U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:19-cv-02715-PWG

APPEAL

Casa De Maryland, Inc. et al v. Trump et al Assigned to: Judge Paul W. Grimm Related Case: 8:19-cv-02851-PWG Case in other court: USCA, 19-02222 Cause: 05:706 Judicial Review of Agency Action

Date Filed: 09/16/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff Casa de Maryland, Inc.

represented by Jonathan Lev Backer Institute for Constitutional Advocacy and Protection 600 New Jersey Ave., NW Washington, DC 20001 2026629835 Email: jb2845@georgetown.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Marshak Institute for Constitutional Advocacy and Protection 600 New Jersey Ave. NW Washington, DC 20001 2026629042 Fax: 2026629248 Email: as3397@georgetown.edu PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua Geltzer Institute for Constitutional Advocacy and Protection 600 New Jersey Ave. NW Washington, DC 20001 2026629042 Fax: 2026629248 Email: jg1861@georgetown.edu

Plaintiff Angel Aguiluz
Plaintiff Monica Camacho Perez

TERMINATED: 01/20/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
Mary B McCord Institute for Constitutional Advocacy and Protection 600 New Jersey Ave. NW Washington, DC 20001 2026629042 Fax: 2026629248 Email: mbm7@georgetown.edu PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Geltzer (See above for address) TERMINATED: 01/20/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Lev Backer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Marshak (See above for address) PRO HAC VICE

Plaintiff
MAYOR AND CITY COUNCIL OF BALTIMORE

ATTORNEY TO BE NOTICED
Joshua Geltzer (See above for address) TERMINATED: 01/20/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andre M Davis Baltimore City Department Of Law 100 N. Holliday Street, Suite 101 Baltimore, MD 21202 4103968393 Fax: 4106594077 Email: andre.davis@baltimorecity.gov TERMINATED: 03/24/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jane Hannah Lewis Baltimore City Law Department 100 N Holliday Street City Hall - Room 107 Baltimore, MD 21202 410-396-0165 Email: jane.lewis@baltimorecity.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanne Sangree City of Baltimore Law Department Senior Public Safety Counsel City Hall Room 109 100 N Holliday St Baltimore, MD 21202 14433882190 Fax: 14105390536 Email: suzanne.sangree2@baltimorecity.gov TERMINATED: 11/13/2020

LEAD ATTORNEY
Amy Marshak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dana Petersen Moore Office of the City Solicitor 100 N Holliday St. Ste. 101 Baltimore, MD 21202 4103963659 Email: law.danapmoore@baltimorecity.gov ATTORNEY TO BE NOTICED
Joshua Geltzer (See above for address) TERMINATED: 01/20/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
Mary B McCord (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Lev Backer (See above for address) ATTORNEY TO BE NOTICED

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

represented by Jason C Lynch U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L St. NW, Rm. 11214 Washington, DC 20005 2025141359 Fax: 2026168460 Email: jason.lynch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kevin K. McAleenan in his official capacity as Acting Secretary of Homeland Security

Joshua Kolsky 1100 L St. NW Washington, DC 20001 2023057664 Fax: 2026168470 Email: joshua.kolsky@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jason C Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. Department of Homeland Security

Joshua Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jason C Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kenneth T. Cuccinelli, II in his official capacity as Acting Director, U.S. Citizenship and Immigration Services

Joshua Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jason C Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. Citizenship and Immigration Services

Joshua Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jason C Lynch (See above for address) LEAD ATTORNEY

Amicus Deans, Chairs, Scholars
Amicus American Academy of Nursing

ATTORNEY TO BE NOTICED
Joshua Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward T Waters Feldesman Tucker Leifer Fidell LLP 1129 20th Street, N.W. Fourth Floor Washington, DC 20036-4910 12024668960 Fax: 12022938103 Email: ewaters@ftlf.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J Frisina Feldesman Tucker Leifer Fidell LLP 1129 20th St. NW Ste. 400 Washington, DC 20036 2024668960 Fax: 2022938103 Email: cfrisina@ftlf.com TERMINATED: 10/10/2019 PRO HAC VICE
Phillip A Escoriaza Feldesman Tucker Leifer Fidell LLP 1129 20th St. NW Washington, DC 20036 2024668960 Fax: 2022938103 Email: pescoriaza@ftlf.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Edward T Waters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J Frisina

Amicus American Public Health Association
Amicus Amici Anti-Domestic Violence and Assault Orgs

(See above for address) TERMINATED: 10/10/2019 PRO HAC VICE
Phillip A Escoriaza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Edward T Waters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher J Frisina (See above for address) TERMINATED: 10/10/2019 PRO HAC VICE
Phillip A Escoriaza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alanna E Peterson Pacifica Law Group LLP 1191 2nd Ave. Ste. 2000 Seattle, WA 96101 2062451700 Fax: 2062451750 Email: alanna.peterson@pacificalawgroup.com PRO HAC VICE ATTORNEY TO BE NOTICED
Paul J Lawrence Pacifica Law Group LLP 1191 2nd Ave. Ste. 2000 Seattle, WA 98101 2062451700 Fax: 2062451750 Email: paul.lawrence@pacificalawgroup.com PRO HAC VICE

Amicus Health Law Advocates
Amicus Immigration Reform Law Institute 25 Massachusetts Ave. N.W Suite 335 Washington, DC 20001 202-232-5590

ATTORNEY TO BE NOTICED
Maureen A Sweeney Maryland Carey School of Law 500 W Baltimore St Baltimore, MD 21201 4107063922 Fax: 4107065856 Email: msweeney@law.umaryland.edu ATTORNEY TO BE NOTICED
represented by Lisa Beth Zycherman Davis Wright Tremaine LLP 1919 Pennsylvania Ave NW Ste 800 Washington, DC 20006-3401 12029734280 Fax: 12029734499 Email: lisazycherman@dwt.com ATTORNEY TO BE NOTICED
represented by Lew Olowski 4871 Ten Oaks Road Dayton, MD 21036 646-588-8814 Email: lew.jan.olowski@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/16/2019
09/16/2019

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0416-8234006.), filed by Angel Aguiluz, Casa De Maryland, Inc., Monica Camacho Perez. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet, # 2 Summons President Trump, # 3 Summons Acting Sec'y McAleenan, # 4 Summons DHS, # 5 Summons Acting Dir. Cuccinelli, # 6 Summons USCIS)(Backer, Jonathan) (Entered: 09/16/2019)
2 MOTION to Appear Pro Hac Vice for Joshua A. Geltzer (Filing fee $100, receipt number 0416-8234319.) by Angel Aguiluz, Monica Camacho Perez, Casa De Maryland, Inc.(Backer, Jonathan) (Entered: 09/16/2019)

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3 MOTION to Appear Pro Hac Vice for Amy L. Marshak (Filing fee $100, receipt number 0416-8234506.) by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc.(Backer, Jonathan) (Entered: 09/16/2019)
4 MOTION for Permission to Omit Individual Plaintiffs' Home Addresses from Caption by Angel Aguiluz, Monica Camacho Perez(Backer, Jonathan) (Entered: 09/16/2019)
5 Local Rule 103.3 Disclosure Statement by Casa de Maryland, Inc. (Backer, Jonathan) (Entered: 09/16/2019)
6 MOTION for Preliminary Injunction and Supporting Memorandum by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. (Attachments: # 1 Exhibit A - Table of Factors)(Backer, Jonathan) (Entered: 09/16/2019)
7 MOTION for Leave to File Excess Pages for Plaintiffs' Memorandum in Support of Motion for Preliminary Injunction by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc.(Backer, Jonathan) (Entered: 09/16/2019)
8 QC NOTICE: 1 Complaint, filed by Casa de Maryland, Inc., Monica Camacho Perez, Angel Aguiluz was filed incorrectly. **The following attachments or exhibits are missing - Summons. Summons were only provided for the named Defendants. If the defendant is either an agency of the United States or an office or employee of the United States, you must also serve both the U.S. Attorney General and the U.S. Attorney for the District of Maryland. To correct this problem, file Summons using the civil event Supplemental located under "Other Filings" and then "Other Documents". (dg3s, Deputy Clerk) (Entered: 09/16/2019)
9 Summons Issued 60 days as to Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security(dg3s, Deputy Clerk) (Entered: 09/16/2019)
10 [FILED IN ERROR] NOTICE of Case Assignment. This case has been assigned to Magistrate Judge Charles B. Day. Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. or counsel for Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. are required to review and comply with the Magistrate Judge Pilot Project Procedures which can be downloaded here. Pursuant to Standing Order 2018-04, which can be downloaded here, counsel has 14 days from the date of this notice to file their consent, or decline to consent to proceed before a U.S. Magistrate Judge which can be downloaded here. To file your consent, go to Civil > Other Filings > Other Documents > 25 Pct Mag - Consent to Proceed

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Before a Magistrate Judge. To file your declination, go to Civil > Other Filings > Other Documents > 25 Pct Mag - Decline to Proceed Before a Magistrate Judge. Failure to file a consent or declination will result in issuance of an Order to Show Cause. Please review the case management order that has been issued in this case. Magistrate Election Form due by 9/30/2019. (dg3s, Deputy Clerk) Modified on 9/16/2019 (dg3s, Deputy Clerk). (Entered: 09/16/2019)
11 [FILED IN ERROR] Case Management Order. Signed by Magistrate Judge Charles B. Day on 9/16/2019. (dg3s, Deputy Clerk) Modified on 9/16/2019 (dg3s, Deputy Clerk). (Entered: 09/16/2019)
12 NOTICE by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. Declaration of Attorney for Plaintiffs Jonathan Backer (Attachments: # 1 Exhibit Escobar Declaration, # 2 Exhibit Aguiluz Declaration, # 3 Exhibit Camacho Declaration, # 4 Exhibit Historians' Comment, # 5 Exhibit APHA Comment, # 6 Exhibit Child Care Law Center Comment, # 7 Exhibit UnidosUS Comment, # 8 Exhibit States Comment, # 9 Exhibit Cities Comment, # 10 Exhibit Legal Aid of DC Comment)(Backer, Jonathan) (Entered: 09/16/2019)
Case Reassigned to Judge Paul W. Grimm. Magistrate Judge Charles B. Day no longer assigned to the case. (kns, Deputy Clerk) (Entered: 09/16/2019)
13 Supplemental to 1 Complaint, filed by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. Summons Attorney General of the United States (Backer, Jonathan) (Entered: 09/16/2019)
14 Supplemental to 1 Complaint, filed by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. Summons U.S. Attorney for D. Md. (Backer, Jonathan) (Entered: 09/16/2019)
15 Summons Issued 60 days as to U.S. Attorney and U.S. Attorney General(dg3s, Deputy Clerk) (Entered: 09/16/2019)
16 LETTER ORDER REGARDING THE FILING OF MOTIONS. Signed by Judge Paul W. Grimm on 9/16/2019. (dg3s, Deputy Clerk) (Entered: 09/16/2019)
17 MOTION to Appear Pro Hac Vice for Mary B. McCord (Filing fee $100, receipt number 0416-8236476.) by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc.(Backer, Jonathan) (Entered: 09/16/2019)
18 PAPERLESS ORDER notifying counsel that I would like to schedule a conference call regarding the briefing of the Motion for

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09/19/2019

Preliminary Injunction 6 , and I will do so as soon as Defense counsel enters an appearance. Should Plaintiffs' counsel communicate with Defense counsel before then, he should inform the Court and provide the Court with Defense counsel's contact information so that I can schedule the call. Unless otherwise ordered on the call, Plaintiffs' reply will be due within seven days of the filing of Defendants' response. Signed by Judge Paul W. Grimm on 9/17/2019. (lmys, Chambers) (Entered: 09/17/2019)
19 PAPERLESS ORDER granting 2 Motion to Appear Pro Hac Vice on behalf of Joshua Geltzer. Directing attorney Joshua Geltzer to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 9/17/2019. (srd, Deputy Clerk) (Entered: 09/17/2019)
20 PAPERLESS ORDER granting 3 Motion to Appear Pro Hac Vice on behalf of Amy Marshak. Directing attorney Amy Marshak to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 9/17/2019. (srd, Deputy Clerk) (Entered: 09/17/2019)
21 PAPERLESS ORDER granting 17 Motion to Appear Pro Hac Vice on behalf of Mary McCord. Directing attorney Mary McCord to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 9/17/2019. (srd, Deputy Clerk) (Entered: 09/17/2019)
22 Correspondence re: Camacho Declaration [12-3] (Backer, Jonathan) (Entered: 09/18/2019)
23 Correspondence re: Defense Counsel's Contact Information (Backer, Jonathan) (Entered: 09/18/2019)
24 PAPERLESS ORDER re 22 Correspondence re Camacho Declaration. In light of the correction included in Plaintiffs' letter, Plaintiffs are directed to please file amended versions of the complaint, motion for preliminary injunction and supporting memorandum, and declaration from Ms. Camacho. Counsel is reminded of Local Rule 103.6 regarding amended pleadings, including filing a redline and clean copy of the amended pleadings. Signed by Judge Paul W. Grimm on 9/18/2019. (pk3s, Chambers) (Entered: 09/18/2019)
25 PAPERLESS ORDER SCHEDULING TELEPHONE STATUS CONFERENCE on Friday September 20, 2019 at 11:30am AND DIRECTING Plaintiff's counsel to initiate the call to chambers or

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09/23/2019 09/23/2019 09/23/2019 09/23/2019

circulate a conference call number to the parties. Signed by Judge Paul W. Grimm on 9/19/2019. (ats, Chambers) (Entered: 09/19/2019)
26 NOTICE of Appearance by Joshua Kolsky on behalf of Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Kolsky, Joshua) (Entered: 09/19/2019)
27 AMENDED COMPLAINT against All Defendants, filed by Angel Aguiluz, Casa de Maryland, Inc., Monica Camacho Perez. (Attachments: # 1 Exhibit Redline Original Complaint)(Backer, Jonathan) (Entered: 09/19/2019)
28 Corrected MOTION for Preliminary Injunction and Supporting Memorandum by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. (Attachments: # 1 Exhibit A - Table of Factors)(Backer, Jonathan) (Entered: 09/19/2019)
29 Supplemental by Monica Camacho Perez re 12 Corrected Camacho Declaration (Backer, Jonathan) Modified on 9/20/2019 (jf3s, Deputy Clerk). (Entered: 09/19/2019)
30 Telephone Conference held on 9/20/2019 before Judge Paul W. Grimm. (FTR-4B) (ss5s, Deputy Clerk) (Entered: 09/20/2019)
31 PAPERLESS ORDER memorializing today's conference call with counsel. Defendants will file a response to Plaintiffs' Corrected Motion for a Preliminary Injunction and Supporting Memorandum 28 by October 1, 2019. The response may be up to 45 pages, not including exhibits. Defendants will then file a reply by October 7, 2019. A hearing is scheduled on this motion for October 10, 2019 at 2:30 pm. Signed by Judge Paul W. Grimm on 9/20/2019. (pk3s, Chambers) (Entered: 09/20/2019)
32 NOTICE of Appearance by Edward T Waters on behalf of Deans, Chairs, Scholars, American Academy of Nursing, American Public Health Association (Waters, Edward) (Entered: 09/23/2019)
33 Local Rule 103.3 Disclosure Statement by American Academy of Nursing, American Public Health Association, Deans, Chairs, Scholars (Waters, Edward) (Entered: 09/23/2019)
34 MOTION to Appear Pro Hac Vice for Phillip A. Escoriaza (Filing fee $100, receipt number 0416-8248873.) by American Academy of Nursing, American Public Health Association, Deans, Chairs, Scholars(Waters, Edward) (Entered: 09/23/2019)
35 MOTION to Appear Pro Hac Vice for Christopher J. Frisina (Filing fee $100, receipt number 0416-8248892.) by American Academy of

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09/23/2019
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Nursing, American Public Health Association, Deans, Chairs, Scholars(Waters, Edward) (Entered: 09/23/2019)
36 MOTION for Leave to File Brief of Amici Curiae by American Academy of Nursing, American Public Health Association, Deans, Chairs, Scholars (Attachments: # 1 Attachment Proposed Amici Brief, # 2 Text of Proposed Order)(Waters, Edward) (Entered: 09/23/2019)
37 PAPERLESS ORDER granting 34 Motion to Appear Pro Hac Vice on behalf of Phillip Escoriaza. Directing attorney Phillip Escoriaza to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 9/23/2019. (srd, Deputy Clerk) (Entered: 09/23/2019)
38 PAPERLESS ORDER granting 35 Motion to Appear Pro Hac Vice on behalf of Christopher Frisina. Directing attorney Christopher Frisina to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 9/23/2019. (srd, Deputy Clerk) (Entered: 09/23/2019)
39 MOTION for Leave to File Amici Curiae Brief by Amici AntiDomestic Violence and Assault Orgs (Attachments: # 1 Attachment Amicus Brief of Nonprofit Anti-Domestic Violence and Sexual Assault Organizations)(Sweeney, Maureen) (Entered: 09/26/2019)
40 NOTICE of Appearance by Maureen A Sweeney on behalf of Amici Anti-Domestic Violence and Assault Orgs (Sweeney, Maureen) (Entered: 09/26/2019)
41 MOTION to Appear Pro Hac Vice for Alanna E. Peterson (Filing fee $100, receipt number 0416-8259479.) by Amici Anti-Domestic Violence and Assault Orgs(Sweeney, Maureen) (Entered: 09/26/2019)
42 MOTION to Appear Pro Hac Vice for Paul J. Lawrence (Filing fee $100, receipt number 0416-8259491.) by Amici Anti-Domestic Violence and Assault Orgs(Sweeney, Maureen) (Entered: 09/26/2019)
43 MOTION for Leave to File Amicus Brief by Health Law Advocates (Attachments: # 1 Exhibit 1 - Proposed Amicus Brief)(Zycherman, Lisa) (Entered: 09/26/2019)
44 NOTICE of Appearance by Lisa Beth Zycherman on behalf of Health Law Advocates (Zycherman, Lisa) (Entered: 09/26/2019)

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45 PAPERLESS ORDER granting 36 Motion for Leave to File Amicus Brief by the Deans, Chairs, and Scholars; the American Public Health Association; and the American Academy of Nursing. The amicus brief is accepted as filed. Signed by Judge Paul W. Grimm on 9/27/2019. (pk3s, Chambers) (Entered: 09/27/2019)
46 PAPERLESS ORDER granting 39 Motion for Leave to File Amicus Brief by Nonprofit Antidomestic Violence and Sexual Assault Organizations. The amicus brief is accepted as filed. Signed by Judge Paul W. Grimm on 9/27/2019. (pk3s, Chambers) (Entered: 09/27/2019)
47 PAPERLESS ORDER granting 43 Motion for Leave to File Amicus Brief by Health Law Advocates. The amicus brief is accepted as filed. Signed by Judge Paul W. Grimm on 9/27/2019. (pk3s, Chambers) (Entered: 09/27/2019)
48 PAPERLESS ORDER ADVISING PARTIES THE PRELIMINARY INJUNCTION HEARING will be held on October 10, 2019 at 2:00pm at the Baltimore Courthouse, 101 W. Lombard Street. Signed by Judge Paul W. Grimm on 9/30/2019. (ats, Chambers) (Entered: 09/30/2019)
49 PAPERLESS ORDER granting 41 Motion to Appear Pro Hac Vice on behalf of Alanna E Peterson. Directing attorney Alanna E Peterson to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 10/1/2019. (srd, Deputy Clerk) (Entered: 10/01/2019)
50 PAPERLESS ORDER granting 42 Motion to Appear Pro Hac Vice on behalf of Paul Lawrence. Directing attorney Paul Lawrence to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 10/1/2019. (srd, Deputy Clerk) (Entered: 10/01/2019)
51 PAPERLESS ORDER granting 7 Motion for Leave to File Excess Pages. As discussed in the September 20, 2019 conference call with parties, this motion is granted. Defendants are also afforded 45 pages for their response to Plaintiffs' motion for a preliminary injunction. See 31 . Signed by Judge Paul W. Grimm on 10/1/2019. (pk3s, Chambers) (Entered: 10/01/2019)
52 RESPONSE in Opposition re 28 Corrected MOTION for Preliminary Injunction and Supporting Memorandum filed by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security.(Kolsky, Joshua) (Entered: 10/01/2019)

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53 MEMORANDUM OPINION AND ORDER Granting 4 Motion for Permission to Omit Individual Plaintiffs' Home Addresses from Caption. Signed by Judge Paul W. Grimm on 10/1/2019. (heps, Deputy Clerk) (Entered: 10/02/2019)
54 PAPERLESS ORDER regarding Motion for Preliminary Injunction Briefing and Hearing. Given the limited amount of time available for the Court to rule on the pending motion for preliminary injunction before the effective date of the proposed new public charge rule, the Plaintiffs' reply brief will be limited to 25 pages, exclusive of table of contents, citations, affidavits, or exhibits. This is five more pages than Local Rule 105.3 permits. With regard to further briefing in this case, the page limits in Local Rule 105.3 will apply unless a motion to exceed these limits is filed and granted in advance of the filing of a memorandum. Page extension motions filed with a memorandum that exceeds the page limits in the local rules will not be granted. Further, counsel are cautioned to restrict their use of overly long, multiple page, single spaced footnotes, which impermissibly extend the page limits allowed in the local rules. In addition, to assist counsel in focusing their presentations at the hearing scheduled for October 10, 2019, counsel should be prepared to focus on their strongest arguments with respect to the four elements that must exist before a preliminary injunction may be granted, and be prepared to identify by CM/ECF and page number the factual support for their positions. In addition, counsel will confer before the hearing in an effort to see whether they can agree to the language of an appropriately narrow injunction, in the event that the court determines that the issuance of a preliminary injunction is appropriate. If they cannot agree, Plaintiffs and Defendants each shall provide the court with the language of an injunction that they propose, without further argument or citation of authority accompanying the proposed language. Signed by Judge Paul W. Grimm on 10/3/2019. (pk3s, Chambers) (Entered: 10/03/2019)
55 Amicus Curiae APPEARANCE entered by Lew Olowski on behalf of Immigration Reform Law Institute(Olowski, Lew) (Entered: 10/03/2019)
56 MOTION for Leave to File Brief As Amicus Curiae by Immigration Reform Law Institute (Attachments: # 1 Attachment Brief of Amicus Curiae Immigration Reform Law Institute, # 2 Attachment Corporate Disclosure Statement, # 3 Text of Proposed Order Proposed Order)(Olowski, Lew) (Entered: 10/03/2019)
57 PAPERLESS ORDER granting 56 Motion for Leave to File Amicus Brief by Immigration Reform Law Institute. The amicus brief is

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accepted as filed. Signed by Judge Paul W. Grimm on 10/3/2019. (pk3s, Chambers) (Entered: 10/03/2019)
58 PAPERLESS ORDER advising that in preparing for the hearing on October 10, 2019 regarding the Plaintiffs' Motion for a Preliminary Injunction, counsel should be prepared to identify their strongest argument in support of each of the substantive issues that must be resolved in order for the court to rule on the motion, the two or three cases on which they principally rely to support their position for each issue, and the specific ECF filing and page number of the factual support in the record for their positions. Signed by Judge Paul W. Grimm on 10/7/2019. (pk3s, Chambers) (Entered: 10/07/2019)
59 REPLY to Response to Motion re 28 Corrected MOTION for Preliminary Injunction and Supporting Memorandum filed by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc..(Backer, Jonathan) (Entered: 10/07/2019)
60 NOTICE by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. re 28 Corrected MOTION for Preliminary Injunction and Supporting Memorandum Letter to the Court (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Motion for Preliminary Injunction)(Marshak, Amy) (Entered: 10/09/2019)
61 RESPONSE re 54 Order,,,,,,, filed by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security.(Kolsky, Joshua) (Entered: 10/10/2019)
62 NOTICE by American Academy of Nursing, American Public Health Association, Deans, Chairs, Scholars of Attorney Withdrawal (Frisina, Christopher) (Entered: 10/10/2019)
63 Preliminary Injunction Hearing held on 10/10/2019 re 28 Corrected MOTION for Preliminary Injunction and Supporting Memorandum filed by Casa de Maryland, Inc., Monica Camacho Perez, Angel Aguiluz before Judge Paul W. Grimm.(Court Reporter: Douglas Zweizig - 3C) (bus, Deputy Clerk) (Entered: 10/10/2019)
64 NOTICE by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc. re 28 Corrected MOTION for Preliminary Injunction and Supporting Memorandum of Supplemental Authority (Attachments: # 1 Attachment Order in New York v. DHS, # 2 Attachment Opinion in New York v. DHS, # 3 Attachment Order in Make the Road NY v. Cuccinelli, # 4 Attachment Opinion in Make the Road NY v. Cuccinelli, # 5 Attachment Opinion and Order in Washington v. DHS,

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10/30/2019

# 6 Attachment Opinion and Order in California v. DHS et al.)(Marshak, Amy) (Entered: 10/11/2019)
65 MEMORANDUM AND ORDER Granting 28 Plaintiffs' Corrected Motion for Preliminary Injunction. Signed by Judge Paul W. Grimm on 10/14/2019. (cs3s, Deputy Clerk) (Entered: 10/14/2019)
66 Correspondence re: Scope of Preliminary Injunction Order 65 (Attachments: # 1 Text of Proposed Order)(Backer, Jonathan) (Entered: 10/16/2019)
67 SUMMONS Returned Executed by Angel Aguiluz, Casa de Maryland, Inc., Monica Camacho Perez. All Defendants. (Attachments: # 1 Affidavit, # 2 Supplement Receipt U.S. Att'y, # 3 Supplement Receipt U.S. Att'y Gen., # 4 Supplement USPS Tracking)(Backer, Jonathan) (Entered: 10/18/2019)
68 REVISED ORDER Regarding Granting 28 Plaintiffs' Corrected Motion for Preliminary Injunction. Signed by Judge Paul W. Grimm on 10/17/2019. (heps, Deputy Clerk) (Entered: 10/18/2019)
69 MOTION to Stay Preliminary Injunction by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Exhibit (Renaud Declaration))(Kolsky, Joshua) (Entered: 10/25/2019)
70 PAPERLESS ORDER SCHEDULING Pre-motion telephone conference on October 30, 2019 at 2:30pm. Counsel for the Defendant is DIRECTED to initiate the call to chambers or circulate a conference call number to the parties. Signed by Judge Paul W. Grimm on 10/28/2019. (ats, Chambers) (Entered: 10/28/2019)
71 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/10/19, before Judge Grimm. Court Reporter/Transcriber Douglas J. Zweizig, RDR, CRR, FCRR, Telephone number 410-962-4474 / douglas_zweizig@mdd.uscourts.gov. Total number of pages filed: 114. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 11/19/2019. Redacted Transcript Deadline set for 11/29/2019. Release of Transcript Restriction set for 1/27/2020.(dz, Court Reporter) (Entered: 10/29/2019)
72 Status Conference held on 10/30/2019 before Judge Paul W. Grimm. (ats, Chambers) (Entered: 10/30/2019)

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73 PAPERLESS ORDER memorializing today's telephone conference. Plaintiffs will file a response to Defendants' Motion to Stay, ECF No. 69, by November 8, 2019. Defendants will file their notice of appeal by November 8, 2019, and their reply by November 15, 2019. With respect to an amended complaint, Counsel for Plaintiffs will consult with their clients and determine whether they will file an amended complaint by November 8, 2019. The parties will then confer and submit a joint status report by November 15, 2019, that will include a proposed schedule for filing an amended complaint, if applicable, a briefing schedule for a motion to dismiss, and proposed page limits for the motion to dismiss briefing. Signed by Judge Paul W. Grimm on 10/30/2019. (pk3s, Chambers) (Entered: 10/30/2019)
74 NOTICE OF APPEAL by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Kolsky, Joshua) (Entered: 10/30/2019)
75 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 74 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(nu, Deputy Clerk) (Entered: 10/31/2019)
76 USCA Case Number 19-2222 for 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump. Case Manager - Michael Radday (nu, Deputy Clerk) (Entered: 11/04/2019)
77 RESPONSE in Opposition re 69 MOTION to Stay Preliminary Injunction filed by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc..(Marshak, Amy) (Entered: 11/08/2019)
78 NOTICE by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security re 69 MOTION to Stay Preliminary Injunction (Notice of Waiver of Reply and Hearing) (Kolsky, Joshua) (Entered: 11/08/2019)
79 LETTER ORDER Denying 69 Motion for Stay of Preliminary Injunction Pending Appeal. Signed by Judge Paul W. Grimm on 11/14/2019. (heps, Deputy Clerk) (Entered: 11/15/2019)
80 STATUS REPORT Joint Status Report by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc.(Marshak, Amy) (Entered: 11/15/2019)

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81 PAPERLESS ORDER APPROVING 80 Status Report as follows. Defendants may file their proposed motion to stay the proceedings in this Court pending the Fourth Circuit's resolution of the appeal of the preliminary injunction. Defendants will produce the administrative record by November 25, 2019. Defendants will file their motion to stay proceedings in this Court by November 26, 2019. Plaintiffs will file their opposition to the motion to stay proceedings by December 13, 2019. Defendants will file any reply in support of their motion to stay proceedings by December 20, 2019. The brief in support of the motion and the opposition are limited to 15 pages each, and the reply is limited to 10 pages, absent a request for additional pages and further order of this Court. Plaintiffs will file their Second Amended Complaint by December 20, 2019. If the Court denies the Defendants' motion to stay proceedings, Defendants will file their motion to dismiss within 21 of the date of such denial or January 22, 2019, whichever is later. Plaintiffs will file their opposition to the motion to dismiss 21 days after Defendants file their motion to dismiss. Defendants will file their reply in support of their motion to dismiss 14 days after Plaintiffs file their opposition. If any of these deadlines fall on a weekend or holiday, the deadline will be the following business day. The motion to dismiss will be limited to 25 pages, but Defendants may seek additional pages if necessary in light of the changes made in the Second Amended Complaint. The opposition will have the same page limit as the motion to dismiss. The reply will be limited to 12 pages or half of the length of the moving brief, whichever is greater. Signed by Judge Paul W. Grimm on 11/18/2019. (pk3s, Chambers) (Entered: 11/18/2019)
82 NOTICE of Appearance by Jason C Lynch on behalf of All Defendants (Lynch, Jason) (Entered: 11/25/2019)
83 NOTICE by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security of Filing of Lengthy Document (Lynch, Jason) Modified on 12/10/2019 (Lengthy Exhibit Received and placed in shelf/ other copy sent to Chambers )(heps, Deputy Clerk). (Entered: 11/26/2019)
84 MOTION to Stay Pending Appeal by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security(Lynch, Jason) (Entered: 11/26/2019)
85 NOTICE by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security of Order from Ninth Circuit Staying Preliminary Injunctions (Attachments: # 1 Exhibit A -

12/09/2019 12/09/2019
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Order from Ninth Circuit Staying Preliminary Injunctions)(Lynch, Jason) (Entered: 12/06/2019)

LETTER ORDER Scheduling a Telephone Conference call on

86

December 18, 2019 at 3:30 p.m. Signed by Judge Paul W. Grimm

on 12/9/2019. (heps, Deputy Clerk) (Entered: 12/09/2019)

87 PAPERLESS ORDER ADVISING COUNSEL: The telephone conference on December 18, 2019 WILL BEGIN AT 4:30PM. The conference call number provided in the Court's letter order at ECF No. 86 and ECF No. 35 will be used.. Signed by Judge Paul W. Grimm on 12/9/2019. Associated Cases: 8:19-cv-02715-PWG, 8:19cv-02851-PWG(ats, Chambers) (Entered: 12/09/2019)

88 ORDER of USCA granting motion for stay pending appeal as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (nu, Deputy Clerk) (Entered: 12/10/2019)

89 RESPONSE in Opposition re 84 MOTION to Stay Pending Appeal filed by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc..(Backer, Jonathan) (Entered: 12/10/2019)

90 Consent MOTION to Modify Scheduling Order re 81 Order,,,,,,, by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc.(Backer, Jonathan) (Entered: 12/18/2019)

91 LETTER ORDER memorializing yesterday's telephone conference and Granting 90 Consent Motion to Modify the Scheduling Order. Signed by Judge Paul W. Grimm on 12/19/2019. Associated Cases: 8:19-cv-02715-PWG, 8:19-cv-02851-PWG(heps, Deputy Clerk) (Entered: 12/19/2019)

92 REPLY to Response to Motion re 84 MOTION to Stay Pending Appeal filed by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security.(Lynch, Jason) (Entered: 01/03/2020)

93 AMENDED COMPLAINT against All Defendants, filed by Angel Aguiluz, Casa de Maryland, Inc., Monica Camacho Perez, MAYOR AND CITY COUNCIL OF BALTIMORE. (Attachments: # 1 Exhibit Redline First Amended Complaint)(Backer, Jonathan) (Entered: 01/03/2020)

94 NOTICE by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security of Second Circuit Order Denying Stay of Nationwide Preliminary Injunctions (Attachments:

01/08/2020 01/14/2020 01/14/2020 01/28/2020
01/29/2020 02/25/2020 02/27/2020
03/05/2020

# 1 Exhibit A - Second Circuit Order)(Lynch, Jason) (Entered: 01/08/2020)

95 NOTICE of Appearance by Suzanne Sangree on behalf of MAYOR AND CITY COUNCIL OF BALTIMORE (Sangree, Suzanne) (Entered: 01/08/2020)

96 ORDER of USCA denying motion for rehearing and rehearing en banc as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (nu, Deputy Clerk) (Entered: 01/14/2020)

97 ORDER of USCA denying motion for rehearing and rehearing en banc as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (nu, Deputy Clerk) (Entered: 01/15/2020)

98 NOTICE by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc., MAYOR AND CITY COUNCIL OF BALTIMORE of Order from Supreme Court Staying SDNY Preliminary Injunctions (Attachments: # 1 Exhibit A - Order from Supreme Court Staying SDNY Preliminary Injunctions)(Backer, Jonathan) (Entered: 01/28/2020)

99 RESPONSE re 98 Notice (Other), of Supreme Court order filed by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security.(Lynch, Jason) (Entered: 01/29/2020)

100 Request for Conference (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Backer, Jonathan) (Entered: 02/25/2020)

101 PAPERLESS ORDER re 100 Request for Conference. The Government is directed to file a letter response of 3 pages or less, single-spaced, excluding exhibits, addressing the issues raised in Plaintiffs' request for conference by March 5, 2020. I will hold a telephone conference with the parties after that date, which will be scheduled separately. Signed by Judge Paul W. Grimm on 2/27/2020. (pk3s, Chambers) (Entered: 02/27/2020)

RESPONSE re (100 in 8:19-cv-02715-PWG) Request for

103

Conference, (48 in 8:19-cv-02851-PWG) Request for

Conference filed by Kenneth T. Cuccinelli, II, Kevin K.

