. As
approved by USCIS. The likelihood that the immigrant visa applicant will not submit the application, therefore, is minimal. The visa process already has begun with the petition, and the visa application is a continuation of an ongoing process. This is unlike the petition in the U.S. Petitioner Subclass, which is the beginning of the visa process, and therefore creates greater concern with including “soon” in the subclass definition.
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modified, the Court finds that commonality is met for both proposed subclasses. This finding comports with many courts that have found commonality to be satisfied in cases involving challenges to systemic immigration policies and procedures, even though immigration decisions ultimately involve discretionary decisions by consular officers. See, e.g., Doe v. Wolf, 2020 WL 209919, at *7 (S.D. Cal. Jan. 14, 2020); Ms. L. v. U.S Immigration & Customs Enf’t, 330 F.R.D. 284, 289 (S.D. Cal. 2019); Ms. L. v. U.S. Immigration & Customs Enf’t, 331 F.R.D. at 538; Inland Empire-Immigrant Youth Collective, 2018 WL 1061408, at *8; Hernandez v. Lynch, 2016 WL 7116611, at *17 (C.D. Cal. Nov. 10, 2016), aff’d sub nom. Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017).
Defendants also argue that the Visa Applicant Subclass is unable to meet the commonality requirement because unadmitted and nonresident aliens have no constitutional right of entry to the United States and have to right to cause of action in furtherance of their claim for admission. Defendants cite Kerry v. Din, 135 S. Ct. 2128, 2131 (2015), and Kleindienst v. Mandel, 408 U.S. 753, 762 (1972), both of which involved plaintiffs requesting court orders requiring admission into the country of certain persons. Those cases are distinguishable because Plaintiffs are not claiming a constitutional right of entry for the Visa Applicant Subclass. Nor are Plaintiffs requesting the remedy of an order allowing members of this subclass, or any plaintiff, to enter the country or any similar type of injunctive relief. This is not a case in furtherance of any plaintiffs’ specific application for admission. It is a civil rights case challenging a generally applicable policy and procedure. The Court rejects Defendants’ argument.
c. Typicality To meet the typicality requirement, a representative plaintiff must show that his or her claims or defenses are typical of the claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). Under the “permissive standards” of Rule 23(a)(3), a “representative’s claims are ‘typical’ if they
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are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). “The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). To determine whether claims and defenses are typical, courts look to “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Id. (quotation marks omitted); see also Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010).
Defendants argue that Plaintiffs’ claims are not typical because they lack standing. The Court has rejected Defendants’ argument that Plaintiffs lack standing. Defendants also argue that Plaintiffs’ claims are not typical because Plaintiffs and their family members all have different financial and personal circumstances that could affect the individual determination by the consular officer at the interview. This, however, is not the standard for typicality. Typicality examines the claims in the case and whether they are typical of the claims of the absent class members. The claims here are not dependent on the unique factual circumstances of any specific Plaintiff. For example, whether a particular named plaintiff has financial resources has no bearing on whether President Trump violated the separation of powers doctrine in issuing the Proclamation. Similarly, whether a particular named plaintiff may be eligible for an approved insurance plan does not affect the legal analysis about whether the agencies’ engaged in final agency action and, if so, whether that action violated the APA.
“Defendants’ typicality challenge fails to the same extent as their commonality challenge. Even if the named plaintiffs’ individual cases contain some factual variations, that does not
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change the fact that all are challenging the legality of [the Proclamation, its implementation and enforcement] under the APA and due process clause.” Inland Empire-Immigrant Youth Collective, 2018 WL 1061408, at *10; see also Parsons, 754 F.3d at 686 (“It does not matter that the named plaintiffs’ may have in the past suffered varying injuries or that they may currently have different health care needs; Rule 23(a)(3) requires only that their claims be ‘typical’ of the class, not that they be identically positioned to each other to every class member.”); Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (“The particular characteristics of the Petitioner or any individual detainee will not impact the resolution of this general statutory question and, therefore, cannot render Petitioner’s claim atypical.”). With the Court’s modified definition of the U.S. Petitioner Subclass, the Court finds that the typicality requirement is met.
d. Adequacy of representation Rule 23(a)(4) states that before a class can be certified, a court must find that “the representative parties will fairly and adequately protect the interests of the class.” This requirement turns on two questions: (1) whether “the named plaintiffs and their counsel have any conflicts of interest with other class members”; and (2) whether “the named plaintiffs and their counsel [will] prosecute the action vigorously on behalf of the class.” Hanlon, 150 F.3d at 1020. The adequacy requirement is based on principles of constitutional due process, and so a court cannot bind absent class members if class representation is inadequate. Hansberry v. Lee, 311 U.S. 32, 42-43 (1940); Hanlon, 150 F.3d at 1020. Defendants argue that Plaintiffs are inadequate because the subclasses will be so large (despite Defendants’ contradictory arguments that numerosity is not met because the subclasses have a size of zero) that there will surely be conflicts within them. Defendants speculate that some subclass members will have health insurance and some will not, and there will be conflicts between those that do and those that do not. Immigrant visa applicants with health insurance will
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not be class members, and Defendants do not explain how Plaintiffs, most of whom do have health insurance, have conflicts with one another or putative class members because of their health insurance or lack thereof. “‘Only conflicts that are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy requirement.’” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 942 (9th Cir. 2015) (quoting William B. Rubenstein et al., 1 NEWBERG ON CLASS ACTIONS § 3.58 (5th ed. 2011)). “A conflict is fundamental when it goes to the specific issues in controversy.” Id. (quoting NEWBERG ON CLASS ACTIONS § 3.58). Defendants describe no purported conflicts that go to the heart of Plaintiffs’ claims in this lawsuit.
Defendants also presume that there will be conflicts between the two subclasses, because requiring the foreign immigrant subclass members to have health insurance reduces a financial burden on the U.S. citizen subclass members. Defendants submit no evidence, no statistics, no studies, nor anything other than rampant speculation and attorney argument to support their arguments relating to purported conflicts. The Court rejects Defendants’ speculation. See In re Online DVD-Rental Antitrust Litig., 779 F.3d at 942 (“However, we do not ‘favor denial of class certification on the basis of speculative conflicts.’” quoting Cummings v. Connell, 316 F.3d 886, 896 (9th Cir. 2003)).
Defendants also argue that counsel are inadequate because counsel did not submit their resumes. Counsel described their extensive and relevant experience and cases on which they have been found to be adequate class counsel. This is sufficient, and the Court does not find Defendants’ objection persuasive.
e. Ascertainability Defendants argue that Plaintiffs also must show that the requirement of ascertainability is met. Plaintiffs respond that ascertainability is not required in the Ninth Circuit and especially not
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in cases seeking certification under Rule 23(b)(2). In cases involving certification under Rule 23(b)(3), courts in this district have previously considered the issue of “ascertainability” in deciding whether to certify a class seeking money damages. See, e.g., Ott v. Mortg. Inv’rs Corp. of Ohio, Inc., 65 F. Supp. 3d 1046, 1064 (D. Or. 2014). This Court, however, did not require a showing of ascertainability when considering class action certification solely in the context of injunctive relief. See, e.g., A.F. ex rel. Legaard v. Providence Health Plan, 300 F.R.D. 474 (D. Or. 2013) (granting class certification solely under Rule 23(b)(2), without discussing ascertainability).
In A.F., the Court did not specifically discuss the applicability, or lack thereof, of the judicially created “implicit” factor of ascertainability to certification under Rule 23(b)(2). There is some disagreement among courts about the applicability of this requirement. Compare Shook v. El Paso Cty., 386 F.3d 963, 972 (10th Cir. 2004) (holding that the lower court erred in requiring ascertainability of a Rule 23(b)(2) class and explaining that “while the lack of identifiability is a factor that may defeat Rule 23(b)(3) class certification, such is not the case with respect to class certification under Rule 23(b)(2)”) with Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 495-97 (7th Cir. 2012) (finding a lack of ascertainability fatal to a Rule 23(b)(2) class certification because the class definition was too indefinite). The majority view, however, appears to favor either a lower standard for the ascertainability requirement or no requirement at all in the 23(b)(2) context. See, e.g., Shelton v. Bledsoe, 775 F.3d 554, 561-62 (3d Cir. 2015) (finding the “judicially-created implied requirement of ascertainability . . . inappropriate for (b)(2) classes”); Dunakin v. Quigley, 99 F. Supp. 3d 1297, 1325-26 (W.D. Wash. 2015) (noting “many courts have determined that [ascertainability] is of less importance or not applicable at all
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when considering certification under Rule 23(b)(2)”). The Ninth Circuit has not specifically discussed “ascertainability” in the context of a Rule 23(b)(2) class.
In 2017, the Ninth Circuit decided Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017). In that case, the Ninth Circuit rejected the argument that class plaintiffs in a Rule 23(b)(3) class must show “an administratively feasible way to identify putative class members.” Id. at 1133. For similar reasons, this Court declines to hold that administrative feasibility is a requirement for class certification under Rule 23(b)(2).
To the extent any aspect of ascertainability remains in this circuit after Briseno, under a Rule 23(b)(2) class, the Court finds persuasive the Third Circuit’s reasoning in Shelton v. Bledsoe. As discussed by the Third Circuit, a class under Rule 23(b)(2) is indivisible by nature and the alleged conduct can be declared unlawful as to all class members or none of them. 775 F.3d at 561. There is no right to opt out of such a class, the focus of this type of class is on the remedy sought, and the class must be cohesive as derived from Rule 23(b)(2), not ascertainability. Id. Because the focus is on the remedy sought, “and because a remedy obtained by one member will naturally affect the others, the identities of individual class members are less critical in a (b)(2) action than in a (b)(3) action.” Id. That also is why a court need not analyze predominance and superiority in a Rule 23(b)(2) class. Id. As further explained by the Third Circuit:
Indeed, an Advisory Committee note to Rule 23 notes that “illustrative” examples of a Rule 23(b)(2) class “are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” Fed. R. Civ. P. 23 advisory committee’s note (1966) (emphasis added). In light of this guidance, a judicially-created implied requirement of ascertainability—that the members of the class be capable of specific enumeration—is inappropriate for (b)(2) classes. Moreover, the enforcement of the remedy usually does not require
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individual identification of class members in (b)(2) class actions: “If relief is granted . . . the defendants are legally obligated to comply, and it is usually unnecessary to define with precision the persons entitled to enforce compliance, since presumably at least the representative plaintiffs would be available to seek . . . relief if necessary.” Rice v. City of Phila., 66 F.R.D. 17, 19 (E.D. Pa. 1974). Id. (emphasis in original). Thus, the Court declines to find that ascertainability is required in this case. 4. Rule 23(b)(2)—Nationwide Injunctive Relief Class Plaintiffs request certification of a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Rule 23(b)(2) permits class treatment when “the party opposing the class has acted or refuses to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The fact that some class members may have suffered no injury or different injuries from the challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2).” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2009). The requirements of Rule 23(b)(3) of predominance and superiority do not apply to a class under Rule 23(b)(2). See Wal-Mart, 564 U.S. at 362. There is also no requirement of notice or that class members be allowed to opt-out. See id. Additionally, the primary relief sought must be injunctive or declaratory. Wang, 737 F.3d at 544 (citing Wal-Mart, 564 U.S. at 360). The principle undergirding this requirement is that the “indivisible nature of the injunctive or declaratory remedy” justifies certification because the “conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart, 564 U.S. at 360 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (April 2009)). The Advisory Committee Notes explain that subdivision (b)(2) was intended to reach situations when
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the final relief settles the “legality of the behavior with respect to the class as a whole.” Advisory Committee Notes to 1966 amendments to Rule 23(b)(2). Rule 23(b)(2) does not authorize certification “when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart, 564 U.S. at 360 (emphasis in original); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 987 (9th Cir. 2011) (same). Moreover, claims for monetary relief that are “not incidental to the injunctive or declaratory relief” are ineligible for class certification under Rule 23(b)(2). Wal-Mart, 564 U.S. at 360.
Defendants do not dispute that the elements to certify a nationwide class under Rule 23(b)(2) are met here. Defendants only dispute standing and the elements under Rule 23(a). Resolving Plaintiffs’ proposed injunctive relief class would finally settle the legality of Defendants’ “behavior with respect to the class a whole.” Advisory Committee Notes to 1966 amendments to Rule 23(b)(2). The proposed class also involves conduct that “can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart, 564 U.S. at 360. As a result, certification of a nationwide injunctive relief class under Rule 23(b)(2) is appropriate. Because the Court certifies the class under Rule 23(b)(2), the Court does not reach Plaintiffs’ alternative argument under Rule 23(b)(1)(a). B. Class Counsel and Class Representatives
Under Rule 23(g), the Court appoints Karen C. Tumlin and Esther H. Sung of Justice Action Center; Stephen Manning, Nadia Dahab, and Tess Hellgren of Innovation Law Lab; Scott D. Stein and Kevin M. Fee of Sidley Austin; and Jesse Bless of American Immigration Lawyers Association as Class Counsel. The Court also appoints Plaintiffs John Doe #1; Juan Ramon Morales; Jane Doe #2; Jane Doe #3; Iris Angelina Castro; Blake Doe; Brenda Villarruel; Gabino Soriano Castellanos, and Latino Network as class representatives.
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CONCLUSION Plaintiffs’ Motion for Class Certification (ECF 44) is GRANTED, with a modified subclass definition. The Court certifies under Rule 23(b)(2) of the Federal Rules of Civil Procedure these two subclasses:
(1) U.S. Petitioner Subclass: Individuals in the United States who currently have or will have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs”; and (2) Visa Applicant Subclass: Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.” IT IS SO ORDERED. DATED this 7th day of April, 2020.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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 Case 3:19-cv-01743-SI Document 143 Filed 04/29/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JOHN DOE #1; et al.,

Case No. 3:19-cv-1743-SI

Plaintiffs,

OPINION AND ORDER

v.

DONALD TRUMP, et al.,

Defendants.

Stephen Manning and Nadia Dahab, INNOVATION LAW LAB, 333 SW Fifth Avenue, Suite 200, Portland, OR 97204; Karen C. Tumlin and Esther H. Sung, JUSTICE ACTION CENTER, PO Box 27280, Los Angeles, CA 90027; Scott D. Stein and Kevin M. Fee, SIDLEY AUSTIN LLP, One South Dearborn Street, Chicago IL 60603; and Jesse Bless, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, 1301 G. Street, Suite 300, Washington D.C. 20005. Of Attorneys for Plaintiffs.

Joseph H. Hunt, Assistant Attorney General; Billy J. Williams, United States Attorney for the District of Oregon; August E. Flentje, Special Counsel; William C. Peachey, Director, Office of Immigration Litigation; Brian C. Ward, Senior Litigation Counsel; Courtney E. Moran, Trial Attorney; U.S. DEPARTMENT OF JUSTICE, Office of Immigration Litigation, District Court Section, PO Box 868, Ben Franklin Station, Washington D.C., 20044. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

In this lawsuit, Plaintiffs challenge the issuance and implementation of the Presidential

Proclamation issued on October 4, 2019, which requires certain immigrants to show proof of

health insurance or sufficient financial resources to pay for the costs of anticipated health care

before they may qualify for immigrant visas (the “October 4th Proclamation”). The Court