McAleenan, United States Department of Homeland Security,

Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump,

U.S. Citizenship and Immigration Services, U.S. Department of

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Homeland Security.Associated Cases: 8:19-cv-02715-PWG, 8:19cv-02851-PWG(Lynch, Jason) (Entered: 03/05/2020)
104 STATUS REPORT and Joint Proposed Schedule by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland SecurityAssociated Cases: 8:19-cv-02715PWG, 8:19-cv-02851-PWG(Lynch, Jason) (Entered: 03/16/2020)
105 Letter Order memorializing today's telephone conference; ORDER granting in part and denying in part 84 Motion to Stay the cases pending appeal. Signed by Judge Paul W. Grimm on 3/17/2020. (heps, Deputy Clerk) (Entered: 03/18/2020)
106 PAPERLESS ORDER APPROVING 104 Status Report and Proposed Briefing Schedule for CASA de Maryland v. Trump, No. 8:19-cv-02715-PWG and Gaithersburg v. DHS, No. 8:19-cv-02851PWG as follows: The Government's motion to dismiss in both cases is due by April 8, 2020. The Plaintiffs' consolidated opposition, or separate briefs in opposition, is due by May 6, 2020. The Government's reply brief or briefs are due by May 20, 2020. The Government's brief in support of the motion to dismiss is limited to 35 pages, exclusive of exhibits. The Plaintiffs' brief or briefs in opposition, whether consolidated or filed separately, are limited to a total of 35 pages together, exclusive of exhibits. The Government's brief or briefs in reply, whether consolidated or filed separately, are limited to a total of 20 pages together, exclusive of exhibits. These page limits are in place unless the parties request, and the Court grants, additional pages. Signed by Judge Paul W. Grimm on 3/18/2020. (pk3s, Chambers) (Entered: 03/18/2020)
107 [FILED IN ERROR] NOTICE of Appearance by Jane Hannah Lewis on behalf of MAYOR AND CITY COUNCIL OF BALTIMORE (Lewis, Jane) Modified on 3/24/2020 (tds, Deputy Clerk). (Entered: 03/23/2020)
108 MOTION for Leave to Withdraw Counsel Andre M. Davis by MAYOR AND CITY COUNCIL OF BALTIMORE (Attachments: # 1 Text of Proposed Order) (Lewis, Jane) Modified on 3/24/2020 to enhance text (tds, Deputy Clerk). (Entered: 03/23/2020)
109 QC NOTICE: 107 Notice of Appearance filed by MAYOR AND CITY COUNCIL OF BALTIMORE was filed incorrectly. *****Each attorney must file their Notice of Appearance using their CM/ECF login in order to be added as counsel to a case. The Notice of Appearance has been noted as FILED IN ERROR, and the

03/24/2020 03/25/2020 04/30/2020 05/01/2020
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document link has been disabled. (tds, Deputy Clerk) (Entered: 03/24/2020)
110 PAPERLESS ORDER granting 108 Motion for Leave to Withdraw Counsel Andre M. Davis by MAYOR AND CITY COUNCIL OF BALTIMORE. Signed by Judge Paul W. Grimm on 3/24/2020. (tds, Deputy Clerk) (Entered: 03/24/2020)
111 NOTICE of Appearance by Dana Petersen Moore on behalf of MAYOR AND CITY COUNCIL OF BALTIMORE (Moore, Dana) (Entered: 03/25/2020)
112 Correspondence re: Motion to Dismiss Briefing Schedule (Backer, Jonathan) (Entered: 04/30/2020)
113 PAPERLESS ORDER re 112 Correspondence regarding Motion to Dismiss briefing schedule. I have reviewed Plaintiffs' request and agree that the Motion to Dismiss should be filed prior to July 1, 2020. I am inclined to accept Plaintiffs' proposal that the Motion to Dismiss should be due on May 20, 2020. However, if Defendants relied on this Court's Standing Order 2020-07 issued on April 10, 2020, such that it is not feasible to file the Motion to Dismiss by May 20, 2020, the parties are directed to confer and propose a reasonable brief extension past May 20, 2020 for the motion to be due. If the parties cannot agree they should notify the Court with their proposals. The parties should submit a status report on the above by May 6, 2020. Signed by Judge Paul W. Grimm on 5/1/2020. (pk3s, Chambers) (Entered: 05/01/2020)
114 Status Report Submitted by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc., MAYOR AND CITY COUNCIL OF BALTIMORE (Backer, Jonathan) (Entered: 05/05/2020)
115 PAPERLESS ORDER APPROVING 114 Briefing Schedule. Defendants will file a consolidated motion of 35 pages or less, to dismiss both cases by May 27, 2020. Plaintiffs will file a consolidated opposition brief of 35 pages or less, or, in the alternative, separate opposition briefs totaling 35 pages or less (provided that Plaintiffs provide notice to Defendants by June 10, 2020) by June 24, 2020. Defendants will file a consolidated reply brief of 20 pages or less, or, in the alternative, separate reply briefs totaling 20 pages or less by July 8, 2020. Signed by Judge Paul W. Grimm on 5/6/2020. (pk3s, Chambers) (Entered: 05/06/2020)
116 MOTION to Dismiss Related Cases by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of

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08/21/2020

Homeland Security (Attachments: # 1 Memorandum in Support)Associated Cases: 8:19-cv-02715-PWG, 8:19-cv-02851PWG(Lynch, Jason) (Entered: 05/27/2020)
117 RESPONSE in Opposition re 116 MOTION to Dismiss Related Cases filed by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc., MAYOR AND CITY COUNCIL OF BALTIMORE. (Attachments: # 1 Exhibit A - 1950 INS Monthly Rev, # 2 Exhibit B - 1949 INS Monthly Rev)(Backer, Jonathan) (Entered: 06/24/2020)
118 REPLY to Response to Motion re 116 MOTION to Dismiss Related Cases filed by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security.(Lynch, Jason) (Entered: 07/08/2020)
119 JUDGMENT of USCA (certified copy) as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (Attachments: # 1 Notice of Judgment, # 2 Published Opinion - Main, # 3 Published Opinion Attachment 1, # 4 Published Opinion - Attachment 2, # 5 Published Opinion - Attachment 3, # 6 Published Opinion - Attachment 4)(nus, Deputy Clerk) (Entered: 08/05/2020)
120 PAPERLESS ORDER. In light of the Fourth Circuit's judgment in this case, ECF No. 119, the parties in 19-cv-2715 and 19-cv-2851 are directed to supplement their motion to dismiss briefing. The supplements should address the Fourth Circuit's judgment and any other relevant authority that developed after the motion to dismiss briefs were filed. Defendants' consolidated supplement will be due August 21, 2020. Plaintiffs' consolidated response will be due September 4, 2020. Defendants' consolidated reply will be due September 14, 2020. Defendants' supplement and Plaintiffs' response should be 10 pages or less excluding any exhibits. The Defendants' reply should be 5 pages or less excluding any exhibits. Signed by Judge Paul W. Grimm on 8/7/2020. (pk3s, Chambers) (Entered: 08/07/2020)
121 Memorandum re (116 in 8:19-cv-02715-PWG, 57 in 8:19-cv-02851PWG) MOTION to Dismiss Related Cases Pursuant to the Court's August 7, 2020, Paperless Order filed by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of

09/04/2020 09/14/2020
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Homeland Security.Associated Cases: 8:19-cv-02715-PWG, 8:19cv-02851-PWG(Lynch, Jason) (Entered: 08/21/2020)
122 Memorandum re 116 MOTION to Dismiss Related Cases Pursuant to the Court's August 7, 2020, Paperless Order filed by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc., MAYOR AND CITY COUNCIL OF BALTIMORE.(Backer, Jonathan) (Entered: 09/04/2020)
123 RESPONSE in Support re (116 in 8:19-cv-02715-PWG, 57 in 8:19cv-02851-PWG) MOTION to Dismiss Related Cases filed by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security.Associated Cases: 8:19-cv-02715-PWG, 8:19-cv-02851-PWG(Lynch, Jason) (Entered: 09/14/2020)
124 MANDATE of USCA stayed pending ruling on petition for rehearing or rehearing en banc as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (nu, Deputy Clerk) (Entered: 09/15/2020)
125 ORDER of USCA granting motion to withdraw as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (nu, Deputy Clerk) (Entered: 10/07/2020)
126 MOTION to Withdraw as Attorney Suzanne Sangree by MAYOR AND CITY COUNCIL OF BALTIMORE (Attachments: # 1 Text of Proposed Order)(Lewis, Jane) (Entered: 11/12/2020)
127 ORDER Granting 126 Motion to Withdraw as Attorney. Attorney Suzanne Sangree terminated. Signed by Judge Paul W. Grimm on 11/13/2020. (heps, Deputy Clerk) (Entered: 11/13/2020)
128 ORDER of USCA granting rehearing en banc and administratively terminating petition for rehearing as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (nus, Deputy Clerk) (Entered: 12/04/2020)
129 ORDER of USCA reopening case upon grant of rehearing/rehearing en banc as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services,

12/04/2020 01/19/2021 01/19/2021 01/20/2021 01/20/2021 02/03/2021
02/04/2021 02/19/2021

Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (nus, Deputy Clerk) (Entered: 12/04/2020)
130 NOTICE by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc., MAYOR AND CITY COUNCIL OF BALTIMORE re 117 Response in Opposition to Motion, (Backer, Jonathan) (Entered: 12/04/2020)
131 ORDER of USCA granting motion to withdraw as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (jj2s, Deputy Clerk) (Entered: 01/19/2021)
132 MOTION to Withdraw as Attorney Joshua Geltzer by Angel Aguiluz, Monica Camacho Perez, Casa de Maryland, Inc.(Backer, Jonathan) (Entered: 01/19/2021)
133 ORDER granting 132 Motion to Withdraw as Attorney. Attorney Joshua Geltzer terminated. Signed by Judge Paul W. Grimm on 1/20/2021. (jc6s, Chambers) (Entered: 01/20/2021)
134 ORDER of USCA granting motion to withdraw from further representation onappeal as to 74 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Kenneth T. Cuccinelli, II, Donald J. Trump (nus, Deputy Clerk) (Entered: 01/21/2021)
135 NOTICE by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security Associated Cases: 8:19-cv-02715-PWG, 8:19-cv-02851-PWG(Kolsky, Joshua) (Entered: 02/03/2021)
136 PAPERLESS ORDER approving notice filed by Defendants [ECF No. 135]; the parties shall confer and submit a joint status report by 2/19/21 addressing the issues raised by Defendants. Signed by Judge Paul W. Grimm on 2/4/2021. (jc6s, Chambers) (Entered: 02/04/2021)
137 STATUS REPORT (JOINT) by Kenneth T. Cuccinelli, II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, Kenneth T. Cuccinelli, II, Kevin K. McAleenan, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland SecurityAssociated Cases: 8:19-cv-02715-PWG, 8:19cv-02851-PWG(Lynch, Jason) (Entered: 02/19/2021)

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 Case 8:19-cv-02715-CBD Document 1 Filed 09/16/19 Page 1 of 60
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CASA de Maryland, Inc. 8151 15th Avenue Hyattsville, MD 20528 Prince George’s County,
ANGEL AGUILUZ and MONICA CAMACHO PEREZ,1
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20016,
KEVIN K. McALEENAN, in his official capacity as Acting Secretary of Homeland Security 3801 Nebraska Avenue, N.W. Washington, D.C. 20016,
U.S. DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Avenue, N.W. Washington, D.C. 20016,
KENNETH T. CUCCINELLI II, in his official capacity as Acting Director, U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, N.W. Room 4210, MS 2120 Washington, D.C. 20529,

Civil Action No. 8:19-cv-2715
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 Both individual plaintiffs concurrently move to waive their obligations under Local Rule 102.2(a) to provide addresses, on the basis of their objectively reasonable fear that publicizing their home addresses would subject them to harassment (potentially including violence) and threats.

Case 8:19-cv-02715-CBD Document 1 Filed 09/16/19 Page 2 of 60
U.S. CITIZENSHIP AND IMMIGRATION SERVICES 20 Massachusetts Avenue, N.W., Room 4210, MS 2120 Washington, D.C. 20529,
Defendants.
I. INTRODUCTION 1. Plaintiffs CASA de Maryland (CASA) and two of its members, Angel Aguiluz and Monica Camacho Perez, bring this action seeking declaratory and injunctive relief with respect to the final rule issued on August 14, 2019, by the U.S. Department of Homeland Security (DHS). Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pts. 103, 212–14, 245, 248) [hereinafter “Public Charge Rule” or “Final Rule”]. This Rule purports to interpret the term “public charge” as it is used in § 212 of the Immigration and Nationality Act (INA) (codified at 8 U.S.C. § 1182(a)(4)(A)) in a way that is contrary to the term’s plain meaning, historical interpretation, and congressional intent and, moreover, that violates constitutional due process and equal protection guarantees. The Rule imposes a new and fatally flawed decisional framework for the U.S. Citizenship and Immigration Services (USCIS) to determine whether noncitizens seeking admission to the United States and applicants for lawful-permanent-resident (LPR) status who are living in the United States are likely to become public charges at any point in the future.2 Although DHS casts this framework as better aligning public-charge determinations with Congress’s intent, the opposite is true. Instead, the Rule gives cover to virtually unfettered decision-making and is
2 Plaintiffs challenge the Public Charge Rule primarily as it applies to noncitizens residing in the United States who apply for adjustment of status (i.e., to become LPRs).
2

Case 8:19-cv-02715-CBD Document 1 Filed 09/16/19 Page 3 of 60
designed to disproportionately harm non-European immigrants. 2. DHS’s new Rule defines the phrase “likely at any time to become a public
charge” to mean “more likely than not at any time in the future” to “receive[] one or more” of an enumerated list of government benefits “for more than 12 months in the aggregate within any 36month period.” 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a)–(c)).
3. This definition cannot be reconciled with what Congress has long understood the term “public charge” to mean. The public-charge ground of inadmissibility first appeared in U.S. immigration statutes in 1882. Since that time, courts and administrative agencies consistently have understood the term as excluding only individuals who are likely to become primarily dependent on the government for subsistence, and Congress has never altered this definition. The Department of Justice (DOJ) recognized that accepted meaning in 1999 by issuing Field Guidance that defined “public charge” as a noncitizen “who is likely to become . . . primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (Mar. 26, 1999) (internal quotation marks omitted). DHS’s new Public Charge Rule sharply breaks with how the term has been understood for over a century.
4. DHS’s extreme and unprecedented interpretation of the INA’s public-charge provision will do great harm to immigrant families. Already, fearing the Rule’s effects on their ability to remain in the United States, noncitizens have disenrolled themselves and other members of their households, including U.S. citizen children and family members, from public benefits to which they are lawfully entitled—and that support important public purposes like
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promoting child health and welfare and preventing homelessness. 5. Moreover, on the basis of inherently speculative projections about whether
noncitizens will obtain even small amounts of public benefits for a brief period of time at some point in their entire lifetimes, DHS’s new Public Charge Rule would deny noncitizens who are living in the United States LPR status that would allow them to remain lawfully in the United States and, perhaps, one day become naturalized citizens. The Rule therefore would split apart families (including those with U.S.-citizen children), effectively coerce noncitizens into living in the shadows, and transform the public-charge inadmissibility ground by administrative fiat into a catchall provision empowering immigration officials to deny any noncitizen deemed undesirable the ability to remain lawfully in the United States. In short, the Rule would fundamentally alter this nation’s immigration system without Congress’s input.
6. Several legal infirmities afflict DHS’s new Public Charge Rule. First, the meaning of “public charge” is clear from the INA’s text and structure and the historical context in which Congress introduced the term into U.S. immigration law. As evidenced by over a century of consistent application, “public charge” means “primarily dependent on the government for subsistence.” Because the meaning of the term is unambiguous, DHS lacks the statutory authority to reinterpret public-charge inadmissibility in a way that is contrary to that definition. But that is exactly what DHS has attempted to do in its new Rule.
7. Second, the Public Charge Rule is arbitrary and capricious. In promulgating the Public Charge Rule, DHS failed to provide a reasonable explanation for departing from the government’s longstanding understanding of the meaning of the term “public charge.” DHS also ignored or failed to adequately consider important aspects of the problem before it—including the full range of costs imposed by the Rule on noncitizens, their families, and the communities in
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which they live; the racially disparate impact of the Rule; and the fact that the test the Rule would impose is so vague as to invite arbitrary and discriminatory enforcement. Additionally, the Rule reflects no effort by DHS to consult the agencies that have actual expertise in administering public benefits, as DOJ did when it promulgated its proposed rule and guidance in 1999. Because DHS has no expertise in the administration of public benefits, its failure to seek out and meaningfully take into account the views of expert agencies is arbitrary and capricious. Finally, the proposed threshold for deeming a noncitizen “likely at any time to become a public charge” is so de minimis and difficult to apply that it is irrational.
8. Third, DHS’s new Public Charge Rule is unconstitutionally vague. The Rule’s confusing medley of purportedly relevant factors and its unclear weighting scheme is especially problematic for those whose income and assets do not place them at one extreme or another of the nation’s socioeconomic distribution. Combined with the nearly de minimis definition of “likely at any time to become a public charge,” the vagueness of the Rule invites arbitrary and discriminatory enforcement by USCIS. And it fails to give most noncitizens fair notice as to how to accord their conduct to avoid serious adverse immigration consequences.
9. Finally, the Public Charge Rule disproportionately would deny LPR status to nonEuropean immigrants. This is no coincidence. President Trump’s and his advisers’ track record of explicitly and consistently denigrating immigrants from Latin American, African, and Asian countries whose populations are majority nonwhite demonstrates that the Rule was motivated by discriminatory animus toward the race, ethnicity, and national origin of immigrants from nonEuropean countries. The Rule therefore denies equal protection of the law to noncitizens who originate from non-European countries.
10. Accordingly, Plaintiffs seek a declaration that the Public Charge Rule violates the
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Administrative Procedure Act, the Fifth Amendment’s Due Process Clause, and the equalprotection component of the Fifth Amendment and an order setting it aside. Absent relief, Plaintiffs Aguiluz and Camacho and thousands of other noncitizens like them, including Plaintiff CASA de Maryland’s members, will be unlawfully and discriminatorily denied a pathway to remain in the United States and build a future here.
II. JURISDICTION AND VENUE 11. Jurisdiction is proper under 28 U.S.C. § 1331. 12. This action arises under the Fifth Amendment to the United States Constitution; the Immigration and Naturalization Act, 8 U.S.C. §§ 1101 et seq., and its implementing regulations; and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. 13. Venue is proper in this district under 28 U.S.C. § 1391(e) because Defendants are agencies and officers of the United States and Plaintiffs reside in Maryland.
III. THE PARTIES 14. Plaintiff CASA de Maryland, Inc. is a nonprofit membership organization headquartered in Langley Park, Maryland, with offices in Maryland, Virginia, and Pennsylvania. Founded in 1985, CASA is the largest membership-based immigrant rights organization in the mid-Atlantic region, with more than 100,000 members. CASA’s mission is to create a more just society by building power and improving the quality of life in low-income immigrant communities. In furtherance of this mission, CASA offers a wide variety of social, health, job training, employment, and legal services to immigrant communities in Maryland, Washington, D.C., Virginia, and Pennsylvania. 15. CASA is committed to helping its members remain lawfully in the United States, which is their home. CASA provides its members assistance in applying for a variety of
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immigration benefits before USCIS. In response to the anticipated issuance of the Public Charge Rule, CASA has devoted significant resources to educating its members about the Rule and its expected impacts on immigrant families.
16. Many of CASA’s members, like Plaintiffs Aguiluz and Camacho, reside in the United States with deferred action or lawful immigration status that either is temporary or could one day be stripped from them. As recent arrivals to the United States, many of CASA’s members also work in relatively low-wage occupations, such as childcare, home health care, and building maintenance, and live in mixed-status households, with U.S.-citizen children and other citizen or LPR family members. Since earlier iterations of the Public Charge Rule were first reported in the media, some of CASA’s members have disenrolled themselves and their children from public benefits to which they are lawfully entitled because of fear and confusion about what public benefits may affect their ability to stay in the United States and become LPRs and, one day, U.S. citizens.
17. Plaintiff Angel Aguiluz is a 22-year-old resident of Silver Spring, Maryland. In June 2005, at the age of eight, Angel was brought to the United States from Honduras by his parents, who were seeking medical treatment for his older brother. Angel applied for and received protection from removal in 2013 under the Deferred Action for Childhood Arrivals (DACA) program, and has since maintained his DACA status. In June 2016, Angel obtained advance parole from USCIS before leaving the United States to visit his ailing grandmother in Honduras. See 8 C.F.R. § 212.5(f). Having obtained advance parole, Angel was able to re-enter the United States lawfully after his visit to Honduras. Angel therefore is not barred from adjusting status, and he intends to do so in the future. See 8 U.S.C. § 1255(a) (requiring that applicants for adjustment of status have been “inspected and admitted or paroled into the United
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States”). Angel is a student at Montgomery College, where he has almost completed an associate’s degree in mathematics, and he hopes to pursue a bachelor’s degree in physics in the next academic year. In addition to pursuing his studies, Angel works at a restaurant and as an interpreter to support not only himself, but also his father, who lives in Honduras; and his mother, with whom he lives in Silver Spring. Angel is concerned that the Public Charge Rule will prevent him from adjusting status.
18. Plaintiff Monica Camacho Perez is a 25-year-old resident of Baltimore, Maryland. In April 2002, at the age of seven, Monica was brought from Mexico to the United States by her mother, where the two reunited with Monica’s father and older siblings. Monica applied for DACA in 2012, received the protection the following year, and has since maintained her DACA status. Before traveling to Mexico in November 2016, Monica obtained advance parole, allowing her to re-enter the United States lawfully. Because of her subsequent re-entry, Monica’s unlawful entry in 2002 no longer bars her from adjusting status, and she intends to do so. Monica works as an English for Speakers of Other Languages (ESOL) instructor in the Baltimore City Public Schools, while she also pursues an associate’s degree at Baltimore City Community College. After completing her associate’s degree, she intends to pursue a bachelor’s degree in education. Monica is concerned that the Public Charge Rule will prevent her from adjusting status.
19. Defendant Donald J. Trump is the President of the United States. He is the head of the executive branch and oversees the cabinet agencies and heads, including DHS and the Secretary of Homeland Security.
20. Defendant U.S. Department of Homeland Security is a cabinet agency of the United States Government headquartered in Washington, D.C., at 245 Murray Lane, S.W.
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21. Defendant Kevin K. McAleenan is sued in his official capacity as Acting Secretary of the U.S. Department of Homeland Security. McAleenan is charged with, among other things, implementing the INA and is authorized to delegate certain powers and authority to DHS’s subordinate agencies.
22. Defendant U.S. Citizenship and Immigration Services is a subordinate agency of DHS headquartered in Washington, D.C., at 20 Massachusetts Avenue, N.W.
23. Defendant Kenneth T. Cuccinelli II is sued in his official capacity as Acting Director of the U.S. Citizenship and Immigration Services. Cuccinelli is charged with, among other things, adjudicating applications for adjustment of status, extensions of nonimmigrants visas, and changes from one nonimmigrant status to another.
IV. BACKGROUND A. Inadmissibility on Public-Charge Grounds
24. This case involves the process by which noncitizens who are present in the United States apply for LPR status, as well as the Trump Administration’s efforts to restrict that process for noncitizens who—according to immigration officials—might use even a de minimis amount of public benefits at some point in the future.
25. LPR status (also referred to as having a “green card”) allows noncitizens to reside and work in the United States indefinitely. Green cards are highly coveted immigration benefits because of the stability they provide to persons who obtain them, as well as to those persons’ family members. Moreover, because immigrants may be eligible to naturalize after five years as an LPR, obtaining a green card is a crucial juncture in the process by which foreign-born individuals obtain U.S. citizenship. 8 U.S.C. § 1427(a).
26. Section 212 of the INA specifies certain categories of noncitizens who are
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inadmissible to the United States. Id. § 1182(a). For example, the statute denies admission to noncitizens who have committed certain crimes, id. § 1182(a)(2), or who pose a national-security risk to the United States, id. § 1182(a)(3). Admissibility is a prerequisite for noncitizens to obtain green cards. Id. §§ 1182(a), 1255(a).
27. Noncitizens who are deemed by immigration officials “likely at any time to become a public charge” are also inadmissible under § 212. Id. § 1182(a)(4)(A). Although the term “public charge” is not defined by statute, § 212 instructs consular officials3 (who make admissibility determinations outside the United States) and USCIS (which makes admissibility determinations on U.S. soil) to consider, in rendering public-charge determinations: noncitizens’ (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. Id. § 1182(a)(4)(B)(i). The statute also authorizes immigration officials to consider as part of the public-charge determination affidavits submitted by sponsors who pledge to provide financial support to the noncitizen if admitted. Id. § 1182(a)(4)(B)(ii).
28. Satisfaction of the admissibility requirements is also necessary for “adjustment of status”—a process by which some noncitizens present in the United States can apply for and obtain LPR status without returning to their respective countries of origin. 8 U.S.C. § 1255(a). Thus, most noncitizens who reside in the United States but who have not yet secured LPR status cannot avoid undergoing a public-charge determination if they wish to obtain a green card.4
3 This lawsuit addresses only DHS’s new Rule regarding the public-charge ground of inadmissibility. In January 2018, the U.S. Department of State amended the Foreign Affairs Manual’s (FAM’s) guidelines regarding public-charge determinations. 9 FAM § 302.8-2. The FAM’s public-charge rule is the subject of a different lawsuit before this Court. See Complaint, Mayor & City Council of Baltimore v. Trump, No. 1:18-cv-3636-ELH (D. Md. Nov. 28, 2018). 4 A few, limited categories of noncitizens, such as refugees and asylees, are statutorily exempted from the public-charge inadmissibility ground when adjusting status. See Final Rule, 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212.23(a)). These categories make up a minority of the total population seeking LPR status.
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29. The INA charges the Secretary of Homeland Security with administration and enforcement of the statute, including the public-charge provision. See id. § 1103(a). Pursuant to that authority, DHS issued the Public Charge Rule. That Rule redefines the term “public charge” far beyond its ordinary meaning and imposes an exceptionally vague decisional framework for USCIS to determine whether applicants for adjustment of status are inadmissible on publiccharge grounds. Together, these changes are intended to fundamentally alter U.S. immigration policy and to disproportionately affect non-European immigrants.
Historical Development of the Public-Charge Provision 30. The history of the INA’s public-charge provision demonstrates that only noncitizens who are likely to become primarily dependent on the government for subsistence are inadmissible on public-charge grounds. 31. Congress first adopted the public-charge ground of inadmissibility in an 1882 immigration statute that prohibited entry to the United States of “any convict, lunatic, idiot, or any other person unable to take care of himself or herself without becoming a public charge.” Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214, 214. Because the public-charge ground of inadmissibility in the 1882 immigration statute was included alongside the terms “convict,” “lunatic,” and “idiot”—three categories of people who, as those terms were understood at the time, generally required institutionalization, often at public expense—the term “public charge” should be understood in that context. See Gegiow v. Uhl, 239 U.S. 3, 10 (1915) (“Presumably [the phrase ‘public charge’] is to be read as generically similar to the others mentioned before and after.”). The 1882 statute was modeled on state passenger laws that similarly equated the term “public charge” with a complete inability to provide for oneself. See, e.g., Act of Mar. 20, 1850, ch. 105, § 1, 1850 Mass. Acts 338, 339 (authorizing shipmasters to pay a head tax in lieu
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of a bond for any noncitizen who was not, in the opinion of state immigration officials, “a pauper, lunatic, or idiot, or maimed, aged, infirm or destitute, or incompetent to take care of himself or herself, without becoming a public charge as a pauper”).
32. The 1882 federal immigration statute also imposed on each noncitizen who entered the United States a 50-cent head tax for the purpose of creating of an “immigrant fund.” Act of Aug. 3, 1882, ch. 376, § 1, 22 Stat. at 214. Among other things, this fund financed “care of immigrants arriving in the United States,” including “relief of such [immigrants] as are in distress.” Id.
33. In a case that unsuccessfully challenged the constitutionality of this head tax, the Supreme Court described the immigrant fund as “highly beneficial to the poor and helpless immigrant” and “essential to the protection of the people in whose midst they [immigrants] are deposited” because of the fund’s ability to “preserve them from starvation[ ] and its concomitant sufferings.” Head Money Cases, 112 U.S. 580, 590–91 (1884). Congress therefore anticipated that some immigrants who would be admitted under the 1882 Act—and, thus, who would have been deemed unlikely to become public charges—nevertheless would require assistance from the government as they resettled in the United States.
34. Between 1882 and the INA’s enactment in 1952, the public-charge inadmissibility ground continued to appear in U.S. immigration statutes. See Act of Mar. 8, 1891, ch. 551, § 1, 26 Stat. 1084, 1084 (denying admission to “[a]ll idiots, insane persons, paupers or persons likely to become a public charge”); Act of Feb. 20, 1907, ch. 1134, § 13, 34 Stat. 898, 902 (charging shipmasters with verifying under oath that each noncitizen passenger was not “an idiot, or imbecile, or a feeble-minded person, or insane person, or a pauper, or . . . likely to become a public charge”); Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 875–76 (denying admission to
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“[a]ll idiots, imbeciles, feeble-minded persons, epileptics, insane persons; . . . paupers; professional beggars; vagrants; persons not comprehended within any of the foregoing excluded classes who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living; [and] . . . persons likely to become a public charge”).
35. As originally enacted, the 1952 INA specified 28 classes of inadmissible noncitizens. These included several classes related to the present-day public-charge provision: (1) noncitizens with “a physical defect, disease, or disability . . . of such a nature that it may affect the ability of the [noncitizen] to earn a living”; (2) “paupers, professional beggars, or vagrants”; and (3) noncitizens “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, [are] likely at any time to become a public charge.” Immigration and Nationality Act, Pub. L. No. 82-414, § 212(a)(7)–(8), (15), 66 Stat. 163, 182–83 (1952).
36. Congress amended the INA in 1990 to drop the “physical defect, disease, or disability” and “paupers, professional beggars, or vagrants” grounds of inadmissibility, but retained the public-charge inadmissibility ground. See Immigration Act of 1990, Pub. L. No. 101-649, § 601(a)(4), 104 Stat. 4978, 5072 (codified as amended at 8 U.S.C. § 1182).
37. When the House of Representatives took up the Conference Report on the Immigration Act of 1990, the ranking member of the House Committee on the Judiciary, Representative Hamilton Fish IV, explained the elimination of the “paupers, professional beggars, or vagrants” inadmissibility ground as replacing an “antiquated and unused exclusion[ ]” with “one generic standard which exclude[s] aliens who are ‘likely to become a public charge.’” 136 Cong. Rec. 36,844 (1990).
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38. The term “public charge” therefore must be understood in light of the related terms that were subsumed within it in the Immigration Act of 1990, each of which applied implicitly or explicitly to noncitizens who have no means of providing for themselves. Cf. Gegiow, 239 U.S. at 10; see also Immigration and Nationality Act, § 212(a)(7), 66 Stat. at 182; Definition of Pauper, Merriam-Webster’s Online Dictionary, https://perma.cc/XH5X-QNZH (“[A] person destitute of means except such as are derived from charity.”); Definition of Vagrant, Merriam-Webster’s Online Dictionary, https://perma.cc/6KBC-ZGCU (“[O]ne who has no established residence and wanders idly from place to place without lawful or visible means of support.” (emphasis added)).
39. In 1996, Congress made changes to the public-charge inadmissibility ground but did not redefine the term “public charge.” The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) codified the factors that immigration officials already were using to make public-charge determinations. Compare 8 U.S.C. § 1182(a)(4)(B)(i), with Matter of A-, 19 I. & N. Dec. 867, 869 (BIA 1998). IIRIRA also authorized immigration officials to consider, in making public-charge determinations, an enforceable affidavit of support—a contractual commitment obligating the affiant to maintain a sponsored noncitizen at an annual income of 125 percent of the Federal Poverty Guidelines (FPG) and to repay federal, state, or local governments for any means-tested public benefits that the sponsored alien receives. 8 U.S.C. §§ 1182(a)(4)(B)(ii), 1183a(a). Affidavits of support are required for family-based petitions for adjustment of status and employment-based petitions if the employer is related to the sponsored alien. Id. § 1182(a)(4)(C), (D).
40. During the legislative effort that culminated in IIRIRA, Congress considered and
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rejected a bill that would have expanded the term “public charge” in the deportation context.5 This bill—which was similar to the Public Charge Rule that DHS has now adopted for the admission context—would have rendered deportable any noncitizen who, within 7 years of entry, had received benefits from any of the following programs for an aggregate period of more than 12 months: Supplemental Security Income (SSI), Aid to Families with Dependent Children (AFDC, which has since been replaced with Temporary Assistance for Needy Families (TANF)), food stamps (known today as the Supplemental Nutrition Assistance Program (SNAP)), state cash assistance (often called “General Assistance”), and housing assistance. H.R. Rep. 104-828, at 137–40 (1996) (Conf. Rep.).
41. In 2013, Congress rejected a bill that would have “expanded the definition of ‘public charge’ such that people who received non-cash benefits could not become” LPRs. S. Rep. No. 113-40, at 63 (2013). The fact that Congress considered expanding the definition of “public charge” and declined to do so indicates that Congress’s understanding of the term is more limited than the definition DHS now puts forth.
Judicial and Administrative Interpretation of the Public-Charge Inadmissibility Ground 42. Administrative and judicial decisions have long demonstrated a consensus understanding of the term “public charge”: one who is primarily dependent on the government for subsistence. These interpretations—which emphasize noncitizens’ ability and willingness to
5 The INA authorizes the deportation of any noncitizen “who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry.” 8 U.S.C. § 1227(a)(5). The Public Charge Rule at issue in this case interprets only the public-charge ground of inadmissibility and not the related deportation ground. 84 Fed. Reg. at 41,295 (“This rule does not interpret or change DHS’s implementation of the public charge ground of deportability.”).
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work—are directly at odds with DHS’s Public Charge Rule. 43. Early court cases construing the term “public charge” focused on noncitizens’
ability and inclination to work. See Ex parte Sakaguchi, 277 F. 913, 916 (9th Cir. 1922) (holding that “an able-bodied woman of the age of 25 years, with a fair education, with no mental or physical disability, with some knowledge of English, skilled as a seamstress and a manufacturer of artificial flowers, with a disposition to work and support herself, and having a well-to-do sister and brother-in-law, domiciled in this country, who stand ready to receive and assist her” was not likely to become a public charge); Howe v. United States ex rel. Savitsky, 247 F. 292, 293–94 (2d Cir. 1917) (holding that a “physically [ ]fit” noncitizen could not be denied admission on publiccharge grounds because “Congress meant the act to exclude persons who were likely to become occupants of almshouses”); United States v. Petkos, 214 F. 978, 979 (1st Cir. 1914) (holding that a noncitizen who suffered from psoriasis could not be excluded on public-charge grounds because there was no “lawful evidence[] that his disease necessarily affected his ability to earn a living”); United States ex rel. Barlin v. Rodgers, 191 F. 970, 973–77 (3d Cir. 1911) (holding that noncitizens were inadmissible on public-charge grounds due to physical limitations or agedness that, in the judgment of immigration officials, would have prevented them from earning a living); Ex parte Mitchell, 256 F. 229, 230–31 (N.D.N.Y. 1919) (holding that “a woman [who was] 42 years of age, in good health, a nurse on occasion, a preacher of the gospel, and . . . able to earn her own living and always ha[d] done so” could not be denied admission on public-charge grounds based on speculation that she might one day be sued or charged with a crime).
44. Decisions by the Board of Immigration Appeals (BIA) and the Attorney General have interpreted the public-charge provision similarly.6
6 The BIA is “an appellate body charged with the review of . . . administrative adjudications under the [INA].” 8 C.F.R. § 1003.1(d)(1). BIA decisions and the Attorney General decisions
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45. In a 1962 decision, the BIA held that a 22-year-old native of Mexico was not inadmissible on public-charge grounds, noting that the man was of “sound body,” had no “specialized training” but had 10 years of farming experience, spoke no English but planned to work among people who spoke Spanish, had only $50 in assets, and had previously worked in the United States as an agricultural worker and in a cannery. Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 411 (BIA 1962).
46. The Attorney General affirmed that decision, holding that: [T]he [INA] requires more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present. A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge . . . . Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 421 (Att’y Gen. 1964) (emphasis added). 47. Later BIA decisions reflect a similar interpretation of the statute. See Matter of A-, 19 I. & N. Dec. 867, 870 (BIA 1988) (holding that a 33-year-old woman’s “age and ability to earn a living” rendered her unlikely to become a public charge despite her having temporarily left the workforce to care for her children and struggled to find work thereafter); Matter of Vindman, 16 I. & N. Dec. 131, 132 (BIA 1977) (finding inadmissible on public-charge grounds 66- and 54-year-old noncitizens who respectively had been accepting SSI and General Assistance for three years and showed no prospect of future employment); Matter of Perez, 15 I. & N. Dec. 136, 137–38 (BIA 1974) (holding that although a noncitizen had received
that modify or overrule them are “binding on all officers and employees of DHS or immigration judges in the administration of the immigration laws of the United States.” Id. § 1003.1(g)(1); see also U.S. Dep’t of Homeland Sec., U.S. Customs & Immigration Enforcement, Adjudicator’s Field Manual ch. 14.4 (2014) (“Published BIA decisions designated as precedent by the Board are binding on all USCIS officers and immigration judges unless modified or overruled by the Attorney General or a Federal court.”).
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welfare benefits, she was not ineligible for a visa on public-charge grounds because she was “28 years old, in good health, and capable of finding employment”); Matter of Harutunian, 14 I. & N. Dec. 583, 584, 589–90 (BIA 1974) (holding that an elderly applicant for LPR status who had been granted “old age assistance” by the California State Department of Social Welfare was inadmissible on public-charge grounds because she was “incapable of earning a livelihood”).
48. After the enactment of the 1986 Immigration Reform and Control Act (IRCA), DOJ, which administered and enforced the INA prior to the creation of DHS, explained that immigrants covered by IRCA would not be excluded as likely to become public charges if they had “a history of employment in the United States evidencing self-support without receipt of public cash assistance.” Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205, 16,211 (May 1, 1987) (emphasis added). “Public cash assistance” was defined as “income or needsbased monetary assistance . . . designed to meet subsistence levels” and did not include “food stamps, public housing, or other non-cash benefits.” Id. at 16,209.
1999 Notice of Proposed Rulemaking and Field Guidance 49. In 1999, DOJ issued a notice of proposed rulemaking and corresponding interim field guidance that adopted the longstanding definition of the term “public charge.” Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676 (proposed May 26, 1999) (to be codified at 8 C.F.R. pts. 212 & 237) [hereinafter “1999 Proposed Rule”]; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (Mar. 26, 1999) [hereinafter “Field Guidance”].7 50. DOJ issued the 1999 Proposed Rule and Field Guidance in the wake of
7 The Federal Register incorrectly states that the Field Guidance was published on March 26, 1999; it actually was published in conjunction with the Proposed Rule on May 26, 1999. 84 Fed. Reg. at 41,294–95 n.8.
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Congress’s enactment of IIRIRA and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the “Welfare Reform Act”), Pub. L. No. 104-193, Title IV, 110 Stat. 2260 (codified as amended at 8 U.S.C. § 1601 et seq.). With certain exceptions, the Welfare Reform Act precludes non-LPRs and undocumented immigrants from receiving most types of public benefits funded in whole or in part by the federal government and requires states that wish to provide benefits to undocumented immigrants to do so through legislation enacted after the Welfare Reform Act. See 8 U.S.C. §§ 1611, 1621(a), (d), 1641(b).
51. These changes to immigration and public-benefits law sparked fear among noncitizens that accepting benefits for which they or their family members were eligible might result in adverse immigration consequences. Studies show that individuals who remained eligible for public benefits after the Welfare Reform Act nonetheless withdrew from publicbenefit programs in large numbers in the years following the law’s enactment because of fear of adverse immigration consequences, even though neither that Act nor IIRIRA changed the longstanding definition of “public charge.”8 By clarifying the scope of the public-charge ground of inadmissibility in the 1999 Proposed Rule and Field Guidance, DOJ intended to combat this chilling effect on benefits enrollment.
52. In issuing the Proposed Rule and Field Guidance, DOJ explained that its discretion to interpret this statutory term was cabined by “the plain meaning of the word ‘charge’” and “the historical context of public dependency when the public charge immigration provisions were first adopted more than a century ago.” 64 Fed. Reg. at 28,677. DOJ therefore relied on ordinary tools of statutory interpretation in issuing its guidance.
8 See Jeanne Batalova et al., Migration Policy Inst., Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefits Use 14–15 (2018), https://perma.cc/99EL-Z3T8.
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53. As DOJ noted, the ordinary meaning of the word “charge,” as used in the INA, is “a person or thing committed or entrusted to the care, custody, management, or support of another”—in this case, the government. Id. (quoting Webster’s Third New International Dictionary 337 (1986)). An individual who receives only supplemental public assistance is not “committed” to the government’s “care” or “custody,” because, by definition, she receives much of her basic needs from non-governmental sources. See id.
54. Moreover, DOJ observed that nineteenth-century state and federal governments had not created “the array of limited-purpose public benefits” available today and instead institutionalized individuals who faced chronic poverty in asylums or “almshouses” that were meant to provide—however imperfectly—all that was necessary for human subsistence. Id. Thus, when Congress first enacted the statutory public-charge inadmissibility ground, public assistance to the poor usually entailed complete provision of an indigent person’s needs.
55. Based on the plain meaning of the word “charge,” the historical context in which Congress enacted the 1882 Act, and the long line of decisions by courts, the BIA, and the Attorney General, DOJ explained that the term “public charge” means a noncitizen who “is likely to become primarily dependent on the Government for subsistence.” Id. at 28,677, 28,681 (proposed 8 C.F.R. § 212.102); see also Field Guidance, 64 Fed. Reg. at 28,689. DOJ further specified that “primarily dependent” means “complete or nearly complete dependence on the Government rather than the mere receipt of some lesser level of financial support.” 1999 Proposed Rule, 64 Fed. Reg. at 28,677.9
56. The 1999 Proposed Rule and Field Guidance also identified specific categories of
9 The Final Rule mischaracterizes the “primarily dependent” standard as entailing reliance on the government for more than 50 percent of what one needs to subsist. See 84 Fed. Reg. at 41,304 n.45.
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public benefits that would be relevant to the public-charge determination: (1) “public cash assistance for income maintenance” in the form of (i) Temporary Assistance for Needy Families (TANF) benefits, (ii) Supplemental Security Income (SSI), or (iii) state and local cash assistance, often called “General Assistance”; and (2) “[i]nstitutionalization for long-term care at Government expense.” Id. at 28,681–82 (proposed 8 C.F.R. §§ 212.102, .103); see also Field Guidance, 64 Fed. Reg. at 28,689, 28,692. These were the only types of benefits to be considered among the other factors required by statute in determining whether a noncitizen was likely to become a public charge. See 1999 Proposed Rule, 64 Fed. Reg. at 28,682 (proposed 8 C.F.R. §§ 212.104, .105); Field Guidance, 64 Fed. Reg. at 28,689, 28,692–93. Supplemental non-cash benefits like SNAP, housing assistance, and Medicaid (to the extent that it did not support long-term institutionalization) were excluded from the Proposed Rule and Field Guidance.
57. As with its definition of the term “public charge,” DOJ did not rely on its own expertise to identify the public benefits relevant to a public-charge determination. Instead, it “sought the advice and relied on the expertise of the various Federal agencies that administer a wide variety of public benefits.” 1999 Proposed Rule, 64 Fed. Reg. at 28,677. The U.S. Department of Health and Human Services, which administers TANF and Medicaid, among other benefits programs, opined:
The best available evidence of whether someone is primarily dependent on government assistance for subsistence is whether that individual is receiving cash assistance for income maintenance purposes[ ] (i.e., cash assistance under the Temporary Assistance to Dependent [sic] Families program (TANF)), the Supplemental Security Income (SSI), and state general assistance programs), or is institutionalized in a long-term care facility at government expense. Letter from Kevin Thurm, Deputy Sec’y, Dep’t of Health & Human Servs., to Doris Meissner, Comm’r, Immigration & Naturalization Serv. (Mar. 25, 1999), reprinted in 1999 Proposed Rule,
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64 Fed. Reg. at 28,686. 58. HHS reached that conclusion because (1) “nearly all individuals or families
receiving cash assistance for purposes of income maintenance are also receiving other non-cash support benefits and services as well”; (2) “it is extremely unlikely that an individual or family could subsist on a combination of non-cash support benefits or services alone,” which explains why “virtually all families receiving non-cash support benefits, but not receiving cash assistance, must rely on other income (usually earned income) in order to meet their subsistence needs”; and (3) “non-cash services often have a primary objective of supporting the overall community or public health,” and they “generally have more generous eligibility rules so as to be available to individuals and families with incomes well above the poverty line.” Id.
59. The Social Security Administration (SSA) and U.S. Department of Agriculture (USDA), which respectively administer SSI and SNAP among other benefit programs, concurred with HHS’s advice. Letter from Susan M. Daniels, Deputy Comm’r, Disability & Income Sec. Programs, to Dr. Robert L. Bach, Exec. Assoc. Comm’r, Office of Policy & Planning, Immigration & Naturalization Serv. (May 14, 1999), reprinted in 1999 Proposed Rule, 64 Fed. Reg. at 28,687–88; Letter from Shirley R. Watkins, Under Sec’y, Food, Nutrition, & Consumer Servs., to Doris Meissner, Comm’r, Immigration & Naturalization Serv. (Apr. 15, 1999), reprinted in 1999 Proposed Rule, 64 Fed. Reg. at 28,688.
60. DOJ never promulgated a final version of the 1999 Proposed Rule, but the Field Guidance has governed DOJ—and, subsequently, DHS—in enforcing the INA’s public-charge provision for the past 20 years.
The “Primarily Dependent” Standard Allowed for Predictable and Consistent PublicCharge Determinations. 61. The “primarily dependent” standard, as developed for over a century and
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formalized by DOJ’s Field Guidance, provides a clear and administrable framework for immigration officials and fair notice for affected noncitizens about how to accord their conduct to avoid adverse immigration-related consequences. For the same reason, the standard leaves little room for arbitrary public-charge determinations by immigration officials.
62. For example, by identifying nursing homes and mental health institutions as examples of long-term care facilities, the DOJ Field Guidance directed focus by immigration officials on readily identifiable serious physical or mental conditions that were likely to require long-term institutionalized care at government expense.10
63. Similarly, an individual deemed likely to receive SSI would possess an identifiable attribute that would make him or her a candidate for such aid. SSI is available only to individuals who both (1) have very little income and (2) are 65 or older, blind, or “unable to engage in any substantial gainful activity” due to disability. 42 U.S.C. §§ 1382(a), 1382c(a). Thus, an individual who is likely to be eligible for SSI in the future must, in addition to having very little income, either be advanced in age—and thus unlikely to continue to work—or must suffer from impaired sight or a disability that renders the individual unable to work.
64. Although no comparable objective attributes govern eligibility for TANF, in HHS’s letter issued in advance of the 1999 Proposed Rule, the agency noted that 82 percent of families that received TANF benefits at that time had no earned income. Letter from Kevin Thurm to Doris Meissner, supra. Nationally, in 2017, 87 percent of families that received TANF benefits earned no income, as did 92 percent of Maryland families who received such benefits.
10 See 1999 Proposed Rule, 64 Fed. Reg. at 28,678 (stating that “a short period of institutionalization necessary for rehabilitation purposes does not demonstrate that an individual is, or is likely to become, primarily dependent on the Government for public charge purposes,” and identifying nursing homes and mental health institutions as examples of long-term-care facilities).
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Office of Family Assistance, U.S. Dep’t of Health & Human Servs., Characteristics and Financial Circumstances of TANF Recipients, Fiscal Year 2017, tbl. 40 (2018), https://perma.cc/P7J6-9FNC. An individual who is likely to receive TANF benefits therefore presumably would have a history of sustained unemployment.11
65. In sum, the “primarily dependent” standard prevented immigration officials from making uncertain predictions about how noncitizens might interact with a broad array of federal, state, and local social-service systems at some point in the indeterminate future. Instead, the standard charged immigration officials with making an objective assessment about whether noncitizens displayed readily observable attributes that would make them completely or almost completely reliant on government support to meet their basic needs. In contrast, the new Public Charge Rule is so vague that it invites uncertain and arbitrary application and enforcement. B. DHS’s Public Charge Rule
The Mechanics of the Public Charge Rule 66. Departing from the Field Guidance’s “primarily dependent” standard—and the longstanding common meaning of the term “public charge”—the Final Rule classifies as inadmissible any noncitizen who is “more likely than not at any time in the future” to “receive[] one or more” of an enumerated list of public benefits “for more than 12 months in the aggregate within any 36-month period,” with multiple benefits received within a single month counting as multiple months of benefits. 84 Fed. Reg. at 41,401 (to be codified at 8 C.F.R. § 212.21(a)–(c)).
11 Because TANF and subnational General Assistance programs serve similar purposes, recipients of such aid likely exhibit similar characteristics. See Randal S. Jeffrey, Facilitating Welfare Rights Class Action Litigation: Putting Damages and Attorney’s Fees to Work, 69 Brook. L. Rev. 281, 288 (2003) (“In addition to TANF-funded programs, many state and local governments run general assistance programs. These programs serve households with little or no income or resources that are ineligible for TANF-funded benefits, primarily because the households lack children.”).
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67. Under the Rule, DHS would consider noncitizens’ likelihood of receiving the
following benefits: (1) federal, state, or local cash assistance, including TANF, SSI, or General
Assistance; (2) SNAP benefits; (3) federal housing assistance, including (i) voucher and project-
based assistance under Section 8 of the Housing Act of 1937 and (ii) public housing under the
Housing Act of 1937; and (4) Medicaid.12 Id. (to be codified at 8 C.F.R. § 212.21(b)).
68. The non-cash benefits that the Final Rule would newly consider in a public-
charge determination are, by design, temporary supports for low-wage working families. Indeed,
93 percent of immigrants in one study who had used any of the covered benefits were also
employed a majority of the time or had an employed spouse.13 Moreover, about half of U.S.
citizens are expected to use one of the enumerated programs at some point in their lifetimes—
and therefore could be considered “public charges” under DHS’s definition.14
69. The combination of the broad expansion of covered benefits and the de minimis
threshold for benefits-receipt would result in an unwarranted expansion of the public-charge
inadmissibility ground. For example, under the Final Rule, if an immigration official were to
12 Under the Rule, DHS would not deem a noncitizen inadmissible based on her likelihood of receiving Medicaid benefits before she reaches 21 years of age, during a pregnancy, or within 60 days after the end of a pregnancy. Id. (to be codified at 8 C.F.R. § 212.21(b)(5)(iv)). Additionally, the Rule clarifies that emergency medical services covered by Medicaid, services or benefits provided under the Individuals with Disabilities Education Act (IDEA) but funded through Medicaid, and other school-based services funded through Medicaid do not count as Medicaid benefits for purposes of public-charge determinations. Id. (to be codified at 8 C.F.R. § 212.21(b)(5)(i)–(iii)). However, the Final Rule would consider pregnant women’s and children’s use of any other enumerated benefit, including SNAP benefits. 13 Arloc Sherman et al., Ctr. on Budget & Policy Priorities, Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s “Public Charge” Rule Rationale (Aug. 15, 2019), https://perma.cc/2LQN-HCZB. 14 Danilo Trisi, Ctr. on Budget & Policy Priorities, Trump Administration’s Overbroad Public Charge Definition Could Deny Those Without Substantial Means the Chance to Come to or Stay in the U.S. (May 30, 2019), https://perma.cc/4J72-GF6P (“Approximately 43 to 52 percent of U.S.-born individuals present in the PSID survey in 2017 participated in either SNAP, Medicaid, TANF, SSI, or housing assistance over the 1997-2017 period.”).
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deem a noncitizen likely to receive SNAP, Medicaid, and federal housing benefits for just over four months—at any point in that person’s life and regardless of the amount received—that person could be denied a green card as “likely to become a public charge.” To illustrate further, the average monthly SNAP benefit per person in 2018 was $126.96,15 meaning that a noncitizen could be denied a green card if a USCIS officer were to deem her likely to receive little more than $1,500 in SNAP benefits within a 36-month period.
70. This framework defies common sense. The new public-charge definition would render noncitizens inadmissible based on their perceived likelihood of receiving from the government a mere fraction of what they need to subsist. Moreover, there is simply no way for a USCIS officer to predict with any precision whether a noncitizen is likely at some point in the future to accept such minimal levels of benefits.
71. To assess whether noncitizens are likely to “become a public charge,” the Public Charge Rule instructs USCIS officers to evaluate individuals using a totality-of-thecircumstances test that assesses several “minimum factors,” without precluding officers from considering other evidence they deem relevant to the inquiry.16 84 Fed Reg. at 41,502 (to be codified at 8 C.F.R. § 212.22(a), (b)). Factors that weigh in favor of a determination that a noncitizen will not become a public charge are labeled “positive factors,” while those that weigh in the opposite direction are called “negative factors.”
72. The Rule also provides instructions on what USCIS should consider in evaluating
15 U.S. Dep’t of Agric., Supplemental Nutrition Assistance Program Participation and Costs (Aug. 2, 2019), https://perma.cc/BA8N-4GZ3. 16 The 1999 Field Guidance also instructed immigration officials to conduct public-charge determinations using a totality-of-the-circumstances test, 64 Fed. Reg. at 28,690, as did preexisting BIA precedent, Perez, 15 I. & N. Dec. at 137. But the new totality-of-thecircumstances test departs to a far greater extent from the statutorily prescribed factors and imposes a confusing, yet rigid, weighting scheme on the various listed factors.
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each factor and mandates that certain factors be weighted “heavily” in the totality-of-the-

circumstances test. Id. (to be codified at 8 C.F.R. § 212.22(b), (c)); see also Inadmissibility on

Public Charge Grounds, 83 Fed. Reg. 51,114, 51,211–15, tbl. 33 (proposed Oct. 10, 2018) (to be

codified at 8 C.F.R. pts. 103, 212–14, 245, 248) [hereinafter “2018 Proposed Rule”]. This

framework is summarized in table form below:

Age Health
Family Status

Heavy Negative

Negative

Positive

Diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the noncitizen’s ability to provide for herself, and the noncitizen does not have health insurance or resources sufficient to cover reasonably foreseeable medical costs related to that condition.

Younger than 18 or older than 61. Diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the noncitizen’s ability to provide for herself.
Large household size.17

Between the ages of 18 and 61. Absence of any such serious medical conditions.
Small household size.

Heavy Positive

17 For purposes of the Public Charge Rule, the size of a noncitizen’s “household” requires a complicated determination. For a noncitizen who is 21 or older, her household includes: (1) herself; (2) her children who reside with her; (3) any other individuals for whom she provides or is required to provide at least 50 percent of their financial support or whom she lists as a dependent on federal income tax returns; and (4) any individual who provides the noncitizen with at least 50 percent of her financial support or who lists her as a dependent on federal tax returns. 84 Fed. Reg. at 41,501–02 (to be codified at 8 C.F.R. § 212.21(d)(1)). The household of a noncitizen who is younger than 21 includes: (1) the noncitizen; (2) her children who reside with her; (3) her children who reside elsewhere and for whom she is required to provide at least 50 percent of their financial support; (4) her parents, legal guardians, or any other individual who provides her with at least 50 percent of her financial support; (5) the children of the noncitizen’s
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Financial Status

Annual gross household income below 125 percent FPG for the noncitizen’s household size and insufficient assets to cover any shortfall.18

Annual gross income between 125 and 250 percent FPG for the noncitizen’s household size.
or
Sufficient household assets and resources to cover any shortfall in annual gross household income below 125 percent FPG for the noncitizen’s household size.19

Annual gross household income, assets, or resources above 250 percent FPG for the noncitizen’s household size.

parents or legal guardians who reside with the noncitizen or for whom her parents or legal guardians provide or are required to provide at least 50 percent of their financial support; and (6) any other individuals for whom the noncitizen’s parents or legal guardians provide or are required to provide at least 50 percent of their financial support or whom they list as dependents on federal tax returns. Id. at 41,502 (to be codified at 8 C.F.R. § 212.21(d)(2)).
18 The Rule is internally contradictory about whether USCIS will treat income below 125 percent FPG with insufficient assets to cover the shortfall as a heavily weighted negative factor or simply as a negative factor. Although such financial circumstances are not specified as a heavily weighted negative factor in the regulatory text, see 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212.22(c)(1)), the preamble to the Final Rule states that, “if the alien has income below [125 percent FPG], it will generally be a heavily weighed negative factor in the totality of the circumstances,” 84 Fed. Reg. at 41,323.
19 DHS sets forth a complex framework for assessing the sufficiency of a noncitizen’s assets. An orphan who will be adopted after she acquires a green card must demonstrate assets in excess of the difference between 125 percent FPG and the noncitizen’s household income. 84 Fed. Reg. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(i)(B)(1)). A spouse or child of a U.S. citizen must demonstrate assets in excess of three times the difference between 125 percent FPG and the noncitizen’s household income. Id. (to be codified at 8 C.F.R. § 212.22(b)(4)(i)(B)(2)). All other noncitizens must demonstrate assets in excess of five times the difference between 125 percent FPG and the noncitizen’s household income. Id. (to be codified at 8 C.F.R. § 212.22(b)(4)(i)(B)(3)).
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Has received, or has been certified or approved to receive, one or more of the enumerated benefits for more than 12 months in the 36 months prior to submitting an application for LPR status.20

Applied for, been certified to receive, or received any of the enumerated benefits.

Has not applied for, been certified to receive, or received any of the enumerated benefits.

or

Has withdrawn application for or disenrolled from an enumerated benefit.

or

Is not or would not be eligible for an enumerated benefit.21

20 DHS will consider as a negative factor, but not a heavily weighted negative factor, the receipt of any amount of cash assistance for income maintenance, such as SSI, TANF, and state General Assistance programs, and programs supporting long-term institutionalized care, if received or certified for receipt before October 15, 2019. 84 Fed. Reg. at 41,504 (to be codified at 212.22(d)). DHS will not consider as a negative factor any other public benefits received or certified for receipt before October 15, 2019. Id.
21 The burden is on the applicant to produce “evidence from a Federal, State, local, or tribal agency administering a public benefit” that she “does not qualify or would not qualify for such public benefit by virtue of, for instance, the alien’s annual gross household income or prospective immigration status or length of stay.” Final Rule, 84 Fed. Reg. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(ii)(E)(3)). This showing likely would be nearly impossible for applicants for LPR status, as obtaining LPR status would make them eligible for many benefits and their income-eligibility for benefits may change over their lifetimes—as it does for many U.S. citizens.
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Education & Skills

Authorized to work and not in school, but not currently employed and no reasonable prospect of future employment.

Applied for, been certified to receive, or received a fee waiver for an immigration benefit (e.g., a visa) for which a publiccharge determination is required after the Rule’s effective date.
Bad credit history/score or other evidence of financial liabilities. No non-Medicaid health insurance or household assets or resources sufficient to cover any reasonably foreseeable medical costs.

Has not applied for, been certified to receive, or received a fee waiver for a visa or other immigration benefit for which a public-charge determination is required since the Rule’s effective date. Good credit history/score.
Health insurance (other than Medicaid but including ACAsubsidized insurance) or sufficient household assets or resources to cover any reasonably foreseeable medical costs. History of employment/ school.

Private health insurance that is not subsidized under the ACA.

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Affidavit of Support
Other

When affidavit is required pursuant to 8 U.S.C. § 1182(a)(4)(C), (D), a noncitizen is inadmissible if the sponsor lacks assets/resources greater than 125 percent FPG for the sponsor’s household size. Previously found inadmissible or deportable on publiccharge grounds.

No high school degree or equivalent.
Not proficient in English.
Unlikely that the sponsor would provide financial support to the applicant based on the sponsor’s income, relationship to the applicant, and/or submission of affidavits of support for other noncitizens.

Unemployed and primary caregiver for a child or elderly, ill, or disabled person in the noncitizen’s household. High school or equivalent and/or higher education degree. Occupational skills, certifications, or licenses. Proficient in English. Proficient in other languages in addition to English. Sponsor is likely to support the applicant based on the sponsor’s income, relationship to the applicant, and/or nonsubmission of affidavits of support for other noncitizens.

73. How exactly a USCIS officer is supposed to weigh the myriad, arbitrary factors

outlined above, or any nonenumerated factors deemed relevant, against one another—and come

to a determination about whether a person is likely to need some public benefits for a brief