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granted Plaintiffs’ motion for preliminary injunction, enjoining enforcement of the October 4th Proclamation. The Court also granted Plaintiffs’ motion for class certification, certifying two nationwide subclasses: (1) United States citizens filing certain petitions sponsoring immigrant visa applicants (“U.S. Petitioner Subclass”); and (2) certain immigrant visa applicants (“Visa Applicant Subclass”). Now before the Court is Plaintiffs’ motion for a temporary restraining order (“TRO”) relating to a different Presidential Proclamation.
Plaintiffs ask the Court partially to enjoin enforcement of Presidential Proclamation No. 10014, issued on April 22, 2020, titled “Suspension of Entry of Immigrants who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak” (the “April 22nd Proclamation”). Plaintiffs request that the Court temporarily enjoin enforcement of the April 22nd Proclamation against members of the Visa Applicant Subclass who are the children1 of Lawful Permanent Residents, are under age 21, and will “age out” of their visa preference category2 (by turning 21 years old) in the very near future.
Plaintiffs request a TRO under the All Writs Act, 28 U.S.C. § 1651(a).3 “[T]he All Writs Act authorizes employment of extraordinary writs, [however,] it confines the authority to the issuance of process ‘in aid of’ the issuing court’s jurisdiction.” Clinton v. Goldsmith, 526 U.S. 529, 534 (1999) (quoting § 1651(a)). Plaintiffs argue that the April 22nd Proclamation
1 The Immigration and Nationality Act of 1965, as amended (“INA”), defines a “child” as an unmarried person under the age of 21 who meets other criteria involving birth, adoption, or step-parent/child relationships. 8 U.S.C. § 1101(b)(1).
2 The unmarried children of Lawful Permanent Residents are in the preference category under 8 U.S.C. § 1153(a)(2)(A), commonly known as F2A.
3 The All Writs Act provides: “[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
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interferes with the Court’s jurisdiction over the claims of these children. For the reasons discussed below, the Court denies Plaintiffs’ motion.
The claims in this lawsuit include the allegations that the issuance and implementation of the October 4th Proclamation violates the constitutional and statutory rights of the Visa Applicant Subclass members by requiring them to show proof of health insurance or sufficient funds to pay reasonably anticipated health care costs. Plaintiffs argue that the April 22nd Proclamation may prevent certain Visa Applicant Subclass members from receiving visas or may extinguish the special preference they received in immigration processing by being under the age of 21 and in preference category F2A. If children age out of preference category F2A, under the Child Status Protection Act (“CSPA”), they will automatically convert to preference category F2B. 8 U.S.C. § 1153(h)(3). Although they will retain their visa application priority date after preference category conversion, depending on their country of origin, these children may have to wait years, and for children from some countries with significant backlogs, up to 65 years, for their immigrant visas to be processed and issued. Thus, argue Plaintiffs, because these children effectively may not have their visa applications processed as result of the April 22nd Proclamation, they are essentially no longer class members and will not receive the benefit of the Court’s class certification order, preliminary injunction order precluding enforcement of the October 4th Proclamation, or any future order of the Court relating to the October 4th Proclamation. Plaintiffs therefore conclude that the April 22nd Proclamation, by effectively precluding or substantially delaying the processing of the children’s immigrant visas, interferes with the Court’s jurisdiction and, thus, is addressable under the All Writs Act.
Under Plaintiffs’ interpretation of the All Writs Act, any action that may stop or significantly delay the processing of class member’s immigrant visas would interfere with the
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Court’s jurisdiction. Plaintiffs contend that there need not be any nexus between the purportedly interfering action and the First Amended Class Action Complaint for the All Writs Act to apply. Thus, under Plaintiffs’ construction of the All Writs Act, simply because the Court issued preliminary injunction and class certification orders relating to one discrete aspect of immigration law, it has authority under the All Writs Act to stop enforcement of every immigration executive order or other action that serves to stop or delay the processing of class members’ immigrant visa applications. The Court rejects this broad interpretation of the All Writs Act.
The All Writs Act is an “extraordinary remedy,” and it does not “enlarge” a court’s jurisdiction. Clinton, 526 U.S. at 534-35. Under the All Writs Act, a court may only issue writs “necessary or appropriate in aid of” its existing jurisdiction. See id. (quoting 28 U.S.C. § 1651(a)); see also Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir. 2004) (“The Act does not create any substantive federal jurisdiction. Instead, it is a codification of the federal courts’ traditional, inherent power to protect the jurisdiction they already have, derived from some other source.” (citation omitted)). Thus, the Court’s existing jurisdiction in this lawsuit, focused on the October 4th Proclamation, is the only basis for invoking the All Writs Act. The April 22nd Proclamation is completely unrelated to the October 4th Proclamation. Simply because the April 22nd Proclamation may preclude or delay the processing of immigrant visa applications is too attenuated from the allegations in the First Amended Class Action Complaint to support an extraordinary writ under the All Writs Act. See Las Americas Immigrant Advocacy Ctr. v. Trump, 2020 WL 1671584, at *2 (D. Or. Apr. 2, 2020) (“However, the relief sought in Plaintiffs’ motion is too attenuated from the claims alleged in the Complaint to sustain Plaintiffs’ burden under the All Writs Act.”). There must be some connection between the
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underlying claims and the newly-challenged conduct for that conduct sufficiently to interfere with the Court’s jurisdiction to support an extraordinary writ under the All Writs Act. Otherwise, the Court’s jurisdiction would expand to any conduct that could cause significant delay in, or even the cessation of, the processing of class members’ immigrant visas.
Plaintiffs’ interpretation of the All Writs Act also would lead to untenable results. For example, if the President received reliable intelligence that an immigrant from a certain country was planning to bring a dirty bomb into the United States and the President issued an executive order temporarily stopping the processing of all immigrant visa applicants from that country, such an executive order might prevent potential Visa Applicant Subclass members from that country from receiving the benefit of the Court’s orders. Children in preference category F2A might also face the same aging-out problem during the duration of that hypothetical executive order. Under Plaintiffs’ argument, the Court nevertheless could issue an injunction under the All Writs Act, enjoining that hypothetical executive order. There could be many other examples of an executive order affecting immigration based on national security or other concerns that would stop, delay, or limit the number of immigrant visa applicants for reasons that have nothing to do with health care insurance or the ability to show funds to pay for reasonably anticipated health care costs. Just because the Court issued orders based on a complaint relating to the processing of immigrant visa applications, that does not mean that the Court has the authority under the All Writs Act to stop enforcement of every immigration-related executive order (or other action) that might affect members of the certified class.
Moreover, the All Writs Act “invests a court with a power essentially equitable and, as such, not generally available to provide alternatives to other, adequate remedies at law.” Clinton, 526 U.S. at 537; see also Klay, 376 F.3d at 1100. This includes motions under Rule 65
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of the Federal Rules of Civil Procedure. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1229 (11th Cir. 2005) (noting “that where the relief sought is in essence a preliminary injunction, the All Writs Act is not available because other, adequate remedies at law exist, namely Fed. R. Civ. P. 65, which provides for temporary restraining orders and preliminary injunctions”). Plaintiffs’ All Writs Act challenge to the April 22nd Proclamation should be brought as a separate challenge specific to that proclamation, seeking a preliminary injunction or TRO under Rule 65, if appropriate.
Plaintiffs rely upon Al Otro Lado v. Wolf (“Al Otro I”), 952 F.3d 999 (9th Cir. 2020), to support their argument that an injunction under the All Writs Act is necessary and appropriate in this case. In Al Otro, the plaintiffs were asylum-seekers who primarily challenged “metering” policies and practices at ports of entry on the southern border. Id. at 1003. The Department of Homeland Security (“DHS”) then issued a new rule, the “transit rule” or “Asylum Ban,” which changed how asylum seekers would be processed. Id. at 1005. The district court provisionally granted class certification for a subset of plaintiffs, those who were subject to the “metering” policy and because of that may also be subject to the transit rule and potentially barred from seeking asylum Id. at 1002. The district court issued a preliminary injunction and, alternatively, an injunction under the All Writs Act barring enforcement of the new transit rule against this class of plaintiffs. Al Otro Lado, Inc. v. McAleenan (“Al Otro II”), 423 F. Supp. 3d 848, 868-69 (S.D. Cal. 2019). The Ninth Circuit declined to stay the district court’s order pending interlocutory appeal. Al Otro I, 952 F.3d at 1016. In that context, in a footnote the Ninth Circuit accepted the district court’s authority to issue a preliminary injunction and an injunction under the All Writs Act under the circumstances presented (when a different rule was being challenged than the conduct specifically challenged in the underlying complaint). Id. at 1006 n.6.
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In that case, the district court found that the requested injunction against the transit rule had a sufficient nexus to the plaintiffs’ claims in the underlying complaint relating to the metering policy, and thus a preliminary injunction was permissible. Al Otro II, 423 F. Supp. 3d at 868 (“Indeed, Plaintiffs’ claims regarding the Asylum Ban and Plaintiffs’ underlying claims in their [Second Amended Complaint] are so intertwined that denying Plaintiffs’ Motion for Preliminary Injunction could effectively eviscerate the asylum claims Plaintiffs seek to preserve in their underlying suit.”). The district court emphasized the general asylum allegations in the complaint, including the allegation that Customs and Border Patrol were engaged in an unlawful and widespread pattern and practice of denying asylum seekers access to the asylum process, that the defendants were imposing unreasonable delays before granting access to the asylum process, and that the defendants were outright denying access to the asylum process. Id. The district court noted that the pending motion for preliminary injunction sought to preserve the plaintiff class members’ access to the asylum process, which the court found related to the claims in the complaint. Id. Regarding the request for an injunction under the All Writs Act, the district court noted that its jurisdiction arose “from the statutory and constitutional questions over Defendants’ issuance of policies and practices barring access to the asylum process.” Id. at 869. The court then found that application of the transit rule “affects this Court’s jurisdiction because it would effectively moot Plaintiffs’ request for relief in the underlying action by extinguishing their asylum claims. Should the Asylum Ban [transit rule] be applied to Plaintiffs, these individuals’ asylum claims would be foreclosed, as would any claim and request for relief regarding their right to access the asylum process.” Id.
The Ninth Circuit, in addressing the dissent’s concern regarding the district court’s authority to issue an injunction under the All Writs Act against a rule that was not challenged in
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the underlying complaint, cited to the dissent’s discussion about the district court’s finding of a connection between the transit rule and the allegations in the complaint. Al Otro I, 952 F.3d at 1006 n.6. The Ninth Circuit stated that discussion “acknowledges the answer” to the district court’s authority to issue an injunction under the All Writs Act. Id. This supports this Court’s finding that there needs to be some connection between later-challenged conduct and the claims in an underlying complaint to support an injunction under the All Writs Act.
Further, the facts in Al Otro are distinguishable in a critical way. The underlying complaint in that case alleged conduct that encompassed, or at least had a close nexus to, the conduct challenged in the second motion for preliminary injunction. The later-challenged action involved similar conduct that would moot the underlying similar claims. The underlying claims and later-challenged conduct were intertwined, unlike Plaintiffs’ pending claims relating to the October 4th Proclamation and later-challenged conduct relating to F2A Visa Applicant Subclass members and the April 22nd Proclamation. Additionally, for purposes of the All Writs Act injunction, the district court specifically noted that its jurisdiction arose from claims relating to questions about general policies and practices barring access to the asylum process. Here, the Court’s jurisdiction arises from questions relating to specific issues concerning the October 4th Proclamation, not questions about general policies and practices barring immigrant visa processing.
Plaintiffs also argue that their First Amended Class Action Complaint makes similar allegations as those made in Al Otro. The Court disagrees. The allegations cited by Plaintiffs in support of this argument are not allegations relating to any general policy or procedure relating to visa processing, but are specific to the October 4th Proclamation and its effects. Nor are there any allegations in the First Amended Class Action Complaint that relate to family preference
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categories, aging out, or anything related to the pending motion. This is fatal to Plaintiffs’ argument on this point.
The Court recognizes the potential seriousness of the repercussions of a preference category F2A child being automatically converted to a preference category F2B upon his or her turning 21, as calculated under the CSPA. Based on the information provided by Plaintiffs, there are sufficiently available visas in category F2A, but, depending on the country of origin, immigrant visa applicant wait times can be more than 65 years for applicants in category F2B. “In the end, [however], we are a nation of laws, and if we are to continue to be so, the preexisting and well-established federal law governing injunctions . . . must be applied to [this] case.” Schiavo, 403 F.3d at 1229 (denying an All Writs Act injunction). If visa limits or wait times for preference category F2B are unreasonably constricted, that is a matter for Congress to fix, not the courts.
CONCLUSION Plaintiffs’ Motion for Temporary Restraining Order (ECF 135) is DENIED. IT IS SO ORDERED. DATED this 29th day of April, 2020.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN DOE #1; JUAN RAMON MORALES; JANE DOE, # 2; IRIS ANGELINA CASTRO; BLAKE DOE; BRENDA VILLARRUEL; LATINO NETWORK; JANE DOE, # 3; GABINO SORIANO CASTELLANOS,
Plaintiffs-Appellees,

No. 19-36020 D.C. No.
3:19-cv-01743-SI
ORDER

v.

DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; CHAD F. WOLF, Secretary, U.S. Department of Homeland Security; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; ALEX M. AZAR II, Secretary of Health and Human Services; U.S. DEPARTMENT OF STATE; MICHAEL POMPEO, Secretary of State, in his official capacity; UNITED STATES OF AMERICA,
Defendants-Appellants.

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Filed May 4, 2020

Before: Sidney R. Thomas, Chief Judge, and Marsha S. Berzon and Daniel A. Bress, Circuit Judges.

Order by Chief Judge Thomas; Dissent by Judge Bress

SUMMARY*

Immigration / Preliminary Injunction
The panel denied the government’s motion for a stay pending appeal of the district court’s preliminary injunction enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System.
Issued on October 4, 2019, the Proclamation barred, with some exceptions, individuals seeking to enter the United States on an immigrant visa from entering unless they could demonstrate that they will be covered by certain approved health insurance within 30 days of entry or that they have the resources to cover foreseeable healthcare costs. Individual Plaintiffs are seven U.S. citizens who are sponsoring family members for immigrant visas and whose applicant family members have successfully completed the traditional steps for obtaining an immigrant visa, but would be barred from entering the United States under the Proclamation. The
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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organizational Plaintiff provides programs aimed at educating and empowering a community of Latinos in Oregon and provides services to navigate the immigrant visa process.

First, the panel concluded that the government failed to meet its burden of showing irreparable harm absent a stay, explaining that: 1) the government’s perceived institutional injury is not “irreparable” because the government may yet vindicate its interests in this litigation; 2) the government’s claim of harm in the form of costs to healthcare providers and taxpayers by uninsured immigrants was not supported by the record, and the court was not required to accept the Proclamation’s conclusory findings as true; and 3) the harm asserted by the government is purely monetary, and such injury is not normally considered irreparable.

The panel also concluded that the record amply supported the district court’s conclusion that Plaintiffs would suffer irreparable harm absent preliminary injunctive relief. The panel explained that, based on findings that Plaintiffs and 60% of visa applicants would be unable to satisfy the requirements of the Proclamation, the district court concluded that the Proclamation would result in prolonged separation from family members, a factor that this court has held constitutes sufficient irreparable harm.

The panel noted that its analysis could conclude here, given that if a stay applicant cannot show irreparable harm, a stay may not issue, regardless of the petitioner’s proof regarding the other stay factors, but concluded that the context of this case suggested that the panel should proceed with examining the remaining factors.

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Second, the panel concluded that the government had not met the high standard of showing a strong likelihood of success on the merits. In doing so, the panel observed that, as a motions panel, it must take care not to prejudge the merits of the appeal, but rather to assess the posture of the case in the context of the necessity of a stay pending presentation to a merits panel. Further, the panel concluded that the government had not shown a strong likelihood of success on Plaintiffs’ claim that the Proclamation conflicts with the Violence Against Women Act’s amendments to the Immigration and Nationality Act (“INA”), the Affordable Care Act, and the “public charge” provision of the INA.

The panel also considered 8 U.S.C. § 1182(f), the section of the INA that provides that the President may, under certain circumstances, “for such a period as he shall deem necessary, suspend the entry of all aliens or any class of aliens . . . or impose on the entry of aliens any restrictions he may deem to be appropriate.” The panel acknowledged that the President is owed broad deference with respect to this provision, but nonetheless concluded at this juncture, for two reasons, that the Plaintiffs are likely to succeed in refuting the government’s contention that § 1182(f) legitimizes the Proclamation: 1) the Proclamation’s perfunctory time limitations do not comport with the textual limits of § 1182(f); and 2) § 1182(f) does not provide the President with limitless power to deny visas to immigrants based on purely long-term economic concerns.

Third, the panel concluded that a stay would substantially injure Plaintiffs, as well other parties, including Twenty-one states, the District of Columbia, and the City of New York, all of which filed amici briefing describing the significant harm

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they and other governmental entities will suffer if the Proclamation goes into effect.

Fourth, the panel concluded that the public interest lies with maintaining the status quo while the appeal is pending, explaining that for countless decades, a stable immigration system has provided for families to be united through a visa system that did not require purchase of selected insurance products. Given the irreparable harm to the Plaintiffs, the lack of irreparable harm to the United States for maintaining the status quo pending resolution of this appeal, and the injury to other parties if the Proclamation is immediately implemented, the panel concluded that the public interest favors preserving the status quo.

Finally, the panel concluded that the district court did not abuse its discretion in entering a nationwide injunction. The panel noted that, subsequent to the preliminary injunction, the district court certified two nationwide subclasses and that the government had not yet sought to appeal that certification. Because the class here is nationwide, and because a nationwide injunction is necessary to provide the class members with complete relief, the panel concluded that the scope of the injunction is appropriate at this juncture, regardless of whether or not it was when originally issued. Thus, the panel concluded that, because the certified class is nationwide and promotes uniformity in administering federal immigration law, the district court did not abuse its discretion as to the scope of the injunction.

Accordingly, the panel denied the motion and directed the Clerk of Court to expedite the appeal.

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Dissenting, Judge Bress wrote that the majority’s decision is yet the latest example of this court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy. First, as to success on the merits, Judge Bress concluded that the majority erred in concluding that the Proclamation is likely unconstitutional and that it conflicts with the INA and other statutes. Second, Judge Bress concluded that the government established irreparable harm to the interests the Executive seeks to promote through the Proclamation and to the core separation of powers principles that make the Proclamation lawful, and established harm in the form of costs while the injunction remains in effect. Third, as to harm to the opposing party, Judge Bress wrote plaintiffs had not established that their relatives are entitled to visas but for the Proclamation. Fourth, Judge Bress concluded that the public interest strongly supports staying the injunction, stating that the majority added a new, unauthorized stay factor: preservation of the status quo. Judge Bress also wrote that, even if maintenance of the status quo were among the factors that courts consider in this context, the actual status quo is a legal environment in which the Proclamation is authorized.

Finally, as to the scope of the injunction, Judge Bress wrote that the majority’s reliance on the district court’s recent class certification decision was a concession that the scope of the injunction was invalid when issued. Judge Bress also concluded that the problem with many nationwide injunctions, as here, is that they are premised on class certification orders that are themselves infirm. Further, Judge Bress wrote that this circuit has co-opted the policy of promoting uniform immigration laws as a justification for courts issuing nationwide injunctions of Executive Branch immigration policies.

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COUNSEL

August E. Flentje (argued), Special Counsel; Courtney E. Moran, Trial Attorney; Brian C. Ward, Senior Litigation Counsel; William C. Peachey, Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Naomi A. Igra (argued) and Benjamin Gillig, Sidley Austin LLP, San Francisco, California; Esther Sung (argued) and Karen C. Tumlin, Justice Action Center, Los Angeles, California; Nadia H. Dahab and Stephen W. Manning, Innovation Law Lab, Portland, Oregon; Jesse Bless, American Immigration Lawyers Association, Washington, D.C.; Kevin M. Fee and Scott D. Stein, Sidley Austin LLP, Chicago, Illinois; for Plaintiffs-Appellees.

Michael W. Weaver, McDermott Will & Emery LLP, Chicago, Illinois, for Amici Curiae 38 Health Policy Experts.

Xavier Becerra, Attorney General; Michael L. Newman, Senior Assistant Attorney General; Kathleen Boergers and Sarah E. Belton, Supervising Deputy Attorneys General; Srividya Panchalam, Marissa Malouff, and Nimrod Pitsker Elias, Deputy Attorneys General; Office of the General, Oakland, California; Ellen F. Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Michael C. Kron, Special Counsel; Deanna J. Chang, Senior Assistant Attorney General; Department of Justice, Portland, Oregon; Michael N. Feuer, Corporation Counsel, Oakland, California; Dennis Herrera, City Attorney, San Francisco, California; James R. Williams, County Counsel, Santa Clara, California; Philip J. Weiser, Attorney General, Colorado; Karl A. Racine,

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Attorney General, District of Columbia; William Tong, Attorney General, Connecticut; Kathleen Jennings, Attorney General, Delaware; Clare E. Connors, Attorney General, Hawai‘i; Kwame Raoul, Attorney General, and Mark A. Flessner, Corporation Counsel, Chicago, Illinois; Aaron M. Frey, Attorney General, Maine; Brian E. Frosh, Attorney General, and Andre M. Davis, City Solicitor, Baltimore, Maryland; Maura Healey, Attorney General, Massachusetts; Dana Nessel, Attorney General, Michigan; Keith Ellison, Attorney General, Minnesota; Aaron D. Ford, Attorney General, Nevada; Gurbir S. Grewal, Attorney General, and Angelo Auteri, Corporation Counsel, Union City, New Jersey; Hector Balderas, Attorney General, New Mexico; Letitia James, Attorney General, and James E. Johnson, Corporation Cousnel, New York, New York; Joshua H. Stein, Attorney General, and Nick Herman, Counsel, Carrboro, North Carolina; Josh Shapiro, Attorney General, and Marcel S. Pratt, City Solicitor, Philadelphia, Pennsylania; Peter F. Neronha, Attorney General, Rhode Island; Thomas J. Donovan Jr., Attorney General, Vermont; Mark R. Herring, Attorney General, Virginia; Robert W. Ferguson, Attorney General, and Peter S. Holmes, City Attorney, Seattle, Washington; Josh Kaul, Attorney General, Wisconsin; for Amici Curiae States and Cities.

Martha Jane Perkins and Sarah Grusin, National Health Law Program, Carrboro, North Carolina, for Amici Curiae National Health Law Program, American Public Health Association, and 48 Other Organizations.

Laura McNally and Neil Nandi, Loeb & Loeb LLP, Chicago, Illinois; Peter S. Margulies, Bristol, Rhode Island; Shoba Sivaprasad Wadhia, University Park, Pennsylvania; for Amici Curiae Immigration Law Professors.

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Nicholas Levenhagen and Elizabeth Zirker, Disability Rights California, San Diego, California, for Amici Curiae Disability Rights California, Center for Public Representation, Disability Rights Advocates, Disability Rights Education & Defense Fund, Disability Rights Oregon, National Council on Independent Living, National Disability Rights Network, and The Arc.

Daniel B. Asimov, Arnold & Porter Kaye Scholer LLP, San Francisco, California; John A. Freedman and Jeremy Karpatkin, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for Amici Curiae CASA, Center for Constitutional Rights, Make the Road New York, and National Immigration Law Center.

Sheryl Garko, Orrick Herrington & Sutcliffe LLP, Boston, Massachusetts, for Amici Curiae American Medical Association, Oregon Medical Association, and American Academy of Pediatrics.

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ORDER

THOMAS, Chief Judge:

In this case, we consider the government’s motion to stay the district court’s preliminary injunction enjoining a Presidential Proclamation restricting family-sponsored immigrants from entering the United States without acquiring specified health insurance. We deny the motion. We direct the Clerk of Court to expedite the appeal.

I

The Immigration and Nationality Act (“INA”), Pub. L. No. 82-414, 66 Stat. 163 (1952), allows noncitizens to apply for an immigrant visa to permit them to permanently reside in the United States. 8 U.S.C. §§ 1101(a)(15), 1181(a), 1182(a)(7), 1201(a). Before an individual may apply for an immigrant visa, a prospective employer or a family member who is a United States citizen or lawful permanent resident must file a sponsorship petition on behalf of the individual. Id. §§ 1151(a)–(b), 1153. The petition is submitted to and approved by U.S. Citizenship and Immigration Services, which forwards the approved petition to the National Visa Center. See id. § 1201. The immigrant must then complete visa processing and schedule an in-person interview before a consular officer at a U.S. embassy or consulate. See id. § 1202(a), (e); 22 C.F.R. § 42.62. The consular officer then makes a determination to issue or refuse the visa application. See 8 U.S.C. § 1201(a)(1), (g); 22 C.F.R. §§ 42.71, 42.81(a). If an immigrant falls into one of the ten categories enumerated in 8 U.S.C. § 1182(a), they are deemed ineligible for a visa and ineligible for admission into the United States.

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Currently, insured status is not one of the criteria for eligibility. See 8 U.S.C. § 1182(a).

On October 4, 2019, the President issued the Proclamation in dispute, Proclamation No. 9945, entitled Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order to Protect the Availability of Healthcare Benefits for Americans, 84 Fed. Reg. 53,991. The Proclamation identified the perceived problem of uncompensated medical expenses in the United States, stating, without citation to any source, “data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance.” To address this issue, the Proclamation barred, with some exceptions, individuals seeking to enter the United States on an immigrant visa from entering the United States unless they could demonstrate that they will be covered by certain approved health insurance within 30 days of entry or that they have the resources to cover foreseeable healthcare costs. Id. at 53,992.

The Proclamation identified a narrow definition of what constitutes “an approved health insurance plan,” namely:

(i) an employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;

(ii) an unsubsidized health plan offered in the individual market within a State;

(iii) a short-term limited duration health policy effective for a minimum of

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364 days—or until the beginning of planned, extended travel outside the United States;

(iv) a catastrophic plan;

(v) a family member’s plan;

(vi) a medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;

(vii) a visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days—or until the beginning of planned, extended travel outside the United States;

(viii) a medical plan under the Medicare program; or

(ix) any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.

Id.

By the terms of the Proclamation, Medicaid does not constitute “approved health insurance” for individuals over the age of 18. Id.

The President directed that the Proclamation become effective at 12:01 a.m. eastern daylight time on November 3, 2019. On October 30, Plaintiffs filed this action. The

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individual Plaintiffs are seven U.S. citizens who are sponsoring family members for immigrant visas and whose applicant family members have successfully completed the traditional steps for obtaining an immigrant visa, but would be barred from entering the United States under the Proclamation. The organizational Plaintiff is the Latino Action Network, an organization that provides programs aimed at educating and empowering Latinos in Multnomah County, Oregon. The Latino Action Network also provides services to navigate the immigrant visa process.