period of time at some point in the future—is inscrutable. As DHS explains,

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[T]he weight given to an individual factor not designated a heavily weighted factor depends on the particular facts and circumstances of each case and the relationship of the individual factor to other factors in the analysis. Multiple factors operating together will carry more weight to the extent those factors in tandem show that the alien is more or less likely to become a public charge. Final Rule, 84 Fed. Reg. at 41,397. A noncitizen’s possession of more negative than positive factors does not necessarily dictate an unfavorable public-charge determination, but positive factors also are not guarantors of a favorable outcome for a noncitizen. Id. at 41,399–401. Operating under such imprecise guidance, immigration officials are likely to vary widely in how they implement the new standard for public-charge determinations. 74. Moreover, illustrating how arbitrary the weighting system is, the “heavily weighted” negative factor of current or past receipt of the enumerated benefits would be inapplicable to most noncitizens. Federal law—with limited and narrow exceptions—bars most noncitizens who lack LPR status (i.e., noncitizens who are subject to public-charge determinations) from receiving most of the public benefits that DHS’s Public Charge Rule considers. See 8 U.S.C. §§ 1611, 1621(a), (d), 1641(b); Final Rule, 84 Fed. Reg. at 41,313 (“Aliens who are unlawfully present and nonimmigrants physically present in the United States . . . are generally barred from receiving federal public benefits other than emergency assistance.”). Those categories of noncitizens who are eligible for the public benefits at issue in the Rule—e.g., refugees and asylees—are exempt from public-charge determinations. See, e.g., id. § 1157(c)(3) (exempting refugees from the public-charge provision for admission purposes); id.§ 1159(c) (exempting asylees and refugees who seek adjustment of status from the publiccharge provision); id. §§ 1612(a)(2)(A), (b)(2)(A), 1613(b)(1), 1622(b)(1) 1641(b)(2), (3) (exceptions making public benefits available to refugees and asylees). Given the inapplicability of this heavily weighted factor in most cases, its inclusion can serve only to confuse both
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noncitizens and the USCIS officers tasked with making public-charge determinations. 75. The Rule therefore requires immigration officials to assess noncitizens’
likelihood of receiving public benefits at some point in the indeterminate future based on a jumble of circumstances that, according to DHS, supposedly distinguish people who are likely to accept public benefits during their lifetimes from those who are not.
DHS’s Definition of the Term “Public Charge” is Rooted in the Agency’s Unsubstantiated “Beliefs” and Does Not Accord with the Term’s Meaning. 76. The Public Charge Rule fails to explain adequately why the “primarily dependent” standard that has governed public-charge determinations for over a century does not accurately reflect the plain meaning of the term. Instead, the agency asserts a number of unsubstantiated “beliefs” about noncitizens’ self-sufficiency as the basis for the new standard. 77. First, the Public Charge Rule rejects the 1999 Proposed Rule’s textual analysis of the word “charge” because “DHS does not believe that these definitions suggest or require a primary dependence on the Government in order for someone to be a public charge.” 2018 Proposed Rule, 83 Fed. Reg. at 51,158.22 Without elaborating on what informs that newfound “belief” on the government’s part, the Rule puts forward its own battery of dictionary definitions, all of which are entirely consistent with the 1999 Proposed Rule’s analysis of the question. Id. 78. Second, although the Public Charge Rule acknowledges the historical context that informed DOJ’s analysis in 1999, DHS concludes without explanation that it is “immaterial” that the term “public charge” first appeared in federal immigration statutes during a time when federal, state, and local governments did not provide limited-purpose public benefits. Final Rule, 84 Fed. Reg. at 41,350. Even though the nature of public benefits at the genesis of the public-
22 The Final Rule states that “[t]he rationale for the proposed rule and the reasoning provided in the background section of that rule remain valid, except as described in [the Final Rule’s] regulatory preamble.” 84 Fed. Reg. at 41,304.
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charge provision supports the “primarily dependent” standard, DHS, for unexplained reasons, does not believe that this historical evidence “forecloses” its definition. Id. at 41,350 n.310.
79. Third, the new standard adopted by DHS for public-charge determinations is rooted in the agency’s view that even a noncitizen’s temporary, isolated receipt of a small amount of benefits renders her not self-sufficient. DHS rejects the “primarily dependent” standard in favor of its de minimis threshold for even non-cash benefits because “it is possible and likely probable that many individuals” who receive public benefits in amounts far less than would be required to make them “primarily dependent on the government” under the 1999 standard would “lack self-sufficiency.” Final Rule, 84 Fed. Reg. at 41,349. DHS does not attempt to justify its basis for imposing such a draconian understanding of “self-sufficiency,” nor does it explain why this notion of self-sufficiency should be the proper threshold for deeming someone a “public charge.”
80. Tellingly, unlike the 1999 Proposed Rule, DHS’s Public Charge Rule reflects no input from benefit-granting agencies. In its 2018 Proposed Rule, DHS indicated that it had “consulted with the relevant Federal agencies regarding the inclusion and consideration of certain . . . public benefits.” 83 Fed. Reg. at 51,218. But DHS never disclosed the nature of the feedback that it received, and it instead relied primarily on its own beliefs and speculation to justify the new policy. Moreover, neither the 2018 Proposed Rule nor the Final Rule includes letters of support from these expert agencies, as the 1999 Proposed Rule did, suggesting that those agencies do not support the Final Rule or its understanding of these key concepts.
81. Fourth, DHS rejects the “primarily dependent” standard as “insufficiently protective of the public budget,” 2018 Proposed Rule, 83 Fed. Reg. at 51,164, and estimates that the federal government will save $1.46 billion annually from people disenrolling from or
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forgoing enrollment in public-benefit programs on account of the Public Charge Rule, Final Rule, 84 Fed. Reg. at 41,487.23 But the downstream fiscal impacts of immigration policy have nothing to do with the proper construction of the term “public charge.” Moreover, DHS’s duty is to enforce U.S. immigration law as written, not to reshape the law with an eye toward guarding the public fisc. See 8 U.S.C. § 1103(a).
82. Finally, DHS fails to explain why such a dramatic shift in policy is justified. The Public Charge Rule does not, for example, document increased reliance on public benefits by noncitizens or naturalized citizens.
Contrary to 7 U.S.C. § 2017(b), the Rule Treats SNAP Benefits as Income. 83. The SNAP statute prohibits “consider[ation]” of “[t]he value of [SNAP] benefits that may be provided . . . [as] income or resources for any purpose under any Federal, State, or local laws.” 7 U.S.C. § 2017(b). 84. The Public Charge Rule authorizes USCIS to consider noncitizens’ past application or certification for or receipt of SNAP benefits in determining whether their “assets, resources, and financial status” weigh in favor or against exclusion of noncitizens on publiccharge grounds. Final Rule, 84 Fed. Reg. at 41,502–03 (to be codified at 8 C.F.R. § 212.22(b)(4)(ii)(E)). The Rule therefore impermissibly treats SNAP benefits as either “income” or a “resource.” 85. In addition, the Rule renders noncitizens inadmissible based on the likelihood that
23 This estimate is based on the percentage of the foreign-born noncitizen population that adjusts status each year. 2018 Proposed Rule, 83 Fed. Reg. at 51,266. This is a poor proxy for disenrollment. As explained above, few non-LPR noncitizens who are subject to a public-charge determination are eligible for the enumerated public benefits. And, in reality, the Public Charge Rule is likely to lead to an even larger reduction in federal spending on public benefits due to disenrollment or nonenrollment by noncitizens’ family members (including LPRs and U.S. citizens) because of the fear and confusion engendered by the Rule—a reality that DHS acknowledges but does not meaningfully attempt to quantify.
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they might receive SNAP benefits in the future. Id. at 41,501 (to be codified at 212.21(a), (b)(2), (c)). The Rule therefore requires immigration officials unlawfully to take into account the possibility that noncitizens might one day receive SNAP benefits at a “value” other than zero.
86. In these respects, the Public Charge Rule is contrary to 7 U.S.C. § 2017(b). D. The Public Charge Rule is Exceptionally Vague.
87. DHS’s Public Charge Rule requires USCIS officials to divine whether a person is more likely than not to receive as little as one public benefit for more than 12 months out of any 36-month period for the rest of that person’s life.24 In making that determination, officers must look at a medley of personal circumstances, grant them differing weights, and then make a prediction about the entire course of a person’s life—all while being provided almost no guidance as to how to conduct that analysis.
88. Such a vague scheme inevitably would lead to arbitrary results, and it fails to afford noncitizens notice as to how to accord their conduct to avoid a determination that they are likely to become a public charge.
89. Even DHS admits that public-charge determinations under the Rule will be “inherently subjective,” “will vary,” and will “not [be] governed by clear data regarding whether any given alien subject to [the] determination is more likely than not to receive public benefits” for more than 12 months. Final Rule, 84 Fed. Reg. at 41,315, 41,397. DHS even disavows any obligation to interpret the public-charge inadmissibility ground in a manner that provides fair notice to noncitizens or prevents arbitrary enforcement. Instead, DHS simply states that, “fundamentally, as it relates to vagueness, [critics’] quarrel is with Congress, not with DHS.” Id.
24 Alternatively, the official could be predicting whether a person would receive two benefits for six months, three benefits for four months, and the like. As noted above, all are equivalent under the Rule’s definition of “public charge.”
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at 41,321. 90. DHS is correct that its new standard for public-charge determinations is
“inherently subjective.” For several reasons, the Public Charge Rule’s framework would lead to admissibility determinations that will not be consistent or predictable:
a. Application of the Public Charge Rule depends on subjective and unpredictable guesswork by immigration officials because admissibility determinations under the Rule would not in most instances be based on noncitizens’ current benefit usage. As mentioned previously, the Welfare Reform Act bars most noncitizens without LPR status (i.e., the types of people who might be subject to a public-charge determination) from receiving most, if not all, of the enumerated public benefits. See 8 U.S.C. §§ 1611, 1621(a), (d), 1641(b). The Public Charge Rule therefore would require USCIS officials to project whether and how noncitizens would live their lives differently from how they currently do if and when they obtain LPR status or U.S. citizenship. Immigration officials would vary widely in how they engage in this inherently speculative analysis. b. The Rule’s extensive list of factors of different weights exacerbates the potential arbitrariness of the public-charge determination. The Rule fails to provide a meaningful framework for how “negative” and “positive” factors may weigh against one another, as well as how many non-heavily-weighted factors a person must have (or how strong those factors must be) to outweigh a “heavily weighted” factor. With so many disparate factors at play, immigration officials largely would be left to their own discretion anytime an applicant exhibits a mix of positive and negative factors. c. Several of the enumerated benefits programs have income-eligibility thresholds above the 125-percent-FPG income level that the Public Charge Rule considers a positive
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factor.25 The Rule, however, offers no guidance on how USCIS should assess a
noncitizen’s likelihood of becoming a public charge when her income qualifies as a
positive factor but she nonetheless would be financially eligible for some of the
enumerated benefits.
d. Setting the ultimate threshold for being deemed a “public charge” at a de minimis
level compounds the arbitrariness of the Rule. Sudden changes in individual
circumstances have the potential to cause both citizens and noncitizens in the United
States to rely on public-benefit programs temporarily, and DHS’s framework does not
cabin officials’ discretion to hypothesize such scenarios.26 A noncitizen who earns an
income above 125 percent FPG at the time that he or she attempts to adjust status might
lose that job during subsequent economic downturns and struggle to find new work for a
period of time. A serious illness that arises after a noncitizen becomes an LPR could
quickly deplete assets that were adequate for that noncitizen’s needs when he or she was
25 See 7 U.S.C. § 2014(c) (households with income up to 130 percent FPG may receive SNAP benefits); Md. Code Ann., Health-Gen. § 15-103(a)(2); Md. Code Regs. 10.09.24.07(G)(4)(b) (adults with incomes up to 138 percent FPG may receive benefits from Maryland’s Medicaid program, the Maryland Medical Assistance Program); FY 2018 Income Limits Documentation System: Statewide Income Limits for Maryland, HUD User, https://perma.cc/PPZ2-T5GP (last visited Mar. 3, 2019) (federal housing assistance is available to Marylanders with incomes equal to up to 400 percent FPG). 26 Indeed, 78 percent of workers in the United States—including nearly one in ten who make $100,000 or more—live paycheck to paycheck. Press Release, CareerBuilder, Living Paycheck to Paycheck is a Way of Life for Majority of U.S. Workers, According to New Career Builder Survey (Aug. 24, 2017), https://perma.cc/XGL4-FT6U (national survey of a representative sample of more than 2,000 full-time employers and more than 3,000 full-time workers from varied industries and company sizes); see also Judy T. Lin et al., FINRA Investor Educ. Found., The State of U.S. Financial Capability 6 (2019), https://perma.cc/72FQ-XNG5 (finding that 55 percent of Americans spend an amount equal to or more than their income); Prosperity Now, Vulnerability in the Face of Economic Uncertainty: Key Findings from the 2019 Prosperity Now Scorecard 1 (2019), https://perma.cc/AFG7-BEKK (finding that 40 percent of American households are “liquid asset poor,” meaning that they lack “enough savings to make ends meet at the poverty level for three months if their income was interrupted”).
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in good health.27 The Rule lacks any guideposts for immigration officials in considering
how applicants’ financial circumstances might oscillate over their lifetimes, instead
leaving individual officials to consult their own imaginations.
e. The Public Charge Rule provides no guidance to assist immigration officials in
determining the likelihood that individuals who might be eligible for public benefits at
some point in the future will actually apply for and receive them. In 2016, 15 percent of individuals who were eligible for SNAP did not receive benefits under the program,28 and 11.4 percent of Medicaid-eligible parents did not enroll.29 Sixty-eight percent of low-
income households spend more than half of their income on housing but receive no federal housing assistance.30 In 2012, only 28 percent of people who were eligible for TANF received benefits.31 DHS’s failure to address the reasons for nonparticipation in
public-benefit programs makes it likely that some USCIS officials would overestimate
noncitizens’ likelihood of receiving public benefits in the future.
f. The rigidity of the factors and evidence officials may consider fails to allow for
27 As structured, the Public Charge Rule would not preclude a USCIS official from concluding that an employed, able-bodied 40-year-old noncitizen is sufficiently likely to receive Medicaid in old age due to a future long-term medical issue—as many U.S. citizens do—and that she is therefore inadmissible as likely “at any time” to become a public charge. See Medicaid’s Role in Nursing Home Care, Henry J. Kaiser Family Found. (June 20, 2017), https://perma.cc/DJ5MHYZP (noting that Medicaid covers 62 percent of all nursing home residents). 28 U.S. Dep’t of Agric., Trends in Supplemental Nutrition Assistance Program Participation Rates: Fiscal Year 2010 to Fiscal Year 2016, at 1 (July 2018), https://perma.cc/M56S-BGAP. 29 Jennifer Haley et al., Urban Inst., Uninsurance and Medicaid/CHIP Participation Among Children and Parents 5 (Sept. 2018), https://perma.cc/E3CF-HXNF. 30 Ctr. on Budget & Policy Priorities, United States Fact Sheet: Federal Housing Assistance (Aug. 17, 2017), https://perma.cc/F9TC-6FGF. 31 Gene Falk, Cong. Research Serv., R44724, Temporary Assistance for Needy Families (TANF): Size of the Population Eligible for and Receiving Cash Assistance 6 (2017), available at https://perma.cc/ULY8-CUCK.
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the more realistic, holistic assessment the public-charge statute actually requires. For example, by requiring immigration officials to factor in only current income, the Rule fails to acknowledge that immigrant wages tend to grow over time and leaves immigration officials free to take an unrealistically pessimistic view of noncitizens’ future earnings. Research by the Cato Institute shows that, after controlling for gender, race, education level, industry and occupation, and other factors, immigrants who entered the United States between 1995 and 1999 had wages 13.5 percent lower than native-born workers in their first 5 years in the United States. After 6 to 10 years, however, that gap had shrunk to 8.6 percent, and, after 21 to 23 years, it had fallen to 1.5 percent.32 A public-charge determination that uses a noncitizen’s current income and assets to predict her future socioeconomic status would substantially overestimate the likelihood that a noncitizen will be eligible for, let alone apply for and receive, government benefits. 91. Because no precise forecast of a noncitizen’s future use of government-benefit programs is possible, different USCIS officials viewing similar fact patterns are apt to reach wildly divergent conclusions about whether noncitizens are likely to become public charges. Accordingly, USCIS’s enforcement of the Rule necessarily would be arbitrary and unpredictable. 92. For the same reason, noncitizens who will have to undergo a public-charge determination at some point in order to continue residing in the United States will struggle to self-assess their likelihood of being deemed inadmissible on public-charge grounds and to accord their conduct to avoid adverse immigration consequences. 93. For example, to guard against being deemed a public charge, a noncitizen might:
a. choose a job based primarily on whether the employer offers health
32 Andrew Forrester & Alex Nowraseth, Cato Inst., Immigrant Wages Converge with Those of Native Born Americans (2018), https://perma.cc/CHE4-CTV6.
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insurance, regardless of whether the position is in a field of interest or has potential for income growth, Final Rule, 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212.22(c)(2)(iii));
b. delay having children to prevent USCIS from concluding that her expanded household size renders her more likely to become a public charge or makes her income and assets a negative factor, id. at 41,502–03 (to be codified at 8 C.F.R. § 212.22(b)(3), (4)(i)(B)); see also id. at 41,501–02 (to be codified at 8 C.F.R. § 212.21(d)) (defining “household” for purposes of the Rule);
c. refrain from providing financial assistance to parents, children, or other individuals who do not live with her to avoid USCIS treating her as having a larger household size, see id. at 41,502 (to be codified at 8 C.F.R. § 212.21(d)(1)(iv), (v)) (defining a noncitizen’s household as including children and other individuals for whom the noncitizen provides or is required to provide 50 percent or more of their financial support);
d. decline financial assistance from parents or other individuals to avoid USCIS treating her as having a larger household size, see id. at 41,502 (to be codified at 8 C.F.R. § 212.21(d)(1)(vi), (2)(iv)) (defining a noncitizen’s household as including individuals who provide or are required to provide the noncitizen with 50 percent or more of her financial support);
e. avoid taking on student loans or non-emergency medical debt that might be counted against her in assessing her financial status, id. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(i)(D));
f. decide to expend some of her savings on classes to improve her English
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proficiency, even though it is not required for her job or in her community, id. at 41,504 (to be codified at 8 C.F.R. § 212.22(b)(5)(ii)(D));
g. refrain from requesting fee waivers when applying for immigration benefits because they might later be counted against her in assessing her financial status, even if her financial status later improves, id. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(ii)(F)). 94. The vague contours of the Public Charge Rule will therefore cause noncitizens to make important life decision based not on what is best for them and their families, but based on minimizing their exposure to an adverse public-charge determination. 95. Noncitizens might also make the rational choice to live in the country unlawfully rather than pursue LPR status because applying for adjustment of status under this vague scheme will increase the risk of being found inadmissible on public-charge grounds, thereby exposing the applicants to deportation. See 8 U.S.C. § 1227(a)(1)(A). 96. The wide discretion that the Rule gives USCIS to bar noncitizens from obtaining LPR status is also likely to lead to the separation of many families when a family member is deemed likely to become a public charge while other family members remain in the United States. E. Animus Toward Non-European Immigrants Motivated the Public Charge Rule. 97. DHS’s promulgation of the Public Charge Rule was driven by animus toward non-European immigrants. This bias is apparent from the disparate impact that the policy will have on non-European immigrants; from President Trump’s long history of making statements that reflect racial and ethnic animus toward non-European immigrants; and from DHS’s departure, without reasoned explanation, from both ordinary rulemaking procedures and the
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government’s own longstanding interpretation of the public-charge inadmissibility ground. The Public-Charge Rule Will Have a Disparate Impact on Non-European Immigrants. 98. Research by the Migration Policy Institute (MPI), which was submitted to DHS
during the notice and comment period, demonstrates that the Public Charge Rule will disproportionately prevent noncitizens who originate from Latin American, African, and Asian countries from obtaining LPR status. See Randy Capps et al., Migration Policy Inst., Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. Immigration 9 (2018), available at https://perma.cc/GS7E-DUHW.
99. MPI used American Community Survey data to model the population of noncitizens who obtained LPR status in recent years and to estimate the percentage of that population that exhibits one or more of the “negative factors” from the Public Charge Rule’s totality-of-the-circumstances test. Id. at 7.
100. Overall, MPI estimates that 69 percent of recent LPRs had at least one or more negative factor, and 43 percent had two or more. Id. at 8.
101. But the presence of negative factors was not equally distributed among the recent LPR population. According to MPI, 60 percent of recent LPRs from Mexico and Central America, 40 percent from Asia, and 34 percent from Africa had two or more negative factors. Id. at 9. In contrast, only 27 percent of recent LPRs from Europe, Canada, and Oceania (i.e., Australia and New Zealand) had two or more negative factors. Id.
102. Focusing on the 250-percent-FPG income level that constitutes a “heavily weighed positive factor,” MPI estimates that 55 percent of recent LPRs from Europe, Canada, and Oceania had incomes that high, while only 23 percent of recent LPRs from Mexico and Central America, 45 percent from Asia, and 33 percent from Africa did. Id. tbl. B-3.
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103. At the other end of the income spectrum, 26 percent of recent LPRs from Europe, Canada, and Oceania had incomes below the 125-percent-FPG income level that constitutes a “negative factor.” Id. In contrast, 41 percent of recent LPRs from Mexico and Central America, 30 percent from Asia, and 37 percent from Africa had incomes that low. Id.
104. Some of the other factors that DHS’s Public Charge Rule includes as part of its totality-of-the-circumstances test also disproportionately would affect non-European immigrants. For example, research shows that credit scores are lower among blacks and Hispanics than among non-Hispanic whites and Asians.33 Similarly, 57 percent of immigrants from Mexico and 49 percent of immigrants from Central America have not obtained a high school degree, while only 11 percent of immigrants from Europe or Canada have not obtained one.34
105. In January 2018, the U.S. Department of State amended the Foreign Affairs Manual’s (FAM’s) guidelines regarding public-charge determinations to impose a similarly restrictive test for individuals seeking visas from U.S. consulates abroad. Since that time, immigrant visa denials based on the public-charge inadmissibility ground have skyrocketed. The increases disproportionately have affected visa applicants from predominantly nonwhite countries: immigrant visa denials on public-charge grounds for Mexican nationals rose from 7 in fiscal year 2016 to 5,343 in the current fiscal year; for Haitian nationals, from 2 denials in 2016 to 1,109 denials in fiscal year 2018; and for Bangladeshi nationals, from no denials in 2016 to 1,502 denials in 2018. By contrast, only 3 Canadian immigrant visa applicants were denied on
33 Bd. of Governors of the Fed. Reserve Sys., Report to the Congress on Credit Scoring and Its Effects on the Availability and Affordability of Credit, at O-25 (2008), https://perma.cc/2FPKDF4S. 34 Gustavo Lopez et al., Key Findings About U.S. Immigrants, Pew Research Ctr. (Nov. 30, 2018), https://perma.cc/PF5A-JX53.
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public-charge grounds in fiscal year 2018.35 President Trump and his Advisers Repeatedly Have Made Disparaging Statements About Non-European Immigrants. 106. Throughout his campaign and presidency, President Trump repeatedly has made
statements that reflect animus toward immigrants based on race, ethnicity, and national origin. These statements demonstrate that the disparate impact of the Public Charge Rule is the product of intentional discrimination.
107. President Trump has made comments that embrace demeaning stereotypes about immigrants from developing countries. In a June 2017 Oval Office meeting, President Trump complained that immigrants from Haiti “all have AIDS” and that people from Nigeria should not be allowed into the United States on a temporary basis because they would never “go back to their huts.”36 A dramatically altered policy that excludes people from the United States based on their perceived likelihood of receiving government benefits is a means of operationalizing these stereotyped views of non-European immigrants.
108. In January 2018, in rejecting a proposed immigration deal that would have allowed Temporary Protected Status (TPS) beneficiaries from El Salvador, Haiti, and African countries to remain in the United States, President Trump said, “Why are we having all these people from shithole countries come here?” In the same meeting, the President stated that the United States should prioritize immigration from countries such as Norway, which has an overwhelmingly white population, and from certain Asian countries that he considers
35 See Ted Hesson, Visa Denials to Poor Mexicans Skyrocket Under Trump’s State Department, Politico (Aug. 6, 2019), https://perma.cc/96Y6-58AH. 36 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times, Dec. 23, 2017, https://perma.cc/D5HN-WL2P.
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economically beneficial to the United States.37 It is therefore unsurprising that the Public Charge Rule will make it harder for noncitizens from Latin American, African, and Asian countries to enter the United States and obtain LPR status as compared to noncitizens from European countries.
109. In recent remarks that echoed his derision for TPS beneficiaries, President Trump criticized Reps. Alexandria Ocasio-Cortez (a woman of Puerto Rican heritage who was born in the United States), Rashida Tlaib (a woman of Palestinian heritage who was born in the United States), Ayanna Pressley (an African American woman who was born in the United States), and Ilhan Omar (a woman who was born in Somalia but immigrated to the United States as a teenager and became a naturalized U.S. citizen) of “telling the people of the United States . . . how our country should be run” and questioned why the Congresswomen “don’t . . . go back and help fix the totally broken and crime infested places from which they came” and “[t]hen come back and show us how . . . it is done.”38 These remarks underscore the President’s disdain for non-European countries and his refusal to consider people living in the United States who have ties to such countries to be part of the American polity. Given those views, the Public Charge Rule’s effect of disproportionately preventing non-European immigrants from remaining in the United States cannot be considered coincidental.
110. Other statements made by President Trump as a candidate reinforce the conclusion that his immigration policies—including the Public Charge Rule—are motivated and
37 Josh Dawsey, Trump Derides Protections for Immigrants from ‘Shithole’ Countries, Wash. Post, Jan. 12, 2018, https://perma.cc/M8LF-HXTL; Cent. Intelligence Agency, The World Factbook: Norway, https://perma.cc/GD98-29CE (last updated Feb. 18, 2019) (stating that Norway’s population is 83.3 percent ethnically Norwegian and 8.3 percent of another European ethnicity). 38 Donald J. Trump (@realDonaldTrump), Twitter (July 14, 2019, 5:27 A.M.), https://perma.cc/9AB5-Z78H.
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infected by racial and ethnic animus: a. Announcing his presidential campaign on June 16, 2015, Candidate
Trump said: “When Mexico sends its people, they’re not sending their best. . . . They’re sending people that have lots of problems, and they’re bringing those problems with us [sic]. They’re bringing drugs. They’re bringing crime. They’re rapists. . . . They’re sending us not the right people. 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.”39
b. During the campaign, two men urinated on a homeless Latino man and then beat him with a metal pole. Following the arrest of two suspects, one of the alleged assailants said, “Donald Trump was right; all these illegals need to be deported.” When asked about the incident, Candidate Trump said, “I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.”40
c. Prior to the election, U.S. District Judge Gonzalo Curiel was presiding over a civil suit against the defunct Trump University. Candidate Trump asserted that Judge Curiel’s “Mexican heritage” and membership in a Latino lawyers’ association presented “an absolute conflict” in light of Trump’s campaign promise to “build[ ] a wall.”41
39 Wash. Post Staff, Full Text: Donald Trump Announces a Presidential Bid, Wash. Post., June 16, 2015, https://perma.cc/F3BN-NZ89. 40 Adrian Walker, ‘Passionate’ Trump Fans Behind Homeless Man’s Beating?, Bos. Globe, Aug. 21, 2018, https://perma.cc/39RB-8BPK. 41 Brent Kendall, Trump Says Judge’s Mexican Heritage Presents ‘Absolute Conflict’, Wall St. J. Online, June 3, 2016, https://perma.cc/2KGY-JZU6.
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111. Members of President Trump’s administration share his animus toward nonEuropean immigrants. For example, Senior Adviser to the President for Policy Stephen Miller reportedly told a former White House communications aide, “I would be happy if not a single refugee foot ever touched American soil.”42 People from Europe, Canada, and Oceania make up a small fraction of the U.S. refugee and asylee population. Of all individuals granted refugee or asylee status in the United States in 2017, only eight percent came from those regions.43 Miller’s statement therefore reflects deep hostility toward immigrants from non-European countries.
112. The President and his advisers have been actively involved in pressing for the Public Charge Rule. In 2019, President Trump removed the leadership of immigration-related agencies, including USCIS, in part out of a belief that the prior leadership had not done enough to finalize the Rule.
113. Miller in particular is an ardent backer of the Public Charge Rule and has criticized DHS officials for what he considers the agency’s slow pace of finalizing the rule.44 Miller reportedly had “been agitating for” the removal of L. Francis Cissna, the former head of USCIS, “for months” prior to Cissna’s forced resignation because Cissna was “moving too slowly in implementing” the Public Charge Rule.45 According to one report, Miller berated the former Acting Director of U.S. Immigration and Customs Enforcement, Ronald Vitiello, saying, “You ought to be working on this regulation all day every day . . . . It should be the first thought
42 Cliff Sims, Team of Vipers: My 500 Extraordinary Days in the Trump White House 191 (2019). 43 See Dep’t of Homeland Sec’y, Refugees & Asylees 2017 Tables, tbls. 14, 17, 19 (2019), https://perma.cc/54BZ-BCXV. 44 Michael D. Shear & Emily Baumgaertner, Trump Administration Aims to Sharply Restrict New Green Cards for Those on Public Aid, N.Y. Times, Sept. 22, 2018, https://perma.cc/3FHYRZRC (stating that Miller “has pushed hard” for the Public Charge Rule). 45 Nick Miroff et al., Trump to Place Ken Cuccinelli at the Head of the Country’s Legal Immigration System, Wash. Post, May 24, 2019, https://perma.cc/6W5Y-2WKF.
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you have when you wake up. And it should be the last thought you have before you go to bed. And sometimes you shouldn’t go to bed.”46 One reasonably can infer a connection between Miller’s zeal for the Public Charge Rule and his antipathy toward non-European immigrants.
114. In recent days, Defendant Cuccinelli, the Acting Director of USCIS, has defended the Public Charge Rule by distinguishing the national origins of modern-day immigrants from those of nineteenth-century immigrants. In a television interview with CNN’s Erin Burnett, he argued that the Rule is not at odds with the message of Emma Lazarus’s sonnet that adorns the Statue of Liberty’s pedestal because the “tired,” “poor,” “wretched,” and “homeless” “huddled masses yearning to breathe free” depicted in the poem were “coming from Europe where they had class-based societies, where people were considered wretched if they weren’t in the right class.”47
115. Defendant Cuccinelli has a history of advocating for discriminatory antiimmigrant policies. As a Virginia state senator, he supported efforts to restrict birthright citizenship and introduced a bill to allow employers to fire employees who spoke a language other than English on the job and to deny those workers unemployment benefits.48
116. Several courts, including this one, have held that statements like those detailed above indicate racial animus toward non-European immigrants. See CASA de Maryland, Inc. v. Trump, 355 F. Supp. 3d 307, 325–26 (D. Md. 2018) (“One could hardly find more direct
46 Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting His Way on Immigration: His Own Officials, N.Y. Times, Apr. 14, 2019, https://perma.cc/V5R5-UFH5. 47 Devan Cole & Caroline Kelly, Cuccinelli Rewrites Statue of Liberty Poem to Make Case for Limiting Immigration, CNN, Aug. 13, 2019, https://perma.cc/2CJF-42XZ. 48 Scott Bixby, Ken Cuccinelli Wanted to End Birthright Citizenship & Militarize Border—Now He’s Trump’s Immigration Chief, The Daily Beast, June 10, 2019, https://perma.cc/7TKC-G3Q4.
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evidence of discriminatory intent toward Latino immigrants.”).49 Moreover, this court has held
that such discriminatory rhetoric places the burden of persuasion on DHS to demonstrate that its
immigration policies are not infected by animus. See id. at 325 (citing Staub v. Proctor Hospital,
562 U.S. 411, 413 (2011)).
DHS Departed Substantively and Procedurally from its Past Interpretation of the Public-Charge Inadmissibility Ground.
117. As detailed above, DHS’s new Rule is at odds with how the public-charge
inadmissibility ground has been interpreted for over a century. The Department rushed through
the rule-making process, despite receiving 266,077 comments, the vast majority of which were
negative. And the Department failed to rely on the expertise of benefit-granting agencies in
drafting the rule, as DOJ did in drafting the 1999 Proposed Rule and Field Guidance.
Discriminatory animus can be inferred from these substantive and procedural departures from
past agency practice.
49 See also, e.g., Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 518–19 (9th Cir. 2018) (affirming the district court’s denial of a motion to dismiss an equal-protection challenge to the Trump Administration’s rescission of the Deferred Action for Childhood Arrival (DACA) program and relying, in part, on “a history of animus toward persons of Hispanic descent evidenced by both pre-presidential and post-presidential statements by President Trump”), cert. granted, 139 S. Ct. 2779 (2019); Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1100–01 (N.D. Cal. 2018) (granting a preliminary injunction to halt DHS’s termination of TPS status for immigrants from El Salvador, Haiti, Nicaragua, and Sudan because the plaintiffs had plausibly stated an equal-protection claim based in part on “evidence that President Trump harbors an animus against non-white, non-European aliens”), appeal docketed, No. 18-16981 (9th Cir. Oct. 12, 2018); Centro Presente v. DHS, 332 F. Supp. 3d 393, 415 (D. Mass. 2018) (finding that plaintiffs plausibly alleged that discriminatory purpose was a motivating factor in the decision to rescind TPS); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (finding that plaintiffs alleged sufficient facts to make a plausible claim that the decision to rescind DACA was motivated by discriminatory animus), cert. granted, 139 S. Ct. (2019). But see CASA de Maryland v. DHS, 284 F. Supp. 3d 758, 775 (D. Md. 2018) (rejecting an equal-protection challenge to DHS’s decision to rescind DACA), aff’d in part and rev’d in part, 924 F.3d 684 (4th Cir. 2019) (declining to reach equal-protection claim).
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F. The Public Charge Rule Harms CASA and Its Members. 118. In combination with the Trump Administration’s broader efforts to intimidate
immigrant populations and the varying iterations of the Public Charge Rule that have been made public, the vague and complicated terms of the Rule have engendered much confusion and fear among CASA’s membership, leading members to disenroll from or forgo public benefits to which they or their family members (including U.S. citizen children) are entitled. Although the majority of these benefits would not be held against them in public-charge determinations—at least according to the Public Charge Rule’s text—CASA’s members nonetheless have been chilled from using federal, state, and local benefits that provide important food, health, and housing supports for their families. It also has caused some of CASA’s members to terminate health insurance purchased with subsidies under the Affordable Care Act due to concern that the insurance would be considered a public benefit and could lead to an adverse pubic-charge determination.
119. In drafting the Public Charge Rule, DHS fully anticipated that the policy would affect noncitizen and mixed-status households in this manner. The agency assumed that “individuals intending to apply for adjustment of status or individuals who have adjusted status within the past five years” are “likely to disenroll from or forego enrollment in public benefits programs” because “[r]esearch shows that when eligibility rules change for public benefits programs there is evidence of a ‘chilling effect’ that discourages immigrants from using public benefits programs for which they are still eligible.” 2018 Proposed Rule, 83 Fed. Reg. at 51,266.
120. DHS estimates a $1.46 billion annual reduction in transfer payments due to disenrollment and forgone enrollment. Final Rule, 84 Fed. Reg. at 41,487. This figure likely significantly underestimates the broad reach of the Rule’s chilling effect, as it is based on an
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assumption that only those noncitizens seeking to adjust status in a given year would disenroll from public benefits. As explained above, that assumption makes little sense. See supra n.23. And in CASA’s experience, many more noncitizens have been, and will continue to be, chilled by the Public Charge Rule.
121. CASA has incurred significant costs in advising its members on the immigration consequences that might flow from applying for or accepting public benefits for themselves or their family members, and it will continue to incur such costs as long as the unlawful and discriminatory Public Charge Rule remains in effect.
122. During the pendency of the Public Charge Rule, CASA has had to allocate significant resources to combating the Rule’s chilling effects through public education and to counseling and assisting its members about whether to accept public benefits. CASA has devoted 15 part-time health promoters and 15 to 20 community organizers to answering questions, correcting misinformation, and raising awareness about the Rule. These outreach efforts have directly reached over 1,000 individuals, and CASA’s members have conducted additional outreach about the Rule after being trained by CASA staff members.
123. Because responding to the effects of the Rule have taken up, and will continue to take up, significant resources, CASA has had to shift its organizational focus from an affirmative posture—seeking to improve conditions for immigrant families—to a defensive one—seeking to mitigate the harm of the Public Charge Rule on the communities it serves. For example, CASA has had to reduce its advocacy for health-care expansion efforts at the state level in Maryland and at the local level in Prince George’s County, Maryland. These political efforts are necessarily time-sensitive, as they are dependent on political will and the legislative cycle. They cannot simply be undertaken with equal efficacy at a different time.
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124. Moreover, DHS’s estimate fails to account for the fact that, by deterring participation in public benefit programs, DHS is imposing additional costs on local service providers, health providers of last resort, and the community at large. CASA will need to redirect its resources to ensure that its members who are chilled from participating in public benefits programs have access to the supportive services they need to thrive.
125. DHS also recognizes that immigrant rights groups like CASA are likely to incur “familiarization costs” to understand the Rule so that they can “provide information to those foreign-born non-citizens that might be affected by” the policy. Final Rule, 84 Fed. Reg. at 41,467. CASA has spent significant time and resources on training its staff to better understand the Public Charge Rule so that they may advise CASA’s members whether they and their families should enroll in public benefits.
126. In addition, DHS recognizes that the Public Charge Rule will impose financial burdens on noncitizens, estimating that, in the aggregate, it will cost noncitizens who apply for adjustment of status an additional $35 million annually in opportunity costs associated with filling out additional forms. Id. at 41,485. Some of those costs will be passed on to immigrant rights groups like CASA, which will assist their members in filling out the forms associated with the Rule.
127. Because the Public Charge Rule does not give noncitizens fair notice as to whether their individual circumstances are likely to result in an adverse public-charge determination, the Rule forces noncitizens to alter their conduct—perhaps unnecessarily and at significant personal expense—to minimize any “negative factors” that they might exhibit and to maximize their “positive factors.”
128. Plaintiff Aguiluz’s income is between 125 and 250 percent FPG for his household
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of one, and he does not have private health insurance. He therefore lacks any “heavily weighted positive factor” under the Public Charge Rule, although he does not have any “heavily weighted negative factors” either. Given the vague and “inherently subjective” nature of public-charge determinations under the Rule, Plaintiff Aguiluz is unsure whether he will be deemed inadmissible, and thus be prevented from adjusting status, given his particular mix of positive factors (e.g., his history of employment and near-completion of his associate’s degree) and negative factors (e.g., his lack of health insurance, poor credit score, and existing financial liabilities). This uncertainty makes him reluctant to make choices that would make him more likely to be considered a public charge. For example, although he would like to attend a private university like Johns Hopkins or an Ivy League school to pursue his bachelor’s degree, Plaintiff Aguiluz is applying only to public colleges because he is concerned about the impact that taking on extra student loan debt or reducing his work hours to attend school full-time will have on any future public-charge determination. The Public Charge Rule will also factor into his decisions about who to marry, whether and when to have children, and how much support to provide to his parents, given the impact that those decisions have on his household size and its related effects on his income and assets calculations under the Rule.
129. Plaintiff Camacho’s income is between 125 and 250 percent FPG for her household of one. She is currently pursuing her associate’s degree while employed by Baltimore City Public Schools, which provides her health insurance. Lacking income that is considered a “heavily weighted positive factor” under the Public Charge Rule, and given the vague and “inherently subjective” nature of determinations under the Rule, Plaintiff Camacho is concerned that she will be deemed inadmissible on public-charge grounds and thus be prevented from adjusting status. This uncertainty makes her reluctant to make choices that would make her more
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likely to be considered a public charge. For example, the Public Charge Rule gives Plaintiff Camacho concern about whether she could return to school full-time to pursue her bachelor’s degree, thereby forgoing her employer-provided health insurance, and whether she should take on student loans to finance her education. The Public Charge Rule will also factor into her decisions about who to marry and whether and when to have children, given the impact that those decisions have on her household size and its related effects on her income and assets calculations under the Rule.
CLAIMS FOR RELIEF Count One
Administrative Procedure Act, 5 U.S.C. § 706 – Not in Accordance with Law and Beyond Statutory Authority
130. Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint.
131. The Public Charge Rule is a “final agency action for which there is no other adequate remedy in court” and is “subject to judicial review.” 5 U.S.C. § 704; see also id. § 702.
132. Under the Administrative Procedure Act (APA), a “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . not in accordance with law . . . [and] in excess of statutory . . . authority.” Id. § 706(2)(A), (C).
133. As detailed above, the Public Charge Rule’s interpretation of the term “public charge” is contrary to the plain meaning of the term as used in the INA. Moreover, because the meaning of the term is clear based on the INA’s text and structure and the history of the publiccharge inadmissibility ground, DHS has no statutory authority to give the term a conflicting interpretive gloss. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 & n.9 (1984).
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134. The Public Charge Rule also treats SNAP benefits as income or a resource for purposes of public-charge determinations in violation of 7 U.S.C. § 2017(b).
135. The Public Charge Rule must be set aside as not in accordance with law and in excess of statutory authority.
Count Two Administrative Procedure Act, 5 U.S.C. § 706 – Arbitrary and Capricious 136. Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint. 137. Under the APA, a “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary[ and] capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 138. An agency rule is “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 139. An agency acts arbitrarily and capriciously when it fails to “provide [a] reasoned explanation” for a change in its position. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). 140. The Final Rule is arbitrary and capricious because it departs from over a century of prior practice without adequate explanation for this change in policy. 141. In promulgating the Final Rule, DHS ignored or failed to adequately consider important aspects of the problem before it:
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a. DHS failed to meaningfully consider the full range of harms and costs imposed by the Rule on noncitizens, their families, and the communities in which they live;
b. DHS failed to meaningfully consider the disparate impact that the Public Charge Rule will have on noncitizens who are nonwhite and from nonEuropean countries;
c. DHS failed to meaningfully consider that the test it has imposed is so vague as to invite arbitrary and discriminatory enforcement.
142. The proposed threshold for deeming a noncitizen “likely at any time to become a public charge” is so de minimis and difficult to apply that it is irrational. The Public Charge Rule’s purported rationales for these changes are arbitrary, not supported by the evidence in the record, and a pretext to conceal the true motivation for the policy change. DHS’s failure to rely on the expert agencies charged with administering public benefits—and its reliance instead on its own unsubstantiated “beliefs” about noncitizens’ “self-sufficiency”—establish the arbitrary and capricious nature of the Public Charge Rule.
143. The Public Charge Rule therefore must be set aside as arbitrary and capricious. Count Three
Due Process Clause of the Fifth Amendment to the U.S. Constitution 144. Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint. 145. The Due Process Clause prohibits laws or regulations that are so vague that they (1) fail to give persons of ordinary intelligence fair notice of how to accord their conduct to avoid adverse legal consequences or (2) permit arbitrary enforcement. Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018).
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146. Only by maintaining eligibility for adjustment to LPR status can a noncitizen avoid the grave consequences of deportation. See 8 U.S.C. § 1227(a)(1)(A) (authorizing deportation of noncitizens found inadmissible at the time of adjustment of status), (B), (C)(i) (authorizing deportation of noncitizens who are “present in the United States in violation of” the INA or who have “failed to maintain the[ir] nonimmigrant status”). The Public Charge Rule is therefore inextricably linked to noncitizens’ ability to avoid deportation and is thus subject to “the most exacting vagueness standard.” See Dimaya, 138 S. Ct. at 1213.
147. The Public Charge Rule’s vague factors and unclear weighting scheme provide insufficient guidance for USCIS officials to make non-arbitrary determinations about whether applicants for adjustment of status are likely to receive one or more of the government benefits enumerated by the Public Charge Rule for a brief period of time at some point in their lives. This is particularly true for noncitizens who have the ability and inclination to earn an income. Accordingly, individual Plaintiffs and other noncitizens like them will struggle to know how to accord their conduct to avoid adverse immigration consequences, and immigration officials are almost certain to enforce the Rule in an arbitrary and discriminatory manner.
148. The Public Charge Rule is therefore void for vagueness under the Fifth Amendment’s Due Process Clause.
Count Four Equal Protection Component of the Fifth Amendment to the U.S. Constitution 149. Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint. 150. The Equal Protection Clause as incorporated by the Fifth Amendment prohibits the federal government from taking action for which discriminatory intent or purpose is a motivating factor. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
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265–66 (1977); N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir. 2016).
151. Defendants’ promulgation of the Public Charge Rule was motivated at least in part by the Trump Administration’s intent to discriminate on the basis of race, ethnicity, and national origin.
152. This discriminatory intent is evidenced by, among other things: a. the disparate impact that the Public Charge Rule will have on noncitizens
who are nonwhite and from non-European countries; b. President Trump’s statements reflecting animus toward non-European
immigrants and stereotyped views about such immigrants’ socioeconomic status and health; and
c. Defendants’ departure, without reasoned explanation, from ordinary rulemaking procedures and from how the public-charge inadmissibility ground has been interpreted for over a century. 153. The Public Charge Rule therefore violates the Fifth Amendment’s guarantee of equal protection.
RELIEF REQUESTED Wherefore, Plaintiff respectfully requests that this Court:
1. Declare unlawful and set aside the Public Charge Rule; 2. Enjoin Defendants and all those acting on their behalf from enforcing the Public Charge Rule; 3. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees, pursuant to 28 U.S.C. § 2412;
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Case 8:19-cv-02715-CBD Document 1 Filed 09/16/19 Page 60 of 60 4. Award such additional relief as the interests of justice may require.