On November 2, 2019, the district court issued a temporary restraining order precluding the Proclamation from taking effect. See Doe # 1 v. Trump, 414 F. Supp.3d 1307 (D. Or. 2019). On November 26, before the expiration of the temporary restraining order, the district court issued a nationwide preliminary injunction prohibiting implementation of the Proclamation. Doe v. Trump, 418 F. Supp. 3d 573, 604 (D. Or. 2019). In doing so, the district court applied the familiar Winter factors, concluding that the Plaintiffs had shown that (1) they were likely to succeed on the merits; (2) they were likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tipped in their favor; and (4) that a preliminary injunction was in the public interest. Id. at 579 (citing Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22 (2008)). The United States filed this emergency motion to stay the district court order pending appeal.

While this stay motion was pending, on April 7, 2020, the district court certified the following two subclasses:

The U.S. Petitioner Subclass: Individuals in the United States who currently have or will

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have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer's satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs;” and

The Visa Applicant Subclass: Individuals who are foreign nationals who (I) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.”

II

A request for a stay pending appeal is committed to the exercise of judicial discretion. Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926). A party requesting a stay pending appeal “bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken v. Holder, 556 U.S. 418, 433–34 (2009). In considering whether to exercise our discretion in granting the Government’s motion to stay the preliminary injunction, we apply the familiar standard set forth by the Supreme Court in

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Nken, namely: (1) whether the Government has made a strong showing of the likelihood of success on the merits; (2) whether the appellants will be irreparably injured absent a stay; (3) whether a stay will substantially injure other parties; and (4) where the public interest lies. Id. at 426. “The first two factors . . . are the most critical.” Id. at 434. We consider the last two factors if the first two factors are satisfied. Id. at 435. We review the scope of the district court’s preliminary injunction for abuse of discretion. California v. Azar, 911 F.3d 558, 568 (9th Cir. 2018), cert. denied sub nom. Little Sisters of the Poor Jeanne Jugan Residence v. California, 139 S. Ct. 2716 (2019).

III

A

Nken instructed “that if the petition has not made a certain threshold showing regarding irreparable harm . . . then a stay may not issue, regardless of the petitioner’s proof regarding the other stay factors.” Leiva-Perez v. Holder, 640 F.3d 962, 965 (9th Cir. 2011) (per curium) (citing Nken, 556 U.S. at 433–34). We therefore begin our Nken analysis with consideration of irreparable harm. Cf. Al Otro Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir. 2020) (listing the Nken factors and explaining, “We first consider the government’s showing on irreparable harm, then discuss the likelihood of success on the merits under the sliding scale approach”).

The government has failed to meet its burden of showing irreparable harm. In the context of a stay request, “simply showing some possibility of irreparable injury” is insufficient. Nken, 556 U.S. at 434 (citation and internal quotation marks omitted). Rather, at this juncture, the

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government has the burden of showing that irreparable injury is likely to occur during the period before the appeal is decided. Leiva-Perez, 640 F.3d at 968. The government did not satisfy its burden.

The government first argues that it will suffer irreparable harm because the preliminary injunction prevents “the President from taking action effectuating an Act of Congress.” But the question of whether the Proclamation conflicts with congressionally set qualifications for immigrant visas or exceeds the President’s authority to change these qualifications is at the core of this dispute, to be resolved at the merits stage of this case. Thus, the harm of such a perceived institutional injury is not “irreparable,” because the government “may yet pursue and vindicate its interests in the full course of this litigation.” Washington v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017) (per curium), cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017). Indeed, if we were to adopt the government’s assertion that the irreparable harm standard is satisfied by the fact of executive action alone, no act of the executive branch asserted to be inconsistent with a legislative enactment could be the subject of a preliminary injunction. That cannot be so.

The government next argues that it will be irreparably harmed during the pendency of the appeal because of the alleged substantial cost to healthcare providers and taxpayers by uninsured immigrants. For support, the government simply cites to the statement in the Proclamation that recent immigrants are three times more likely than citizens to lack health insurance. There is no citation in the Proclamation for this statistic, nor is one to be found anywhere in the record. Nor could the government provide any source for this

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assertion in briefing or at oral argument. And the Proclamation contains no further cost quantification.

By contrast, the Plaintiffs placed into the record evidence that uninsured immigrants represent only 0.3% of American adults and only 2.9% of uninsured adults. The record evidence also shows that uninsured immigrants use less than 0.06% of total American medical resources and only 0.08% of emergency service expenditures. These statistics include illegal as well as legal immigrants, so the numbers pertinent here may be considerably lower. The record further indicates that immigrants are more likely to represent “favorable insurance risk[s]” in Affordable Care Act (ACA) marketplaces because they tend to be relatively healthier than the normal insured population and use fewer healthcare goods and services. For instance, in California, immigrants who are insured through an ACA-compliant plan (which, if subsidized, are not permitted under the Proclamation) have 10% lower medical claims than citizen enrollees in the same plans. As a result of excluding low-risk consumers, the overall health of the risk pool will decrease, resulting in increased premiums for all consumers using state marketplaces.

The government claims that we are precluded from reviewing the Proclamation’s conclusory findings and must accept them as true. This assertion runs afoul of Nken, which places the burden on the government, and instructs us only to exercise our discretion to enter a stay when irreparable harm is probable, not merely possible. 556 U.S. at 434. The government cannot meet this burden by submitting conclusory factual assertions and speculative arguments that are unsupported in the record. See Azar, 911 F.3d at 581. In this respect, this Proclamation’s findings stand in stark

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contrast to the proclamation’s findings in Trump v. Hawaii, 138 S. Ct. 2392 (2018). That case involved a proclamation that set forth “extensive findings,” which the President found after ordering the relevant agencies to “conduct a comprehensive evaluation” of the countries affected by the proclamation, and the proclamation then tailored its findings to the agencies’ recommendations. See id. at 2408. Thus, in assessing whether the government has met its burden, we must examine and review the entire record, not simply rely on one unsupported conclusory statement. See Washington, 847 F.3d at 1162–63.

Even if we credit the Proclamation’s assertions, the government has not demonstrated that the healthcare system will be irreparably burdened while this appeal is pending. The record evidence shows that many of the immigrants affected by the Proclamation could obtain some form of insurance that would reduce their already minimal contribution to healthcare costs, but these immigrants are nonetheless inadmissible under the Proclamation because they cannot obtain an “approved” health insurance plan or cannot obtain a plan within the 30-day deadline. In short, the record evidence shows that the impact of uninsured immigrants on uncompensated healthcare costs is minimal, and that many of the affected immigrants could obtain health insurance if permitted to look beyond the plans and 30-day limitation in the Proclamation. The government has submitted no evidence disputing these points.

Further, the harm asserted by the government is purely monetary, and “‘monetary injury is not normally considered irreparable.’” hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 993 (9th Cir. 2019) (quoting Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197,

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1202 (9th Cir. 1980)). In addition, monetary injury to third parties, such as health care providers, or to the economy in general provides an even weaker justification for a finding of “irreparable harm.” After all, the Nken irreparable harm standard is “whether the applicant will be irreparably injured absent a stay.” 556 U.S. at 426 (emphasis added).

By contrast, the district court concluded that the evidence demonstrated that Plaintiffs would suffer irreparable harm absent preliminary injunctive relief and that the government was unlikely to succeed in showing otherwise. Doe, 418 F. Supp. 3d at 599. The Plaintiffs submitted evidence that all seven individual Plaintiffs are either unable to afford an “approved” plan, unable to add the immigrant family member to an existing employer-sponsored plan, unable to acquire an approved plan within the 30-day deadline, or lack the resources to demonstrate they could independently pay for foreseeable medical costs. See id. at 584–86.

The district court concluded that the Proclamation likely would negatively affect approximately 60% of all immigrant visa applicants. Id. at 597. Plaintiffs aver, citing data from the United States Census Bureau, that approximately 375,000 immigrants each year—primarily those seeking to enter the United States on family-sponsored petitions—would be affected, and potentially precluded from obtaining an immigrant visa, by the Proclamation.

Based on the evidence in the record, the district court found that the approved insurance plans delineated in the Proclamation were “legally or practically unavailable to intending, or prospective, immigrants.” Id. at 583. The district court found that employer-based plans often had a waiting period that exceeded the Proclamation’s 30-day

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deadline and highlighted the fact that the prohibition against obtaining subsidized insurance under the Affordable Care Act rendered that market, for the most part, inaccessible to arriving immigrants. Id. It also highlighted the fact that Short Term Limited Duration Insurance plans, which were among the Proclamation’s “approved” plans, are banned in California, and that Oregon’s contract term requirements make such plans ineligible under the Proclamation there. Id. The district court underscored that reliance on Medicaid for any immigrant over the age of 18 is prohibited by the Proclamation.

As to the other “approved” plans, the district court explained that:

Family-member plans are only available to applicants younger than 27 years old. Visitor’s insurance plans are designed for short-term visits, have caps on individual coverage and lifetime benefits, and often exclude preexisting conditions, mental health conditions, and maternity care. Such plans often result in significant uncompensated care. People who receive insurance through state Medicaid programs may not be able to add their family members to their plan. Catastrophic plans are only available to people who are already legally present. Even then, only people under 30 (or who obtain a special hardship exemption) are eligible to enroll. TRICARE is available only to members of the United States military and their close relatives. Medicare is perhaps the least feasible option—only intending [that]

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immigrants older than 65 who have already been living continuously in the United States for five years may enroll.

Doe, 418 F. Supp. 3d at 583–84.

The district court concluded, based on the record evidence, that the Proclamation would result in prolonged separation from family members, a factor that we have held constitutes sufficient irreparable harm. Hawai’i v. Trump, 878 F.3d 662, 699 (9th Cir. 2017), rev’d on other grounds and remanded, 138 S. Ct. 2392 (2018); see also Washington, 847 F.3d at 1168–69. For example, the district court found that one of the Plaintiffs risks having his wife’s I-601A waiver automatically revoked if she is denied a visa at her interview. See Doe, 418 F. Supp. 3d at 598. The district court further found that Plaintiffs who have already secured I-601A waivers through their family member sponsors had a high risk of being forced to leave the United States for an indefinite period of time. Id. Based on the record, the district court determined that the Plaintiffs were unlikely to acquire one of the “approved health insurance” plans set forth in the Proclamation, but were otherwise likely qualified for entry under § 1182(a). Id. In sum, without reciting all of the record evidence, the record amply supported the district court’s conclusion that the Plaintiffs would suffer irreparable harm.

Ultimately, the government has failed to sustain its burden of establishing that it would suffer irreparable harm absent a stay of the preliminary injunction pending a hearing by a merits panel. The record supports the district court’s conclusion that the Plaintiffs would suffer irreparable harm absent a preliminary injunction.

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B

Our Nken analysis could conclude here, given that if a stay applicant cannot show irreparable harm, “a stay may not issue, regardless of the petitioner’s proof regarding the other stay factors.” Leiva-Perez, 640 F.3d at 965. However, the context of this case suggests that we should proceed with examining the remaining Nken factors.

The second most important Nken factor is whether the applicant has made a strong showing of the likelihood of success on the merits. See Nken, 556 U.S. at 426. As a motions panel, we must take care not to prejudge the merits of the appeal, but rather to assess the posture of the case in the context of the necessity of a stay pending presentation to a merits panel. See Washington, 847 F.3d at 1168. Thus, we will not address the merits in detail, but only as necessary to apply the Nken factors. Here, the government has not met the high standard of showing a strong likelihood of success on the merits.

1

The government has not shown that it has a strong likelihood of success on the Plaintiffs’ claim that the Proclamation conflicts with the Violence Against Women Act’s (“VAWA”) amendments to the INA. See 8 U.S.C. § 1182(a)(4)(E). Indeed, on this claim the government has made no showing at all.

The VAWA amendments exempted from the public charge exclusion certain immigrant relatives of victims of violent crimes, such as felony assault, sexual assault, incest, kidnapping, or human trafficking. 8 U.S.C.

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§ 1101(a)(15)(U)(iii). These amendments also exempted victims of battering and extreme cruelty. 8 U.S.C. § 1154(a)(1)(A)(iii)–(vi). Congress expressly provided that these immigrants—including the spouses, children, and parents of violent crime victims—were categorically exempt from the financial burden or “public charge” provisions of the INA. Id.

The Proclamation makes no such exemption. Rather, it effectively prohibits family members of violent crime victims from obtaining visas and joining their families in the United States by declaring them to be financial burdens and ineligible, directly contradicting VAWA. This preclusion contravenes the well-settled principle that the President’s powers are executive, not legislative, in nature. “[T]he President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). The President’s authority to act “must stem either from an act of Congress or from the Constitution itself.” Id. at 585. Here, Congress has enacted the VAWA amendments specifically to enable the subject immigrants to qualify for admission and visas, see 8 U.S.C. § 1154(a)(1)(A)(iii)–(vi), and “[t]here is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Clinton v. City of New York, 524 U.S. 417, 438 (1998).

The government does not respond to the merits of this challenge; it only suggests that the statutory conflict does not affect many people. Of course, this consideration is irrelevant to the determination of whether the government has demonstrated a strong likelihood of success of prevailing on the VAWA issue. By contrast, Plaintiffs point out that immigrant family members of victims of violent crimes

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comprise at least 20 categories of noncitizens seeking to enter the United States with an immigrant visa. See 22 C.F.R. § 42.11.

At this stage, the government has failed to make a strong showing that it is likely to prevail on Plaintiffs’ claim that the Proclamation conflicts with the Violence Against Women Act.

2

The government has also not sustained its burden of showing that it has a strong likelihood of success of prevailing on Plaintiffs’ claim that the Proclamation violates the ACA. See 42 U.S.C. §§ 18021 to 18024, 18031; see also 26 U.S.C. § 36B. The government has not submitted any evidence to indicate that it is likely to succeed on this claim.

In enacting the ACA, Congress authorized the creation of state-based markets that present consumers with multiple insurance coverage choices so that consumers can compare and purchase plans in an effort to “increase the number of Americans covered by health insurance and decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2580 (2012). To purchase insurance in a state’s marketplace, an individual must prove that they reside in the United States or a territory thereof and that they are “lawfully present.” 42 U.S.C. § 18032(f)(1)(A)(ii); 45 C.F.R. § 155.305(a)(1)–(3). To incentivize the purchase of insurance plans through ACA marketplaces, Congress provided premium tax credits to offset the costs of purchasing an insurance plan and expressly extended the availability of those credits to any taxpayer who “is an alien lawfully present in the United States.” 26 U.S.C. § 36B(c)(1)(B)(ii).

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Despite Congress’s clear intent to extend these tax credits to legal immigrants, the Proclamation explicitly excludes such “subsidized plans” from the list of approved health insurance plans. As a result, an immigrant attempting to legally enter the United States will not have access to ACA tax credits as Congress intended. Compare 84 Fed. Reg. at 53,992 to 26 U.S.C. § 36B(c)(1)(B)(ii). And, unless an immigrant succeeds in searching for, finding, and paying for eligible insurance—which is unlikely—they will not be able to legally immigrate, even if otherwise eligible under the criteria Congress established.

Additionally, the government’s contention that an immigrant may satisfy the Proclamation by purchasing a plan that does not include tax credits (i.e., an “unsubsidized” plan) under the ACA is, in practice, nearly impossible, even though such plans are technically “approved” under the Proclamation. See 84 Fed. Reg. at 53,992. An immigrant may only participate in the ACA marketplace after they have established both their residency and lawful presence, but the immigrant cannot reside in and be legally present in the United States under the Proclamation without first purchasing “approved” health insurance. See 42 U.S.C. § 18032(f)(1)(A)(ii); 45 C.F.R. § 155.305(a)(1)–(3). The immigrant is consequently left in a Catch-22: they cannot obtain an “approved” unsubsidized insurance plan unless they have been legally admitted, but they cannot be legally admitted unless they have obtained an “approved” insurance plan. Thus, the Proclamation bars immigrants from accessing subsidized insurance plans despite Congress’s express intent to extend those plans to legal immigrants, 26 U.S.C. § 36B(c)(1)(B)(ii), and it essentially prohibits immigrants from obtaining an unsubsidized plan despite such plans being

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“approved” under the Proclamation. The government has not seriously contested this claim.

In sum, given that the evidence in the record supports a conclusion that the Proclamation prevents otherwise eligible immigrants from accessing either subsidized or unsubsidized health insurance plans as Congress intended and instead requires them to obtain—if they can—different, lower quality insurance to be eligible for a visa, we conclude that the government has not shown that it is likely to succeed on this claim.

3

The government has also not sustained its burden of showing that it has a strong likelihood of success of prevailing on Plaintiffs’ claims that the Proclamation violates the INA. Although we leave a complete analysis of these claims to the merits panel, several of these claims are worthy of discussion at this stage, in light of the serious questions on the merits Plaintiffs raise. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1137 (9th Cir. 2011).

First, the Proclamation is connected in its avowed purpose to the INA’s “public charge” provision. That provision states 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)(B)(i). The statute lists various factors that the consular office can consider. Health insurance is not among them.

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More importantly, the statute requires that all of the specified factors should be considered in determining whether an applicant should be deemed a financial burden and consequently inadmissible. 8 U.S.C. § 1182(a)(4)(B). The Proclamation eviscerates the statutory scheme by making the acquisition of designated forms of health insurance the sole consideration of whether an applicant should be excluded from consideration for a family visa. See 84 Fed. Reg. at 53,992. Any argument contending that the Proclamation complements the public charge statutory scheme is therefore incorrect.

Regarding § 1182(a)(4)(B), we have recognized that this provision establishes “factors [that] are to be considered ‘at a minimum,’” but “[o]ther factors may be considered as well, giving officials considerable discretion in their decisions.” City & Cty. of San Francisco v. USCIS, 944 F.3d 773, 972 (9th Cir. 2019). The Proclamation does not permit any exercise of official discretion, as the enumerated § 1182(a)(4)(B) factors do, but instead imposes an absolute bar on the entry of uninsured immigrants. For instance, one of the individual Plaintiffs has submitted evidence that he could add his wife to his employer’s healthcare plan once she obtained a social security card, but social security cards are not mailed quickly enough to meet the 30-day deadline mandated by the Proclamation. Even in this situation, the consular officer has no discretion to consider that the Plaintiff’s wife can obtain an approved health insurance plan and that this factor would weigh against finding that she is likely to become a public charge under § 1182(a)(4)(B). Instead the officer must find that she is inadmissible because she cannot obtain this insurance within 30 days. Without the Proclamation, the officer would have the discretion to consider her admissible, as § 1182(a)(4)(B) intended. In sum,

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the Proclamation’s health insurance requirement supplants the discretion afforded to consular officers in § 1182(a)(4)(B).

Second, the Plaintiffs raise serious questions related to § 1182(f) of the INA. This section of the INA provides that, when “the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States,” then he may, “for such a period as he shall deem necessary, suspend the entry of all aliens or any class of aliens . . . or impose on the entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. § 1182(f). Section 1182(f) “exudes deference to the President.” Hawaii, 138 S. Ct. at 2408. We acknowledge this broad deference, but nonetheless conclude at this juncture, for two reasons, that the Plaintiffs are likely to succeed in refuting the government’s contention that § 1182(f) legitimizes the Proclamation: first, the Proclamation’s perfunctory time limitations do not comport with the textual limits of § 1182(f); and second, § 1182(f) does not provide the President with limitless power to deny visas to immigrants based on purely long-term economic concerns.

We first consider whether the Proclamation comports with the temporal limitations of § 1182(f) established by the statute itself: that the President has the power to “suspend” the entrance of aliens “for such period as he shall deem necessary.”

“[A]s with any statute, ‘we look first to its language, giving the words used their ordinary meaning.’” Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 100 (2012) (quoting Ingalls Shipbuilding Inc. v. Dir., Office of Workers’ Comp.

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Progs., 519 U.S. 248 (1997)). Ordinarily, to “suspend” means to “cause to stop temporarily,” Suspend, MERRIAMWEBSTER DICTIONARY (2019), or “connotes a deferral till later,” Hawaii, 138 S. Ct. at 2409 (citation omitted). The Proclamation summarily states that the entrance of “aliens who will burden the healthcare system is hereby suspended,” but the mere use of the word “suspend” does not remedy the fact that the Proclamation omits any indication that the health insurance requirement is temporary. See 84 Fed. Reg. at 53,992. Instead, the Proclamation ties the putative suspension to the problem of uncompensated healthcare costs, a speculative argument given that this problem has no apparent resolution under the current healthcare system.

By the Proclamation’s own terms, it does not have an endpoint. Rather, it only requires periodic status reports and merely provides that if the Secretary of State, after consulting other officials, “determines that circumstances no longer warrant the continued effectiveness of the suspension . . . the Secretary shall immediately advise the President.” See 84 Fed. Reg. at 53,993. There is no requirement that the President act on the advice. Although § 1182(f) does not require an explicit duration, see Hawaii, 138 S. Ct. at 2410, the lack of an explicit time limitation is problematic in light of the absence of any language that suggests even an implicit limitation, such as a limit measured by the occurrence of some future event or condition. The Proclamation here is therefore distinguishable from the Proclamation at issue in Hawaii, which “ma[de] clear that its ‘conditional restrictions’ will remain in force only so long as necessary to ‘address’ the identified ‘inadequacies and risks’ within the covered nations.” Id. To achieve its goal, the Hawaii Proclamation established “an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions

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should be modified or terminated,” and the Proclamation stated that it aimed to “‘relax[ ] or remove[ ]’ the entry restrictions ‘as soon as possible.’” Id.

By contrast, the Proclamation here includes no suggestion that the health insurance requirement is temporally limited by anything, including the overall reduction in uncompensated healthcare costs. Although the Secretary of State will review the effectiveness of the program in 180 days and, from then on, on a yearly basis, see 84 Fed. Reg. at 53,993, there is no language that suggests that the requirement will be removed “as soon as possible,” or when any specified circumstance changes. Cf. Hawaii, 138 S. Ct. at 2410. Furthermore, unlike the Proclamation in Hawaii, which was promulgated after DHS and other agencies “conducted a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline,” id. at 2408, the Proclamation here was not issued following any sort of comprehensive agency review supported by data-driven analysis. Indeed, the government has submitted no evidence to suggest that the health insurance requirement will reduce uncompensated healthcare costs in such a way as to render the limitation feasibly temporary.

For example, the Proclamation states that uncompensated healthcare costs have “exceeded $35 billion in each of the last 10 years,” and suggests that this figure could be lowered by refusing to admit immigrants who lack approved health insurance. See 84 Fed. Reg. at 53,991. However, data in the record indicates that uncompensated health care costs have

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remained around $35 billion since at least 2001.1 As stated above, we credit the Plaintiffs’ evidence that uninsured immigrants contribute minimally to this amount. These facts call into question whether the Proclamation is consistent with the direction to “suspend” immigration for so long as necessary to effectuate the government’s goal of decreasing uncompensated healthcare costs.

The Proclamation’s longevity is contingent upon the diminishment of uncompensated healthcare costs—costs that have remained stable for at least two decades—which it purports to reduce by restricting entry of a class of immigrants that has been shown not to significantly affect that figure, and whose dollar impact on uncompensated costs will likely remain static, whatever happens to uncompensated costs in general. Consequently, the likely ineffectiveness of the health insurance requirement suggests that uncompensated care costs will remain high, and the perceived “necessity” of the Proclamation could therefore continue in perpetuity. Cf. Hawaii, 138 S. Ct. at 2410 (“[W]hen a president suspends entry in response to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition.”). In short, the Proclamation’s failure to explicitly or implicitly establish any time constraints on the health insurance prohibition raises serious questions as to

1 See INSTITUTE OF MEDICINE (US) COMMITTEE ON THE CONSEQUENCES OF UNINSURANCE, HIDDEN COSTS, VALUES LOST 47 (2003) (available at https://www.ncbi.nlm.nih.gov/ books/NBK221662/); see also American Hospital Association, Uncompensated Hospital Care Cost Fact Sheet 3 (January 2019) (https://www.aha.org/system/files/201901/uncompensated-care-fact-sheet-jan-2019.pdf) (establishing that uncompensated healthcare costs totaled approximately $21.5 billion in 2001, which is roughly $32 billion when adjusted for inflation).

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whether the Proclamation is a “suspension” according to the plain meaning of the term in § 1182(f).

We turn now to Plaintiffs’ second challenge to the government’s arguments concerning § 1182(f)—namely, that the President exceeded even the broad authority prescribed to him in § 1182(f) when he issued the Proclamation. Based on the evidence in the record and the stated objectives of the Proclamation, we conclude that the government is not likely to succeed on this issue either.

We acknowledge that “[b]y its plain language, § 1182(f) grants the President broad discretion to suspend the entry of aliens into the United States.” Hawaii, 138 S. Ct. at 2408. Nonetheless, the substantive scope of this power is not limitless. The “sole prerequisite set forth in § 1182(f) is that the President ‘find[ ]’ that the entry of the covered aliens ‘would be detrimental to the interests of the United States.’” Id. The President satisfied this prerequisite in Hawaii because “the entry policy [in the Proclamation was] plausibly related to the Government’s stated objective to protect the country and improve vetting processes.” Id. at 2420. Thus, there, the President acted within the traditional spheres authorized by § 1182(f): in the context of international affairs and national security, and working in tandem with the congressional goals of vetting individuals from countries identified as threats through an agency review. See id. at 2409, 2412.

By contrast, the Proclamation here deals with a purely domestic economic problem: uncompensated healthcare costs in the United States. See 84 Fed. Reg. at 53,991. We reject the government’s argument that the Proclamation implicates the President’s foreign affairs powers simply because the

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Proclamation affects immigrants. Cf. E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1279 (9th Cir. 2020) (“Broadly citing to the Rule’s immigration context is insufficient to invoke the foreign-affairs exception” so that the President does not have to follow the traditional pathways of public rulemaking.). Therefore, while the “President [may] adopt[ ] ‘a preventive measure . . . in the context of international affairs and national security,’” and he is then “‘not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions,’” Hawaii, 138 S. Ct. at 2409 (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010)), his power is more circumscribed when he addresses a purely domestic economic issue, see E. Bay Sanctuary Covenant, 950 F.3d at 1279.

Indeed, in domestic economic matters, the national security and foreign affairs justifications for policy implementations disappear, and the normal policy-making channels remain the default rules of the game. For instance, the “public charge rule” discussed above attempts to resolve similar concerns related to the perceived financial burden of immigrants without resorting to § 1182(f) for justification. See City & Cty. of S.F., 944 F.3d at 779–80 (explaining that the proposed rule interpreting this provision of the INA went through the typical notice-and-comment period under the Administrative Procedure Act). In contrast, the Proclamation here was issued with virtually no factual findings, minimal reasoning, and an extremely limited window for public comment, raising serious questions as to whether the President has effectively rewritten provisions of the INA. We therefore find it unlikely that the government will succeed in its broad reliance on § 1182(f).

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Again, we do not prejudge the resolution of the merits of this issue because the question is whether the government has shown a strong likelihood of success on the merits. The Plaintiffs have raised sufficiently serious questions on the merits of their INA claim, including on the government’s defenses, that we cannot conclude that the government has sustained its high burden of showing a strong likelihood of success of the merits.

4

The district court issued a lengthy, thoughtful, and forceful opinion focusing on whether the Proclamation violated the nondelegation doctrine. In deference to the merits panel, we decline to address the probable likelihood of success for either party on this claim. See Washington, 847 F.3d at 1168.

In addition, the Plaintiffs have raised a number of issues not addressed by the district court, such as the violation of the Administrative Procedure Act, which also may present serious questions on the merits.

C

The third Nken factor is whether a stay will substantially injure other parties, on which we touch only briefly given the government’s failure to satisfy the two most important Nken factors. See Nken, 556 U.S. at 435. We have already explained that the plaintiffs have established irreparable injury. See Part III.A, supra. In addition, the record demonstrates the significant effect of the Proclamation on other parties. Twenty-one states, the District of Columbia, and the City of New York filed amici briefing describing the

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significant harm they and other governmental entities will suffer if the Proclamation is allowed to go into effect. These amici explain that immigrants “are vital to the economic, civic, and social fabric of our states and city.” Indeed, the evidence in the record indicates that in 2014, immigrant-led households paid more than $26 billion in state and local taxes in California,2 and $736 million in state and local taxes in Oregon.3 Plaintiffs and amici provided further evidence credited by the district court to satisfy this factor. See Doe, 418 F. Supp. 3d at 599–600 (crediting evidence that the implementation of the Proclamation will interrupt family reunification, detrimentally affect job sectors that disproportionately employ immigrants, and increase the number of underinsured immigrants who will be prohibited from purchasing subsidized ACA insurance plans). The government does not seriously contest this evidence. This factor favors the Plaintiffs.

D

The final Nken factor is where the public interest lies. “The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court’s ability to render a meaningful decision on the merits. It often happens that this purpose is furthered by the status quo, but not always.” Golden Gate Restaurant Ass’n v. City & Cty. of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008) (quoting

2 Am. Immigration Council, Immigrants in California 4 (2017) (https://tinyurl.com/CAP-Immigrants-in-CA).
3 Am. Immigration Council, Immigrants in Oregon (2017) (https://www.americanimmigrationcouncil.org/research/immigrantsoregon).

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Canal Authority of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)). In this case, the public interest lies with maintaining the status quo while the appeal is pending. For countless decades, a stable immigration system has provided for families to be united through a visa system that did not require purchase of selected insurance products for entry into the United States.

The government contends this factor weighs in its favor because the Proclamation as implemented constitutes the status quo, which would be upended if a stay is not issued. But it was the Proclamation that altered the status quo for the Plaintiffs, whose family members had qualified for entry under established immigration policy, but are now inadmissible under the Proclamation. The “purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). This observation has even more force here, where we are considering only a stay pending appeal of a preliminary injunction. In the government’s re-imagining of the status quo in this context, this factor would always tip in the government’s favor, effectively rendering the Court powerless to exercise its discretion on this factor in such instances.

Given the irreparable harm to the Plaintiffs, the lack of irreparable harm to the United States for maintaining the status quo pending resolution of this appeal, and the injury to other parties if the Proclamation is immediately implemented, the public interest favors preserving the status quo. This factor falls to the Plaintiffs.

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IV

We finally consider the scope of the district court’s preliminary injunction. In this case, the district court determined that a nationwide injunction was appropriate. Based on evidence in the record, the district court concluded that the Proclamation would cause significant harm to 21 states, the District of Columbia, and New York City if allowed to go into effect there. Accordingly, the court enjoined the Proclamation across the country to preserve uniformity in immigration policies. Doe, 418 F. Supp. 3d at 603. Subsequently, the district court certified the two nationwide subclasses noted above: the United States Petitioner subclass and the Visa Applicant subclass. The government has not yet sought to appeal that certification.

In the present procedural posture—a request for a stay pending the appeal of a preliminary injunction—a provisionally certified nationwide class is sufficient justification for a nationwide injunction.4 See Al Otro Lado, 952 F.3d at 1004 n.4. Because the class here is nationwide, and because a nationwide injunction is necessary to provide the class members with complete relief, we conclude that the scope of the injunction is appropriate at this juncture, regardless of whether or not it was when originally issued.

“The scope of an injunction is ‘dependent as much on the equities of a given case as the substance of the legal issues it presents,’ and courts must tailor the scope ‘to meet the exigencies of the particular case.’” Azar, 911 F.3d at 584 (quoting Trump v. Int’l Refugee Assistance Project, 137 S. Ct.

4 Should the government ultimately prevail in reversing the class certification, then the scope of the injunction should be revisited.

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2080, 2087 (2017)). Here, the balance of the equities tips in favor of protecting the certified class: the government has not shown that it will be irreparably injured absent enforcement of the Proclamation, while the Plaintiffs have shown that the immediate implementation of the Proclamation will affect the long-standing practice of how immigration visas are processed and will prevent class members from reuniting with their families. Plaintiffs have raised serious concerns that class members will be seriously injured if the Proclamation is implemented immediately, and thus the exigencies of this case indicate that an injunction protecting the certified class is “not more burdensome than necessary” to provide relief while the merits of this case are pending. See id. (citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).

In addition, “there is no bar against class-wide, and nationwide relief in federal district or circuit court when it is appropriate,” Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987), and here the class-wide, nationwide relief is necessary to afford the class members the relief to which they are entitled. Many of the typical circumstances that counsel against the nationwide scope of an injunction are absent from this case. No litigation challenging this Proclamation is pending elsewhere, alleviating concerns occasionally associated with nationwide injunctions that such injunctions deprive other courts from offering diverse perspectives on the legal issues while similar litigation is ongoing in multiple forums. See Azar, 911 F.3d at 583. Moreover, the district court here has not stayed the preparation of this case for trial pending the appeal of the nationwide injunction, removing a consideration that “magnifies” the concerns associated with nationwide injunctions. See id. The nationwide scope of the injunction is also based on the certified subclasses, which eliminates some concern that a nationwide injunction is

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overly burdensome. Cf. id. at 582–83 (“[I]njunctive relief generally should be limited to apply only to named plaintiffs were there is no class certification”) (quoting Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996)).

Further, “[t]he INA was designed to implement a uniform federal policy,” Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir. 1994), and we have underscored the need for a “comprehensive and unified” immigration policy, Arizona v. United States, 567 U.S. 387, 401 (2012); see also, e.g., Regents of the Univ. of Cal. v. United States Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (“Allowing uneven application of nationwide immigration policy flies in the face of [uniformity] requirements”); Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017) (“Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights”), rev’d on other grounds, — U.S. —, 138 S. Ct. 2392 (2018). The provisions of the INA that are affected by the Proclamation represent the current “national immigration policy, and an injunction that applies that policy to some individuals while rescinding it as to others is inimical to the principle of uniformity.” Regents of the Univ. of Cal., 908 F.3d at 512. Consequently, a more limited injunction of the Proclamation would “needlessly complicate agency and individual action in response to the United States’s changing immigration requirements,” E. Bay Sanctuary Covenant, 950 F.3d at 1284, and so the nationwide injunction of the Proclamation is justified.

Thus, because the certified class is nationwide in scope and promotes uniformity in administering federal

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immigration law, the district court did not abuse its discretion in entering a nationwide injunction.

V

In sum, the government has not established the requisite irreparable harm necessary to justify a stay pending appeal. Its rights may be vindicated upon completion of this litigation. The alleged monetary harms to third parties upon which the government relies do not constitute irreparable harm. While that sole factor is dispositive, we also conclude that the government did not meet its high burden to satisfy the other Nken factors. It has not demonstrated likelihood of success. Staying the injunction would injure both the plaintiff class and third parties, and the public interest weighs against entering a stay. The preliminary injunction preserves the status quo during the pendency of this appeal. The district court did not abuse its discretion in determining the scope of the preliminary injunction.

For these reasons, we deny the motion to stay the preliminary injunction pending appeal. We do not prejudge the consideration of the merits appeal.

MOTION DENIED.

BRESS, Circuit Judge, dissenting:
Today’s decision is yet the latest example of our court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy. This time, the President in Proclamation No. 9945 imposed certain

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restrictions on the entry of immigrants who, in the President’s judgment, will unduly burden the American healthcare system. In what unfortunately has become standard operating procedure, the district court enjoined the Proclamation on a nationwide basis before it could take effect. While declining to endorse the district court’s central rationale, my fine colleagues in the majority find a way to justify the district court’s decision, while refusing to stay or limit its blanket injunction.

The majority gravely errs in concluding that the Proclamation is likely unconstitutional. There is no legal basis to impose novel and unjustified restrictions on what the Supreme Court has described as “the President[’s] sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” Trump v. Hawaii, 138 S. Ct. 2392, 2413 (2018). The President issued Proclamation No. 9945 based on his constitutional powers and his statutory authority in 8 U.S.C. § 1182(f). The Supreme Court has held that this provision “[b]y its terms” “exudes deference to the President in every clause.” Id. at 2408. Yet the majority opinion gives deference to everyone but the President—the district court, whose analysis was deeply flawed; States who joined an amicus brief and who are not even parties to this case; and plaintiffs’ expert, Dr. Leighton Ku, who candidly admits he performed “not an ideal analysis.”

It is a bad day for the separation of powers when the Executive—operating at the apex of his constitutional mandate—loses out to players who lack the authority that the Constitution and Congress entrusted to him. And it is an equally bad day for the rule of law when the majority opinion endorses arguments that the Supreme Court expressly rejected two years ago in Trump v. Hawaii. As with many

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immigration policies, reasonable minds will differ as to whether Proclamation No. 9945 is good or bad policy. But the great policy debates of our time should be resolved in the halls of Congress, the public square, and at the ballot box, not by a district court in Oregon or a three-judge panel in San Francisco. What I know is that Proclamation No. 9945 is valid as a matter of law. And that is what matters here.

The majority’s unjustified intrusion on presidential prerogative is, however, only made more problematic by the scope of the injunction that the court allows. The district court, as noted, issued a nationwide injunction, and one that in fact operates worldwide. Injunctions such as this raise many issues, as the Supreme Court has signaled in repeatedly staying lower courts’ (and our court’s) universal injunctions. See Wolf v. Innovation Law Lab, No. 19A960, 2020 WL 1161432 (U.S. Mar. 11, 2020); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020); Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019); Trump v. Int’l Refugee Assistance Project, 138 S. Ct. 542 (2017); Trump v. Hawaii, 138 S. Ct. 542 (2017).

Not heeding these signals, the majority allows another universal injunction to remain in place, but with new and unfortunate twists. When the district court enjoined Proclamation No. 9945, it did so without certifying any class. Just recently, however, and many months into this appeal of its injunction, the district court certified two classes, one of persons in the United States and one of “foreign nationals” around the world. The sequence of events here is cause for concern, and the majority’s reliance on the belated class certification decision confirms that the district court’s universal injunction was not justified when issued. But what the class certification ruling also shows is that the excesses

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of universal injunctions stem in large part from a failure to abide by the rigorous requirements for class certification—requirements that the district court unfortunately did not observe.

If there is any solace here, it is that the majority has only denied a stay of the injunction. I hope the merits panel that receives this case will see things differently. But that decision will be issued many months from now, if not longer. There is no reason for the Executive to have his chosen and plainly constitutional Proclamation put on ice in the interim—a delay that inflicts real damage on our constitutional system. For the reasons expressed here and in my prior dissent in this matter, see Doe #1 v. Trump, 944 F.3d 1222, 1223–29 (9th Cir. 2019) (Bress, J., dissenting), I would have stayed the district court’s injunction. I therefore respectfully dissent.

I

On October 4, 2019, the President issued Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order To Protect the Availability of Healthcare Benefits for Americans. 84 Fed. Reg. 53991 (2019). Invoking the President’s authority under 8 U.S.C. § 1182(f) and the Constitution, the Proclamation restricts the entry of certain immigrants who cannot show that, within 30 days of arriving in the United States, they “will be covered by approved health insurance” or “possess[] the financial resources to pay for reasonably foreseeable medical costs.” Id. at 53992.

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The Proclamation is founded on the President’s determination that uninsured immigrants impose unwarranted costs on the American healthcare system. The Proclamation references “data show[ing] that lawful immigrants are about three times more likely than United States citizens to lack health insurance,” noting the “substantial” burden that the uninsured impose on healthcare providers and taxpayers. Id. at 53991. The President found that this burden—which takes the “form of higher taxes, higher premiums, and higher fees for medical services”—has contributed to uncompensated care costs in excess of $35 billion for each of the last 10 years. Id. The Proclamation also identified other burdens that the uninsured impose, including “reliance on publicly funded programs” and overreliance on emergency room care, which creates “delays for those who truly need emergency services.” Id. The President concluded that “[c]ontinuing to allow entry into the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental” to the national interest. Id.

To address these problems, the Proclamation requires visa applicants to show they “will be covered by approved health insurance . . . within 30 days of the alien’s entry into the United States, . . . unless the alien possesses the financial resources to pay for reasonably foreseeable medical costs.” Id. at 53992. The Proclamation defines “approved health insurance” by reference to a lengthy list of coverage options. Id. These include employer-sponsored and retiree plans, family plans, visitor health insurance plans, unsubsidized health plans offered on State exchanges, Medicare, or “any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services.” Id. Plans need not be purchased prior to entry;

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rather, the immigrant must only show that he or she will have the required coverage within 30 days of entry. Id.

Enforcement of the Proclamation takes place all over the world at the consular officer level. An immigrant must “establish that he or she meets [the Proclamation’s] requirements, to the satisfaction of a consular officer, before the adjudication and issuance of an immigrant visa.” Id. at 53993. The Proclamation also empowers the Secretary of State to “establish standards and procedures [to] govern[] such determinations.” Id. This review is distinct from other requirements that the law otherwise imposes. As the Proclamation makes clear, its review process “is separate and independent from the review and determination required by other statutes, regulations, or proclamations in determining the admissibility of an alien.” Id. That would include, for instance, the public charge provisions of the Immigration and Nationality Act (INA). 8 U.S.C. § 1182(a)(4).

Importantly, the Proclamation “shall apply only to aliens seeking to enter the United States pursuant to an immigrant visa.” 84 Fed. Reg. at 53992. The Proclamation thus “does not affect the entry of aliens entering the United States through means other than immigrant visas.” Id. at 53993. That includes persons seeking nonimmigrant visas or refugees. Nothing in the Proclamation “affect[s] any individual’s eligibility for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” Id.

The Proclamation contains various other exceptions as well. It does not apply to “any alien holding a valid immigrant visa issued before the effective date of this

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proclamation,” or “any alien under the age of 18, except for any alien accompanying a parent who is also immigrating to the United States and subject to this proclamation.” Id. at 53992. The Proclamation does not cover “any alien who is the child of a United States citizen or who is seeking to enter the United States pursuant to” specified visas for children. Id. Also excepted are business travelers, foreign students, temporary agricultural workers, and various others. Id. On a “case-by-case basis,” the Secretary of State may exempt from the Proclamation “any alien whose entry would be in the national interest.” Id. at 53993.