Dated: September 16, 2019

Respectfully submitted,
/s/ Jonathan L. Backer Jonathan L. Backer (D. Md. 20000) Amy L. Marshak* Joshua A. Geltzer* Mary B. McCord* INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Ave., N.W. Washington, D.C. 20001 (202) 662-9835 jb2845@georgetown.edu
Attorneys for Plaintiffs
*Pro hac vice motions forthcoming

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 Case 8:19-cv-02715-PWG Document 93 Filed 01/03/20 Page 1 of 69
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CASA de Maryland, Inc. 8151 15th Avenue Hyattsville, MD 20528 Prince George’s County,
ANGEL AGUILUZ and MONICA CAMACHO PEREZ,1
MAYOR AND CITY COUNCIL OF BALTIMORE City Hall – Room 109 100 N. Holliday Street Baltimore, MD 21202,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20016,
CHAD F. WOLF, in his official capacity as Acting Secretary of Homeland Security 3801 Nebraska Avenue, N.W. Washington, D.C. 20016,
U.S. DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Avenue, N.W. Washington, D.C. 20016,

Civil Action No. 8:19-cv-2715-PWG
SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 On October 1, 2019, the Court granted the individual plaintiffs’ motion to waive their obligations under Local Rule 102.2(a) to provide addresses. See ECF No. 53.

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KENNETH T. CUCCINELLI II, in his official capacity as Acting Director, U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, N.W. Room 4210, MS 2120 Washington, D.C. 20529, U.S. CITIZENSHIP AND IMMIGRATION SERVICES 20 Massachusetts Avenue, N.W., Room 4210, MS 2120 Washington, D.C. 20529,
Defendants.
I. INTRODUCTION 1. Plaintiffs CASA de Maryland (CASA); two of its members, Angel Aguiluz and Monica Camacho Perez; and the Mayor and City Council of Baltimore (“Baltimore”) bring this action seeking declaratory and injunctive relief with respect to the final rule issued on August 14, 2019, by the U.S. Department of Homeland Security (DHS). Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pts. 103, 212–14, 245, 248) [hereinafter “Public Charge Rule” or “Final Rule”]. This Rule purports to interpret the term “public charge” as it is used in § 212 of the Immigration and Nationality Act (INA) (codified at 8 U.S.C. § 1182(a)(4)(A)) in a way that is contrary to the term’s plain meaning, historical interpretation, and congressional intent and, moreover, that violates constitutional due process and equal protection guarantees. The Rule imposes a new and fatally flawed decisional framework for the U.S. Citizenship and Immigration Services (USCIS) to determine whether noncitizens seeking admission to the United States and applicants for lawful-permanent-resident (LPR) status who are living in the United States are likely to become public charges at any point
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in the future.2 Although DHS casts this framework as better aligning public-charge determinations with Congress’s intent, the opposite is true. Instead, the Rule gives cover to virtually unfettered decision-making and is designed to disproportionately harm non-European immigrants.
2. DHS’s new Rule defines the phrase “likely at any time to become a public charge” to mean “more likely than not at any time in the future” to “receive[ ] one or more” of an enumerated list of government benefits “for more than 12 months in the aggregate within any 36month period.” 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a)–(c)).
3. This definition cannot be reconciled with what Congress has long understood the term “public charge” to mean. The public-charge ground of inadmissibility first appeared in U.S. immigration statutes in 1882. Since that time, courts and administrative agencies consistently have understood the term as excluding only individuals who are likely to become primarily dependent on the government for subsistence, and Congress has never altered this definition. The Department of Justice (DOJ) recognized that accepted meaning in 1999 by issuing Field Guidance that defined “public charge” as a noncitizen “who is likely to become . . . primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (Mar. 26, 1999) (internal quotation marks omitted). DHS’s new Public Charge Rule sharply breaks with how the term has been understood for over a century.
2 Plaintiffs challenge the Public Charge Rule primarily as it applies to noncitizens residing in the United States who apply for adjustment of status (i.e., to become LPRs).
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4. DHS’s extreme and unprecedented interpretation of the INA’s public-charge provision will do great harm to immigrant families and the communities in which they live, including Baltimore. Already, fearing the Rule’s effects on their ability to remain in the United States, noncitizens have disenrolled themselves and other members of their households, including U.S. citizen children and family members, from public benefits to which they are lawfully entitled—and that support important public purposes like promoting child health and welfare and preventing homelessness.
5. Moreover, on the basis of inherently speculative projections about whether noncitizens will obtain even small amounts of public benefits for a brief period of time at some point in their entire lifetimes, DHS’s new Public Charge Rule would deny noncitizens who are living in the United States LPR status that would allow them to remain lawfully in the United States and, perhaps, one day become naturalized citizens. The Rule therefore would split apart families (including those with U.S.-citizen children), effectively coerce noncitizens into living in the shadows, and transform the public-charge inadmissibility ground by administrative fiat into a catchall provision empowering immigration officials to deny any noncitizen deemed undesirable the ability to remain lawfully in the United States. In short, the Rule would fundamentally alter this nation’s immigration system without Congress’s input.
6. Several legal infirmities afflict DHS’s new Public Charge Rule. First, the meaning of “public charge” is clear from the INA’s text and structure and the historical context in which Congress introduced the term into U.S. immigration law. As evidenced by over a century of consistent application, “public charge” means “primarily dependent on the government for subsistence.” Because the meaning of the term is unambiguous, DHS lacks the statutory authority to reinterpret public-charge inadmissibility in a way that is contrary to that
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definition. But that is exactly what DHS has attempted to do in its new Rule. 7. Second, the Public Charge Rule is arbitrary and capricious. In promulgating the
Public Charge Rule, DHS failed to provide a reasonable explanation for departing from the government’s longstanding understanding of the meaning of the term “public charge.” DHS also ignored or failed to adequately consider important aspects of the problem before it—including the full range of costs imposed by the Rule on noncitizens, their families, and the communities in which they live; the racially disparate impact of the Rule; and the fact that the test the Rule would impose is so vague as to invite arbitrary and discriminatory enforcement. Additionally, the Rule reflects no effort by DHS to consult the agencies that have actual expertise in administering public benefits, as DOJ did when it promulgated its proposed rule and guidance in 1999. Because DHS has no expertise in the administration of public benefits, its failure to seek out and meaningfully take into account the views of expert agencies is arbitrary and capricious. Finally, the proposed threshold for deeming a noncitizen “likely at any time to become a public charge” is so de minimis and difficult to apply that it is irrational.
8. Third, DHS’s new Public Charge Rule is unconstitutionally vague. The Rule’s confusing medley of purportedly relevant factors and its unclear weighting scheme is especially problematic for those whose income and assets do not place them at one extreme or another of the nation’s socioeconomic distribution. Combined with the de minimis definition of “likely at any time to become a public charge,” the vagueness of the Rule invites arbitrary and discriminatory enforcement by USCIS. And it fails to give most noncitizens fair notice as to how to accord their conduct to avoid serious adverse immigration consequences.
9. Finally, the Public Charge Rule disproportionately would deny LPR status to nonEuropean immigrants. This is no coincidence. President Trump’s and his advisers’ track record
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of explicitly and consistently denigrating immigrants from Latin American, African, and Asian countries whose populations are majority nonwhite demonstrates that the Rule was motivated by discriminatory animus toward the race, ethnicity, and national origin of immigrants from nonEuropean countries. The Rule therefore denies equal protection of the law to noncitizens who originate from non-European countries.
10. Accordingly, Plaintiffs seek a declaration that the Public Charge Rule violates the Administrative Procedure Act, the Fifth Amendment’s Due Process Clause, and the equalprotection component of the Fifth Amendment and request an order setting it aside. Absent relief, Plaintiffs Aguiluz and Camacho and thousands of other noncitizens like them, including Plaintiff CASA de Maryland’s members and residents of the City of Baltimore, will be unlawfully and discriminatorily denied a pathway to remain in the United States and build a future here.
II. JURISDICTION AND VENUE 11. Jurisdiction is proper under 28 U.S.C. § 1331. 12. This action arises under the Fifth Amendment to the United States Constitution; the Immigration and Naturalization Act, 8 U.S.C. §§ 1101 et seq., and its implementing regulations; and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. 13. Venue is proper in this district under 28 U.S.C. § 1391(e) because Defendants are agencies and officers of the United States and Plaintiffs reside in Maryland.
III. THE PARTIES 14. Plaintiff CASA de Maryland, Inc. is a nonprofit membership organization headquartered in Langley Park, Maryland, with offices in Maryland, Virginia, and Pennsylvania. Founded in 1985, CASA is the largest membership-based immigrant rights organization in the
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mid-Atlantic region, with more than 100,000 members. CASA’s mission is to create a more just society by building power and improving the quality of life in low-income immigrant communities. In furtherance of this mission, CASA offers a wide variety of social, health, job training, employment, and legal services to immigrant communities in Maryland, Washington, D.C., Virginia, and Pennsylvania.
15. CASA is committed to helping its members remain lawfully in the United States, which is their home. CASA provides its members assistance in applying for a variety of immigration benefits before USCIS, including LPR status. In response to the issuance of the Public Charge Rule, CASA has devoted significant resources to educating its members about the Rule and its expected impacts on immigrant families and to providing legal and health services to its members.
16. Many of CASA’s members, like Plaintiffs Aguiluz and Camacho, reside in the United States with deferred action or lawful immigration status that either is temporary or could one day be stripped from them. As recent arrivals to the United States, many of CASA’s members also work in relatively low-wage occupations that often do not provide health insurance, such as childcare, home health care, and building maintenance, and live in mixedstatus households, with U.S.-citizen children and other citizen or LPR family members. Since earlier iterations of the Public Charge Rule were first reported in the media, some of CASA’s members have disenrolled themselves and their children from public benefits to which they are lawfully entitled because of fear and confusion about what public benefits may affect their ability to stay in the United States and become LPRs and, one day, U.S. citizens.
17. Plaintiff Angel Aguiluz is a 22-year-old resident of Silver Spring, Maryland. In June 2005, at the age of eight, Angel was brought to the United States from Honduras by his
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parents, who were seeking medical treatment for his older brother. Angel applied for and received protection from removal in 2013 under the Deferred Action for Childhood Arrivals (DACA) program, and has since maintained his DACA status. In June 2016, Angel obtained advance parole from USCIS before leaving the United States to visit his ailing grandmother in Honduras. See 8 C.F.R. § 212.5(f). Having obtained advance parole, Angel was able to re-enter the United States lawfully after his visit to Honduras. Angel therefore is not barred from adjusting status, and he intends to do so in the future. See 8 U.S.C. § 1255(a) (requiring that applicants for adjustment of status have been “inspected and admitted or paroled into the United States”). Angel has nearly completed his associate’s degree in mathematics at Montgomery College, and he hopes to begin pursuing a bachelor’s degree in physics in the next few years. Angel also works as an office assistant at a parking company to support not only himself but also his father, who lives in Honduras; and his mother, with whom he lives in Silver Spring. Angel is concerned that the Public Charge Rule will prevent him from adjusting status.
18. Plaintiff Monica Camacho Perez is a 25-year-old resident of Baltimore, Maryland. In April 2002, at the age of seven, Monica was brought from Mexico to the United States by her mother, where the two reunited with Monica’s father and older siblings. Monica applied for DACA in 2012, received the protection the following year, and has since maintained her DACA status. Before traveling to Mexico in November 2016, Monica obtained advance parole, allowing her to re-enter the United States lawfully. Because of her subsequent re-entry, Monica’s unlawful entry in 2002 no longer bars her from adjusting status, and she intends to do so. Monica works as an English for Speakers of Other Languages (ESOL) paraeducator in the Baltimore City Public Schools, while she also pursues an associate’s degree at Baltimore City Community College. After completing her associate’s degree, she intends to pursue a bachelor’s
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degree in education. Monica is concerned that the Public Charge Rule will prevent her from adjusting status.
19. Plaintiff Mayor and City Council of Baltimore (“Baltimore City” or “the City”) is a municipal corporation organized pursuant to Articles XI and XI-A of the Maryland Constitution and entrusted with all of the powers of local self-government and home rule afforded by those articles. Baltimore is the largest city in Maryland and the 30th largest city in the United States, with a population of over 600,000, according to 2017 Census estimates.3
20. As of 2017, more than 49,000 foreign-born immigrants called Baltimore home,4 including large Latin American and Asian immigrant populations, with over half of its immigrant population arriving since 2000.5 Baltimore City views it as “crucial that the City recognizes, expands, and develops new strategies to welcome immigrants and help facilitate an easy transition to life as Baltimoreans so these immigrants choose to make Baltimore their permanent home.”6 Especially given immigrants’ high rate of education (42.3 percent of immigrants in Baltimore had a Bachelor’s degree or higher in 2016–2017) and entrepreneurship (7.8 percent of all immigrants in Baltimore were entrepreneurs in 2016–2017),7 “attracting additional immigrants to the city would make a significant difference in the city’s future economic
3 “Baltimore City” refers to Plaintiff, the municipal corporation. “Baltimore” refers to the geographic jurisdiction. 4 Selected Characteristics of the Native and Foreign-Born Populations, 2012-2016 American Community Survey 5-Year Estimates, U.S. Census Bureau, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk. Of these over 49,000, nearly 30,000 are noncitizens. Id. 5 City of Baltimore, The Role of Immigrants in Growing Baltimore 5 (2014) [hereinafter The Role of Immigrants], https://perma.cc/876S-L39H. 6 Id. 7 New Am. Econ., NAE Cities Index 11 (2019), https://perma.cc/39UP-JBPG.
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prospects.”8 21. Baltimore City strives to show that it is a welcoming city by promoting
community wellbeing, economic development, and the integration of immigrant communities. The City therefore seeks to enhance the service capacity and receptivity of city agencies, nonprofits, and community-based organizations to address more effectively the needs of immigrants and to facilitate inclusion and mutual understanding among immigrant communities, service providers, and receiving communities.
22. Baltimore City is aware that fear of immigration consequences may cause noncitizens to forgo public benefits and services—even if they need them and are entitled to them. In 2012, then-Mayor Stephanie Rawlings-Blake issued an executive order stating that “[t]he City of Baltimore remains committed to ensuring public safety, public health, and vital services on which the entire community depends” and directing that no city services or benefits shall be conditioned “on the immigration status of the individual seeking those services or benefits unless such conditions are lawfully imposed by federal or state law.” 9 In 2019, Mayor Bernard C. “Jack” Young issued an executive order reiterating the City’s commitment to inclusiveness and encouraging “all residents of Baltimore . . . to report to and collaborate in the prosecution of crimes with City law enforcement officials and to use City services, without fear that local authorities will inquire about immigration status or seek to enforce immigration law.”10 Similarly, the Baltimore Police Department has issued a policy directing its officers not to
8 The Role of Immigrants, supra note 4, at 6. 9 City of Baltimore, Baltimore City Executive Order: Advancing Public Safety and Access to City Services 1–2, https://perma.cc/6QQQ-4G39. 10 Mayor Bernard C. “Jack” Young, Baltimore City Executive Order: Advancing Public Safety and Access to City Services 1–2 (Aug. 2019).
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inquire about immigration status or assist in federal civil immigration enforcement operations.11 For its efforts, Baltimore received the fifth-highest score in the country in a recent study of the integration of immigrants into local communities.12
23. Defendant Donald J. Trump is the President of the United States. He is the head of the executive branch and oversees the cabinet agencies and heads, including DHS and the Secretary of Homeland Security.
24. Defendant U.S. Department of Homeland Security is a cabinet agency of the United States Government headquartered in Washington, D.C., at 245 Murray Lane, S.W.
25. Defendant Chad F. Wolf is sued in his official capacity as Acting Secretary of the U.S. Department of Homeland Security. Wolf is charged with, among other things, implementing the INA and is authorized to delegate certain powers and authority to DHS’s subordinate agencies. Wolf is being substituted automatically, pursuant to Fed. R. Civ. P. 25(d), for the originally named defendant Kevin K. McAleenan.
26. Defendant U.S. Citizenship and Immigration Services is a subordinate agency of DHS headquartered in Washington, D.C., at 20 Massachusetts Avenue, N.W.
27. Defendant Kenneth T. Cuccinelli II is sued in his official capacity as Acting Director of the U.S. Citizenship and Immigration Services. Cuccinelli is charged with, among other things, adjudicating applications for adjustment of status, extensions of nonimmigrants visas, and changes from one nonimmigrant status to another.
IV. BACKGROUND A. Inadmissibility on Public-Charge Grounds
11 Baltimore Police Dep’t, Policy 1021: Immigration Status (July 2019), https://perma.cc/PK9JXGUY. 12 NAE Cities Index, supra note 6, at 11.
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28. This case involves the process by which noncitizens who are present in the United States apply for LPR status, as well as the Trump Administration’s efforts to restrict that process for noncitizens who—according to immigration officials—might use even a de minimis amount of public benefits at some point in the future.
29. LPR status (also referred to as having a “green card”) allows noncitizens to reside and work in the United States indefinitely. Green cards are highly coveted immigration benefits because of the stability they provide to persons who obtain them, as well as to those persons’ family members. Moreover, because immigrants may be eligible to naturalize after five years as an LPR, obtaining a green card is a crucial juncture in the process by which foreign-born individuals obtain U.S. citizenship. 8 U.S.C. § 1427(a).
30. Section 212 of the INA specifies certain categories of noncitizens who are inadmissible to the United States. Id. § 1182(a). For example, the statute denies admission to noncitizens who have committed certain crimes, id. § 1182(a)(2), or who pose a national-security risk to the United States, id. § 1182(a)(3). Admissibility is a prerequisite for noncitizens to obtain green cards. Id. §§ 1182(a), 1255(a).
31. Noncitizens who are deemed by immigration officials “likely at any time to become a public charge” are also inadmissible under § 212. Id. § 1182(a)(4)(A). Although the term “public charge” is not defined by statute, § 212 instructs consular officials13 (who make admissibility determinations outside the United States) and USCIS (which makes admissibility determinations on U.S. soil) to consider, in rendering public-charge determinations: noncitizens’
13 This lawsuit addresses only DHS’s new Rule regarding the public-charge ground of inadmissibility. In January 2018, the U.S. Department of State amended the Foreign Affairs Manual’s (FAM’s) guidelines regarding public-charge determinations. 9 FAM § 302.8-2. The FAM’s public-charge rule is the subject of a different lawsuit before this Court. See Complaint, Mayor & City Council of Baltimore v. Trump, No. 1:18-cv-3636-ELH (D. Md. Nov. 28, 2018).
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(1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. Id. § 1182(a)(4)(B)(i). The statute also authorizes immigration officials to consider as part of the public-charge determination affidavits submitted by sponsors who pledge to provide financial support to the noncitizen if admitted. Id. § 1182(a)(4)(B)(ii).
32. Satisfaction of the admissibility requirements is also necessary for “adjustment of status”—a process by which some noncitizens present in the United States can apply for and obtain LPR status without returning to their respective countries of origin. 8 U.S.C. § 1255(a). Thus, most noncitizens who reside in the United States but who have not yet secured LPR status cannot avoid undergoing a public-charge determination if they wish to obtain a green card.14
33. The INA charges the Secretary of Homeland Security with administration and enforcement of the statute, including the public-charge provision. See id. § 1103(a). Pursuant to that authority, DHS issued the Public Charge Rule. That Rule redefines the term “public charge” far beyond its ordinary meaning and imposes an exceptionally vague decisional framework for USCIS to determine whether applicants for adjustment of status are inadmissible on publiccharge grounds. Together, these changes are intended to fundamentally alter U.S. immigration policy and to disproportionately affect non-European immigrants.
Historical Development of the Public-Charge Provision 34. The history of the INA’s public-charge provision demonstrates that only noncitizens who are likely to become primarily dependent on the government for subsistence are inadmissible on public-charge grounds.
14 A few, limited categories of noncitizens, such as refugees and asylees, are statutorily exempted from the public-charge inadmissibility ground when adjusting status. See Final Rule, 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212.23(a)). These categories make up a minority of the total population seeking LPR status.
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35. Congress first adopted the public-charge ground of inadmissibility in an 1882 immigration statute that prohibited entry to the United States of “any convict, lunatic, idiot, or any other person unable to take care of himself or herself without becoming a public charge.” Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214, 214. Because the public-charge ground of inadmissibility in the 1882 immigration statute was included alongside the terms “convict,” “lunatic,” and “idiot”—three categories of people who, as those terms were understood at the time, generally required institutionalization, often at public expense—the term “public charge” should be understood in that context. See Gegiow v. Uhl, 239 U.S. 3, 10 (1915) (“Presumably [the phrase ‘public charge’] is to be read as generically similar to the others mentioned before and after.”). The 1882 statute was modeled on state passenger laws that similarly equated the term “public charge” with a complete inability to provide for oneself. See, e.g., Act of Mar. 20, 1850, ch. 105, § 1, 1850 Mass. Acts 338, 339 (authorizing shipmasters to pay a head tax in lieu of a bond for any noncitizen who was not, in the opinion of state immigration officials, “a pauper, lunatic, or idiot, or maimed, aged, infirm or destitute, or incompetent to take care of himself or herself, without becoming a public charge as a pauper”).
36. The 1882 federal immigration statute also imposed on each noncitizen who entered the United States a 50-cent head tax for the purpose of creating of an “immigrant fund.” Act of Aug. 3, 1882, ch. 376, § 1, 22 Stat. at 214. Among other things, this fund financed “care of immigrants arriving in the United States,” including “relief of such [immigrants] as are in distress.” Id.
37. In a case that unsuccessfully challenged the constitutionality of this head tax, the Supreme Court described the immigrant fund as “highly beneficial to the poor and helpless immigrant” and “essential to the protection of the people in whose midst they [immigrants] are
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deposited” because of the fund’s ability to “preserve them from starvation[ ] and its concomitant sufferings.” Head Money Cases, 112 U.S. 580, 590–91 (1884). Congress therefore anticipated that some immigrants who would be admitted under the 1882 Act—and, thus, who would have been deemed unlikely to become public charges—nevertheless would require assistance from the government as they resettled in the United States.
38. Between 1882 and the INA’s enactment in 1952, the public-charge inadmissibility ground continued to appear in U.S. immigration statutes. See Act of Mar. 8, 1891, ch. 551, § 1, 26 Stat. 1084, 1084 (denying admission to “[a]ll idiots, insane persons, paupers or persons likely to become a public charge”); Act of Feb. 20, 1907, ch. 1134, § 13, 34 Stat. 898, 902 (charging shipmasters with verifying under oath that each noncitizen passenger was not “an idiot, or imbecile, or a feeble-minded person, or insane person, or a pauper, or . . . likely to become a public charge”); Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 875–76 (denying admission to “[a]ll idiots, imbeciles, feeble-minded persons, epileptics, insane persons; . . . paupers; professional beggars; vagrants; persons not comprehended within any of the foregoing excluded classes who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living; [and] . . . persons likely to become a public charge”).
39. As originally enacted, the 1952 INA specified 28 classes of inadmissible noncitizens. These included several classes related to the present-day public-charge provision: (1) noncitizens with “a physical defect, disease, or disability . . . of such a nature that it may affect the ability of the [noncitizen] to earn a living”; (2) “paupers, professional beggars, or vagrants”; and (3) noncitizens “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
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admission, [are] likely at any time to become a public charge.” Immigration and Nationality Act, Pub. L. No. 82-414, § 212(a)(7)–(8), (15), 66 Stat. 163, 182–83 (1952).
40. Congress amended the INA in 1990 to drop the “physical defect, disease, or disability” and “paupers, professional beggars, or vagrants” grounds of inadmissibility, but retained the public-charge inadmissibility ground. See Immigration Act of 1990, Pub. L. No. 101-649, § 601(a)(4), 104 Stat. 4978, 5072 (codified as amended at 8 U.S.C. § 1182).
41. When the House of Representatives took up the Conference Report on the Immigration Act of 1990, the ranking member of the House Committee on the Judiciary, Representative Hamilton Fish IV, explained the elimination of the “paupers, professional beggars, or vagrants” inadmissibility ground as replacing an “antiquated and unused exclusion[ ]” with “one generic standard which exclude[s] aliens who are ‘likely to become a public charge.’” 136 Cong. Rec. 36,844 (1990).
42. The term “public charge” therefore must be understood in light of the related terms that were subsumed within it in the Immigration Act of 1990, each of which applied implicitly or explicitly to noncitizens who have no means of providing for themselves. Cf. Gegiow, 239 U.S. at 10; see also Immigration and Nationality Act, § 212(a)(7), 66 Stat. at 182; Definition of Pauper, Merriam-Webster’s Online Dictionary, https://perma.cc/XH5X-QNZH (“[A] person destitute of means except such as are derived from charity.”); Definition of Vagrant, Merriam-Webster’s Online Dictionary, https://perma.cc/6KBC-ZGCU (“[O]ne who has no established residence and wanders idly from place to place without lawful or visible means of support.” (emphasis added)).
43. In 1996, Congress made changes to the public-charge inadmissibility ground but did not redefine the term “public charge.” The Illegal Immigration Reform and Immigrant
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Responsibility Act (IIRIRA) codified the factors that immigration officials already were using to make public-charge determinations. Compare 8 U.S.C. § 1182(a)(4)(B)(i), with Matter of A-, 19 I. & N. Dec. 867, 869 (BIA 1998). IIRIRA also authorized immigration officials to consider, in making public-charge determinations, an enforceable affidavit of support—a contractual commitment obligating the affiant to maintain a sponsored noncitizen at an annual income of 125 percent of the Federal Poverty Guidelines (FPG) and to repay federal, state, or local governments for any means-tested public benefits that the sponsored alien receives. 8 U.S.C. §§ 1182(a)(4)(B)(ii), 1183a(a). Affidavits of support are required for family-based petitions for adjustment of status and employment-based petitions if the employer is related to the sponsored alien. Id. § 1182(a)(4)(C), (D).
44. During the legislative effort that culminated in IIRIRA, Congress considered and rejected a bill that would have expanded the term “public charge” in the deportation context.15 This bill—which was similar to the Public Charge Rule that DHS has now adopted for the admission context—would have rendered deportable any noncitizen who, within 7 years of entry, had received benefits from any of the following programs for an aggregate period of more than 12 months: Supplemental Security Income (SSI), Aid to Families with Dependent Children (AFDC, which has since been replaced with Temporary Assistance for Needy Families (TANF)), food stamps (known today as the Supplemental Nutrition Assistance Program (SNAP)), state cash assistance (often called “General Assistance”), and housing assistance. H.R. Rep. 104-828,
15 The INA authorizes the deportation of any noncitizen “who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry.” 8 U.S.C. § 1227(a)(5). The Public Charge Rule at issue in this case interprets only the public-charge ground of inadmissibility and not the related deportation ground. 84 Fed. Reg. at 41,295 (“This rule does not interpret or change DHS’s implementation of the public charge ground of deportability.”).
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at 137–40 (1996) (Conf. Rep.). 45. In 2013, Congress rejected a bill that would have “expanded the definition of
‘public charge’ such that people who received non-cash benefits could not become” LPRs. S. Rep. No. 113-40, at 63 (2013). The fact that Congress considered expanding the definition of “public charge” and declined to do so indicates that Congress’s understanding of the term is more limited than the definition DHS now puts forth.
Judicial and Administrative Interpretation of the Public-Charge Inadmissibility Ground 46. Administrative and judicial decisions have long demonstrated a consensus understanding of the term “public charge”: one who is primarily dependent on the government for subsistence. These interpretations—which emphasize noncitizens’ ability and willingness to work—are directly at odds with DHS’s Public Charge Rule. 47. Early court cases construing the term “public charge” focused on noncitizens’ ability and inclination to work. See Ex parte Sakaguchi, 277 F. 913, 916 (9th Cir. 1922) (holding that “an able-bodied woman of the age of 25 years, with a fair education, with no mental or physical disability, with some knowledge of English, skilled as a seamstress and a manufacturer of artificial flowers, with a disposition to work and support herself, and having a well-to-do sister and brother-in-law, domiciled in this country, who stand ready to receive and assist her” was not likely to become a public charge); Howe v. United States ex rel. Savitsky, 247 F. 292, 293–94 (2d Cir. 1917) (holding that a “physically [ ]fit” noncitizen could not be denied admission on publiccharge grounds because “Congress meant the act to exclude persons who were likely to become occupants of almshouses”); United States v. Petkos, 214 F. 978, 979 (1st Cir. 1914) (holding that a noncitizen who suffered from psoriasis could not be excluded on public-charge grounds because there was no “lawful evidence[ ] that his disease necessarily affected his ability to earn a
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living”); United States ex rel. Barlin v. Rodgers, 191 F. 970, 973–77 (3d Cir. 1911) (holding that noncitizens were inadmissible on public-charge grounds due to physical limitations or agedness that, in the judgment of immigration officials, would have prevented them from earning a living); Ex parte Mitchell, 256 F. 229, 230–31 (N.D.N.Y. 1919) (holding that “a woman [who was] 42 years of age, in good health, a nurse on occasion, a preacher of the gospel, and . . . able to earn her own living and always ha[d] done so” could not be denied admission on public-charge grounds based on speculation that she might one day be sued or charged with a crime).
48. Decisions by the Board of Immigration Appeals (BIA) and the Attorney General have interpreted the public-charge provision similarly. The BIA is “an appellate body charged with the review of . . . administrative adjudications under the [INA].” 8 C.F.R. § 1003.1(d)(1). BIA decisions and the Attorney General decisions that modify or overrule them are “binding on all officers and employees of DHS or immigration judges in the administration of the immigration laws of the United States.” Id. § 1003.1(g)(1); see also U.S. Dep’t of Homeland Sec., U.S. Customs & Immigration Enforcement, Adjudicator’s Field Manual ch. 14.4 (2014) (“Published BIA decisions designated as precedent by the Board are binding on all USCIS officers and immigration judges unless modified or overruled by the Attorney General or a Federal court.”).
49. In a 1962 decision, the BIA held that a 22-year-old native of Mexico was not inadmissible on public-charge grounds, noting that the man was of “sound body,” had no “specialized training” but had 10 years of farming experience, spoke no English but planned to work among people who spoke Spanish, had only $50 in assets, and had previously worked in the United States as an agricultural worker and in a cannery. Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 411 (BIA 1962).
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50. The Attorney General affirmed that decision, holding that: [T]he [INA] requires more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present. A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge . . . . Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 421 (Att’y Gen. 1964) (emphasis added). 51. Later BIA decisions reflect a similar interpretation of the statute. See Matter of A-, 19 I. & N. Dec. 867, 870 (BIA 1988) (holding that a 33-year-old woman’s “age and ability to earn a living” rendered her unlikely to become a public charge despite her having temporarily left the workforce to care for her children and struggled to find work thereafter); Matter of Vindman, 16 I. & N. Dec. 131, 132 (BIA 1977) (finding inadmissible on public-charge grounds 66- and 54-year-old noncitizens who respectively had been accepting SSI and General Assistance for three years and showed no prospect of future employment); Matter of Perez, 15 I. & N. Dec. 136, 137–38 (BIA 1974) (holding that although a noncitizen had received welfare benefits, she was not ineligible for a visa on public-charge grounds because she was “28 years old, in good health, and capable of finding employment”); Matter of Harutunian, 14 I. & N. Dec. 583, 584, 589–90 (BIA 1974) (holding that an elderly applicant for LPR status who had been granted “old age assistance” by the California State Department of Social Welfare was inadmissible on public-charge grounds because she was “incapable of earning a livelihood”). 52. After the enactment of the 1986 Immigration Reform and Control Act (IRCA), DOJ, which administered and enforced the INA prior to the creation of DHS, explained that immigrants covered by IRCA would not be excluded as likely to become public charges if they had “a history of employment in the United States evidencing self-support without receipt of public cash assistance.” Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205, 16,211
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(May 1, 1987) (emphasis added). “Public cash assistance” was defined as “income or needsbased monetary assistance . . . designed to meet subsistence levels” and did not include “food stamps, public housing, or other non-cash benefits.” Id. at 16,209.
1999 Notice of Proposed Rulemaking and Field Guidance 53. In 1999, DOJ issued a notice of proposed rulemaking and corresponding interim field guidance that adopted the longstanding definition of the term “public charge.” Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676 (proposed May 26, 1999) (to be codified at 8 C.F.R. pts. 212 & 237) [hereinafter “1999 Proposed Rule”]; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (Mar. 26, 1999) [hereinafter “Field Guidance”].16 54. DOJ issued the 1999 Proposed Rule and Field Guidance in the wake of Congress’s enactment of IIRIRA and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the “Welfare Reform Act”), Pub. L. No. 104-193, Title IV, 110 Stat. 2260 (codified as amended at 8 U.S.C. § 1601 et seq.). With certain exceptions, the Welfare Reform Act precludes non-LPRs and undocumented immigrants from receiving most types of public benefits funded in whole or in part by the federal government and requires states that wish to provide benefits to undocumented immigrants to do so through legislation enacted after the Welfare Reform Act. See 8 U.S.C. §§ 1611, 1621(a), (d), 1641(b). 55. These changes to immigration and public-benefits law sparked fear among noncitizens that accepting benefits for which they or their family members were eligible might result in adverse immigration consequences. Studies show that individuals who remained
16 The Federal Register incorrectly states that the Field Guidance was published on March 26, 1999; it actually was published in conjunction with the Proposed Rule on May 26, 1999. 84 Fed. Reg. at 41,294–95 n.8.
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eligible for public benefits after the Welfare Reform Act nonetheless withdrew from publicbenefit programs in large numbers in the years following the law’s enactment because of fear of adverse immigration consequences, even though neither that Act nor IIRIRA changed the longstanding definition of “public charge.”17 By clarifying the scope of the public-charge ground of inadmissibility in the 1999 Proposed Rule and Field Guidance, DOJ intended to combat this chilling effect on benefits enrollment.
56. In issuing the Proposed Rule and Field Guidance, DOJ explained that its discretion to interpret this statutory term was cabined by “the plain meaning of the word ‘charge’” and “the historical context of public dependency when the public charge immigration provisions were first adopted more than a century ago.” 64 Fed. Reg. at 28,677. DOJ therefore relied on ordinary tools of statutory interpretation in issuing its guidance.
57. As DOJ noted, the ordinary meaning of the word “charge,” as used in the INA, is “a person or thing committed or entrusted to the care, custody, management, or support of another”—in this case, the government. Id. (quoting Webster’s Third New International Dictionary 337 (1986)). An individual who receives only supplemental public assistance is not “committed” to the government’s “care” or “custody,” because, by definition, she receives much of her basic needs from non-governmental sources. See id.
58. Moreover, DOJ observed that nineteenth-century state and federal governments had not created “the array of limited-purpose public benefits” available today and instead institutionalized individuals who faced chronic poverty in asylums or “almshouses” that were meant to provide—however imperfectly—all that was necessary for human subsistence. Id.
17 See Jeanne Batalova et al., Migration Policy Inst., Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefits Use 14–15 (2018), https://perma.cc/99EL-Z3T8.
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Thus, when Congress first enacted the statutory public-charge inadmissibility ground, public assistance to the poor usually entailed complete provision of an indigent person’s needs.
59. Based on the plain meaning of the word “charge,” the historical context in which Congress enacted the 1882 Act, and the long line of decisions by courts, the BIA, and the Attorney General, DOJ explained that the term “public charge” means a noncitizen who “is likely to become primarily dependent on the Government for subsistence.” Id. at 28,677, 28,681 (proposed 8 C.F.R. § 212.102); see also Field Guidance, 64 Fed. Reg. at 28,689. DOJ further specified that “primarily dependent” means “complete or nearly complete dependence on the Government rather than the mere receipt of some lesser level of financial support.” 1999 Proposed Rule, 64 Fed. Reg. at 28,677.18
60. The 1999 Proposed Rule and Field Guidance also identified specific categories of public benefits that would be relevant to the public-charge determination: (1) “public cash assistance for income maintenance” in the form of (i) Temporary Assistance for Needy Families (TANF) benefits, (ii) Supplemental Security Income (SSI), or (iii) state and local cash assistance, often called “General Assistance”; and (2) “[i]nstitutionalization for long-term care at Government expense.” Id. at 28,681–82 (proposed 8 C.F.R. §§ 212.102, .103); see also Field Guidance, 64 Fed. Reg. at 28,689, 28,692. These were the only types of benefits to be considered among the other factors required by statute in determining whether a noncitizen was likely to become a public charge. See 1999 Proposed Rule, 64 Fed. Reg. at 28,682 (proposed 8 C.F.R. §§ 212.104, .105); Field Guidance, 64 Fed. Reg. at 28,689, 28,692–93. Supplemental non-cash benefits like SNAP, housing assistance, and Medicaid (to the extent that it did not
18 The Final Rule mischaracterizes the “primarily dependent” standard as entailing reliance on the government for more than 50 percent of what one needs to subsist. See 84 Fed. Reg. at 41,304 n.45.
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support long-term institutionalization) were excluded from the Proposed Rule and Field Guidance.
61. As with its definition of the term “public charge,” DOJ did not rely on its own expertise to identify the public benefits relevant to a public-charge determination. Instead, it “sought the advice and relied on the expertise of the various Federal agencies that administer a wide variety of public benefits.” 1999 Proposed Rule, 64 Fed. Reg. at 28,677. The U.S. Department of Health and Human Services, which administers TANF and Medicaid, among other benefits programs, opined:
The best available evidence of whether someone is primarily dependent on government assistance for subsistence is whether that individual is receiving cash assistance for income maintenance purposes[ ] (i.e., cash assistance under the Temporary Assistance to Dependent [sic] Families program (TANF)), the Supplemental Security Income (SSI), and state general assistance programs), or is institutionalized in a long-term care facility at government expense. Letter from Kevin Thurm, Deputy Sec’y, Dep’t of Health & Human Servs., to Doris Meissner, Comm’r, Immigration & Naturalization Serv. (Mar. 25, 1999), reprinted in 1999 Proposed Rule, 64 Fed. Reg. at 28,686. 62. HHS reached that conclusion because (1) “nearly all individuals or families receiving cash assistance for purposes of income maintenance are also receiving other non-cash support benefits and services as well”; (2) “it is extremely unlikely that an individual or family could subsist on a combination of non-cash support benefits or services alone,” which explains why “virtually all families receiving non-cash support benefits, but not receiving cash assistance, must rely on other income (usually earned income) in order to meet their subsistence needs”; and (3) “non-cash services often have a primary objective of supporting the overall community or public health,” and they “generally have more generous eligibility rules so as to be available to individuals and families with incomes well above the poverty line.” Id.
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63. The Social Security Administration (SSA) and U.S. Department of Agriculture (USDA), which respectively administer SSI and SNAP among other benefit programs, concurred with HHS’s advice. Letter from Susan M. Daniels, Deputy Comm’r, Disability & Income Sec. Programs, to Dr. Robert L. Bach, Exec. Assoc. Comm’r, Office of Policy & Planning, Immigration & Naturalization Serv. (May 14, 1999), reprinted in 1999 Proposed Rule, 64 Fed. Reg. at 28,687–88; Letter from Shirley R. Watkins, Under Sec’y, Food, Nutrition, & Consumer Servs., to Doris Meissner, Comm’r, Immigration & Naturalization Serv. (Apr. 15, 1999), reprinted in 1999 Proposed Rule, 64 Fed. Reg. at 28,688.
64. DOJ never promulgated a final version of the 1999 Proposed Rule, but the Field Guidance has governed DOJ—and, subsequently, DHS—in enforcing the INA’s public-charge provision for the past 20 years.
The “Primarily Dependent” Standard Allowed for Predictable and Consistent PublicCharge Determinations. 65. The “primarily dependent” standard, as developed for over a century and formalized by DOJ’s Field Guidance, provides a clear and administrable framework for immigration officials and fair notice for affected noncitizens about how to accord their conduct to avoid adverse immigration-related consequences. For the same reason, the standard leaves little room for arbitrary public-charge determinations by immigration officials. 66. For example, by identifying nursing homes and mental health institutions as examples of long-term care facilities, the DOJ Field Guidance directed focus by immigration officials on readily identifiable serious physical or mental conditions that were likely to require long-term institutionalized care at government expense.19
19 See 1999 Proposed Rule, 64 Fed. Reg. at 28,678 (stating that “a short period of institutionalization necessary for rehabilitation purposes does not demonstrate that an individual
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67. Similarly, an individual deemed likely to receive SSI would possess an identifiable attribute that would make him or her a candidate for such aid. SSI is available only to individuals who both (1) have very little income and (2) are 65 or older, blind, or “unable to engage in any substantial gainful activity” due to disability. 42 U.S.C. §§ 1382(a), 1382c(a). Thus, an individual who is likely to be eligible for SSI in the future must, in addition to having very little income, either be advanced in age—and thus unlikely to continue to work—or must suffer from impaired sight or a disability that renders the individual unable to work.
68. Although no comparable objective attributes govern eligibility for TANF, in HHS’s letter issued in advance of the 1999 Proposed Rule, the agency noted that 82 percent of families that received TANF benefits at that time had no earned income. Letter from Kevin Thurm to Doris Meissner, supra. Nationally, in 2017, 87 percent of families that received TANF benefits earned no income, as did 92 percent of Maryland families who received such benefits. Office of Family Assistance, U.S. Dep’t of Health & Human Servs., Characteristics and Financial Circumstances of TANF Recipients, Fiscal Year 2017, tbl. 40 (2018), https://perma.cc/P7J6-9FNC. An individual who is likely to receive TANF benefits therefore presumably would have a history of sustained unemployment.20
69. In sum, the “primarily dependent” standard prevented immigration officials from
is, or is likely to become, primarily dependent on the Government for public charge purposes,” and identifying nursing homes and mental health institutions as examples of long-term-care facilities). 20 Because TANF and subnational General Assistance programs serve similar purposes, recipients of such aid likely exhibit similar characteristics. See Randal S. Jeffrey, Facilitating Welfare Rights Class Action Litigation: Putting Damages and Attorney’s Fees to Work, 69 Brook. L. Rev. 281, 288 (2003) (“In addition to TANF-funded programs, many state and local governments run general assistance programs. These programs serve households with little or no income or resources that are ineligible for TANF-funded benefits, primarily because the households lack children.”).
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making uncertain predictions about how noncitizens might interact with a broad array of federal, state, and local social-service systems at some point in the indeterminate future. Instead, the standard charged immigration officials with making an objective assessment about whether noncitizens displayed readily observable attributes that would make them completely or almost completely reliant on government support to meet their basic needs. In contrast, the new Public Charge Rule is so vague that it invites uncertain and arbitrary application and enforcement. B. DHS’s Public Charge Rule
The Mechanics of the Public Charge Rule 70. Departing from the Field Guidance’s “primarily dependent” standard—and the longstanding common meaning of the term “public charge”—the Final Rule classifies as inadmissible any noncitizen who is “more likely than not at any time in the future” to “receive[] one or more” of an enumerated list of public benefits “for more than 12 months in the aggregate within any 36-month period,” with multiple benefits received within a single month counting as multiple months of benefits. 84 Fed. Reg. at 41,401 (to be codified at 8 C.F.R. § 212.21(a)–(c)). 71. Under the Rule, DHS would consider noncitizens’ likelihood of receiving the following benefits: (1) federal, state, or local cash assistance, including TANF, SSI, or General Assistance; (2) SNAP benefits; (3) federal housing assistance, including (i) voucher and projectbased assistance under Section 8 of the Housing Act of 1937 and (ii) public housing under the Housing Act of 1937; and (4) Medicaid.21 Id. (to be codified at 8 C.F.R. § 212.21(b)).
21 Under the Rule, DHS would not deem a noncitizen inadmissible based on her likelihood of receiving Medicaid benefits before she reaches 21 years of age, during a pregnancy, or within 60 days after the end of a pregnancy. Id. (to be codified at 8 C.F.R. § 212.21(b)(5)(iv)). Additionally, the Rule clarifies that emergency medical services covered by Medicaid, services or benefits provided under the Individuals with Disabilities Education Act (IDEA) but funded through Medicaid, and other school-based services funded through Medicaid do not count as Medicaid benefits for purposes of public-charge determinations. Id. (to be codified at 8 C.F.R.
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72. The non-cash benefits that the Final Rule would newly consider in a public-
charge determination are, by design, temporary supports for low-wage working families. Indeed,
93 percent of immigrants in one study who had used any of the covered benefits were also employed a majority of the time or had an employed spouse.22 Moreover, about half of U.S.
citizens are expected to use one of the enumerated programs at some point in their lifetimes— and therefore could be considered “public charges” under DHS’s definition.23
73. The combination of the broad expansion of covered benefits and the de minimis
threshold for benefits-receipt would result in an unwarranted expansion of the public-charge
inadmissibility ground. For example, under the Final Rule, if an immigration official were to
deem a noncitizen likely to receive SNAP, Medicaid, and federal housing benefits for just over
four months—at any point in that person’s life and regardless of the amount received—that
person could be denied a green card as “likely to become a public charge.” To illustrate further, the average monthly SNAP benefit per person in 2018 was $126.96,24 meaning that a noncitizen
could be denied a green card if a USCIS officer were to deem her likely to receive little more
than $1,500 in SNAP benefits within a 36-month period.
74. This framework defies common sense. The new public-charge definition would
§ 212.21(b)(5)(i)–(iii)). However, the Final Rule would consider pregnant women’s and children’s use of any other enumerated benefit, including SNAP benefits. 22 Arloc Sherman et al., Ctr. on Budget & Policy Priorities, Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s “Public Charge” Rule Rationale (Aug. 15, 2019), https://perma.cc/2LQN-HCZB. 23 Danilo Trisi, Ctr. on Budget & Policy Priorities, Trump Administration’s Overbroad Public Charge Definition Could Deny Those Without Substantial Means the Chance to Come to or Stay in the U.S. (May 30, 2019), https://perma.cc/4J72-GF6P (“Approximately 43 to 52 percent of U.S.-born individuals present in the PSID survey in 2017 participated in either SNAP, Medicaid, TANF, SSI, or housing assistance over the 1997-2017 period.”). 24 U.S. Dep’t of Agric., Supplemental Nutrition Assistance Program Participation and Costs (Aug. 2, 2019), https://perma.cc/BA8N-4GZ3.
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render noncitizens inadmissible based on their perceived likelihood of receiving from the

government a mere fraction of what they need to subsist. Moreover, there is simply no way for a

USCIS officer to predict with any precision whether a noncitizen is likely at some point in the

future to accept such minimal levels of benefits.

75. To assess whether noncitizens are likely to “become a public charge,” the Public

Charge Rule instructs USCIS officers to evaluate individuals using a totality-of-the-

circumstances test that assesses several “minimum factors,” without precluding officers from considering other evidence they deem relevant to the inquiry.25 84 Fed Reg. at 41,502 (to be

codified at 8 C.F.R. § 212.22(a), (b)). Factors that weigh in favor of a determination that a

noncitizen will not become a public charge are labeled “positive factors,” while those that weigh

in the opposite direction are called “negative factors.”

76. The Rule also provides instructions on what USCIS should consider in evaluating

each factor and mandates that certain factors be weighted “heavily” in the totality-of-the-

circumstances test. Id. (to be codified at 8 C.F.R. § 212.22(b), (c)); see also Inadmissibility on

Public Charge Grounds, 83 Fed. Reg. 51,114, 51,211–15, tbl. 33 (proposed Oct. 10, 2018) (to be

codified at 8 C.F.R. pts. 103, 212–14, 245, 248) [hereinafter “2018 Proposed Rule”]. This

framework is summarized in table form below:

Age Health

Heavy Negative
Diagnosed with a medical condition

Negative
Younger than 18 or older than 61. Diagnosed with a medical condition

Positive
Between the ages of 18 and 61. Absence of any such serious

Heavy Positive

25 The 1999 Field Guidance also instructed immigration officials to conduct public-charge determinations using a totality-of-the-circumstances test, 64 Fed. Reg. at 28,690, as did preexisting BIA precedent, Perez, 15 I. & N. Dec. at 137. But the new totality-of-thecircumstances test departs to a far greater extent from the statutorily prescribed factors and imposes a confusing, yet rigid, weighting scheme on the various listed factors.
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Family Status

that is likely to require extensive medical treatment or institutionalization or that will interfere with the noncitizen’s ability to provide for herself, and the noncitizen does not have health insurance or resources sufficient to cover reasonably foreseeable medical costs related to that condition.

that is likely to require extensive medical treatment or institutionalization or that will interfere with the noncitizen’s ability to provide for herself.
Large household size.26

medical conditions.
Small household size.

26 For purposes of the Public Charge Rule, the size of a noncitizen’s “household” requires a complicated determination. For a noncitizen who is 21 or older, her household includes: (1) herself; (2) her children who reside with her; (3) any other individuals for whom she provides or is required to provide at least 50 percent of their financial support or whom she lists as a dependent on federal income tax returns; and (4) any individual who provides the noncitizen with at least 50 percent of her financial support or who lists her as a dependent on federal tax returns. 84 Fed. Reg. at 41,501–02 (to be codified at 8 C.F.R. § 212.21(d)(1)). The household of a noncitizen who is younger than 21 includes: (1) the noncitizen; (2) her children who reside with her; (3) her children who reside elsewhere and for whom she is required to provide at least 50 percent of their financial support; (4) her parents, legal guardians, or any other individual who provides her with at least 50 percent of her financial support; (5) the children of the noncitizen’s parents or legal guardians who reside with the noncitizen or for whom her parents or legal guardians provide or are required to provide at least 50 percent of their financial support; and (6) any other individuals for whom the noncitizen’s parents or legal guardians provide or are required to provide at least 50 percent of their financial support or whom they list as dependents on federal tax returns. Id. at 41,502 (to be codified at 8 C.F.R. § 212.21(d)(2)).
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Financial Status

Annual gross household income below 125 percent FPG for the noncitizen’s household size and insufficient assets to cover any shortfall.27

Annual gross income between 125 and 250 percent FPG for the noncitizen’s household size.
or
Sufficient household assets and resources to cover any shortfall in annual gross household income below 125 percent FPG for the noncitizen’s household size.28

Annual gross household income, assets, or resources above 250 percent FPG for the noncitizen’s household size.

27 The Rule is internally contradictory about whether USCIS will treat income below 125 percent FPG with insufficient assets to cover the shortfall as a heavily weighted negative factor or simply as a negative factor. Although such financial circumstances are not specified as a heavily weighted negative factor in the regulatory text, see 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212.22(c)(1)), the preamble to the Final Rule states that, “if the alien has income below [125 percent FPG], it will generally be a heavily weighed negative factor in the totality of the circumstances,” 84 Fed. Reg. at 41,323.
28 DHS sets forth a complex framework for assessing the sufficiency of a noncitizen’s assets. An orphan who will be adopted after she acquires a green card must demonstrate assets in excess of the difference between 125 percent FPG and the noncitizen’s household income. 84 Fed. Reg. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(i)(B)(1)). A spouse or child of a U.S. citizen must demonstrate assets in excess of three times the difference between 125 percent FPG and the noncitizen’s household income. Id. (to be codified at 8 C.F.R. § 212.22(b)(4)(i)(B)(2)). All other noncitizens must demonstrate assets in excess of five times the difference between 125 percent FPG and the noncitizen’s household income. Id. (to be codified at 8 C.F.R. § 212.22(b)(4)(i)(B)(3)).
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Has received, or has been certified or approved to receive, one or more of the enumerated benefits for more than 12 months in the 36 months prior to submitting an application for LPR status.29

Applied for, been certified to receive, or received any of the enumerated benefits.

Has not applied for, been certified to receive, or received any of the enumerated benefits.

or

Has withdrawn application for or disenrolled from an enumerated benefit.

or

Is not or would
not be eligible for
an enumerated benefit.30

29 DHS will consider as a negative factor, but not a heavily weighted negative factor, the receipt of any amount of cash assistance for income maintenance, such as SSI, TANF, and state General Assistance programs, and programs supporting long-term institutionalized care, if received or certified for receipt before October 15, 2019. 84 Fed. Reg. at 41,504 (to be codified at 212.22(d)). DHS will not consider as a negative factor any other public benefits received or certified for receipt before October 15, 2019. Id.
30 The burden is on the applicant to produce “evidence from a Federal, State, local, or tribal agency administering a public benefit” that she “does not qualify or would not qualify for such public benefit by virtue of, for instance, the alien’s annual gross household income or prospective immigration status or length of stay.” Final Rule, 84 Fed. Reg. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(ii)(E)(3)). This showing likely would be nearly impossible for applicants for LPR status, as obtaining LPR status would make them eligible for many benefits and their income-eligibility for benefits may change over their lifetimes—as it does for many U.S. citizens.
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Education & Skills

Authorized to work and not in school, but not currently employed and no reasonable prospect of future employment.

Applied for, been certified to receive, or received a fee waiver for an immigration benefit (e.g., a visa) for which a publiccharge determination is required after the Rule’s effective date.
Bad credit history/score or other evidence of financial liabilities. No non-Medicaid health insurance or household assets or resources sufficient to cover any reasonably foreseeable medical costs.

Has not applied for, been certified to receive, or received a fee waiver for a visa or other immigration benefit for which a public-charge determination is required since the Rule’s effective date. Good credit history/score.
Health insurance (other than Medicaid but including ACAsubsidized insurance) or sufficient household assets or resources to cover any reasonably foreseeable medical costs. History of employment/ school.

Private health insurance that is not subsidized under the ACA.

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Affidavit of Support
Other

When affidavit is required pursuant to 8 U.S.C. § 1182(a)(4)(C), (D), a noncitizen is inadmissible if the sponsor lacks assets/resources greater than 125 percent FPG for the sponsor’s household size. Previously found inadmissible or deportable on publiccharge grounds.

No high school degree or equivalent.
Not proficient in English.
Unlikely that the sponsor would provide financial support to the applicant based on the sponsor’s income, relationship to the applicant, and/or submission of affidavits of support for other noncitizens.

Unemployed and primary caregiver for a child or elderly, ill, or disabled person in the noncitizen’s household. High school or equivalent and/or higher education degree. Occupational skills, certifications, or licenses. Proficient in English. Proficient in other languages in addition to English. Sponsor is likely to support the applicant based on the sponsor’s income, relationship to the applicant, and/or nonsubmission of affidavits of support for other noncitizens.

77. How exactly a USCIS officer is supposed to weigh the myriad, arbitrary factors

outlined above, or any nonenumerated factors deemed relevant, against one another—and come

to a determination about whether a person is likely to need some public benefits for a brief