“[W]ithin 180 days” of the Proclamation’s effective date and each year thereafter, the Secretary of State, “in consultation with the Secretary of Health and Human Services, the Secretary of Homeland Security, and the heads of other appropriate agencies, shall submit” a report to the President. Id. This report must address “the continued necessity of and any adjustments that may be warranted to the suspension and limitation on entry” imposed, as well as “other measures that may be warranted to protect the integrity of the United States healthcare system.” Id. The Proclamation makes clear that “[i]f the Secretary of State, in consultation with the heads of other appropriate executive departments and agencies, determines that circumstances no longer warrant the continued effectiveness of the suspension and limitation on entry,” the President is to be “immediately” advised. Id.

Two days before the Proclamation was set to take effect, plaintiffs—a Multnomah County, Oregon advocacy organization and several U.S. citizens with family members seeking visas—obtained a temporary restraining order blocking enforcement of the Proclamation worldwide. On

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November 26, 2019, and leading with the non-delegation doctrine, the district court granted plaintiffs’ request for a universal preliminary injunction and refused to stay its order. Doe #1 v. Trump, 418 F. Supp. 3d 573 (D. Or. 2019). After the government sought a stay of the injunction pending appeal, our court denied the government temporary emergency relief. Doe #1 v. Trump, 944 F.3d 1222–23 (9th Cir. 2019); see also id. at 1223–29 (Bress, J., dissenting).

Four months after the government sought a stay in this court and three months after we heard argument on that motion (and while the motion was under submission), the district court granted class certification. Doe #1 v. Trump, 2020 WL 1689727 (D. Or. Apr. 7, 2020). The district court issued this class certification decision four and a half months after entering its nationwide preliminary injunction, and over five months after entering the temporary restraining order that blocked the Proclamation from taking effect anywhere.

The district court certified two classes under Federal Rule of Civil Procedure 23(b)(2), one covering persons in the United States and one covering persons all over the world:

(1) U.S. Petitioner Subclass:

Individuals in the United States who currently have or will have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days

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after entry or will be able “to pay for reasonably foreseeable medical costs”; and

(2) Visa Applicant Subclass:

Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.”

Id. at *17. The government’s time to seek leave to appeal the district court’s class certification decision has not yet expired. Fed. R. Civ. P. 23(f) (45-day deadline “if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States’ behalf”).

Today, our court now denies the government’s request for a stay pending appeal, allowing the universal injunction to remain in place. The court’s decision is quite wrong, and so I respectfully dissent.

II

The following canonical factors control the government’s request for a stay pending appeal:

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(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

City & Cty. of S.F. v. USCIS, 944 F.3d 773, 789 (9th Cir. 2019) (quoting Nken v. Holder, 556 U.S. 418, 433–34 (2009)).

The majority opinion begins with the government’s irreparable harm and only later turns to its likelihood of success on the merits, the supposedly “second most important Nken factor.” Maj. Op. 22. I have elsewhere explained how a tactical deviation from the normal sequence of the stay factors “waters down the merits analysis.” See Al Otro Lado v. Wolf, 952 F.3d 999, 1022 (9th Cir. 2020) (Bress, J., dissenting). That is the case here, where the government’s asserted harms follow from its strong likelihood of success on the merits. See id. (“The sequencing of today’s opinion can only reflect the majority’s implicit acknowledgement that the government’s case is strongest where it most matters, namely, the likelihood of success on the merits.”). Inversion of the stay factors is a recent trend and one that produces distortion in the stay analysis.

I thus begin, as we usually do, with the merits.

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III

A

The majority concludes that the President has likely exceeded his powers on the theory that Proclamation No. 9945 conflicts with statutes that supposedly forbid it, while failing to fall within 8 U.S.C. § 1182(f). This is seriously mistaken.

Under Trump v. Hawaii, the government has made a strong showing that Proclamation No. 9945 is a lawful exercise of the President’s vast constitutional and statutory powers in this space. I address § 1182(f) first because, in combination with his innate powers under the Constitution, § 1182(f) creates the high-water mark for the President’s ability to place limits on who enters this country. Under § 1182(f) and the President’s inherent powers, Proclamation No. 9945 is plainly valid.

Section 1182(f) provides:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

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8 U.S.C. § 1182(f). Just two years ago, the Supreme Court in Trump v. Hawaii held that § 1182(f) “exudes deference to the President in every clause” and “grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” 138 S. Ct. at 2408, 2413. Based on this “broad discretion to suspend the entry of aliens into the United States,” the Supreme Court upheld against constitutional and statutory challenges a presidential proclamation suspending entry of persons from specified countries. Id. at 2408.

The “sweeping authority” that justified the proclamation in Trump v. Hawaii clearly allows the President to do what he did here in Proclamation No. 9945. As the Supreme Court has held, the “sole prerequisite set forth in § 1182(f) is that the President ‘find[]’ that the entry of the covered aliens ‘would be detrimental to the interests of the United States.’” Id. at 2408 (quoting 8 U.S.C. § 1182(f)). The President made that finding in Proclamation No. 9945. 84 Fed. Reg. at 53991. In Trump v. Hawaii, moreover, the plaintiffs argued that the proclamation there conflicted with provisions of the INA, which the plaintiffs believed “already specified” Congress’s approach to the issue. Id. at 2411. But the Supreme Court expressly rejected this theory because “[f]airly read,” § 1182(f) “vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA.” Id. at 2412. Proclamation No. 9945 is another such “additional limitation[] on entry.” Id. It is therefore plainly valid under § 1182(f), as interpreted by the Supreme Court.

Against all of this, the majority offers two bases for distinguishing Trump v. Hawaii and for concluding that the President has likely exceeded his powers under § 1182(f).

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But Trump v. Hawaii considered and squarely rejected the very arguments that the majority credits.

First, the majority concludes that “the Proclamation’s failure to explicitly or implicitly establish any time constraints on the healthcare prohibition raises serious questions as to whether the Proclamation is a ‘suspension’ according to the plain meaning of the term in § 1182(f).” Maj. Op. 31–32. The Supreme Court considered and rejected this same argument in Trump v. Hawaii. While the majority opinion complains that Proclamation No. 9945 “does not have an endpoint,” Maj. Op. 29, Trump v. Hawaii rejected the plaintiffs’ argument that a § 1182(f) “suspension” “mean[t] that the President is required to prescribe in advance a fixed end date for the entry restrictions.” 138 S. Ct. at 2410. Citing past proclamations, Trump v. Hawaii concluded it was sufficient that the proclamation “makes clear that its ‘conditional restrictions’ will remain in force only so long as necessary to ‘address’ the identified ‘inadequacies and risks’ within the covered nations.” Id. In particular, the Supreme Court noted that the proclamation “establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be modified or terminated.” Id.

The majority here claims that Proclamation No. 9945 is different because it supposedly “omits any indication that the health insurance requirement is temporary.” Maj. Op. 29. Indeed, the majority claims the Proclamation lacks “even an implicit” time limitation, “such as a limit measured by the occurrence of some future event or condition.” Id. at 29. That is an uncommonly unfair reading of the Proclamation. An entire section of Proclamation No. 9945 provides for ongoing review of its “suspension” on entry. The

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Proclamation requires that a report be submitted to the President on “the continued necessity of and any adjustments that may be warranted to the suspension and limitation on entry.” 84 Fed. Reg. at 53993 (emphasis added). The first report must be submitted to the President within 180 days of the Proclamation’s effective date, and “annually thereafter.” Id. If “circumstances no longer warrant the continued effectiveness of the suspension or limitation on entry,” the President must “immediately” be advised. Id. (emphases added). The review process here is not materially different from the one at issue in Trump v. Hawaii. The majority opinion blinks reality in suggesting otherwise.

Instead, the majority claims the Proclamation is not a temporary limitation on entry because while agency officials can advise the President that the suspension is no longer warranted, “[t]here is no requirement that the President act on the advice.” Maj. Op. 29. That is a rather remarkable statement. When exercising his vast powers under § 1182(f) and Article II of the Constitution, nothing requires the President to bind himself to the mast and pre-commit to the recommendations of inferior officials. And like the Proclamation here, the proclamation in Trump v. Hawaii also did not require the President uncritically to accept the advice of his subordinates. See Pres. Procl. No. 99645, 82 Fed. Reg. 45161, 41169–70 (2017) (describing inter-agency “recommendations to the President” and stating “the Secretary of Homeland Security may recommend to the President the removal or modification of any or all such restrictions and limitations”) (emphases added). The majority’s insistence that the fatal flaw in the Proclamation is the President’s unwillingness to agree in advance to advice he has not yet received reflects an untenable theory of Executive power with no basis in principle or common sense.

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Even more unsettling is the majority’s determination that Proclamation No. 9945 is not a temporary “suspension” because of its “likely ineffectiveness.” Maj. Op. 31. The majority asserts that “the likely ineffectiveness of the health insurance requirement suggests that uncompensated care costs will remain high,” so that “the perceived ‘necessity’ of the Proclamation could therefore continue in perpetuity.” Id. In other words, the majority concludes that because the Proclamation will not successfully “reduce uncompensated healthcare costs,” those costs will remain high, meaning that the Proclamation will continue in effect forever. Id. at 30.

The majority’s conclusion about the “likely ineffectiveness” of the Proclamation turns on plaintiffs’ expert’s self-described “not . . . ideal analysis.” I will have more to say on that later. What matters here is that the majority’s reasoning again defies Trump v. Hawaii. The plaintiffs there similarly maintained that a proclamation would not adequately resolve “the President’s stated concern.” 138 S. Ct. at 2409. In rejecting this view, the Supreme Court could not have been clearer that “a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text [of § 1182(f)] and the deference traditionally accorded the President in this sphere.” Id. Indeed, the Supreme Court went on, “‘[w]hether the President’s chosen method’ of addressing perceived risks is justified from a policy perspective is ‘irrelevant to the scope of his [§ 1182(f)] authority.’” Id. (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187–88 (1993)) (emphasis added).

The Supreme Court in Trump v. Hawaii in no uncertain terms rebuffed the plaintiffs’ effort to “challenge the entry suspension based on their perception of its effectiveness.” Id.

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at 2421. The majority’s armchair conclusion about the “likely ineffectiveness” of Proclamation No. 9945 is thus precisely what the Supreme Court told us not to do. The Supreme Court reiterated in Trump v. Hawaii that “we cannot substitute our own assessment for the Executive’s predictive judgments.” Id. Yet the majority opinion does just that. Today’s decision is therefore a serious affront to the core separation of powers principles that Trump v. Hawaii reaffirms and reinforces.

The majority’s suggestion that the outcome might have been different if the President had engaged in a more “datadriven analysis,” Maj. Op. 30, reflects an equally serious misunderstanding of our role. Since when does this court know health policy better than the President of the United States and the other Executive Branch officials whom the Proclamation requires to be involved—the Secretary of State, the Secretary of Health and Human Services, the Secretary of Homeland Security, and “the heads of other appropriate agencies”? 84 Fed. Reg. at 53993. The majority’s conclusion that Proclamation No. 9945 is not a time-limited “suspension” on entry is nothing more than a policy disagreement with the Executive on a matter constitutionally and statutorily committed to his authority.

Second, the majority concludes that Proclamation No. 9945 likely exceeds the President’s § 1182(f) powers because the Proclamation “deals with a purely domestic economic problem: uncompensated healthcare costs in the United States.” Maj. Op. 32. Once again, the majority opinion disregards Supreme Court precedent, mischaracterizes the Proclamation, and improperly treads on the President’s constitutional and statutory powers. Indeed, no court has ever

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adopted the foreign/domestic distinction that the majority tries to engraft onto § 1182(f).

Proclamation No. 9945 places restrictions on the entry of immigrants into this country. For over a century, the Supreme Court has been clear that “[t]he exclusion of aliens is a fundamental act of sovereignty” that “is inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see also, e.g., Hawaii, 138 S. Ct. at 2418; INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[W]e have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations.”) (quotations omitted); Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations . . . .”). The majority’s notion that the exclusion of persons from this country can be recharacterized as “a purely domestic economic issue,” Maj. Op. 33, thus contradicts settled Supreme Court case law.

Given the source of authority that the President invoked, it is therefore unsurprising that Proclamation No. 9945 on its face has an obvious international valence. If it ever goes into effect, the Proclamation will be implemented by consular officials abroad, who must interview aliens seeking visas. 84 Fed. Reg. at 53993; Notice of Info. Collection Under OMB Emergency Review: Immigrant Health Ins. Coverage, 84 Fed. Reg. 58199 (2019). The Proclamation allows the Secretary of State to “establish standards and procedures governing such determinations.” 84 Fed. Reg. 53993. It enables the Secretary of State to exempt aliens from the Proclamation.

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Id. And it entrusts the Secretary of State with lead responsibility for preparing regular reports to the President. Id. The idea that the Proclamation concerns matters “purely domestic,” Maj. Op. 33, is clearly belied by the text and intended operation of the Proclamation itself.

There are also obvious reasons why no court has forced a foreign/domestic distinction on § 1182(f). The text of § 1182(f) allows the President to suspend the entry of aliens who “would be detrimental to the interests of the United States”—without defining what those interests may be and without distinguishing between foreign and domestic interests. Many (if not most) immigration policies naturally implicate domestic interests as well as foreign ones. This is to be expected for a provision that governs entry of persons “into the United States.” 8 U.S.C. § 1182(f) (emphasis added); see also, e.g., Pres. Procl. No. 4865, 46 Fed. Reg. 48107 (1981) (suspending entry to preserve “law enforcement resources” and promote the “welfare and safety of communities” in the southeastern United States).

In fact, many of the INA’s express grounds for inadmissibility could be said to involve “domestic” concerns, or even “purely domestic” ones. See, e.g., 8 U.S.C. § 1182(a)(1)(A)(i) (aliens with communicable diseases); id. § 1182(a)(1)(A)(ii) (aliens who have not been vaccinated); id. § 1182(a)(2)(A) (aliens with a criminal history); id. § 1182(a)(4) (aliens who are likely to become public charges); id. § 1182(a)(5) (aliens who would disrupt domestic labor markets or wages). Since § 1182(f) “vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA,” Hawaii, 138 S. Ct. at 2412, it would be bizarre if § 1182(f)

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reflected a foreign/domestic limitation that appears nowhere in the text or structure of the INA as a whole.

This manufactured distinction is also inconsistent with everything the Supreme Court has told us about § 1182(f). That provision “exudes deference to the President in every clause” and “grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” Hawaii, 138 S. Ct. at 2408, 2413. The majority’s unprecedented effort to recast § 1182(f) wrongly deprives the President of authority that is rightfully his and will lead to endless problems of administration as courts debate whether a given immigration policy is really more foreign or domestic in nature. This is not the § 1182(f) that Congress enacted or that the Supreme Court construed in Trump v. Hawaii.

B

If Proclamation No. 9945 is a valid exercise of § 1182(f), what is the problem? The district court’s primary answer was that § 1182(f) was itself an unconstitutional delegation of legislative power to the President. In the district court’s view, “[t]here is no ‘intelligible principle’ provided as to what it means to be ‘detrimental,’ what the ‘interests’ of the United States are, what degree of finding is required, or what degree of detriment is required.” Doe #1, 418 F. Supp. 3d at 590. The majority opinion tellingly declines to endorse this rationale. Maj. Op. 34 its description of the district court’s non-delegation analysis as “thoughtful” and “forceful,” id., fails to acknowledge—and if anything, compliments—the district court’s remarkable departure from settled law.

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I addressed the non-delegation issue at some length in my prior dissent at the administrative stay stage. See Doe #1, 944 F.3d at 1226–27 (Bress, J., dissenting). But in brief: the district court’s non-delegation holding is clearly incorrect. On just two occasions in our country’s history has the Supreme Court struck down a congressional statute under the non-delegation doctrine. See Gundy v. United States, 139 S. Ct. 2116, 2129 (2019). Section 1182(f) does not present just the third occasion for doing so. That statute “has for decades been the noted source of statutory authority for presidential proclamations involving immigration matters.” Doe #1, 944 F.3d at 1226–27 (Bress, J., dissenting). It does not suffer from a mortal constitutional defect hiding in plain sight.

Far from lacking an intelligible principle, the Supreme Court in Trump v. Hawaii held that “the language of § 1182(f) is clear” and that § 1182(f) is a “comprehensive delegation” of authority to the President. 138 S. Ct. at 2408, 2410; see also id. at 2408 (“clear statutory language”); id. at 2410 (“clear text”). Section 1182(f), the Supreme Court has told us, reflects “textual limits.” Id. at 2409. This is not a quarry from which a non-delegation challenge can be mined.

Indeed, the President’s power in this area does not derive solely from Congress, because “[t]he exclusion of aliens” is “inherent in the executive power to control the foreign affairs of the nation.” Knauff, 338 U.S. at 542; see also Hawaii, 138 S. Ct. at 2424 (Thomas, J., concurring) (“Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. Nor could it, since the President has inherent authority to exclude aliens from the country.”) (emphasis in original and citation omitted). That is why “the strict limitation upon congressional delegations of power to

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the President over internal affairs does not apply with respect to delegations of power in external affairs.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636 n.2 (1952) (Jackson, J., concurring); see also Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting) (“[W]hen a congressional statute confers wide discretion to the executive, no separation-ofpowers problem may arise if the discretion is to be exercised over matters already within the scope of executive power.”) (quotations omitted). This was, in fact, the Supreme Court’s exact explanation when it rejected a non-delegation challenge to a precursor to § 1182(f). See Knauff, 338 U.S. at 542.

Just last Term, the Supreme Court reiterated that it has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Gundy, 139 S. Ct. at 2129 (quotations omitted). Engaging in such second-guessing in the context of a longstanding statute in the area of foreign affairs, as the district court did, would fundamentally reorder our constitutional system. I wish the majority had said this instead of implying that the district court’s ruling warranted further consideration in this court.

C

The majority opinion instead holds that the government has not made a strong showing of success because Proclamation No. 9945 supposedly “conflicts” with: (1) the Violence Against Women Act’s (VAWA) amendments to the INA, 8 U.S.C. § 1182(a)(4)(E); (2) the Affordable Care Act (ACA), 42 U.S.C. § 10821, et seq.; and (3) the INA’s public charge provision, 8 U.S.C. § 1182(a)(4)(B)(i). Maj. Op. 22–28. I list these grounds in the order the majority presents them.

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The district court, however, devoted only a few sentences to VAWA. See Doe # 1, 418 F. Supp. 3d at 597. The district court did not rely at all on any perceived conflict with the ACA. See id. at 597 n.6 (“The Court expresses no opinion at this stage of the litigation about whether the Proclamation also contravenes or overrides various healthcare laws.”). And while the district court did rely on a claimed conflict with the public charge provision, allegedly rendering the Proclamation “unconstitutional under separation of powers,” id. at 593, this was secondary to its central non-delegation theory.

It therefore is apparent that the majority justifies the district court’s injunction on quite different legal bases than the district court itself. But any uneasiness with the district court’s rationales should have led to the injunction being stayed, not reliance on new rationales with yet more legal deficiencies. Regardless, the majority’s central theory that Congress in various enactments foreclosed Proclamation No. 9945, rendering it unconstitutional, is plainly wrong.

1

I begin with the INA’s public charge provisions, because on this point the majority once again flouts Trump v. Hawaii. The INA renders inadmissible any alien who “is likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). Consular officers make this determination using a series of non-exhaustive “minimum” factors: age; health; family status; assets, resources, and financial status; and education and skills. Id. § 1182(a)(4)(B)(i)(I)–(V). The majority tells us that Proclamation No. 9945 “eviscerates th[is] statutory scheme by making the acquisition of designated forms of health insurance the sole consideration of whether an

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applicant should be excluded from consideration for a family visa.” Maj. Op. 27.

The majority’s “evisceration” theory is wrong. And Trump v. Hawaii—which the majority does not mention in this portion of its opinion—tells us why. Nothing in Proclamation No. 9945 “eviscerates” the public charge provision, for the obvious reason that these are simply two different grounds for inadmissibility. One can meet the public charge provisions but not the Proclamation, and vice versa. See 84 Fed. Reg. at 53993 (explaining that the review the Proclamation requires “is separate and independent from the review and determination required by other statutes, regulations, or proclamations in determining the inadmissibility of an alien”).

In fact, the Supreme Court in Trump v. Hawaii rejected the very type of argument the majority adopts. There, the plaintiffs argued that a proclamation nullified parts of the INA because Congress in that statute had already addressed “the problem of aliens seeking entry from countries that do not share sufficient information.” 138 S. Ct. at 2411. The Supreme Court held there was no such conflict with the INA because § 1182(f) “vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA.” Id. at 2412 (emphases added); see also id. at 2408 (“It is therefore unsurprising that we have previously observed that § 1182(f) vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA.”) (quoting Sale, 508 U.S. at 187).

There is nothing unusual about Proclamation No. 9945 creating an independent—and yes, dispositive—ground for

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inadmissibility, when that is the whole point of § 1182(f). What the majority treats as a “violat[ion] of the INA,” Maj. Op. 26, is just § 1182(f) of the INA in operation, as Trump v. Hawaii makes plain. The majority today simply resurrects the same “cramped” reading of § 1182(f) that Trump v. Hawaii rejected. 138 S. Ct. at 2412.1

Implicit in the majority’s reasoning is the view that each public charge factor must be given some weight, so that if any one consideration is dispositive, it unravels the statutory scheme. This interpretation has no basis in the statute. The INA does not assign the public charge factors any weight among themselves or in relation to independent eligibility requirements. And as we recently explained, the public charge “factors are not exhaustive,” and the Executive “may add to them.” City & Cty. of S.F., 944 F.3d at 798. “Other factors may be considered as well, giving officials considerable discretion in their decisions.” Id. at 792; see also id. at 796 (“[D]ifferent factors have been weighted more or less heavily at different times.”).