period of time at some point in the future—is inscrutable. As DHS explains,

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[T]he weight given to an individual factor not designated a heavily weighted factor depends on the particular facts and circumstances of each case and the relationship of the individual factor to other factors in the analysis. Multiple factors operating together will carry more weight to the extent those factors in tandem show that the alien is more or less likely to become a public charge. Final Rule, 84 Fed. Reg. at 41,397. A noncitizen’s possession of more negative than positive factors does not necessarily dictate an unfavorable public-charge determination, but positive factors also are not guarantors of a favorable outcome for a noncitizen. Id. at 41,399–401. Operating under such imprecise guidance, immigration officials are likely to vary widely in how they implement the new standard for public-charge determinations. 78. Moreover, illustrating how arbitrary the weighting system is, the “heavily weighted” negative factor of current or past receipt of the enumerated benefits would be inapplicable to most noncitizens. Federal law—with limited and narrow exceptions—bars most noncitizens who lack LPR status (i.e., noncitizens who are subject to public-charge determinations) from receiving most of the public benefits that DHS’s Public Charge Rule considers. See 8 U.S.C. §§ 1611, 1621(a), (d), 1641(b); Final Rule, 84 Fed. Reg. at 41,313 (“Aliens who are unlawfully present and nonimmigrants physically present in the United States . . . are generally barred from receiving federal public benefits other than emergency assistance.”). Those categories of noncitizens who are eligible for the public benefits at issue in the Rule—e.g., refugees and asylees—are exempt from public-charge determinations. See, e.g., id. § 1157(c)(3) (exempting refugees from the public-charge provision for admission purposes); id.§ 1159(c) (exempting asylees and refugees who seek adjustment of status from the publiccharge provision); id. §§ 1612(a)(2)(A), (b)(2)(A), 1613(b)(1), 1622(b)(1) 1641(b)(2), (3) (exceptions making public benefits available to refugees and asylees). Given the inapplicability of this heavily weighted factor in most cases, its inclusion can serve only to confuse both
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noncitizens and the USCIS officers tasked with making public-charge determinations. 79. The Rule therefore requires immigration officials to assess noncitizens’
likelihood of receiving public benefits at some point in the indeterminate future based on a jumble of circumstances that, according to DHS, supposedly distinguish people who are likely to accept public benefits during their lifetimes from those who are not.
DHS’s Definition of the Term “Public Charge” is Rooted in the Agency’s Unsubstantiated “Beliefs” and Does Not Accord with the Term’s Meaning. 80. The Public Charge Rule fails to explain adequately why the “primarily dependent” standard that has governed public-charge determinations for over a century does not accurately reflect the plain meaning of the term. Instead, the agency asserts a number of unsubstantiated “beliefs” about noncitizens’ self-sufficiency as the basis for the new standard. 81. First, the Public Charge Rule rejects the 1999 Proposed Rule’s textual analysis of the word “charge” because “DHS does not believe that these definitions suggest or require a primary dependence on the Government in order for someone to be a public charge.” 2018 Proposed Rule, 83 Fed. Reg. at 51,158.31 Without elaborating on what informs that newfound “belief” on the government’s part, the Rule puts forward its own battery of dictionary definitions, all of which are entirely consistent with the 1999 Proposed Rule’s analysis of the question. Id. 82. Second, although the Public Charge Rule acknowledges the historical context that informed DOJ’s analysis in 1999, DHS concludes without explanation that it is “immaterial” that the term “public charge” first appeared in federal immigration statutes during a time when federal, state, and local governments did not provide limited-purpose public benefits. Final Rule,
31 The Final Rule states that “[t]he rationale for the proposed rule and the reasoning provided in the background section of that rule remain valid, except as described in [the Final Rule’s] regulatory preamble.” 84 Fed. Reg. at 41,304.
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84 Fed. Reg. at 41,350. Even though the nature of public benefits at the genesis of the publiccharge provision supports the “primarily dependent” standard, DHS, for unexplained reasons, does not believe that this historical evidence “forecloses” its definition. Id. at 41,350 n.310.
83. Third, the new standard adopted by DHS for public-charge determinations is rooted in the agency’s view that even a noncitizen’s temporary, isolated receipt of a small amount of benefits renders her not self-sufficient. DHS rejects the “primarily dependent” standard in favor of its de minimis threshold for even non-cash benefits because “it is possible and likely probable that many individuals” who receive public benefits in amounts far less than would be required to make them “primarily dependent on the government” under the 1999 standard would “lack self-sufficiency.” Final Rule, 84 Fed. Reg. at 41,349. DHS does not attempt to justify its basis for imposing such a draconian understanding of “self-sufficiency,” nor does it explain why this notion of self-sufficiency should be the proper threshold for deeming someone a “public charge.”
84. Tellingly, unlike the 1999 Proposed Rule, DHS’s Public Charge Rule reflects no input from benefit-granting agencies. In its 2018 Proposed Rule, DHS indicated that it had “consulted with the relevant Federal agencies regarding the inclusion and consideration of certain . . . public benefits.” 83 Fed. Reg. at 51,218. But DHS never disclosed the nature of the feedback that it received, and it instead relied primarily on its own beliefs and speculation to justify the new policy. Moreover, neither the 2018 Proposed Rule nor the Final Rule includes letters of support from these expert agencies, as the 1999 Proposed Rule did, suggesting that those agencies do not support the Final Rule or its understanding of these key concepts.
85. Fourth, DHS rejects the “primarily dependent” standard as “insufficiently protective of the public budget,” 2018 Proposed Rule, 83 Fed. Reg. at 51,164, and estimates that
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the federal government will save $1.46 billion annually from people disenrolling from or
forgoing enrollment in public-benefit programs on account of the Public Charge Rule, Final Rule, 84 Fed. Reg. at 41,487.32 But the downstream fiscal impacts of immigration policy have
nothing to do with the proper construction of the term “public charge.” Moreover, DHS’s duty is
to enforce U.S. immigration law as written, not to reshape the law with an eye toward guarding
the public fisc. See 8 U.S.C. § 1103(a).
86. Finally, DHS fails to explain why such a dramatic shift in policy is justified. The
Public Charge Rule does not, for example, document increased reliance on public benefits by
noncitizens or naturalized citizens. It also fails to grapple with the significant costs that the Rule
imposes on noncitizens, their families, and the communities in which they live, including Baltimore City.33
Contrary to 7 U.S.C. § 2017(b), the Rule Treats SNAP Benefits as Income.
87. The SNAP statute prohibits “consider[ation]” of “[t]he value of [SNAP] benefits
that may be provided . . . [as] income or resources for any purpose under any Federal, State, or
local laws.” 7 U.S.C. § 2017(b).
32 This estimate is based on the percentage of the foreign-born noncitizen population that adjusts status each year. 2018 Proposed Rule, 83 Fed. Reg. at 51,266. This is a poor proxy for disenrollment. As explained above, few non-LPR noncitizens who are subject to a public-charge determination are eligible for the enumerated public benefits. And, in reality, the Public Charge Rule is likely to lead to an even larger reduction in federal spending on public benefits due to disenrollment or nonenrollment by noncitizens’ family members (including LPRs and U.S. citizens) because of the fear and confusion engendered by the Rule—a reality that DHS acknowledges but does not meaningfully attempt to quantify. 33 During the notice and comment period, Baltimore City submitted two comments opposing the Proposed Rule. See City of Chicago, et al., Comment Letter on Proposed Rule (Dec. 10, 2018) (arguing that Rule is contrary to law and arbitrary and capricious under Administrative Procedure Act); Catherine E. Pugh, Mayor of Baltimore, Comment Letter on Proposed Rule (Dec. 10, 2018) (noting Rule’s chilling effect and describing likely public health and economic harms).
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88. The Public Charge Rule authorizes USCIS to consider noncitizens’ past application or certification for or receipt of SNAP benefits in determining whether their “assets, resources, and financial status” weigh in favor or against exclusion of noncitizens on publiccharge grounds. Final Rule, 84 Fed. Reg. at 41,502–03 (to be codified at 8 C.F.R. § 212.22(b)(4)(ii)(E)). The Rule therefore impermissibly treats SNAP benefits as either “income” or a “resource.”
89. In addition, the Rule renders noncitizens inadmissible based on the likelihood that they might receive SNAP benefits in the future. Id. at 41,501 (to be codified at 212.21(a), (b)(2), (c)). The Rule therefore requires immigration officials unlawfully to take into account the possibility that noncitizens might one day receive SNAP benefits at a “value” other than zero.
90. In these respects, the Public Charge Rule is contrary to 7 U.S.C. § 2017(b). C. The Public Charge Rule is Exceptionally Vague.
91. DHS’s Public Charge Rule requires USCIS officials to divine whether a person is more likely than not to receive as little as one public benefit for more than 12 months out of any 36-month period for the rest of that person’s life.34 In making that determination, officers must look at a medley of personal circumstances, grant them differing weights, and then make a prediction about the entire course of a person’s life—all while being provided almost no guidance as to how to conduct that analysis.
92. Such a vague scheme inevitably would lead to arbitrary results, and it fails to afford noncitizens notice as to how to accord their conduct to avoid a determination that they are likely to become a public charge.
34 Alternatively, the official could be predicting whether a person would receive two benefits for six months, three benefits for four months, and the like. As noted above, all are equivalent under the Rule’s definition of “public charge.”
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93. Even DHS admits that public-charge determinations under the Rule will be “inherently subjective,” “will vary,” and will “not [be] governed by clear data regarding whether any given alien subject to [the] determination is more likely than not to receive public benefits” for more than 12 months. Final Rule, 84 Fed. Reg. at 41,315, 41,397. DHS even disavows any obligation to interpret the public-charge inadmissibility ground in a manner that provides fair notice to noncitizens or prevents arbitrary enforcement. Instead, DHS simply states that, “fundamentally, as it relates to vagueness, [critics’] quarrel is with Congress, not with DHS.” Id. at 41,321.
94. DHS is correct that its new standard for public-charge determinations is “inherently subjective.” For several reasons, the Public Charge Rule’s framework would lead to admissibility determinations that will not be consistent or predictable:
a. Application of the Public Charge Rule depends on subjective and unpredictable guesswork by immigration officials because admissibility determinations under the Rule would not in most instances be based on noncitizens’ current benefit usage. As mentioned previously, the Welfare Reform Act bars most noncitizens without LPR status (i.e., the types of people who might be subject to a public-charge determination) from receiving most, if not all, of the enumerated public benefits. See 8 U.S.C. §§ 1611, 1621(a), (d), 1641(b). The Public Charge Rule therefore would require USCIS officials to project whether and how noncitizens would live their lives differently from how they currently do if and when they obtain LPR status or U.S. citizenship. Immigration officials would vary widely in how they engage in this inherently speculative analysis. b. The Rule’s extensive list of factors of different weights exacerbates the potential arbitrariness of the public-charge determination. The Rule fails to provide a meaningful
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framework for how “negative” and “positive” factors may weigh against one another, as
well as how many non-heavily-weighted factors a person must have (or how strong those
factors must be) to outweigh a “heavily weighted” factor. With so many disparate factors
at play, immigration officials largely would be left to their own discretion anytime an
applicant exhibits a mix of positive and negative factors.
c. Several of the enumerated benefits programs have income-eligibility thresholds
above the 125-percent-FPG income level that the Public Charge Rule considers a positive factor.35 The Rule, however, offers no guidance on how USCIS should assess a
noncitizen’s likelihood of becoming a public charge when her income qualifies as a
positive factor but she nonetheless would be financially eligible for some of the
enumerated benefits.
d. Setting the ultimate threshold for being deemed a “public charge” at a de minimis
level compounds the arbitrariness of the Rule. Sudden changes in individual
circumstances have the potential to cause both citizens and noncitizens in the United
States to rely on public-benefit programs temporarily, and DHS’s framework does not cabin officials’ discretion to hypothesize such scenarios.36 A noncitizen who earns an
35 See 7 U.S.C. § 2014(c) (households with income up to 130 percent FPG may receive SNAP benefits); Md. Code Ann., Health-Gen. § 15-103(a)(2); Md. Code Regs. 10.09.24.07(G)(4)(b) (adults with incomes up to 138 percent FPG may receive benefits from Maryland’s Medicaid program, the Maryland Medical Assistance Program); FY 2018 Income Limits Documentation System: Statewide Income Limits for Maryland, HUD User, https://perma.cc/PPZ2-T5GP (last visited Mar. 3, 2019) (federal housing assistance is available to Marylanders with incomes equal to up to 400 percent FPG). 36 Indeed, 78 percent of workers in the United States—including nearly one in ten who make $100,000 or more—live paycheck to paycheck. Press Release, CareerBuilder, Living Paycheck to Paycheck is a Way of Life for Majority of U.S. Workers, According to New Career Builder Survey (Aug. 24, 2017), https://perma.cc/XGL4-FT6U (national survey of a representative sample of more than 2,000 full-time employers and more than 3,000 full-time workers from
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income above 125 percent FPG at the time that he or she attempts to adjust status might
lose that job during subsequent economic downturns and struggle to find new work for a
period of time. A serious illness that arises after a noncitizen becomes an LPR could
quickly deplete assets that were adequate for that noncitizen’s needs when he or she was
in good health.37 The Rule lacks any guideposts for immigration officials in considering
how applicants’ financial circumstances might oscillate over their lifetimes, instead
leaving individual officials to consult their own imaginations.
e. The Public Charge Rule provides no guidance to assist immigration officials in
determining the likelihood that individuals who might be eligible for public benefits at
some point in the future will actually apply for and receive them. In 2016, 15 percent of
individuals who were eligible for SNAP did not receive benefits under the program,38 and
11.4 percent of Medicaid-eligible parents did not enroll.39 Sixty-eight percent of low-
income households spend more than half of their income on housing but receive no
varied industries and company sizes); see also Judy T. Lin et al., FINRA Investor Educ. Found., The State of U.S. Financial Capability 6 (2019), https://perma.cc/72FQ-XNG5 (finding that 55 percent of Americans spend an amount equal to or more than their income); Prosperity Now, Vulnerability in the Face of Economic Uncertainty: Key Findings from the 2019 Prosperity Now Scorecard 1 (2019), https://perma.cc/AFG7-BEKK (finding that 40 percent of American households are “liquid asset poor,” meaning that they lack “enough savings to make ends meet at the poverty level for three months if their income was interrupted”). 37 As structured, the Public Charge Rule would not preclude a USCIS official from concluding that an employed, able-bodied 40-year-old noncitizen is sufficiently likely to receive Medicaid in old age due to a future long-term medical issue—as many U.S. citizens do—and that she is therefore inadmissible as likely “at any time” to become a public charge. See Medicaid’s Role in Nursing Home Care, Henry J. Kaiser Family Found. (June 20, 2017), https://perma.cc/DJ5MHYZP (noting that Medicaid covers 62 percent of all nursing home residents). 38 U.S. Dep’t of Agric., Trends in Supplemental Nutrition Assistance Program Participation Rates: Fiscal Year 2010 to Fiscal Year 2016, at 1 (July 2018), https://perma.cc/M56S-BGAP. 39 Jennifer Haley et al., Urban Inst., Uninsurance and Medicaid/CHIP Participation Among Children and Parents 5 (Sept. 2018), https://perma.cc/E3CF-HXNF.
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federal housing assistance.40 In 2012, only 28 percent of people who were eligible for TANF received benefits.41 DHS’s failure to address the reasons for nonparticipation in public-benefit programs makes it likely that some USCIS officials would overestimate noncitizens’ likelihood of receiving public benefits in the future. f. The rigidity of the factors and evidence officials may consider fails to allow for the more realistic, holistic assessment the public-charge statute actually requires. For example, by requiring immigration officials to factor in only current income, the Rule fails to acknowledge that immigrant wages tend to grow over time and leaves immigration officials free to take an unrealistically pessimistic view of noncitizens’ future earnings. Research by the Cato Institute shows that, after controlling for gender, race, education level, industry and occupation, and other factors, immigrants who entered the United States between 1995 and 1999 had wages 13.5 percent lower than native-born workers in their first 5 years in the United States. After 6 to 10 years, however, that gap had shrunk to 8.6 percent, and, after 21 to 23 years, it had fallen to 1.5 percent.42 A public-charge determination that uses a noncitizen’s current income and assets to predict her future socioeconomic status would substantially overestimate the likelihood that a noncitizen will be eligible for, let alone apply for and receive, government benefits. 95. Because no precise forecast of a noncitizen’s future use of government-benefit
40 Ctr. on Budget & Policy Priorities, United States Fact Sheet: Federal Housing Assistance (Aug. 17, 2017), https://perma.cc/F9TC-6FGF. 41 Gene Falk, Cong. Research Serv., R44724, Temporary Assistance for Needy Families (TANF): Size of the Population Eligible for and Receiving Cash Assistance 6 (2017), available at https://perma.cc/ULY8-CUCK. 42 Andrew Forrester & Alex Nowraseth, Cato Inst., Immigrant Wages Converge with Those of Native Born Americans (2018), https://perma.cc/CHE4-CTV6.
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programs is possible, different USCIS officials viewing similar fact patterns are apt to reach wildly divergent conclusions about whether noncitizens are likely to become public charges. Accordingly, USCIS’s enforcement of the Rule necessarily would be arbitrary and unpredictable.
96. For the same reason, noncitizens who will have to undergo a public-charge determination at some point in order to continue residing in the United States will struggle to self-assess their likelihood of being deemed inadmissible on public-charge grounds and to accord their conduct to avoid adverse immigration consequences.
97. For example, to guard against being deemed a public charge, a noncitizen might: a. choose a job based primarily on whether the employer offers health
insurance, regardless of whether the position is in a field of interest or has potential for income growth, Final Rule, 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212.22(c)(2)(iii));
b. delay having children to prevent USCIS from concluding that her expanded household size renders her more likely to become a public charge or makes her income and assets a negative factor, id. at 41,502–03 (to be codified at 8 C.F.R. § 212.22(b)(3), (4)(i)(B)); see also id. at 41,501–02 (to be codified at 8 C.F.R. § 212.21(d)) (defining “household” for purposes of the Rule);
c. refrain from providing financial assistance to parents, children, or other individuals who do not live with her to avoid USCIS treating her as having a larger household size, see id. at 41,502 (to be codified at 8 C.F.R. § 212.21(d)(1)(iv), (v)) (defining a noncitizen’s household as including children and other individuals for whom the noncitizen provides or is required to provide 50 percent or more of their financial support);
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d. decline financial assistance from parents or other individuals to avoid USCIS treating her as having a larger household size, see id. at 41,502 (to be codified at 8 C.F.R. § 212.21(d)(1)(vi), (2)(iv)) (defining a noncitizen’s household as including individuals who provide or are required to provide the noncitizen with 50 percent or more of her financial support);
e. avoid taking on student loans or non-emergency medical debt that might be counted against her in assessing her financial status, id. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(i)(D));
f. decide to expend some of her savings on classes to improve her English proficiency, even though it is not required for her job or in her community, id. at 41,504 (to be codified at 8 C.F.R. § 212.22(b)(5)(ii)(D));
g. refrain from requesting fee waivers when applying for immigration benefits because they might later be counted against her in assessing her financial status, even if her financial status later improves, id. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(ii)(F)). 98. The vague contours of the Public Charge Rule will therefore cause noncitizens to make important life decisions based not on what is best for them and their families, but based on minimizing their exposure to an adverse public-charge determination. 99. Noncitizens might also make the rational choice to live in the country unlawfully rather than pursue LPR status because applying for adjustment of status under this vague scheme will increase the risk of being found inadmissible on public-charge grounds, thereby exposing the applicants to deportation. See 8 U.S.C. § 1227(a)(1)(A). 100. The wide discretion that the Rule gives USCIS to bar noncitizens from obtaining
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LPR status is also likely to lead to the separation of many families when a family member is deemed likely to become a public charge while other family members remain in the United States. D. Animus Toward Non-European Immigrants Motivated the Public Charge Rule.
101. DHS’s promulgation of the Public Charge Rule was driven by animus toward non-European immigrants. This bias is apparent from the disparate impact that the policy will have on non-European immigrants; from President Trump’s long history of making statements that reflect racial and ethnic animus toward non-European immigrants; and from DHS’s departure, without reasoned explanation, from both ordinary rulemaking procedures and the government’s own longstanding interpretation of the public-charge inadmissibility ground.
The Public-Charge Rule Will Have a Disparate Impact on Non-European Immigrants. 102. Research by the Migration Policy Institute (MPI), which was submitted to DHS during the notice and comment period, demonstrates that the Public Charge Rule will disproportionately prevent noncitizens who originate from Latin American, African, and Asian countries from obtaining LPR status. See Randy Capps et al., Migration Policy Inst., Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. Immigration 9 (2018), available at https://perma.cc/GS7E-DUHW. 103. MPI used American Community Survey data to model the population of noncitizens who obtained LPR status in recent years and to estimate the percentage of that population that exhibits one or more of the “negative factors” from the Public Charge Rule’s totality-of-the-circumstances test. Id. at 7. 104. Overall, MPI estimates that 69 percent of recent LPRs had at least one or more negative factor, and 43 percent had two or more. Id. at 8.
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105. But the presence of negative factors was not equally distributed among the recent LPR population. According to MPI, 60 percent of recent LPRs from Mexico and Central America, 40 percent from Asia, and 34 percent from Africa had two or more negative factors. Id. at 9. In contrast, only 27 percent of recent LPRs from Europe, Canada, and Oceania (i.e., Australia and New Zealand) had two or more negative factors. Id.
106. Focusing on the 250-percent-FPG income level that constitutes a “heavily weighed positive factor,” MPI estimates that 55 percent of recent LPRs from Europe, Canada, and Oceania had incomes that high, while only 23 percent of recent LPRs from Mexico and Central America, 45 percent from Asia, and 33 percent from Africa did. Id. tbl. B-3.
107. At the other end of the income spectrum, 26 percent of recent LPRs from Europe, Canada, and Oceania had incomes below the 125-percent-FPG income level that constitutes a “negative factor.” Id. In contrast, 41 percent of recent LPRs from Mexico and Central America, 30 percent from Asia, and 37 percent from Africa had incomes that low. Id.
108. Some of the other factors that DHS’s Public Charge Rule includes as part of its totality-of-the-circumstances test also disproportionately would affect non-European immigrants. For example, research shows that credit scores are lower among blacks and Hispanics than among non-Hispanic whites and Asians.43 Similarly, 57 percent of immigrants from Mexico and 49 percent of immigrants from Central America have not obtained a high school degree, while only 11 percent of immigrants from Europe or Canada have not obtained one.44
109. In January 2018, the U.S. Department of State amended the Foreign Affairs
43 Bd. of Governors of the Fed. Reserve Sys., Report to the Congress on Credit Scoring and Its Effects on the Availability and Affordability of Credit, at O-25 (2008), https://perma.cc/2FPKDF4S. 44 Gustavo Lopez et al., Key Findings About U.S. Immigrants, Pew Research Ctr. (Nov. 30, 2018), https://perma.cc/PF5A-JX53.
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Manual’s (FAM’s) guidelines regarding public-charge determinations to impose a similarly restrictive test for individuals seeking visas from U.S. consulates abroad. Since that time, immigrant visa denials based on the public-charge inadmissibility ground have skyrocketed. The increases disproportionately have affected visa applicants from predominantly nonwhite countries: immigrant visa denials on public-charge grounds for Mexican nationals rose from 7 in fiscal year 2016 to more than 5,300 in fiscal year 2018; for Haitian nationals, from 2 denials in 2016 to more than 1,100 denials in fiscal year 2018; and for Bangladeshi nationals, from no denials in 2016 to over 1,500 denials in 2018. By contrast, only 3 Canadian immigrant visa applicants were denied on public-charge grounds in fiscal year 2018 (through July 29, 2019).45
President Trump and his Advisers Repeatedly Have Made Disparaging Statements About Non-European Immigrants. 110. Throughout his campaign and presidency, President Trump repeatedly has made statements that reflect animus toward immigrants based on race, ethnicity, and national origin. These statements demonstrate that the disparate impact of the Public Charge Rule is the product of intentional discrimination. 111. President Trump has made comments that embrace demeaning stereotypes about immigrants from developing countries. In a June 2017 Oval Office meeting, President Trump complained that immigrants from Haiti “all have AIDS” and that people from Nigeria should not be allowed into the United States on a temporary basis because they would never “go back to their huts.”46 A dramatically altered policy that excludes people from the United States based on their perceived likelihood of receiving government benefits is a means of operationalizing these
45 See Ted Hesson, Visa Denials to Poor Mexicans Skyrocket Under Trump’s State Department, Politico (Aug. 6, 2019), https://perma.cc/96Y6-58AH. 46 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times, Dec. 23, 2017, https://perma.cc/D5HN-WL2P.
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stereotyped views of non-European immigrants. 112. In January 2018, in rejecting a proposed immigration deal that would have
allowed Temporary Protected Status (TPS) beneficiaries from El Salvador, Haiti, and African countries to remain in the United States, President Trump said, “Why are we having all these people from shithole countries come here?” In the same meeting, the President stated that the United States should prioritize immigration from countries such as Norway, which has an overwhelmingly white population, and from certain Asian countries that he considers economically beneficial to the United States.47 It is therefore unsurprising that the Public Charge Rule will make it harder for noncitizens from Latin American, African, and Asian countries to enter the United States and obtain LPR status as compared to noncitizens from European countries.
113. In recent remarks that echoed his derision for TPS beneficiaries, President Trump criticized Reps. Alexandria Ocasio-Cortez (a woman of Puerto Rican heritage who was born in the United States), Rashida Tlaib (a woman of Palestinian heritage who was born in the United States), Ayanna Pressley (an African American woman who was born in the United States), and Ilhan Omar (a woman who was born in Somalia but immigrated to the United States as a teenager and became a naturalized U.S. citizen) of “telling the people of the United States . . . how our country should be run” and questioned why the Congresswomen “don’t . . . go back and help fix the totally broken and crime infested places from which they came” and “[t]hen come
47 Josh Dawsey, Trump Derides Protections for Immigrants from ‘Shithole’ Countries, Wash. Post, Jan. 12, 2018, https://perma.cc/M8LF-HXTL; Cent. Intelligence Agency, The World Factbook: Norway, https://perma.cc/GD98-29CE (last updated Feb. 18, 2019) (stating that Norway’s population is 83.3 percent ethnically Norwegian and 8.3 percent of another European ethnicity).
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back and show us how . . . it is done.”48 These remarks underscore the President’s disdain for non-European countries and his refusal to consider people living in the United States who have ties to such countries to be part of the American polity. Given those views, the Public Charge Rule’s effect of disproportionately preventing non-European immigrants from remaining in the United States cannot be considered coincidental.
114. Other statements made by President Trump as a candidate reinforce the conclusion that his immigration policies—including the Public Charge Rule—are motivated and infected by racial and ethnic animus:
a. Announcing his presidential campaign on June 16, 2015, Candidate Trump said: “When Mexico sends its people, they’re not sending their best. . . . They’re sending people that have lots of problems, and they’re bringing those problems with us [sic]. They’re bringing drugs. They’re bringing crime. They’re rapists. . . . They’re sending us not the right people. 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.”49
b. During the campaign, two men urinated on a homeless Latino man and then beat him with a metal pole. Following the arrest of two suspects, one of the alleged assailants said, “Donald Trump was right; all these illegals need to be deported.” When asked about the incident, Candidate Trump said, “I will say that people who are following me are very passionate. They love this country and they want this country to be great
48 Donald J. Trump (@realDonaldTrump), Twitter (July 14, 2019, 5:27 A.M.), https://perma.cc/9AB5-Z78H. 49 Wash. Post Staff, Full Text: Donald Trump Announces a Presidential Bid, Wash. Post., June 16, 2015, https://perma.cc/F3BN-NZ89.
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again. They are passionate.”50 c. Prior to the election, U.S. District Judge Gonzalo Curiel was presiding
over a civil suit against the defunct Trump University. Candidate Trump asserted that Judge Curiel’s “Mexican heritage” and membership in a Latino lawyers’ association presented “an absolute conflict” in light of Trump’s campaign promise to “build[ ] a wall.”51 115. Members of President Trump’s administration share his animus toward nonEuropean immigrants. For example, Senior Adviser to the President for Policy Stephen Miller reportedly told a former White House communications aide, “I would be happy if not a single refugee foot ever touched American soil.”52 People from Europe, Canada, and Oceania make up a small fraction of the U.S. refugee and asylee population. Of all individuals granted refugee or asylee status in the United States in 2017, only eight percent came from those regions.53 Miller’s statement therefore reflects deep hostility toward immigrants from non-European countries. 116. The President and his advisers have been actively involved in pressing for the Public Charge Rule. In 2019, President Trump removed the leadership of immigration-related agencies, including USCIS, in part out of a belief that the prior leadership had not done enough to finalize the Rule.
50 Adrian Walker, ‘Passionate’ Trump Fans Behind Homeless Man’s Beating?, Bos. Globe, Aug. 21, 2018, https://perma.cc/39RB-8BPK. 51 Brent Kendall, Trump Says Judge’s Mexican Heritage Presents ‘Absolute Conflict’, Wall St. J. Online, June 3, 2016, https://perma.cc/2KGY-JZU6. 52 Cliff Sims, Team of Vipers: My 500 Extraordinary Days in the Trump White House 191 (2019). 53 See Dep’t of Homeland Sec’y, Refugees & Asylees 2017 Tables, tbls. 14, 17, 19 (2019), https://perma.cc/54BZ-BCXV.
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117. Miller in particular is an ardent backer of the Public Charge Rule and has criticized DHS officials for what he considers the agency’s slow pace of finalizing the rule.54 Miller reportedly had “been agitating for” the removal of L. Francis Cissna, the former head of USCIS, “for months” prior to Cissna’s forced resignation because Cissna was “moving too slowly in implementing” the Public Charge Rule.55 According to one report, Miller berated the former Acting Director of U.S. Immigration and Customs Enforcement, Ronald Vitiello, saying, “You ought to be working on this regulation all day every day . . . . It should be the first thought you have when you wake up. And it should be the last thought you have before you go to bed. And sometimes you shouldn’t go to bed.”56 One reasonably can infer a connection between Miller’s zeal for the Public Charge Rule and his antipathy toward non-European immigrants.
118. Just after the Final Rule was published, Defendant Cuccinelli, the Acting Director of USCIS, has defended the Public Charge Rule by distinguishing the national origins of modern-day immigrants from those of nineteenth-century immigrants. In a television interview with CNN’s Erin Burnett, he argued that the Rule is not at odds with the message of Emma Lazarus’s sonnet that adorns the Statue of Liberty’s pedestal because the “tired,” “poor,” “wretched,” and “homeless” “huddled masses yearning to breathe free” depicted in the poem were “coming from Europe where they had class-based societies, where people were considered
54 Michael D. Shear & Emily Baumgaertner, Trump Administration Aims to Sharply Restrict New Green Cards for Those on Public Aid, N.Y. Times, Sept. 22, 2018, https://perma.cc/3FHYRZRC (stating that Miller “has pushed hard” for the Public Charge Rule). 55 Nick Miroff et al., Trump to Place Ken Cuccinelli at the Head of the Country’s Legal Immigration System, Wash. Post, May 24, 2019, https://perma.cc/6W5Y-2WKF. 56 Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting His Way on Immigration: His Own Officials, N.Y. Times, Apr. 14, 2019, https://perma.cc/V5R5-UFH5.
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wretched if they weren’t in the right class.”57
119. Defendant Cuccinelli has a history of advocating for discriminatory anti-
immigrant policies. As a Virginia state senator, he supported efforts to restrict birthright
citizenship and introduced a bill to allow employers to fire employees who spoke a language
other than English on the job and to deny those workers unemployment benefits.58
120. Several courts, including this one, have held that statements like those detailed
above indicate racial animus toward non-European immigrants. See CASA de Maryland, Inc. v.
Trump, 355 F. Supp. 3d 307, 325–26 (D. Md. 2018) (“One could hardly find more direct
evidence of discriminatory intent toward Latino immigrants.”).59 Moreover, this court has held
that such discriminatory rhetoric places the burden of persuasion on DHS to demonstrate that its
immigration policies are not infected by animus. See id. at 325 (citing Staub v. Proctor Hospital,
57 Devan Cole & Caroline Kelly, Cuccinelli Rewrites Statue of Liberty Poem to Make Case for Limiting Immigration, CNN, Aug. 13, 2019, https://perma.cc/2CJF-42XZ. 58 Scott Bixby, Ken Cuccinelli Wanted to End Birthright Citizenship & Militarize Border—Now He’s Trump’s Immigration Chief, The Daily Beast, June 10, 2019, https://perma.cc/7TKC-G3Q4. 59 See also, e.g., Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 518–19 (9th Cir. 2018) (affirming the district court’s denial of a motion to dismiss an equal-protection challenge to the Trump Administration’s rescission of the Deferred Action for Childhood Arrival (DACA) program and relying, in part, on “a history of animus toward persons of Hispanic descent evidenced by both pre-presidential and post-presidential statements by President Trump”), cert. granted, 139 S. Ct. 2779 (2019); Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1100–01 (N.D. Cal. 2018) (granting a preliminary injunction to halt DHS’s termination of TPS status for immigrants from El Salvador, Haiti, Nicaragua, and Sudan because the plaintiffs had plausibly stated an equal-protection claim based in part on “evidence that President Trump harbors an animus against non-white, non-European aliens”), appeal docketed, No. 18-16981 (9th Cir. Oct. 12, 2018); Centro Presente v. DHS, 332 F. Supp. 3d 393, 415 (D. Mass. 2018) (finding that plaintiffs plausibly alleged that discriminatory purpose was a motivating factor in the decision to rescind TPS); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (finding that plaintiffs alleged sufficient facts to make a plausible claim that the decision to rescind DACA was motivated by discriminatory animus), cert. granted, 139 S. Ct. (2019). But see CASA de Maryland v. DHS, 284 F. Supp. 3d 758, 775 (D. Md. 2018) (rejecting an equal-protection challenge to DHS’s decision to rescind DACA), aff’d in part and rev’d in part, 924 F.3d 684 (4th Cir. 2019) (declining to reach equal-protection claim).
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562 U.S. 411, 413 (2011)). DHS Departed Substantively and Procedurally from its Past Interpretation of the Public-Charge Inadmissibility Ground. 121. As detailed above, DHS’s new Rule is at odds with how the public-charge
inadmissibility ground has been interpreted for over a century. The Department rushed through the rule-making process, despite receiving 266,077 comments, the vast majority of which were negative. And the Department failed to rely on the expertise of benefit-granting agencies in drafting the rule, as DOJ did in drafting the 1999 Proposed Rule and Field Guidance. Discriminatory animus can be inferred from these substantive and procedural departures from past agency practice. E. The Public Charge Rule Harms Plaintiffs.
122. In combination with the Trump Administration’s broader efforts to intimidate immigrant populations and the varying iterations of the Public Charge Rule that have been made public, the vague and complicated terms of the Rule have engendered much confusion and fear among Baltimore’s noncitizen residents and CASA’s membership, leading many individuals to disenroll from or forgo public benefits to which they or their family members (including U.S. citizen children) are entitled. Although the majority of these benefits would not be held against them in public-charge determinations—at least according to the Public Charge Rule’s text— noncitizens and their family members nonetheless have been chilled from using federal, state, and local benefits that provide important food, health, and housing supports for these families. It also has caused some noncitizens to terminate health insurance purchased with subsidies under the Affordable Care Act due to concern that the insurance would be considered a public benefit and could lead to an adverse pubic-charge determination.
123. Providers have observed the chilling effects of proposed iterations of the Rule in
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Baltimore specifically, where noncitizen parents “are not willing to risk having their families stay together for food stamps.”60 SNAP enrollment among city residents has dropped precipitously in the past few years, from over 200,000 enrollees per month in 2015 to just over 166,000 per month in 2019.61 And one Maryland health clinic operator reported “seeing three to four people a week who are not applying for WIC and are canceling their appointments to reenroll in Medicaid.”62 Because Baltimore has a large immigrant population, it is no surprise that the Rule’s chilling effect would hit the city hard.
124. In drafting the Public Charge Rule, DHS fully anticipated that the policy would affect noncitizen and mixed-status households in this manner. The agency assumed that “individuals intending to apply for adjustment of status or individuals who have adjusted status within the past five years” are “likely to disenroll from or forego enrollment in public benefits programs” because “[r]esearch shows that when eligibility rules change for public benefits programs there is evidence of a ‘chilling effect’ that discourages immigrants from using public benefits programs for which they are still eligible.” 2018 Proposed Rule, 83 Fed. Reg. at 51,266.
125. DHS estimates a $1.46 billion annual reduction in transfer payments due to disenrollment and forgone enrollment. Final Rule, 84 Fed. Reg. at 41,487. This figure likely significantly underestimates the broad reach of the Rule’s chilling effect, as it is based on an assumption that only those noncitizens seeking to adjust status in a given year would disenroll from public benefits. As explained above, that assumption makes little sense. See supra n.23.
60 Kathleen Page, Cutting Off Immigrants from Public Benefits Means American Children Will Pay the Price, Balt. Sun (Sept. 25, 2018), https://perma.cc/5CGY-MHP5. 61 Md. Dep’t of Human Servs., 2015 All Program Monthly Statistical Report, tbl. FSP2-2 (2015), https://perma.cc/G6YD-54VC; Md. Dep’t of Human Servs., 2019 All Program Monthly Statistical Report, tbl. FSP2-16 (2019), https://perma.cc/65ZB-Q7AY. 62 Christina Jewett et al., Under a Trump Proposal, Lawful Immigrants Might Shun Medical Care, Nat’l Public Radio (May 10, 2018), https://perma.cc/G3M4-E2UF.
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And, in CASA’s and Baltimore City’s experience, many more noncitizens have been, and will continue to be, chilled by the Public Charge Rule.
126. CASA has incurred significant costs in advising its members on the immigration consequences that might flow from applying for or accepting public benefits for themselves or their family members, and it will continue to incur such costs as long as the unlawful and discriminatory Public Charge Rule remains in effect.
127. During the pendency of the Public Charge Rule, CASA has had to allocate significant resources to combating the Rule’s chilling effects through public education and to counseling and assisting its members about whether to accept public benefits. CASA has devoted 15 part-time health promoters and 15 to 20 community organizers to answering questions, correcting misinformation, and raising awareness about the Rule. These outreach efforts have directly reached over 1,000 individuals, and CASA’s members have conducted additional outreach about the Rule after being trained by CASA staff members.
128. Moreover, CASA has had to take additional time in counseling individual members about whether to enroll in public benefits because of the Rule, reducing the number of individuals CASA is able to serve on a daily basis. And, as members are chilled from accepting public benefits, CASA will need to redirect its resources to ensure that its members who are chilled from participating in public benefits programs have access to the supportive services they need to thrive.
129. Because responding to the effects of the Rule have taken up, and will continue to take up, significant resources, CASA has had to shift its organizational focus from an affirmative posture—seeking to improve conditions for immigrant families—to a defensive one—seeking to mitigate the harm of the Public Charge Rule on the communities it serves. For example, CASA
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has had to reduce its advocacy for health-care expansion efforts at the state level in Maryland and at the local level in Prince George’s County, Maryland. These political efforts are necessarily time-sensitive, as they are dependent on political will and the legislative cycle. They cannot simply be undertaken with equal efficacy at a different time.
130. DHS also recognizes that immigrant rights groups like CASA are likely to incur “familiarization costs” to understand the Rule so that they can “provide information to those foreign-born non-citizens that might be affected by” the policy. Final Rule, 84 Fed. Reg. at 41,467. CASA has spent significant time and resources on training its staff to better understand the Public Charge Rule so that they may advise CASA’s members whether they and their families should enroll in public benefits or apply to adjust status. Indeed, because the 1999 Guidance applied only in narrow circumstances, previously CASA did not routinely advise its members considering applying for adjustment of status about the public-charge inadmissibility ground. Because of the near-unfettered discretion the Public Charge Rule confers on immigration officials and its uncertain application to CASA’s members who seek to apply for LPR status, CASA has had to undertake entirely new efforts to provide legal and other advice to its members in response to the Public Charge Rule.
131. In addition, DHS recognizes that the Public Charge Rule will impose financial burdens on noncitizens, estimating that, in the aggregate, it will cost noncitizens who apply for adjustment of status an additional $35 million annually in opportunity costs associated with filling out additional forms. Id. at 41,485. Some of those costs will be passed on to immigrant rights groups like CASA, which will assist their members in filling out the forms associated with the Rule.
132. Because the Public Charge Rule does not give noncitizens fair notice as to
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whether their individual circumstances are likely to result in an adverse public-charge determination, members of CASA who otherwise currently have a pathway to adjust status to become LPRs have been deterred from applying for green cards. For example, some CASA members are married to U.S. citizens, but their household income is below 125 percent FPG for their household size, while other members have chronic health conditions and lack private health insurance. Still other CASA members, though fully employed, have large household sizes (a negative factor under the Rule) and work in occupations that do not provide health insurance. These individuals are concerned that they could be rendered inadmissible—and therefore deportable—if they apply for adjustment of status because they cannot reasonably predict whether they will be deemed likely to become a public charge under the Rule.63
133. For the same reason, the Rule forces noncitizens to alter their conduct—perhaps unnecessarily and at significant personal expense—to minimize any “negative factors” that they might exhibit and to maximize their “positive factors.”
134. Plaintiff Aguiluz’s 2018 income was between 125 and 250 percent FPG for his household of one, and he has only in recent months obtained private health insurance. Given the vague and “inherently subjective” nature of public-charge determinations under the Rule, Plaintiff Aguiluz is unsure whether he will be \\deemed inadmissible, and thus be prevented from adjusting status, given his particular mix of positive factors (e.g., his history of employment and near-completion of his associate’s degree) and negative factors (e.g., his poor credit score and existing financial liabilities). This uncertainty makes him reluctant to make choices that would make him more likely to be considered a public charge. For example, although he would like to attend a private university like Johns Hopkins or an Ivy League school to pursue his bachelor’s
63 Because of fear of retaliation by the government in relation to future immigration matters, the identities of these CASA members is not provided here.
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degree, Plaintiff Aguiluz is applying only to public colleges because he is concerned about the impact that taking on extra student loan debt or attending school full-time—thereby forgoing additional income and health insurance—will have on any future public-charge determination. The Public Charge Rule will also factor into his decisions about who to marry, whether and when to have children, and how much support to provide to his parents, given the impact that those decisions have on his household size and its related effects on his income and assets calculations under the Rule.
135. Plaintiff Camacho’s income is above 250 percent FPG for her household of one, but not significantly so (approximately 316 percent FPG). She also currently has health insurance through her employer, the Baltimore City Public Schools. Therefore, for the time being, Plaintiff Camacho exhibits two attributes that are considered “heavily weighted positive factors” under the Public Charge Rule, albeit fragile ones. Plaintiff Camacho is currently pursuing her associate’s degree, and she intends to pursue a bachelor’s degree in the near future. If she chooses to pursue her bachelor’s degree full-time, her financial position is likely to worsen, and she would also lose her employer-provided health insurance. Because of the significant likelihood that she will not possess attributes that weigh heavily in her favor when she undergoes a public-charge determination, and given the vague and “inherently subjective” nature of determinations under the Rule, Plaintiff Camacho is reluctant to make choices today that would make her more vulnerable to being deemed inadmissible on public-charge grounds in the future. For example, in addition to affecting Plaintiff Camacho’s decision about whether to pursue a bachelor’s degree on a full-time basis, the Public Charge Rule makes her reluctant to take on student loans to finance her education. The Public Charge Rule will also factor into her decisions about who to marry and whether and when to have children, given the impact that
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those decisions have on her household size and its related effects on her income and assets calculations under the Rule.
136. As a major city that provides benefits to thousands of its immigrant residents, Baltimore City is injured by the Public Charge Rule and its concomitant chilling effect. The Rule harms the City’s right and responsibility to act as a welcoming city—a city that provides benefits to its residents without regard to their immigration status and that enables those residents to function as healthy, productive members of the community. Providing for the health and welfare of its residents is an essential part of a city’s mission, and the Public Charge Rule frustrates the City’s effectuation of that mission. Moreover, by discouraging the full participation of immigrants in the Baltimore community, the Rule harms the City’s interest in its own economic development.
137. The Public Charge Rule’s chilling effect also will impose financial costs on Baltimore City. First, if enough families disenroll or refrain from enrolling in SNAP benefits out of fear of adverse immigration consequences, Baltimore City Public Schools risks losing its ability to participate in the U.S. Department of Agriculture’s Community Eligibility Provision program.64 Through the Community Eligibility Provision program, school districts receive federal funding to provide free breakfasts and lunches to all students if at least 40 percent of students receive SNAP or other public benefits. Baltimore City Public Schools has relied on this funding in recent years to provide nutritious meals to all its students—thereby reducing food insecurity and improving students’ health and capacity for learning—and to provide nutrition education services to build a healthier community. As fewer students receive SNAP benefits,
64 While Baltimore’s school system is run by a separate agency, Baltimore City Public Schools, the Mayor retains authority to appoint members of its Board of School Commissioners, and the City provides funding for the agency, especially when it faces budget shortfalls. The City also provides school-based health services.
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there will be an increase in unreimbursed costs to the school district under the program. If the rate decreases enough, Baltimore City Public Schools may become unable to afford to participate in the program or may ultimately become ineligible.
138. Additionally, enrollment in SNAP, TANF, and other means-tested benefits is used to determine whether high-poverty schools will receive federal and state educational funding. Already, one charter school in Baltimore that primarily serves immigrant communities lost its eligibility for federal funding because its SNAP participation rate decreased too much. When schools lose out on these sources of funding, Baltimore City Public Schools and the City must find ways to make up for these shortfalls or be forced to reduce staff or even close schools entirely.
139. Second, by deterring participation in public benefit programs, the Public Charge Rule will impose additional costs on the City’s services, its free and reduced-price health services, and the community at large. If a noncitizen fears that her ability to remain in the United States would be jeopardized by enrolling herself (if she is even eligible) or her eligible family members in public benefits, she and her family might rely more heavily on City services that are not implicated by the Rule.
140. For example, when noncitizens and their families disenroll or refuse to enroll in Medicaid or subsidized insurance under the Affordable Care Act, they are more likely to use City health clinics as a substitute. Baltimore City maintains a number of health services that provide free or reduced-cost services for its uninsured and underinsured populations. These services likely will see increased demand because of the Public Charge Rule, thereby increasing the cost to the City of providing these services.
141. What is more, some of Baltimore City’s health-care services are funded by
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Medicaid reimbursements. For example, approximately 76 percent of the budget for Emergency Medical Services for the Baltimore City Fire Department is funded by Medicaid or Medicare. If Baltimore residents disenroll or refuse to enroll in Medicaid because of the Public Charge Rule, the City will receive less in reimbursements from Medicaid, reducing the funding available for its health services at the same time as the demand for free and reduced-cost services increases— squeezing the City financially from both ends.
142. Similarly, if noncitizens and their families forgo SNAP or other public benefits (thereby reducing their available resources to purchase food), they are likely to look to local food banks for nutritional support. The Baltimore City Department of Housing and Community Development administers a Summer Food Service Program, available to all city minors regardless of immigration status,65 and many of the Baltimore’s public schools also act as School Food Pantries through a partnership with the Maryland Food Bank.66 Increased demand for these resources will impose additional costs on the City.
143. Third, and as noted above, because of the confusion surrounding the new Rule, some noncitizens already have been, and will continue to be, chilled from accepting federal, state, and local benefits that are not covered by the Rule.
144. For example, some noncitizens might worry that even receiving care at the City’s health clinics will adversely affect them in a public-charge determination—and therefore go without any health care at all. When city residents go without health care, Baltimore is sicker and less productive as a city. City residents with communicable diseases will go untreated, children will go unvaccinated, and health problems will become more severe in the absence of
65 Balt. City Dep’t of Housing & Cmty. Dev., Summer Food Service, https://perma.cc/GCG2KK9Q. 66 Md. Food Bank, School Pantry, https://perma.cc/35SS-YQBN (last visited Dec. 30, 2019).
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treatment, imposing further costs down the line. 145. When individuals fail to obtain important immunizations or do not obtain
treatment in the early stages of infectious diseases, the risk of outbreaks increases. The Baltimore City Health Department is responsible for controlling outbreaks of infectious diseases in Baltimore, so an increase in outbreaks will impose greater costs on the City. For example, in response to recent disease outbreaks, the Baltimore City Health Department operated massvaccination clinics, quarantined ill patients, and identified and assessed those who came into contact with those who are infected. The City expended over 2000 hours of staff time in response to a recent outbreak of measles.
146. Additionally, like CASA, Baltimore City has been and will continue to be required to devote time and money to familiarizing officials and employees with the Public Charge Rule, training staff, and promulgating guidance. The 2018 Proposed Rule recognized these costs, noting that local governments “may need to update and rewrite guidance documents or would need to update forms used,” and that “it will also be necessary to prepare training materials and retrain staff”—all of which “will require staff time and have associated costs.” 83 Fed. Reg. at 51,270.
147. Moreover, the City will expend increased time and resources in engaging in outreach to immigrant communities, encouraging immigrant communities to accept public benefits and services, and advising noncitizens about the potential consequences of taking benefits. Reaching out to affected communities is, and has always been, a priority for the City. For example, the Baltimore Mayor’s Office of Immigrant Affairs has devoted staff resources to providing materials to inform immigrant communities about the Rule and about what resources may be available to those affected by it.
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148. Baltimore City may assert the constitutional claims of its immigrant residents, their families, and their sponsors. The City has a close relationship with those who utilize Baltimore’s public services. Because Baltimore City is better off when all of its residents can access the public benefits to which they are entitled, regardless of immigration status, the City will serve as an especially effective advocate for its residents’ constitutional claims.
CLAIMS FOR RELIEF Count One
Administrative Procedure Act, 5 U.S.C. § 706 – Not in Accordance with Law and Beyond Statutory Authority
149. Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint.
150. The Public Charge Rule is a “final agency action for which there is no other adequate remedy in court” and is “subject to judicial review.” 5 U.S.C. § 704; see also id. § 702.
151. Under the Administrative Procedure Act (APA), a “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . not in accordance with law . . . [and] in excess of statutory . . . authority.” Id. § 706(2)(A), (C).
152. As detailed above, the Public Charge Rule’s interpretation of the term “public charge” is contrary to the plain meaning of the term as used in the INA. Moreover, because the meaning of the term is clear based on the INA’s text and structure and the history of the publiccharge inadmissibility ground, DHS has no statutory authority to give the term a conflicting interpretive gloss. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 & n.9 (1984).
153. The Public Charge Rule also treats SNAP benefits as income or a resource for purposes of public-charge determinations in violation of 7 U.S.C. § 2017(b).
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154. The Public Charge Rule must be set aside as not in accordance with law and in excess of statutory authority.
Count Two Administrative Procedure Act, 5 U.S.C. § 706 – Arbitrary and Capricious 155. Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint. 156. Under the APA, a “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary[ and] capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 157. An agency rule is “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 158. An agency acts arbitrarily and capriciously when it fails to “provide [a] reasoned explanation” for a change in its position. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). 159. The Final Rule is arbitrary and capricious because it departs from over a century of prior practice without adequate explanation for this change in policy. 160. In promulgating the Final Rule, DHS ignored or failed to adequately consider important aspects of the problem before it:
a. DHS failed to meaningfully consider the full range of harms and costs imposed by the Rule on noncitizens, their families, and the communities in
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which they live; b. DHS failed to meaningfully consider the disparate impact that the Public
Charge Rule will have on noncitizens who are nonwhite and from nonEuropean countries; c. DHS failed to meaningfully consider that the test it has imposed is so vague as to invite arbitrary and discriminatory enforcement. 161. The proposed threshold for deeming a noncitizen “likely at any time to become a public charge” is so de minimis and difficult to apply that it is irrational. The Public Charge Rule’s purported rationales for these changes are arbitrary, not supported by the evidence in the record, and a pretext to conceal the true motivation for the policy change. DHS’s failure to rely on the expert agencies charged with administering public benefits—and its reliance instead on its own unsubstantiated “beliefs” about noncitizens’ “self-sufficiency”—establish the arbitrary and capricious nature of the Public Charge Rule. 162. The Public Charge Rule therefore must be set aside as arbitrary and capricious.
Count Three Due Process Clause of the Fifth Amendment to the U.S. Constitution 163. Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint. 164. The Due Process Clause prohibits laws or regulations that are so vague that they (1) fail to give persons of ordinary intelligence fair notice of how to accord their conduct to avoid adverse legal consequences or (2) permit arbitrary enforcement. Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). 165. Only by maintaining eligibility for adjustment to LPR status can a noncitizen avoid the grave consequences of deportation. See 8 U.S.C. § 1227(a)(1)(A) (authorizing
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deportation of noncitizens found inadmissible at the time of adjustment of status), (B), (C)(i) (authorizing deportation of noncitizens who are “present in the United States in violation of” the INA or who have “failed to maintain the[ir] nonimmigrant status”). The Public Charge Rule is therefore inextricably linked to noncitizens’ ability to avoid deportation and is thus subject to “the most exacting vagueness standard.” See Dimaya, 138 S. Ct. at 1213.
166. The Public Charge Rule’s vague factors and unclear weighting scheme provide insufficient guidance for USCIS officials to make non-arbitrary determinations about whether applicants for adjustment of status are likely to receive one or more of the government benefits enumerated by the Public Charge Rule for a brief period of time at some point in their lives. This is particularly true for noncitizens who have the ability and inclination to earn an income. Accordingly, Baltimore City’s noncitizen residents and CASA’s members, including the individual Plaintiffs, and other noncitizens like them will struggle to know how to accord their conduct to avoid adverse immigration consequences, and immigration officials are almost certain to enforce the Rule in an arbitrary and discriminatory manner.
167. The Public Charge Rule is therefore void for vagueness under the Fifth Amendment’s Due Process Clause.
Count Four Equal Protection Component of the Fifth Amendment to the U.S. Constitution 168. Plaintiffs repeat and incorporate by reference each of the allegations set forth in each of the preceding paragraphs of this Complaint. 169. The Equal Protection Clause as incorporated by the Fifth Amendment prohibits the federal government from taking action for which discriminatory intent or purpose is a motivating factor. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977); N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir.
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2016). 170. Defendants’ promulgation of the Public Charge Rule was motivated at least in
part by the Trump Administration’s intent to discriminate on the basis of race, ethnicity, and national origin.
171. This discriminatory intent is evidenced by, among other things: a. the disparate impact that the Public Charge Rule will have on noncitizens
who are nonwhite and from non-European countries; b. President Trump’s statements reflecting animus toward non-European
immigrants and stereotyped views about such immigrants’ socioeconomic status and health; and
c. Defendants’ departure, without reasoned explanation, from ordinary rulemaking procedures and from how the public-charge inadmissibility ground has been interpreted for over a century. 172. The Public Charge Rule therefore violates the Fifth Amendment’s guarantee of equal protection.
RELIEF REQUESTED Wherefore, Plaintiff respectfully requests that this Court:
1. Declare unlawful and set aside the Public Charge Rule; 2. Enjoin Defendants and all those acting on their behalf from enforcing the Public Charge Rule; 3. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees, pursuant to 28 U.S.C. § 2412; 4. Award such additional relief as the interests of justice may require.
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Dated: January 3, 2020