1 Unsurprisingly, prior proclamations have addressed grounds of inadmissibility that the INA already provided for to some extent. Compare 8 U.S.C. § 1182(a)(2)(h) (rendering inadmissible “[a]ny alien who commits or conspires to commit human trafficking offenses”), with Pres. Procl. No. 8342, 74 Fed. Reg. 4093 (2009) (barring entry of certain government officials who have “impeded” or “failed to implement” antitrafficking efforts); compare also 8 U.S.C. § 1182(a)(3)(E) (rendering inadmissible Nazi-affiliated aliens who “ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion”), with Pres. Procl. No. 8697, 76 Fed. Reg. 49277 (2011) (barring entry of any alien who “ordered, assisted, aided and abetted, committed or otherwise participated in . . . widespread or systematic violence” based on protected characteristics).

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The majority complains that the public charge statute “lists various factors that the consular office can consider” and “[h]ealth insurance is not among them.” Maj. Op. 26. But again, that is the expected result of a statutory scheme that allows the President to impose “additional limitations on entry.” Hawaii, 138 S. Ct. at 2412. The majority’s quarrel is thus really with § 1182(f) itself, not any actual distortion of the INA. There is no conflict between a public charge provision that is “flexible” and “ambiguous,” City & Cty. of S.F., 944 F.3d at 798, and a Proclamation premised on the “clear” and “comprehensive delegation” that Congress conferred on the President in § 1182(f), Hawaii, 138 S. Ct. at 2408–09.

2

Unlike the district court, the majority’s lead point is that Proclamation No. 9945 “conflicts with the Violence Against Women Act’s (‘VAWA’) amendments to the INA.” Maj. Op. 22. These amendments provide that the INA’s public charge provisions “shall not apply” to an alien who is the victim of certain crimes. 8 U.S.C. § 1182(a)(4)(E); see also id. § 1154(a)(1)(A)(iii)–(vi). Once again, the majority fails in its effort to save the district court’s injunction.

As an initial matter, no plaintiff in this case claims that their relatives are subject to the VAWA exemption. VAWA is thus irrelevant to this litigation and plaintiffs would lack standing to invoke it. E.g., Easter v. Am. W. Fin., 381 F.3d 948, 962 (9th Cir. 2004); Halet v. Wend Inv. Co., 672 F.2d 1305, 1309 n.2 (9th Cir. 1982). But in any event, the Proclamation does not conflict with VAWA for the obvious reason that a petitioner who meets VAWA’s eligibility requirements is not thereby entitled to admission into the

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United States. Rather, that person is merely exempted from the public charge limitations. 8 U.S.C. § 1182(a)(4)(E). Nothing in VAWA or the INA requires the President to impose a VAWA-like carve-out on other grounds for inadmissibility, and nothing in the INA imposes such a restriction on the President’s broad authority under § 1182(f).

The majority thus badly errs in concluding that the Proclamation “contravenes the well-settled principle that the President’s powers are executive, not legislative in nature,” because the President cannot “repeal statutes.” Maj. Op. 23 (quotations omitted). Such conclusory statements of constitutional law have nothing to do with what the President has done here. VAWA is a limited exception to one ground for inadmissibility, not an overarching limit on the President’s expansive authority under § 1182(f) or his independent constitutional powers in this area.2

3

The majority also holds that “[t]he government has not submitted any evidence” of likely success on the plaintiffs’

2 I also find unfortunate the majority’s attempt to boost its holding by asserting that the government “has made no showing at all” on VAWA and “does not respond to the merits of this challenge.” Maj. Op. 22, 23. The district court, as noted, devoted only a few scant sentences to VAWA. Even so, the government expressly argued in this court that the Proclamation did not conflict with VAWA because Trump v. Hawaii “rejected this argument, holding that ‘§ 1182(f) vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA.’” Reply Br. 5 (quoting 138 S. Ct. at 2408) (emphasis omitted). Moreover, VAWA is part of the public charge provision and the government has argued at length why the Proclamation does not conflict with that provision as a whole.

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assertion that “the Proclamation violates the” Affordable Care Act (ACA). Maj. Op. 24. That is rather harsh, considering that the district court did not reach this issue. Doe #1, 418 F. Supp. 3d at 597 n.6. The plaintiffs devoted less than a page of their stay opposition to the ACA, and the government then addressed the issue in its reply brief. All the same, the notion that the Proclamation conflicts with the ACA is manifestly incorrect.

The ACA authorized the creation of State-based health insurance markets, called “exchanges,” “where people can shop for insurance, usually online.” King v. Burwell, 135 S. Ct. 2480, 2487 (2015) (citing 42 U.S.C. § 18031(b)(1)). Under the ACA, “individuals with household incomes between 100 percent and 400 percent of the federal poverty line” may purchase subsidized insurance plans with the help of “refundable tax credits.” Id. These tax credits are available to “lawfully present” aliens whose incomes are less than 100 percent of the poverty line and who are also ineligible for Medicaid. 26 U.S.C. § 36B(c)(1)(B). Neither subsidized insurance nor Medicaid satisfy the Proclamation’s requirements. Under the ACA, consumers can also purchase unsubsidized insurance on State exchanges. 42 U.S.C. §§ 18031(d)(2)(A), 10832(b). Such unsubsidized plans do satisfy Proclamation No. 9945. See 84 Fed. Reg. at 53392. In all cases, however, an immigrant must be “lawfully present” and a resident of a State before he can purchase any health insurance from that State’s exchange, whether subsidized or not. 26 U.S.C. § 36B(c)(1)(B); 42 U.S.C. § 18032(f)(1)(A)(ii); 45 C.F.R. 155.305(a)(1), (3).

The majority claims that because the Proclamation excludes subsidized plans under State exchanges, “an immigrant attempting to legally enter the United States will

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not have access to ACA tax credits as Congress intended.” Maj. Op. 25. That is a non sequitur. As the majority acknowledges, under the ACA, subsidized plans are only available to individuals “lawfully present” in the United States. 26 U.S.C. § 36B(c)(1)(B); 42 U.S.C. § 18032(f)(1)(A)(ii). The ACA thus does not cover persons who are subject to the Proclamation, who are not lawfully present here. Nor does the Proclamation prevent individuals, once they are “lawfully present,” from seeking subsidized insurance under State exchanges. And the ACA says nothing about who may or may not enter this country. That Congress has created a benefit for individuals who have “lawfully” entered the United States does not then give persons a right to enter the country to obtain those benefits.

The apparent suggestion in the majority opinion is that the Proclamation will prevent the entry of all persons who could then later take advantage of the subsidized plans that the ACA makes available to immigrants who are “lawfully present.” But as discussed above, the Proclamation only covers a subset of immigrants. There are many other immigrants, including persons already lawfully present in the United States, who can try to take advantage of subsidized insurance options. And that is to say nothing of the persons who are subject to the Proclamation, who can meet its eligibility requirements, and who can then pursue subsidized health insurance once they arrive. The suggestion that the Proclamation somehow drains an aspect of the ACA of all function is thus obviously not true.

The majority next claims that although immigrants can satisfy the Proclamation by purchasing unsubsidized insurance on State exchanges, because immigrants must be “lawfully present” in the United States to buy such insurance,

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these immigrants are placed in “a Catch-22.” Maj. Op. 25. By the majority’s reasoning, such persons “cannot obtain an ‘approved’ unsubsidized insurance plan unless they have been legally admitted, but they cannot be legally admitted unless they have obtained an ‘approved’ insurance plan.” Id. This theory collapses because the latter part is not true. Under the Proclamation, the immigrant must only show that he “will be covered by approved health insurance . . . within 30 days of the alien’s entry into the United States.” 84 Fed. Reg. 53992 (emphasis added). The majority’s “Catch-22” thus relies entirely on a misreading of the Proclamation.

IV

The government has not only made an overwhelming showing of likely success on the merits, it has also shown that it will be irreparably harmed absent a stay of the district court’s injunction. Nken, 556 U.S. at 433–34. The majority’s determination otherwise depends on it placing plaintiffs’ expert and an amicus brief on higher footing than the President of the United States.

A

The harm that the court’s injunction inflicts is irreparable and real—to the interests the Executive seeks to promote through the Proclamation and to the core separation of powers principles that make the Proclamation lawful. The injunction is a severe affront to the President’s authority, itself an irreparable injury. See Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (“[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”) (quotations omitted).

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The majority downplays the government’s institutional injury on the theory that the Proclamation’s lawfulness “is at the core of this dispute, to be resolved at the merits stage.” Maj. Op. 16. But by this logic, a court of appeals could never stay a district court’s injunction until the merits were finally adjudicated, which is not the law. The merits of a case of course are at issue at the “merits stage.” But the merits are relevant now too, because we are required to evaluate the likelihood of success on the merits at the stay stage. See Nken, 556 U.S. at 434. In this case, the “clear statutory language” of § 1182(f) reflects a “comprehensive delegation” of “sweeping authority” to the Executive, Hawaii, 138 S. Ct. at 2408, 2413, who Congress entrusted with the important mission of suspending the entry of aliens who “would be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The court’s deprivation of this fundamental power is an acute institutional injury that is not made more palatable by telling the government it must wait many months, if not much longer, for a final decision on the merits. See Maryland, 133 S. Ct. at 3.

The majority discounts the government’s institutional injury on the theory that if such injury were credited, “no act” of the President could be enjoined because “the irreparable harm standard [would be] satisfied by the fact of executive action alone.” Maj. Op. 16. That is a mischaracterization. The majority can make this suggestion only because it took the stay factors out of order and addressed the harms before the merits. Where, as here, the government has shown an overwhelming likelihood of success on the merits, enjoining it from enforcing its plainly lawful policy is a constitutionally significant injury.

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Institutional injury aside, the government has demonstrated that its inability to enforce the Proclamation pending appeal will cause irreparable harm. See City & Cty. of S.F., 944 F.3d at 806 (finding irreparable harm where “the preliminary injunctions will force DHS to grant status to those not legally entitled to it”). The President determined in Proclamation No. 9945 that immigrants “who have not demonstrated any ability to pay for their” medical care impose significant and unwarranted costs on the American healthcare system. 84 Fed. Reg. 53991. The Proclamation does not apply once an immigrant has been admitted to the United States, so it can never apply to aliens admitted during the pendency of this litigation. See 84 Fed. Reg. at 53992–93. The costs they impose while the injunction remains in place are thus unrecoverable, creating irreparable harm. See California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018).

The scope of the injunction here only confirms both the fact of irreparable harm and its magnitude. The injunction applies worldwide and, by the majority’s estimation, “would negatively affect approximately 60% of all immigrant visa applicants” and “375,000 immigrants each year.” Maj. Op. 19. This only “prove[s] [the government’s] point,” confirming that the harm “is not only irreparable, but significant.” City & Cty. of S.F., 944 F.3d at 806. Nor is the resulting injury limited to “third parties,” as the majority suggests. Maj. Op. 19. The government funds considerable aspects of our healthcare system, and it is undeniable that the uninsured would require the government to “incur some otherwise avoidable financial costs if a stay is denied.” Golden Gate Rest. Ass’n v. City & Cty. of S.F., 512 F.3d 1112, 1125 (9th Cir. 2008); see also Azar, 911 F.3d at 581

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(explaining that “economic harm” is “irreparable” when the government “will not be able to recover monetary damages”).

Contrary to the majority opinion, the harms here are also not “purely monetary.” Maj. Op. 18. The Proclamation identifies non-monetary harms that the uninsured impose, such as increased strain on “publicly funded programs” and overreliance on emergency rooms, “causing overcrowding and delays for those who truly need emergency services.” 84 Fed. Reg. 53991. These too are irreparable harms that cannot be avoided absent a stay of the injunction. See Golden Gate Rest. Ass’n, 512 F.3d at 1125 (granting stay because “individuals without health coverage are significantly less likely to seek timely medical care than those with health coverage,” and consequently are more likely to “seek emergency treatment” from government-funded hospitals and clinics).

B

The majority opinion disbelieves the government’s asserted harms because while the Proclamation states that “immigrants are about three times more likely than United States citizens to lack health insurance,” 84 Fed. Reg 53991,” there is, the majority complains, “no citation in the Proclamation for this statistic.” Maj. Op.16. This is of a piece with the majority’s criticism that the Proclamation lacks “data-driven analysis” or a “further cost quantification” (an apparently technical requirement that the majority opinion leaves undefined). Id. at 17, 30. The majority’s failure to give the Executive any deference is clear legal error.

A presidential proclamation is not a second-grade math assignment, where a student must “show his work” to get

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credit. In Trump v. Hawaii, the Supreme Court found it “questionable” whether the President operating under § 1182(f) was in any way required to “explain [his] finding[s] with sufficient detail to enable judicial review.” 138 S. Ct. at 2409. But “even assuming that some form of review is appropriate,” the Supreme Court still rejected “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications,” which would be “inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.” Id.

The majority’s demand that the government explain the Proclamation’s factual findings, Maj. Op. 15–16, is thus directly contrary to the Supreme Court’s admonition that the President is “‘not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.’” Hawaii, 138 S. Ct. at 2409 (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010)). The Constitution does not require the President to engage in the majority’s preferred “data-driven analysis” or “cost quantification,” nor does § 1182(f). Maj. Op. 17, 30. The court today thus shows a profound disrespect to the Executive, contrary to precedent. And the majority’s token acknowledgement that § 1182(f) “‘exudes deference to the President,’” Maj. Op. 28 (quoting Hawaii, 138 S. Ct. at 2408), is no substitute for the actual deference owed to the President’s findings when those findings are under review.

The majority opinion also errs in attempting to distinguish Trump v. Hawaii on the ground that the proclamation at issue there contained “extensive findings” following a “comprehensive” inter-agency review. Maj. Op. 18 (quotations omitted). As discussed above, Trump v. Hawaii rejected the premise that these findings were even necessary.

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See 138 S. Ct. at 2409 (rejecting “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications”). Nor did the Supreme Court in Trump v. Hawaii suggest that the quantum of findings at issue there represented a constitutional or statutory floor. Instead, Trump v. Hawaii referenced prior presidential proclamations that were just several sentences long. Id. As was the case with the proclamation in Trump v. Hawaii itself, Proclamation No. 9945 is “more detailed” than those. Id. The notion that Trump v. Hawaii somehow supports today’s decision is thus plainly incorrect.

Finally, the majority seriously errs in suggesting that because the government is seeking a stay of an injunction, which is an exercise of the court’s “discretion,” the government is not entitled to the deference that Trump v. Hawaii commands. Maj. Op. at 17. The procedural posture of a case is not a license to disregard the fundamental principle that “‘it is not the judicial role . . . to probe and test the justifications’ of immigration policies.” Hawaii, 138 S. Ct. at 2419 (quoting Fiallo v. Bell, 430 U.S. 787, 799 (1977)). The court’s approach loads the dice against the government any time a district court enjoins a government policy. Simply put, the deference that § 1182(f) “exudes,” id. at 2408, does not evaporate whenever a single district court has enjoined a presidential policy and the government is seeking a stay.

In any event, for all the court’s refusal to accept the Proclamation’s determination that immigrants are three times more likely than citizens to lack health insurance, the plaintiffs do not even contest this point. In fact, a report that plaintiffs’ own expert authored (which is referenced in his expert materials in this case) makes the very same observation: “[A]lmost half of all immigrants—here defined

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as noncitizen immigrants—are uninsured, a level that is about three times higher than for native-born citizens.” Leighton Ku, Why Immigrants Lack Adequate Access to Health Care and Health Insurance (Migration Policy Inst., Sept. 1, 2006).

C

Instead of giving the President any deference, the majority makes some findings of its own and then treats those as authoritative. Contrary to the Proclamation, the majority tells us there is no irreparable harm because, in fact, “the impact of uninsured immigrants on uncompensated healthcare costs is minimal.” Maj. Op. 18. For this, the majority relies on only a single source: the declaration of plaintiffs’ expert, Dr. Leighton Ku. See id. at 17. But exuding deference to Dr. Ku is not what the law allows.

Dr. Ku is a professor of health policy. The only prior expert work he discloses is on behalf of plaintiffs who are challenging various immigration policies from the current presidential administration. Without any basis at all, Dr. Ku opines that “the President and the State Department, which is charged with implementing the [P]roclamation, failed to conduct a careful and reasoned analysis of the policy.” Dr. Ku criticizes the President for acting “without a reasoned approach to administrative rulemaking,” faulting the Executive for “fail[ing] to carefully consider the ramifications of this policy.” Dr. Ku further maintains that “if the President is concerned about reducing uncompensated care as expressed in the [P]roclamation, then it would make more sense to . . . expand[] Medicaid or other forms of health insurance, such as the health insurance marketplaces.” It should go without saying that the Constitution does not

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enshrine the unsupported legal opinions and transparent policy preferences of an unelected academic.

The majority’s fealty to Dr. Ku is even more remarkable when one examines his conclusion that uninsured immigrants do not burden the American healthcare system. Dr. Ku asks in his declaration: “[W]hat is the value of uncompensated care provided to legally admitted immigrants who might have been affected by this [Proclamation]?” Dr. Ku then admits that “I am not aware of any information that accurately answers this question.” Id. (emphasis added). That is enough to disregard his opinion.

Dr. Ku then proceeds to come up with an answer to the question on his own. But in arriving at the figures that the majority treats as definitive, Maj. Op. 16, Dr. Ku compares “recent immigrants” (those “who entered the U.S. within five years” of 2017) to “not recent immigrants” (“U.S. borncitizens and immigrants who have been in the U.S. for five years or more” (emphasis added)). This comparison does not even try to measure the cost of care provided to uninsured immigrants in the United States. No wonder even Dr. Ku in his own declaration “recognize[s] that this is not an ideal analysis.”

An expert who has disqualified himself under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), through his own admissions should not be the basis for enjoining a lawful presidential proclamation. If nothing else is clear under the Constitution and Supreme Court case law interpreting § 1182(f), it is that a professor’s self-described “not . . . ideal analysis” should not win out over the conclusions of the President. The majority’s elevation of Dr. Ku’s declaration over the Executive’s determinations in

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the Proclamation is a radical departure from settled law and a serious threat to the democratic process.

The majority also refuses to give deference to the President based on its determination that “immigrants are more likely to represent favorable insurance risk[s] in [ACA] marketplaces because they tend to be relatively healthier than the normal insured population and use fewer healthcare goods and services.” Maj. Op. 17 (quotations omitted). The majority purports to locate this conclusion in “[t]he record” in this case. Id.

But what the majority cites on this point, and what it calls “the record,” is really just an amicus brief from twenty-one States, the District of Columbia, and New York City, which was submitted in the district court. And what that amicus brief cites are the comments these same States submitted in response to a State Department notice describing how the Department would implement the Proclamation. These comments did not disclose any underlying data or undertake any apparent study of immigrant healthcare costs. See, e.g., Covered Cal. Cmt. On DOS-2019-0039-0001 (Oct. 31, 2019), available at: https://www.regulations.gov/document?D=DOS2019-0039-0241 (California’s three-and-a-half page letter). But regardless, it is quite circular for administrative comments that unsuccessfully “urge[d] the withdrawal” of Proclamation No. 9945, id., to wind up as authoritative when cited in the same commenters’ amicus brief challenging that very Proclamation.

In short, the majority’s determination that the government has not made a showing of irreparable harm depends on its refusal to give the President any deference at all, contrary to precedent.

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V

The government has shown an overwhelming likelihood of success on the merits, as well as irreparable harm. These factors are “the most critical” in the stay analysis, and only “[o]nce an applicant satisfies” these factors will the court consider “harm to the opposing party and weighing the public interest.” Nken, 556 U.S. at 434–35. Considering those third and fourth stay factors only confirms that the court should have issued a stay.

A

The majority opinion strives to create the impression that the named plaintiffs’ relatives were on the cusp of entering the United States and that only the Proclamation is holding them back. The majority thus asserts that “[t]he individual [p]laintiffs are seven U.S. citizens” whose “family members have successfully completed the traditional steps for obtaining an immigrant visa.” Maj. Op. 12–13. But that is untrue: most of plaintiffs’ relatives do not even have visa interviews scheduled and some have not submitted required documentation.3 The majority further states that plaintiffs’ “family members had qualified for entry under established immigration policy.” Id. at 36. That is also untrue. Nor is there any basis for the majority’s scaled back assertion that the named plaintiffs’ relatives were “otherwise likely

3 The only exception is the relative of one named plaintiff who received an immigrant visa after the district court issued its injunction. Plfs.’ Notice of Additional Facts, Doe #1 v. Trump, Case No. 3:19-cv01743-SI (D. Or.), ECF No. 123. But neither the Proclamation nor the district court’s injunction now have any bearing on this person. This section will thus discuss only the plaintiffs with any potential future harm, even if that harm is ultimately speculative.

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qualified for entry under § 1182(a)” for admission into the United States. Id. at 21. With the one exception noted above, see ante at 77 n.3, it is entirely speculative whether the named plaintiffs’ relatives will meet the numerous eligibility requirements and would be allowed to enter this country at all, regardless of Proclamation No. 9945.

The majority fails to disclose that the named plaintiffs have only received approved I-130 petitions. A United States citizen files an I-130 petition with the U.S. Citizenship and Immigration Services (USCIS) or a consular official, on behalf of a relative who is seeking to become a permanent resident in the United States. 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). Approval of an I-130 petition is “only the first step in the process” toward becoming a lawful permanent resident. Montoya v. Holder, 744 F.3d 614, 616 (9th Cir. 2014); see also Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1103 (9th Cir. 2011).

Only then, after the alien proceeds through the queue, does the alien apply for a visa and the United States begin its review of any request for admission. Kerry v. Din, 135 S. Ct. 2128, 2131 (2015) (plurality op.) (“If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer. Before issuing a visa, the consular officer must ensure the alien is not inadmissible under any provision of the INA.”) (citations omitted); Montoya, 744 F.3d at 616. As we have recognized, “[t]he wait time for these immigrant visas can be considerable.” Landin-Molina v. Holder, 580 F.3d 913, 920 n.8 (9th Cir. 2009); see also Scialabba v. Cuellar de Osorio, 573 U.S. 41, 50 (2014) (plurality op.) (“All of this takes time—and often a lot of it . . . . A family-sponsored

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immigrant may stand in line for years—or even decades—just waiting for an immigrant visa to become available.”). There are also myriad reasons why a person may ultimately be denied entry. See 8 U.S.C. § 1182(a); 22 C.F.R. § 42.62. The Proclamation, of course, ensures that all these other requirements for admission remain intact.

As the foregoing confirms, approval of an I-130 petition “cannot be the equivalent of inspection and authorization to enter and remain in the United States.” Vasquez de Alcantar, 645 F.3d at 1103. It “does not confer any change in status.” Id.; see also Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir. 2005). Instead, we have explained, approval of an I-130 petition “does not raise [an] alien’s expectations” for permanent residence “above the level of hope.” Montoya, 744 F.3d at 617 (quotations omitted). The majority therefore errs in suggesting that plaintiffs’ relatives were qualified to become lawful permanent residents or were about to reach that status, but for the Proclamation.

The named plaintiffs’ declarations only confirm this. When the district court issued its injunction, none of the plaintiffs’ relatives had consular interview dates scheduled, and seven such relatives are still awaiting interview dates. Doe #1, 2020 WL 1689727, at *6–7. Interviews aside, various plaintiffs were still working to submit the appropriate paperwork to apply for a visa when the injunction was issued. See Doe #2 Decl. ¶ 7 (“[W]e are currently working on the collection of information and documents . . . .”); id. ¶ 9 (“I will need a joint sponsor in order to complete the affidavit of support section of my parents’ immigrant visa.”); Doe #3 Decl. ¶ 9 (“[M]y husband and I have been working to gather the documents required for consular processing. Several times, we thought we had all of the paperwork submitted, but

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the government then requests additional, and different information from us.”); Ramos Decl. ¶ 12 (explaining that she is “in the process of gathering all the documents required by the consulate”). And many months later, at least two of plaintiffs’ relatives are still “collecting the necessary information.” Doe #1, 2020 WL 1689727, at *6. This only confirms that plaintiffs’ relatives are still in the middle of the visa process.

Equally misplaced is the majority’s emphasis on certain family members who have received provisional I-601A waivers. See Maj. Op. 21. I-601A waivers are available to aliens in the consular visa process who have been unlawfully present in the United States and who are immediate relatives of U.S. citizens. See 8 U.S.C. § 1182(a)(9)(B)(i); 8 C.F.R. § 212.7(e). The I-601A waiver was developed to expedite the interview process by allowing applicants “who require a waiver of inadmissibility for unlawful presence to apply for such a waiver in the U.S. before they depart for an immigrant visa interview at a U.S. embassy or consulate abroad.” Romero v. Barr, 937 F.3d 282, 287 n.2 (4th Cir. 2019) (emphasis added).

The grant of an I-601A waiver, like the approval of an I130 petition, is thus a prefatory mechanism to facilitate the visa application process. It does not mean that plaintiffs’ relatives were “otherwise likely qualified” for admission to the United States. Nor can the majority reasonably maintain that the Proclamation will result in family separation for persons with I-601A waivers. Maj. Op. 21. Once again, because there is no indication that plaintiffs’ relatives are otherwise admissible, it is impossible to say that any family separation is due to the Proclamation, as opposed to the numerous other requirements that our immigration laws

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impose. Given that plaintiffs’ relatives have not completed the visa process, the Proclamation is not the immediate (or future) cause of any alleged family separation.

Finally, it also is not apparent that plaintiffs’ family members will be unable satisfy the Proclamation. The district court enjoined the Proclamation before it could take effect, allowing no chance for any person to even attempt to satisfy the Proclamation’s requirements. The Proclamation allowed the Secretary of State to “establish standards and procedures” to govern consular officers’ application of the Proclamation, 84 Fed. Reg. 53993; due to the injunction, we cannot know how any such guidance would affect consular officers’ determinations.

Although the majority claims the plaintiffs “submitted evidence” that their relatives are unable to meet the Proclamation’s requirements, Maj. Op. 19, many of the plaintiffs’ declarations provide no details about their finances, the amount of income they or their relatives have available, or the prices of qualifying plans under the Proclamation. The Proclamation also gives the Secretary of State or his designee the ability to exempt aliens “whose entry would be in the national interest,” as determined on a “case-by-case basis.” 84 Fed. Reg. 53993. For all these reasons, it is entirely speculative how the Proclamation will affect anyone who is still going through the immigration process.

In short, the sincere “hope” that plaintiffs’ relatives will qualify for legal status is no substitute for actual evidence that plaintiffs’ relatives are entitled to visas but for the Proclamation. On that issue, there is no evidence at all.

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B

The majority creates another misimpression in purporting to justify the injunction “based on evidence in the record” that the “Proclamation would cause significant harm to 21 states, the District of Columbia, and New York City if allowed to go into effect there.” Maj. Op. 37. The majority tells us that “[t]he record demonstrates” the “significant harm” these jurisdictions would suffer if the Proclamation is allowed to go into effect. Id. at 34–35 (emphasis added). And the majority opinion further informs us this “evidence [was] credited by the district court, and that “[t]he government does not seriously contest this evidence.” Id. at 35 (emphases added).

These statements are, regrettably, quite misleading. The only source for the cited “evidence” is the amicus brief that twenty-one States, the District of Columbia, and New York City filed in the district court. The Supreme Court has instructed that “the stated desires of amici are no substitute for a class action, are not evidence in the case, and do not influence our decision; we examine an amicus curiae brief solely for whatever aid it provides in analyzing the legal questions before us.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434 n.16 (1984). The majority opinion violates these fundamental precepts. But it is, unfortunately, more problematic than that.

The “evidence” of “significant harm” to the jurisdictions that joined the amicus brief consists of the following: thousands of persons in these States become lawful permanent residents each year, and immigrants “are vital to the economic, civic, and social fabric of our states and city.” Maj. Op. 35 (quotations omitted). These assertions cannot justify the district court’s injunction. It is of course true that

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immigrants are vital to the economic and cultural life of our States and cities. But by this logic, any federal policy that reduces immigration could be enjoined on that basis, giving States and localities the power to negate federal immigration policy. The acknowledged contributions that immigrants make to our States are thus not grounds for enjoining the Executive Branch from recalibrating immigration rules in line with the President’s lawful policy goals. And it cannot be that State or local governments that oppose a presidential policy can have the policy enjoined through the commonplace act of joining a State-led amicus brief.

C

For all the reasons I have set forth, the public interest also strongly supports staying the injunction. Nken, 556 U.S. at 434. As we have recognized, the government’s interests and the public interest tend to merge since “responsible public officials . . . have already considered” the public interest in enacting the policy at issue. Golden Gate, 512 F.3d at 1127. Our review of the public interest is thus “constrained,” and “it is beyond our province to evaluate the wisdom” of the Proclamation that the President chose to put in effect. Id.

That is the result that the four stay factors require. The majority, however, adds a new, unauthorized stay factor: preservation of the status quo. Maj. Op. 35–36. The majority reasons that the “public interest lies with maintaining the status quo while the appeal is pending,” and that the status quo is a world without the Proclamation. Id. at 36. The majority is wrong on two levels. Circuit precedent is clear that maintenance of a “status quo” is not among the factors that courts consider in resolving a request to stay an

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injunction. And even if it were, the majority is wrong on what the status quo is.

In Golden Gate Restaurant Association v. City and County of San Francisco, 512 F.3d 1112 (9th Cir. 2008), we granted a motion to stay pending appeal a district court’s injunction of a San Francisco ordinance that required employers to make minimum healthcare expenditures to or on behalf of their employees. The employers argued that the City, in seeking a stay of the injunction and reinstitution of its ordinance pending appeal, “must meet a higher standard,” because “in [the employers’] view, a stay would change the status quo.” Id. at 1116. We disagreed. We held that the Supreme Court “did not include preservation of the status quo among the factors regulating the issuance of a stay.” Id. (quotations omitted). And we noted that “several of our sister circuits, in reviewing preliminary injunctions enjoining implementation of new legislation, have granted motions for stays of those injunctions pending appeal without weighing whether a stay would disturb or preserve the status quo.” Id. at 1117.

Our decision in Golden Gate also demonstrates that the majority misperceives the status quo, even if it were a relevant consideration. As we explained in Golden Gate, “granting a stay” of the injunction “would, in a real sense, preserve rather than change the status quo,” because “[i]n the absence of the district court injunction” the ordinance “would now be part of the status quo.” Id. at 1116. The rules governing stays should be no different for an ordinance that requires employers to confer healthcare benefits (Golden Gate) than a rule requiring immigrants to demonstrate they will have qualifying health insurance (this case). As in

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Golden Gate, in the absence of the district court’s injunction, Proclamation No. 9945 would be part of the status quo.

The true status quo is thus not a judicially created one. As I previously explained, “while the plaintiffs assume that the status quo is a world without the Presidential Proclamation, . . . the actual status quo is a legal environment in which the President possesses ‘sweeping proclamation power in § 1182(f),’ Hawaii, 138 S. Ct. at 2408 (quotations omitted), and in which Proclamation No. 9945 is therefore authorized.” Doe #1, 944 F.3d at 1229 (Bress, J., dissenting). A stay “simply suspend[s] judicial alteration of the status quo,” Nken, 556 U.S. at 429, which is all the government is requesting here.

The majority is therefore wrong to assert that “[i]n the government’s re-imagining of the status quo in this context, this factor would always tip in the government’s favor, effectively rendering the Court powerless to exercise its discretion on this factor in such instances.” Maj. Op. 36. That is not correct, because the government must meet the traditional Nken factors to earn a stay. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 507 (2013) (Scalia, J., concurring) (explaining that no “accepted standard” “require[s] a court to delay enforcement of a state law that the court has determined is likely constitutional on the ground that the law threatens disruption of the status quo”) (quotations omitted). It is instead the majority that is “re-imagining” the status quo and creating a rule that, contrary to Golden Gate, would require denying a stay of any injunction that blocks new policies from going into effect, because anything new can always be described as changing the status quo.

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VI

We arrive at last at the scope of the injunction, which applies nationwide and to persons around the world seeking entry into the United States. My view, of course, is that there should be no injunction in the first place. But the extreme scope of the district court’s injunction presents new and troubling issues of its own.

In a brief section, the court today blesses the district court’s injunction based on a class certification order entered months after the fact and the purported need for uniformity in immigration policy. See Maj. Op. 37–40. The majority’s approach—and the class certification decision it implicitly endorses—are procedurally and substantively flawed. Nationwide injunctions raise many fundamental questions about the proper use of judicial power. Perhaps for that reason, the Supreme Court has repeatedly stayed such injunctions pending appeal. See Innovation Law Lab, 2020 WL 1161432, at *1; New York, 140 S. Ct. at 599; E. Bay Sanctuary Covenant, 140 S. Ct. at 3; Int’l Refugee Assistance Project, 138 S. Ct. at 542; Hawaii, 138 S. Ct. at 542. We should have done that ourselves in this case. Today’s decision unfortunately reflects yet another example of the misuse of universal injunctions and the misunderstanding of class certification on which they are so frequently premised.

A

Let’s begin with the sequence of events here, which should be cause for concern. When the district court issued its injunction in November 2019, no class had been certified and any putative “class members” were not parties to the case. See Smith v. Bayer Corp., 564 U.S. 299, 313–14

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(2011). Under what I had thought was the law of our circuit, nationwide relief is only appropriate where “necessary to give prevailing parties the relief to which they are entitled.” Azar, 911 F.3d at 581 (emphasis in original and quotations omitted); see also New York, 140 S. Ct. at 600 (Gorsuch, J., concurring) (“Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.”); Zepeda v. INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983) (“Without a properly certified class, a court cannot grant relief on a class-wide basis.”).

The district court’s injunction was thus vastly overbroad when issued. At that time, any injunction could at most have extended to the named plaintiffs, because no further injunction would have been necessary to give these plaintiffs relief. Azar, 911 F.3d at 581. As I thus wrote many months ago when we were considering the government’s request for temporary emergency relief pending appeal, the district court’s universal injunction could not stand because it “shortcircuits the procedures for class certification by giving thousands of persons not before the court the relief that the class certification process is designed to evaluate.” Doe #1, 944 F.3d at 1228–29 (Bress, J., dissenting).

Now fast-forward many months later. Months after briefing and argument in this court on the government’s motion for stay pending appeal—and nearly half a year after the district court first blocked the Proclamation from taking effect nationwide—the district court issued its class certification decision, certifying nationwide and worldwide classes. Doe #1, 2020 WL 1689727, at *17. The majority today relies on this later class certification decision to leave in place the district court’s earlier universal injunction. Maj. Op. 37.

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This is quite unsettling. The majority’s reliance on the district court’s recent class certification decision is a concession that until a short time ago, there was no valid basis for the district court to enjoin the Proclamation as to anyone but the named plaintiffs. Maj. Op. 37 (“[T]he injunction is appropriate at this juncture, whether or not it was when originally issued.”). Yet when the issue was presented to us four months ago, we refused to stay any portion of the nationwide injunction. See Doe #1, 944 F.3d at 1228–29 (Bress, J., dissenting). That, in turn, allowed the district court to catch up to our deliberative process and issue the class certification ruling that supposedly justifies a universal injunction and without which the injunction could not stand.

The problems with this course of events are innumerable. Blocking a presidential policy for many months nationwide, without justification, is no small thing. And by ratifying the scope of the district court’s injunction, the majority invites district courts to issue overbroad injunctions up front, only to be followed some months later by the class certification decisions that supposedly undergird them. This has it backwards. The scope of a preliminary injunction should be supported at the time it is issued, not months later and while the injunction is on appeal. The inversion of operations that the court tacitly approves today will only lead to pathdependency in the district courts, creating hydraulic pressure to certify a class in order to justify a previously issued nationwide injunction that is now on appeal. That is not how this process should work. Indeed, the government has not even yet had the opportunity to appeal the district court’s class certification ruling, which is now, per the majority’s opinion, the linchpin of the district court’s injunction. See Fed. R. Civ. P. 23(f).

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The majority opinion treats the district court’s disordered approach as “no harm, no foul” because this is the only case challenging Proclamation No. 9945. The majority tells us that “[n]o litigation challenging this Proclamation is pending elsewhere, alleviating concerns occasionally associated with nationwide injunctions,” namely, “that such injunctions deprive other courts from offering diverse perspectives on the legal issues while similar litigation is ongoing in multiple forums.” Maj. Op. 38.

But why is there no other case challenging Proclamation No. 9945? The most likely reason is because the district court in this case blocked the Proclamation before it could even take effect. With an all-encompassing injunction in hand, no putative class member had any reason to bring suit elsewhere. Far from showing that the district court’s injunction poses no threat to the percolation of legal issues, the absence of parallel litigation on Proclamation No. 9945 confirms that nationwide injunctions can, in fact, stymie the development of legal challenges. See E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029 (9th Cir. 2019); Azar, 911 F.3d at 583. All of this was made possible by the district court’s decision to enjoin the Proclamation first and certify classes many months after the fact.

B

The district court’s universal injunction fails not only as a matter of procedure, but on substantive grounds as well. Nationwide injunctions of federal policies are increasingly common yet highly controversial. Some members of the Supreme Court have raised important concerns about them. See New York, 140 S. Ct. at 600–01 (Gorsuch, J., concurring); Hawaii, 138 S. Ct. at 2425–29 (Thomas, J., concurring). This

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case underscores that the problem with nationwide injunctions often lies not merely in their equitable excess, see New York, 140 S. Ct. at 600–01 (Gorsuch, J., concurring), but with a failure to take seriously the restrictions on class certification that Rule 23 imposes. The problem with many nationwide injunctions, in other words, is that they are premised on class certification orders that are themselves infirm. That is the case here.

Class certification, “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” is “proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–51 (2011) (quotations omitted). Most challenges to federal policies like the one before us seek injunctive relief classes under Rule 23(b)(2). But such classes are still subject to the strictures of Rule 23(a), including the core requirement that a case present “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). That provision requires “not the raising of common ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (emphasis in original and quotations omitted).

The majority states without analysis that the universal injunction here “is also based on the certified subclasses, which eliminates some concern that a nationwide injunction is overly burdensome.” Maj. Op. 38–39. But even an initial glance at the two classes the district court certified shows that the class certification here was anything but proper. The first certified class, consisting of persons in the United States

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petitioning for a family member to receive an immigrant visa, was defined as follows:

(1) U.S. Petitioner Subclass:

Individuals in the United States who currently have or will have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs”; and

Doe #1, 2020 WL 1689727, at *17.

The central problem with this class definition is that whether the Proclamation will have any effect on putative class members depends on two determinations that are highly individualized: (1) whether the class member’s relative would be otherwise qualified for an immigrant visa but for Proclamation No. 9945; and (2) whether the class member’s relative could satisfy the Proclamation. Classwide injunctive relief under Rule 23(b)(2) is appropriate “only when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at 360. And commonality under Rule 23(a) “requires the plaintiff to demonstrate that the class members have suffered the same injury.” Id. at 350 (quotations omitted). “That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that

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determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

In this case, this analysis cannot be done on a classwide basis, turning instead on highly individualized determinations about whether a given person would meet the INA’s various requirements for eligibility and whether, based on a person’s financial, family, medical, and employment situation, he would be able to satisfy the Proclamation. Indeed, the class definition on its face does not even require that the class members’ relatives be otherwise qualified for immigrant visas, and it ties class membership to the mere filing of a “petition,” which (as the district court acknowledged) is just “[t]he first step” in the visa application process. Doe #1, 2020 WL 1689727, at *3. Persons in this situation have not even submitted the required documentation. In fact, the class is not even limited to persons who have “filed” a petition at all, but extends to anyone who “will” file one.

It is no answer, as the district court suggested, id. at *12, that plaintiffs in this case are not seeking visa determinations. The premise of this entire lawsuit—and the asserted immediate need for the injunction—is that Proclamation No. 9945 is the “but for” cause preventing plaintiffs’ relatives from obtaining immigrant visas. That is why the majority opinion goes to great lengths to assert, albeit inaccurately, that plaintiffs’ relatives were “otherwise likely qualified under § 1182(a)” for admission into the United States and had family members who “had qualified for entry under established immigration policy.” Maj. Op. 21, 36. Plaintiffs cannot make this point in seeking an injunction, but then ignore it when it comes to class certification.

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The district court’s second class of “foreign nationals” has, if possible, even more problems under Rule 23. That class is defined as follows:

(2) Visa Applicant Subclass:

Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs.”

Doe #1, 2020 WL 1689727, at *17.

The enormity of this class should be apparent: it includes persons in countries all over the world. The same individualized determinations described above for the U.S. class will be necessary for each member of this foreign nationals class, except the determinations will be even more difficult to accomplish when class members applying for admission are located outside this country. In fact, this class is not even limited to persons who have applied for visas, but extends to those who “will soon apply”—a term of uncertain scope that requires consideration of yet more individualized issues. It is impossible to know today who, if anyone, will actually benefit from class certification since we do not know who otherwise qualifies for a visa to the United States or who will be unable to satisfy the Proclamation’s requirements.

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In short, the idea that “class certification” is the incantation needed for a nationwide injunction misses the point that Rule 23 is designed to impose limits on broad relief, not to grease it. The above discussion is not intended to exhaust the problems with the district court’s class certification decision. But it shows that in this case, the injunction’s extraordinary and improper scope depends on a class certification ruling that does not withstand scrutiny under Rule 23. One suspects that many of the current issues with nationwide injunctions can be traced to misapplications of Rule 23. That is, at least, the case here.4

C

Finally, the majority opinion errs in justifying the district court’s universal injunction based on “the need for a comprehensive and unified immigration policy.” Maj. Op. 39 (quotations omitted). It is of course true that many cases from the Supreme Court and this court emphasize the importance of a uniform immigration policy. E.g., Arizona v. United States, 567 U.S. 387, 401 (2012); Lemus v. Lynch, 842 F.3d 641, 649 (9th Cir. 2016). But the original context of these statements was the interpretation of federal immigration law. That is true of the lead cases the majority cites as well. See Maj. Op. 39 (citing Arizona and Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir. 1994)).

4 The majority suggests that “provisional” class certification is a basis for nationwide relief at the preliminary injunction stage. Maj. Op. 37. Despite its softer-sounding name, provisional class certification is still governed by the requirements of Rule 23. E.g., Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041–42 (9th Cir. 2012); Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234–35 (9th Cir. 1996). In any event, the district court had not certified a class—provisionally or otherwise—when it entered the injunction in this case.

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In more recent times, however, our circuit has co-opted the policy of promoting uniform immigration laws as a justification for courts issuing nationwide injunctions of Executive Branch immigration policies. See, e.g., East Bay Sanctuary Covenant, 950 F.3d 1242, 1283–84 (9th Cir. 2020). The fit is not a good one. That there can be an interest in having uniform immigration policies does not mean it is the courts that can set those uniform policies. That is a decidedly different question.

Whether Congress intended a uniform policy in statutes like the INA says nothing about whether—when courts are enjoining the immigration policies of democratically elected officials—it is preferable to go big instead of small. Indeed, if uniform immigration policy is the value to be prized above all else, nationwide injunctions will always be necessary, contrary to our cases. See E. Bay Sanctuary Covenant, 934 F.3d at 1029 (rejecting the view that a nationwide injunction is appropriate “any time an enjoined action has potential nationwide effects,” which “would turn broad injunctions into the rule rather than the exception”). Perhaps unsurprisingly, when we recently invoked the interest in uniform immigration laws in allowing a nationwide injunction, the Supreme Court stepped in and stayed the injunction. Innovation Law Lab v. Wolf, 951 F.3d 1073, 1094–95 (9th Cir. 2020), stay granted, 2020 WL 1161432, at *1.

In this case, the majority opinion tells us that “a more limited injunction of the Proclamation would needlessly complicate” immigration enforcement, whereas a nationwide injunction “promotes uniformity in administering federal immigration law.” Maj. Op. 39–40 (citing East Bay Sanctuary Covenant, 950 F.3d at 1284). But it is the

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Executive Branch, not the courts, that are charged with enforcing the immigration laws. And in this court, the government maintains it is better policy for the injunction to be narrowed, preferring a more limited enforcement of the Proclamation to none at all. If the scope of an injunction should turn on which approach is superior for “administering federal immigration law,” Maj. Op. 39–40, why should our view on that question prevail? It is unfortunate that courts have injected themselves into debates such as this, which are far outside our role and competence.

It is thus somewhat fitting that the majority opinion invokes as authority for the district court’s nationwide injunction and the “uniformity of immigration law” rationale our circuit’s decision in Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017). Maj. Op. 39 (citing the decision for the proposition that “[b]ecause this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights”). As the majority must quickly acknowledge, the cited decision was then “rev’d on other grounds” by the Supreme Court in Trump v. Hawaii, Maj. Op. 39—a decision that vacated our court’s nationwide injunction and the very case that confirms Proclamation No. 9945 is a valid exercise of the President’s authority. In fact, the referenced decision from this court in the Trump v. Hawaii litigation, and this court’s discussion of uniformity in immigration law, was handed down after the Supreme Court had already stayed the nationwide injunction in full pending appeal. Hawaii, 138 S. Ct. at 542; Hawaii v. Trump, 878 F.3d 675, 701 (9th Cir. 2017).

The uniformity we should have pursued is the uniformity of decision with Trump v. Hawaii. That would have required

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staying in full the district court’s improper and overbroad injunction. Because we do not do so, I respectfully dissent.

 
 JOHN DOE #1; et al., Plaintiffs-Appellees, v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al., Defendants-Appellants.
No. 19-36020.
United States Court of Appeals, Ninth Circuit.
Filed December 20, 2019.
Appeal from the D.C. No. 3:19-cv-01743-SI, District of Oregon, Portland.
Before: THOMAS, Chief Judge, BERZON and BRESS, Circuit Judges.
ORDER
The government requests an emergency temporary stay of the district court's order preliminarily enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System, pending consideration of the motion for a stay pending appeal. The government also seeks a stay of the preliminary injunction pending appeal. The plaintiffs oppose both motions.
A temporary stay in this context (sometimes referred to as an administrative stay) is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal.
Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long-term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect. By this order we are expediting briefing and oral argument on the emergency motion and anticipate an expeditious issuance of a decision following argument.
Any government reply to plaintiffs' opposition to the motion for stay pending appeal is due December 23, 2019.
The parties are directed to appear for oral argument on the motion for stay pending appeal on Thursday, January 9, 2020, at 10:00 am in San Francisco, California. Each side will be allotted 20 minutes of argument time. The parties are encouraged to appear in person if possible. If any party wishes to appear by video, that party must notify Kwame Copeland,

415.355.7888, no later than Friday, January 3, 2020, and must coordinate with Mr. Copeland in making suitable arrangements for an appearance by video.
The opening brief and excerpts of record are due January 2, 2020; the answering brief is due January 30, 2020 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 21 days after service of the answering brief. This case will be assigned to the next available oral argument panel for a decision on the merits of the appeal.
BRESS], Circuit Judge, dissenting:
Before it could take effect, a district court in Oregon enjoined a Presidential Proclamation that placed a suspension and certain limitations on the entry of immigrants whom the President has determined will burden the American healthcare system. The district court refused to stay its nationwide injunction, and the government has now sought a stay of the district court's order pending appeal, as well as a temporary stay pending this Court's ruling on the underlying stay motion. Only the latter request is before us now. I would grant the temporary stay and so respectfully dissent from its denial.
Whatever one's views on the Presidential Proclamation as a matter of policy, the district court's decision is clearly wrong as a matter of law. In the supposed name of the separation of powers, the district court struck down part of a longstanding congressional statute, invalidated a presidential proclamation, and purported to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine—among the most brittle limbs in American constitutional law—and a reading of 8 U.S.C. § 1182(f) that the Supreme Court expressly rejected in Trump v. Hawaii, 138 S. Ct. 2392 (2018). The district court's extraordinary injunction ignores governing precedent, invents unjustified restrictions on the political branches, and inserts the courts into the President's well-established constitutional and statutory prerogative to place limits on persons entering this country. The Proclamation concerns matters of great consequence and is understandably important to many people, but the law prevented the district court from doing what it did here.
Today's order is not a ruling on the government's underlying motion for a stay pending appeal, which I hope will ultimately be granted. But given the clear error below and irreparable resulting harms, a temporary stay is warranted. See 9th Cir. R. 27-3. We have granted such stays before, including in another case today. E.g., Al Otro Lado, Inc. v. Wolf, No. 19-56417 (9th Cir. Dec. 20, 2019); East Bay Sanctuary Covenant v. Barr, No. 1916487 (9th Cir. Sept. 10, 2019), ECF No. 45; Innovation Law Lab v. Nielsen, No. 19-15716 (9th Cir. Apr. 12, 2019), ECF No. 6. We should have issued a temporary stay here as well. I therefore respectfully dissent.
I
This case arises from Presidential Proclamation No. 9945, entitled Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order To Protect the Availability of Healthcare Benefits for Americans. Pres. Proc. No. 9945, 84 Fed. Reg. 53,991 (2019). Citing 8 U.S.C. § 1182(f) and his authority under the Constitution, the President suspended and limited the entry of certain immigrants who cannot show that,

within 30 days of arriving in the United States, they "will be covered by approved health insurance" or "possess[] the financial resources to pay for reasonably foreseeable medical costs." Id. at 53,992.
The Proclamation references data "show[ing] that lawful immigrants are about three times more likely than United States citizens to lack health insurance." Id. at 53,991. And it finds that healthcare providers and taxpayers bear a "substantial" burden on behalf of those "who lack health insurance or the ability to pay," so that "[c]ontinuing to allow entry into the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental" to the national interest. Id. The President also noted other financial and public health burdens that the uninsured can impose, including reliance on publicly funded benefit programs and overreliance on emergency room care, which in turn results in "delays for those who truly need emergency services." Id.
To remedy these problems, the Proclamation requires visa applicants to show that they will have healthcare coverage that would satisfy the Proclamation or show they are otherwise able to afford reasonably foreseeable medical expenses. Id. at 53,992. Under the Proclamation, an immigrant must "establish that he or she meets its requirements, to the satisfaction of a consular officer, before the adjudication and issuance of an immigrant visa." Id. at 53,993. It also provides that the "[t]he Secretary of State may establish standards and procedures governing such determinations." Id. By its terms, the Proclamation does not apply to immigrants who have already entered the United States pursuant to a visa or those "entering the United States through means other than immigrant visas." Id. at 53,992-93. The Proclamation thus does not apply to "lawful permanent residents." Id. at 53,993. It also makes clear that "nothing in this proclamation shall be construed to affect any individual's eligibility for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment." Id.
The Proclamation requires the preparation of an inter-agency report "within 180 days of [its] effective date"—and each year thereafter—on "the continued necessity of and any adjustments that may be warranted to the suspension and limitation on entry" imposed. Id. In the event "circumstances no longer warrant the continued effectiveness of the suspension and limitation on entry," the President is to be "immediately" advised. Id.
The Proclamation was set to take effect on November 3, 2019, id. at 53,994, but two days before, plaintiffs—a Multnomah County, Oregon advocacy organization and several United States citizens with family members who will allegedly be seeking immigrant visas— requested and received a temporary restraining order blocking enforcement of the Proclamation nationwide. On November 26, 2019, the district court granted plaintiffs' request for a nationwide preliminary injunction. Doe #1 v. Trump, 2019 WL 6324560 (D. Or. Nov. 26, 2019).
The district court held that the statutory basis for the Proclamation—8 U.S.C. § 1182(f)— was an unconstitutional delegation of legislative power because it "provides no guidance whatsoever for the exercise of discretion by the President." Doe #1, 2019 WL 6324560 at *10. The district court also held that the Proclamation was "unconstitutional under separation of powers," because it "contravenes" the public charge provisions of the

Immigration and Nationality Act. Id. at *12, 15-16. The district court declined to stay its order pending appeal. The government filed an emergency motion with this Court, seeking an immediate temporary stay of the district court's injunction and a stay pending appeal by December 27, 2019.
II
This Court has the power to issue temporary stays pending appeal in cases of immediate irreparable harm. See 9th Cir. R. 27-3. These are sometimes called administrative stays or emergency stays. The name is less important than the standards that govern the request. The backdrop for the government's motion for a temporary stay is necessarily the ultimate relief it is requesting, which is a complete stay pending appeal. That request is governed by the following factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injur[e] the other parties interested in the proceeding; and (4) where the public interest lies.
City and Cty. of S.F. v. USCIS, 2019 WL 6726131, at *10 (9th Cir. Dec. 5, 2019) (quoting Nken v. Holder, 556 U.S. 418, 433-34 (2009)). As we have explained, "`[l]ikelihood of success on the merits is the most important factor.'" East Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 n.3 (9th Cir. 2019) (quoting California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018)).
The Court appears to suggest, without citation, that when it comes to a request for a temporary stay, the merits are not to be considered. But the instant request for a temporary stay is part of the request for a stay pending appeal, and the Court cites no authority for why the usual stay factors—including likelihood of success on the merits—would not apply. In this case, moreover, the government filed its emergency motion and motion for stay pending appeal on December 4, 2019, and the plaintiffs have filed oppositions to both motions. We have had more than enough time to consider the merits, and under the circumstances, not considering the likelihood of success has the undesired effect of allowing a demonstrably incorrect injunction to remain in place without justification.
Because the only question currently before us is whether to grant a temporary stay, my analysis here is necessarily abbreviated. But it does not take much to show that the district court's order is clearly wrong and produces irreparable harm every day it persists.
A
Section 1182(f) of the Immigration and Nationality Act (INA) provides:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all

aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
8 U.S.C. § 1182(f). As the Supreme Court explained in Trump v. Hawaii, this provision "exudes deference to the President in every clause" and "grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long." 138 S. Ct. at 2408, 2413. In combination with the President's own inherent constitutional authority in this space, Proclamation No. 9945 was plainly authorized under § 1182(f).
The district court nevertheless concluded that § 1182(f) was unconstitutional under the nondelegation doctrine because "[t]here is no `intelligible principle' provided as to what it means to be `detrimental,' what the `interests' of the United States are, what degree of finding is required, or what degree of detriment is required." Doe #1, 2019 WL 6324560, at *10. That holding is unprecedented.
The nondelegation doctrine is one of the most infrequently applied doctrines in constitutional law. Just last Term, the Supreme Court reiterated that "[w]e have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." Gundy v. United States, 139 S. Ct. 2116, 2129 (2019) (quotations omitted). That reticence explains why "only twice in this country's history (and that in a single year) ha[s] [the Supreme Court] found a delegation excessive." Id. In the context of immigration—in which the President's authority is based on both statutory and constitutional powers—it cannot be that this case now presents just the third instance in our Nation's history in which the nondelegation doctrine should apply.
Section 1182(f), which was enacted in 1952, has for decades been the noted source of statutory authority for presidential proclamations involving immigration matters. See Hawaii, 138 S. Ct. at 2409-10, 2412. The sudden discovery that this longstanding statute is an unconstitutional delegation of legislative power would therefore be surprising, to say the least. But it is of course no such thing. Less than two years ago, and in the course of upholding a presidential proclamation issued pursuant to § 1182(f), the Supreme Court in Trump v. Hawaii held that § 1182(f) was a "comprehensive delegation" of authority to the President, explaining that "the language of § 1182(f) is clear." Id. at 2408, 2410. That is the opposite of an unconstitutional delegation lacking any intelligible principle, as the district court erroneously held.
The district court's analysis also proceeded from the mistaken assumption that that the President's authority in this area is entirely delegated. It is not. In United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), the Supreme Court rejected a nondelegation challenge to a precursor to § 1182(f). In so doing, it held that "[t]here is no question of inappropriate delegation of legislative power involved here," because "[t]he exclusion of aliens is a fundamental act of sovereignty" and "[t]he right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation." Id. at 542; see also Hawaii, 138 S. Ct. at 2418. All of this explains why "the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs." Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 636 n.2 (1952) (Jackson, J., concurring). The district court's novel decision ignores this well-settled law and fails to accord the political branches the deference they are understandably due in this area.
The district court's separation of powers analysis fares no better. The district court also enjoined the Proclamation as "unconstitutional under separation of powers," on the theory that the Proclamation contravenes the public charge provision of the INA, Doe #1, 2019 WL 6324560, at *12-16, which renders inadmissible an immigrant who "is likely at any time to become a public charge." 8 U.S.C. § 1182(a)(4)(A). In making that public charge determination, the INA lists a series of non-exhaustive factors to be considered "at a minimum," including "assets, resources, and financial status." Id. § 1182(a)(4)(B). In the district court's view, the Proclamation is inconsistent with the "totality of the circumstances" approach in § 1182(a)(4)(B) because "it makes ability to pay for anticipated care . . . [the] single, dispositive factor." Doe #1, 2019 WL 6324560, at *14.
Once again, the district court seriously erred in failing to follow Supreme Court precedent. In Trump v. Hawaii, the Supreme Court rejected the very sort of argument that the district court accepted here. There, the plaintiffs claimed that a different presidential proclamation supplanted the INA because Congress had already legislated in the area that the proclamation covered. 138 S. Ct. at 2410-12. The Supreme Court disagreed because § 1182(f) "vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA." Id. at 2412 (emphasis added). Indeed, the Supreme Court viewed it as "unsurprising" that "§ 1182(f) vests the President with `ample power' to impose entry restrictions in addition to those elsewhere enumerated in the INA." Id. at 2408 (quoting Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187 (1993)) (emphasis added).
That is all the President did here, and there is thus no basis for the district court's determination that the Proclamation is somehow "executive lawmaking in a manner that Congress expressly rejected in the public charge provision." Doe #1, 2019 WL 6324560, at *14. As we recently explained in granting a stay pending appeal of a different challenge to Executive action, the "public charge" provision recites "factors [that] are to be considered `at a minimum,'" but "[o]ther factors may be considered as well, giving officials considerable discretion in their decisions." City and Cty. of S.F., 2019 WL 6726131, at *13; see also id. ("Congress set out five factors to be taken into account by immigration officials, but expressly did not limit the discretion of officials to those factors.").
The district court nonetheless found it relevant that, in its view, the Proclamation "is unlikely to make any meaningful difference to address the problem" of our country's overburdened healthcare system, and that the Proclamation's "implementation will not result in a reduction to the problem that would then, in turn, result in the restriction no longer being necessary." Doe #1, 2019 WL 6324560, at *15. Reasoning such as this improperly supplanted the district court's view for that of the President, to whom the Constitution and Congress through § 1182(f) have accorded great discretion. See Hawaii, 138 S. Ct. at 2409.
B

The government will also suffer immediate irreparable harm in the absence of a temporary stay. The district court's order blocks the President from carrying out responsibilities that Congress entrusted to him under § 1182(f), in an area in which the President has his own powers under the Constitution. In the President's judgment, immigrants "who have not demonstrated any ability to pay for their" medical care impose substantial burdens on the American healthcare system, requiring the immediate suspension and limitations that the Proclamation sets forth. Pres. Proc. No. 9945, 84 Fed. Reg. at 53,991. The Proclamation does not apply once an immigrant has been admitted to the United States, id. at 53,992-93; Emergency Mot. at 19, so the government can never recover health care costs incurred by individuals admitted during the period that the district court's injunction remains in place. "[S]uch harm is irreparable here because" the government "will not be able to recover monetary damages." Azar, 911 F.3d at 581. Nor can the government avoid other associated harms that the Proclamation identifies, such as disruption in the provision of emergency services.
In addition, plaintiffs' claim that the Proclamation will affect substantial numbers of immigrants "seems to prove [the government's] point" on immediate irreparable harm. City and Cty. of S.F., 2019 WL 6726131, at *24. In seeking a preliminary injunction, plaintiffs represented that the Proclamation would "affect[] an estimated two-thirds of all legal immigrants, or 375,000 people" and that its impact would be "immediate." Mot. For Prelim. Inj. at 2, 40, Doe #1 v. Trump, Case No. 3:19-cv-01743-SB (D. Or.), ECF No. 46. As we have recognized, assertions like this are "double-edged," because if the Proclamation would prevent the admission of many immigrants unable to pay for their own medical costs, "the harm cited by [the government] is not only irreparable, but significant." City and Cty. of S.F., 2019 WL 6726131, at *24.
That immediate harm is only magnified by the extraordinary scope of the district court's injunction, which short-circuits the procedures for class certification by giving thousands of persons not before the court the relief that the class certification process is designed to evaluate. We have cautioned against the use of nationwide injunctions like the one that the district court issued here. See East Bay Sanctuary Covenant, 934 F.3d at 1030 (citing Azar, 911 F.3d at 583). We have also made clear that nationwide injunctions must be "necessary to remedy a plaintiff's harm." Id. at 1029. The district court did not undertake this analysis, holding that mere "alleged classwide harm" could justify a universal injunction. Doe #1, 2019 WL 6324560, at *21. That too was error and would justify nationwide injunctions in every putative class action, contrary to law. See East Bay Sanctuary Covenant, 934 F.3d at 1029; Azar, 911 F.3d at 582.
It is no answer that an administrative stay would upset the status quo. In the case of stay requests, "[m]aintaining the status quo is not a talisman." Golden Gate Rest. Ass'n v. City and Cty. of S.F., 512 F.3d 1112, 1116 (9th Cir. 2008). And as we have explained, "the Supreme Court . . . did not include preservation of the status quo among the factors regulating the issuance of a stay." Id. (quotations omitted). Moreover, while the plaintiffs assume that the status quo is a world without the Presidential Proclamation, for the reasons explained above, the actual status quo is a legal environment in which the President possesses "sweeping proclamation power in § 1182(f)," Hawaii, 138 S. Ct. at 2408 (quotations omitted), and in which Proclamation No. 9945 is therefore authorized. As a result, "granting a stay in this case would, in a real sense, preserve rather than change the

status quo" because "[i]n the absence of the district court injunction," the Proclamation that was scheduled to take effect on November 3, 2019 "would now be part of the status quo." Golden Gate Rest. Ass'n, 512 F.3d at 1116. Plaintiffs' argument therefore has it backwards: "[a] stay simply suspend[s] judicial alteration of the status quo," while the injunctive relief granted below constitutes "judicial intervention" upending it. Nken, 556 U.S. at 429 (quotations omitted).
While the Court notes that "[t]he Proclamation has not yet gone into effect," that is only because the district court enjoined it. It should not be that a district court order enjoining a lawful presidential proclamation is immune from a stay simply because it blocked the Proclamation before it could take effect. And I do not think that a district court order that unduly constrains the powers of the people's elected representatives without basis in law should govern for any longer than it already has.
I respectfully dissent.