Respectfully submitted,
/s/ Jonathan L. Backer Jonathan L. Backer (D. Md. 20000) Amy L. Marshak* Joshua A. Geltzer* Mary B. McCord* INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Ave., N.W. Washington, D.C. 20001 (202) 662-9835 jb2845@georgetown.edu
Attorneys for Plaintiffs
*Admitted pro hac vice
/s/ Andre M. Davis Andre M Davis #00362
Baltimore City Solicitor Suzanne Sangree #26130
Senior Public Safety Counsel and Director of Affirmative Litigation Jane Lewis #20981 Assistant Solicitor BALTIMORE CITY DEPARTMENT OF LAW City Hall, Room 109 100 N. Holliday Street Baltimore, MD 21202 (443) 388-2190 andre.davis@batimorecity.gov suzanne.sangree2@ batimorecity.gov jane.lewis@ batimorecity.gov
Attorneys for Mayor and City Council of Baltimore

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 Case 8:19-cv-02715-PWG Document 79 Filed 11/14/19 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

CHAMBERS OF PAUL W. GRIMM UNITED STATES DISTRICT JUDGE

November 14, 2019

6500 CHERRYWOOD LANE GREENBELT, MARYLAND 20770
(301) 344-0670 (301) 344-3910 FAX

RE: Casa de Maryland, Inc. et al. v. Trump et al. PWG-19-2715

LETTER ORDER

Dear Counsel:
Pending before me is the Government’s Motion for Stay of Preliminary Injunction Pending Appeal, ECF No. 69 (“Def. Mtn.”). For the reasons discussed below, this motion is DENIED.
Procedural History
This case arises out of Plaintiffs’ challenge to the Department of Homeland Security’s (“DHS”) newly adopted immigration rule regarding “public charge” admissibility determinations (the “Public Charge Rule” or the “Rule.”) On September 19, 2019, Plaintiffs filed a corrected motion for a preliminary injunction or to postpone the effective date of the Rule under 5 U.S.C. § 705. ECF No. 28. The Rule was scheduled to go into effect October 15, 2019. The motion was fully briefed, and a hearing was held on October 10, 2019.1
On October 14, 2019, I issued a Memorandum Opinion and Order granting Plaintiffs’ motion, issuing a preliminary injunction and postponing the effective date of the Rule during the pendency of this case. ECF Nos. 65 (Mem Op. and Order, “Op.”), 68 (revised Order, Oct. 18, 2019). I found that the Plaintiff CASA de Maryland, Inc. (“CASA”) had satisfied the justiciability requirements to bring its case and each of the factors for a preliminary injunction provided in Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). As to justiciability, I found that CASA had organizational standing, the case was ripe, and that CASA was within the zone of interest of Section 212(a)(4) of the Immigration and Naturalization Act (“INA”). Op. at 8–21. For the preliminary injunction Winter factors, I found that CASA had established a likelihood of success on the merits that the Public Charge Rule was “not in accordance with law” in violation of the Administrative Procedure Act, 5 U.S.C. § 706, CASA was likely to suffer irreparable harm in the absence of preliminary relief, and the balance of equities and the public interest favored a preliminary injunction. Id. at 22–34.
Accordingly, I issued a preliminary injunction and postponed the effective date of the Rule during the pendency of this case. Id. at 39–40; ECF No. 68. The preliminary injunction and postponement of the Rule applied on a nationwide basis to remedy the harms to CASA, to preserve uniformity in the immigration laws, and because the Rule is likely defective under the APA. Op.

1 See ECF Nos. 28, 52, 59, 60, 61, 63. Multiple amici also filed briefs. See ECF Nos. 36-1, 39-1, 43-1, 56-1.

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at 34–37. Considering U.S. Supreme Court and Fourth Circuit precedent, the preliminary injunction was not extended to the President himself. Id. at 38.
On October 25, 2019, the Government filed a motion to stay the preliminary injunction pending appeal. ECF No. 69. The Government argues that a stay is warranted because it is likely to succeed on the merits of its appeal and because the government and the public will be irreparably harmed if the injunction is not stayed. The Government argues that it is likely to succeed on appeal because CASA does not have standing, is not within the zone of interest of Section 212(a)(4) of the INA, and that the Rule does not contravene the APA.
Alternatively, the Government argues that the Court should at least stay the injunction in part, limiting it to the named individual plaintiffs, Angel Aguiluz and Monica Camacho Perez, any alien residing in the State of Maryland, and any CASA member served by the USCIS VirginiaWashington Field Office or the USCIS Pennsylvania-Philadelphia Field Office if CASA submits a list of all of its members, including the name, city, state of residence, and A-number within 7 days of the Court’s order and if any members on the list identify themselves as a CASA member in a relevant application to DHS. See id. at 2; ECF No. 61 (proposed preliminary injunction).
Plaintiffs filed a brief in opposition. ECF No. 77. The Government waived its right to reply, submitted that a hearing is not necessary, and requested that the Court rule on its motion by November 14, 2019. ECF No. 78.
Discussion
Granting a stay “is not a matter of right,” but is “an exercise of judicial discretion.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginia Ry. Co., 272 U.S. 658, 672 (1926)). As the moving party, the Government “bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433–34. In making its determination, the Court considers four 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 injure the other parties interested in the proceeding; and (4) where the public interest lies.
Id. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The Government’s request fails at each factor.2
To begin, the Government has not made a “strong showing” that it is likely to succeed on appeal. To the contrary, the arguments that it makes in support of its motion are precisely those that I rejected when I found that CASA is likely to succeed on the merits of its claim that the Rule
2 Some district courts in the Fourth Circuit have held that a party seeking a stay must satisfy each of the factors listed above, while others permit a sliding scale in which a stronger showing for some factors can make up for a weaker showing for others. Still other district courts have applied the standards for preliminary injunctions provided in Winter, 555 U.S. at 24 and The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346 (4th Cir. 2009) (“[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”). See Rose v. Logan, No. RDB-13-3592, 2014 WL 3616380, at *1–2 (D. Md. July 21, 2014) (collecting cases). Under any of these approaches, the Government fails to carry its burden.
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violates the APA. The Government has presented no new arguments or authority to suggest a different result. Therefore, for the reasons described in my Memorandum Opinion and Order, the Government has not made a “strong showing” that it will likely succeed on appeal. See Op. at 8– 34.
The Government also fails to establish that it will be irreparably injured absent a stay. The Government argues that it will be irreparably harmed because the preliminary injunction will result in DHS granting lawful permanent resident status to aliens that would be denied such status under the Public Charge Rule, and this set of immigrants would then obtain public benefits at some point in the future. Def. Mtn. at 7. But the preliminary injunction simply preserves the way that public charge determinations have been made since at least 1999 when the DOJ issued its Field Guidance and for arguably more than a century. See Op. at 34. Requiring the Government to maintain its existing public charge admissibility regime, instead of switching to one that is likely “not in accordance with law,” does not constitute irreparable harm.
The Government also says that it is harmed by the administrative burdens of having to restart the implementation of its Rule if the preliminary injunction is vacated. Def. Mtn. at 7. While there may be some costs associated with these changes, preserving the status quo of public charge determinations during the pendency of this case and implementing the Rule later if it is ultimately determined to be lawful does not amount to irreparable harm. Moreover, since this Court and four others3 held that the Rule likely is unlawful, preserving the status quo likely saves costs to the Government compared to potentially implementing then undoing the Rule later.
The Government cites Maryland v. King, a non-precedential stay opinion by Chief Justice Roberts, for the proposition that when the federal government “is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” 567 U.S. 1301 (2012) (Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977). But the preliminary injunction does not stop enforcement of Section 212(a)(4) of the INA governing public charge admissibility. It simply requires that the Government continue to do so in the way it has done for at least two decades. In contrast, it is the new Public Charge Rule that likely is without Congressional authority. See Op. at 22–34.
As to the third factor, the Government argues that staying the preliminary injunction will not harm CASA. I previously found that in the absence of a preliminary injunction, CASA would be irreparably harmed. See Op. at 33–34. This harm includes the diversion of its resources away from other time-sensitive political advocacy. Id. The Government offers no new arguments or authority here that lead to a different result.
Finally, the Government offers no arguments specifically addressing why a stay would be in the public interest. I previously found that a preliminary injunction, preserving the current standards for public charge determinations, was in the public interest. Op. at 34. Even assuming that the public interest factor merges with the Government’s arguments as to why it is irreparably
3 See Make the Rd. New York v. Cuccinelli, No. 19-CV-7993-GBD, 2019 WL 5484638 (S.D.N.Y. Oct. 11, 2019); Washington v. United States Dep’t of Homeland Sec., No. 19-CV-5210-RMP, 2019 WL 5100717 (E.D. Wash. Oct. 11, 2019); City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., No. 19-CV-04717-PJH, 2019 WL 5100718 (N.D. Cal. Oct. 11, 2019); Cook Cty., Illinois v. McAleenan, No. 19-CV-6334-GF, 2019 WL 5110267 (N.D. Ill. Oct. 14, 2019).
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harmed, for the same reasons as discussed above the Government has not established that a stay is in the public interest.
The Government argues in the alternative that the Court should stay portions of its preliminary injunction so that it is consistent with the Government’s proposed preliminary injunction described above. But the Government has failed to establish that a stay is warranted at all. Moreover, the Government presents no new arguments or authority for limiting the scope of the preliminary injunction, nor does it even address all the reasons this Court issued a nationwide injunction. Therefore, this request is denied.
In sum, the Government has failed to carry its burden to show that a stay of the preliminary injunction pending appeal is warranted. The Government’s Motion for Stay of Injunction Pending Appeal, ECF No. 69, is DENIED.
Although informal, this is an Order of the Court and shall be docketed as such. Sincerely, /S/ Paul W. Grimm United States District Judge
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 Case 8:19-cv-02715-PWG Document 65 Filed 10/14/19 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

CASA DE MARYLAND, INC., et al., Plaintiffs,
v. DONALD J. TRUMP, et al.,
Defendants. * * * * * *

* * * * * * *

Case No.: PWG-19-2715 * * * * *

MEMORANDUM OPINION AND ORDER

This case arises out of a challenge to the Department of Homeland Security’s (“DHS”)

newly adopted immigration rule regarding “public charge” admissibility determinations,

scheduled to take effect on October 15, 2019. Section 212(a)(4) of the Immigration and

Naturalization Act (“INA”) (codified at 8 U.S.C. § 1182(a)(4)(A)) authorizes the U.S. Customs

and Immigration Services (“USCIS”) to deny admission to the United States of anyone likely to

be a “public charge.” Congress first introduced this provision in the Immigration Act of 1882.

DHS’s new rule defines “public charge” as someone who immigration officials determine will

likely receive 12 months of public benefits, including non-cash benefits, in a 36-month span at any

point in their life. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019)

(to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245, 248 (the “Public Charge Rule” or “Rule”).

Plaintiffs Angel Aguiluz, Monica Camacho Perez (collectively, the “Individual Plaintiffs”), and CASA de Maryland, Inc. (“CASA”) bring this action against Defendants Donald J. Trump, in his official capacity as President of the United States, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, the U.S. Department of Homeland

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Security, and Kenneth T. Cuccinelli II, in his official capacity as Acting Director, U.S. Citizenship
and Immigration Services. ECF No. 27. Plaintiffs argue that the Public Charge Rule violates the
Administrative Procedures Act (“APA”) and the Fifth Amendment to the U.S. Constitution.
Pending before me is Plaintiffs’ motion for a preliminary injunction and to postpone the effective
date of the Rule. ECF No. 28. The issues have been fully briefed and a hearing was held on the motion.1 For the reasons discussed below, Plaintiffs’ motion is granted. DHS is enjoined from
enforcing the Public Charge Rule and the effective date of the Rule is postponed on a nationwide basis during the pendency of this case.2
Background
The public charge admissibility provision first appeared in the Immigration Act of 1882.
That Act denied admission to the United States of “any convict, lunatic, idiot, or any other person
unable to take care of himself or herself without becoming a public charge.” Act of Aug. 3, 1882,
ch. 376, § 2, 22 Stat. 214, 214 (“1882 Act”). Between 1882 and the INA’s enactment in 1952, the public charge admissibility ground continued to appear in U.S. Immigration statutes.3
1 See ECF Nos. 28, 52, 59, 60, 61. A hearing was held on October 10, 2019. Multiple amici also filed briefs. See ECF Nos. 36-1, 39-1, 43-1, 56-1. 2 At the time of filing, three other federal district courts also have enjoined the Public Charge Rule. See Make the Road New York v. Cuccinelli, 19-cv-7993-GBD, 19-cv-7777-GBD (consolidated) (S.D.N.Y. Oct. 11, 2019) (nationwide injunction); State of Washington v. U.S. Dept. Homeland Security, 19-cv-5210-RMP (E.D. Wa., Oct. 11, 2019) (same); City and County of San Francisco v. U.S. Citizenship and Immigration Services, 19-cv-04717-PJH, 19-cv-4980-PJH, 19-cv-4975PJH (consolidated) (N.D. Cal., Oct 11, 2019) (injunction as to San Francisco City or County, Santa Clara County, California, Oregon, the District of Columbia, Maine, and Pennsylvania). At least two other cases challenging the Public Charge Rule are pending. See Mayor and City Council of Baltimore v. United States Department of Homeland Security, 19-cv-4717-PJM (D. Md.); Cook County, Illinois v. McAleenan, 19-cv-6335-GF (N.D. Ill.). 3 See Act of Mar. 8, 1891, ch. 551, § 1, 26 Stat. 1084, 1084 (denying admission to “[a]ll idiots, insane persons, paupers or persons likely to become a public charge”); Act of Feb. 20, 1907, ch. 1134, § 13, 34 Stat. 898, 902 (charging shipmasters with verifying under oath that each noncitizen passenger was not “an idiot, or imbecile, or a feeble-minded person, or insane person, or a pauper,
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During this time, the meaning of the term “public charge” was the subject of interpretation by federal courts, as well as Board of Immigration Appeals and Attorney General opinions. See discussion of cases in Part III, infra. For example, in a 1964 immigration opinion, Attorney General Robert F. Kennedy summarized the history of cases interpreting the public charge admissibility provision, concluding that “[t]he general tenor of the holdings is that the statute requires more than a showing of a possibility that the alien will require public support” and that “[a] healthy person in the prime of life cannot ordinarily be considered likely to become a public charge.” Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 421–22 (AG 1964). Rather, to be a public charge, “[s]ome specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present.” Id.
In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, Title IV, 110 Stat. 2260 (codified as amended at 8 U.S.C. § 1601 et seq.) (the “Welfare Reform Act.”). The bill significantly limited the public benefits that non-Legal Permanent Residents and undocumented immigrants could receive. See 8 U.S.C. §§ 1611, 1621(a), (d), 1641(b). The Welfare Reform Act also included several policy statements, including, “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes”; “[T]he immigration policy of the United States [is] that aliens within the Nation’s borders not depend on public resources to meet their needs”; and “[T]he
or . . . likely to become a public charge”); Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 875–76 (denying admission to “[a]ll idiots, imbeciles, feeble-minded persons, epileptics, insane persons; . . . paupers; professional beggars; vagrants; persons not comprehended within any of the foregoing excluded classes who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living; [and] . . . persons likely to become a public charge”).
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availability of public benefits [is] not [to] constitute an incentive for immigration to the United States.” 8 U.S.C. § 1601(1)-(2).
Later that year, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674–75 (1996) (“IIRIRA”). IIRIRA amended the public charge provision of the INA by codifying five factors that were relevant to public charge determinations: (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). IIRIRA also authorized immigration officials to consider affidavits from sponsors that pledged financial support to the noncitizen if admitted. Id. § 1182(a)(4)(B)(ii).
In 1999, the Immigration and Naturalization Service (“INS”), predecessor to USCIS, issued a notice of proposed rulemaking and field guidance defining the term public charge. 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 purpose of the 1999 Rulemaking and Field Guidance was to alleviate “considerable public confusion about whether the receipt of Federal, State, or local public benefits for which an alien may be eligible renders him or her a ‘public charge’ under the immigration statutes governing admissibility, adjustment of status, and deportation” following the passage of the Welfare Reform Act and IIRIRA. 1999 Proposed Rule, 64 Fed. Reg. at 28676. The 1999 Proposed Rule and Field Guidance defined the term “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
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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. INS adopted this definition “based on the plain meaning of the word ‘charge,’ the historical context of public dependency when the public charge immigration provisions were first enacted more than a century ago, and the expertise of the benefitgranting agencies that deal with subsistence issues.” 1999 Proposed Rule, 64 Fed. Reg. at 28,677. INS also explained that the “primary dependent” definition was “consistent with factual situations presented in the public charge case law.” Id. Although the 1999 Proposed Rule was never finalized, the 1999 Field Guidance has governed public charge admissibility determinations since that time.
In 2018, DHS initiated a proposed rulemaking to redefine the public charge admissibility standards. Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (“2018 Proposed Rule”). The 2018 Proposed Rule rescinded the 1999 Proposed Rule and Field Guidance and sought to redefine the term “public charge.” In a 60-day span, DHS received 266,077 comments, “the vast majority of which opposed the rule.” 84 Fed. Reg. at 41,297.
On August 14, 2019, DHS issued the final version of the Public Charge Rule. 84 Fed. Reg. 41,292. The Rule defines public charge as any noncitizen who is “more likely than not at any time in the future” to “receive[ ] one or more public benefits . . . for more than 12 months in the aggregate within any 36-month period.” 84 Fed. Reg. at 41,501. The Rule significantly expands the public benefits that are included in this determination, including non-cash benefits such as the Supplemental Nutrition Assistance Program (“SNAP”), Medicaid, and housing assistance programs. Id. Multiple benefits received in one month count as receiving multiple months of benefits. Id. at 41,401. This determination is made based on a totality of the circumstances, and requires a USCIS officer to consider a list of factors that are “heavily weighted negative,”
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“negative,” “positive,” and “heavily weighted positive.” Id. at 41,397. As the basis for its change in position, DHS relies heavily on the policy statements included in the Welfare Reform Act. See, e.g., id. at 41355–56 (“[A]lthough the INA does not mention self-sufficiency in the context of section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), DHS believes that there is a strong connection between the self-sufficiency policy statements elsewhere in Title 8 of the United States Code (even if not codified in the INA itself) at 8 U.S.C. 1601 and the public charge inadmissibility language in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), which were enacted within a month of each other.”); id. at 41,366 (“[T]he inclusion of the designated benefits into the public benefits definition, is consistent with congressional statements in 8 U.S.C. 1601 concerning selfsufficiency of foreign nationals.”) The Rule is scheduled to take effect October 15, 2019.
Plaintiffs brought this challenge arguing that the Rule violates the APA because it is “not in accordance with the law . . . [and] in excess of statutory . . . authority” and is “arbitrary and capricious.” 5 U.S.C. 706(2)(A); 5 U.S.C. 706(2)(C). ECF No. 27 at 56–57. Plaintiffs also argue that the Rule violates the Due Process Clause and Equal Protection component of the Fifth Amendment to the U.S. Constitution. Id. at 58–60. At issue here is Plaintiffs’ motion for a preliminary injunction or to postpone the effective date of the Rule during the pendency of this case. ECF No. 28.
Discussion
The purpose of a preliminary injunction is “to maintain the status quo and prevent irreparable harm while a lawsuit remains pending.” Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). To obtain a preliminary injunction, the plaintiff must “establish that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest.”
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Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). The plaintiff must satisfy each requirement as articulated. Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 347 (4th Cir. 2009), vacated and remanded on other grounds, 559 U.S. 1089 (2010). Where the government is a party, the final two factors merge. See Kravitz v. U.S. Dep’t of Commerce, 366 F. Supp. 3d 681, 755 (D. Md. 2019) (quoting Pursuing Am. Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). As a preliminary injunction is “an extraordinary remedy,” it “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
Section 705 of the APA authorizes a court to stay the effective date of an administrative rule pending judicial review to prevent irreparable harm. 5 U.S.C. § 705 (“On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court . . . may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.”) Courts apply the same factors regarding a motion for a preliminary injunction discussed above to an application for a Section 705 stay. See Texas v. EPA, 829 F.3d 405, 424, 435 (5th Cir. 2016); Humane Soc’y of United States v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009); Schwartz v. Covington, 341 F.2d 537, 538 (9th Cir. 1965); Assoc. Sec. Corp. v. SEC, 283 F.2d 773, 774–75 (10th Cir. 1960); Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam); Cronin v. U.S. Dep’t of Agric., 919 F.2d 439, 446 (7th Cir. 1990) (“The standard is the same whether a preliminary injunction against agency action . . . or a stay of that action is being sought . . .”).
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I. Justiciability
This Court may adjudicate only “cases” and “controversies.” U.S. Const. art. III, § 2. This “constraint of Article III” has two distinct but overlapping facets that must be satisfied for a federal district court to have subject matter jurisdiction: standing (which addresses who may sue) and ripeness (which addresses the timing of when a party may bring a suit). See South Carolina v. United States, 912 F.3d 720, 730 (4th Cir. 2019) (quoting Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 269 (4th Cir. 2013)). The analysis of both issues is similar. See id. (citing Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (citing Erwin Chemerinsky, Federal Jurisdiction § 2.4 (4th ed. 2003))).
A. Standing
Defendants argue that CASA and the Individual Plaintiffs do not have standing, and therefore this Court lacks subject matter jurisdiction. ECF No. 52 at 7–9. Each of the elements of standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Overbey v. Mayor of Baltimore, 930 F.3d 215, 227 (4th Cir. 2019) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). “Thus, when a defendant challenges a plaintiff’s standing, we analyze the challenge differently depending on the stage of litigation at which the challenge is brought and the substance of the defendant’s arguments.” Id. When, as here, “‘standing is challenged on the pleadings, [the court will] accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party.’” Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018) (quoting S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 181–82 (4th Cir. 2013)). Therefore, to analyze standing, the plaintiffs’ allegations in their complaint will be accepted as true.
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To establish standing, a plaintiff must have “suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical,” “fairly traceable to the challenged action of the defendant,” and “likely . . . [to] be redressed by a favorable decision.” Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009)); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (same).
An organization can establish standing in either or both of two ways: representational standing for harms to its members and organizational standing for harms that it suffers. To establish representational standing, an organization must establish that: “(1) its own members would have standing to sue in their own right; (2) the interests the organization seeks to protect are germane to the organization’s purpose; and (3) neither the claim nor the relief sought requires the participation of individual members in the lawsuit.” S. Walk, 713 F.3d at 184. “[T]o show that its members would have standing, an organization must make specific allegations establishing that at least one identified member had suffered or would suffer harm.” Id.
To establish organizational standing, an organization must establish that it “suffer[ed] an injury in fact when a defendant’s actions impede its efforts to carry out its mission.” Lane v. Holder, 703 F.3d 668, 675 (4th Cir. 2012) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)); see also Valle de Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (“An organization has ‘direct standing to sue [when] it show[s] a drain on its resources from both a diversion of its resources and frustration of its mission.’”) (quoting Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir.2012)); National Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D. C. Cir. 1995) (“[T]he organization must allege that discrete programmatic concerns are being directly and adversely affected by the challenged action”) (quoting American Legal Foundation v. FCC, 808 F.2d 84, 91
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(D.C.Cir.1987)). “[A]n injury to organizational purpose, without more, does not provide a basis for standing.” S. Walk, 713 F.3d at 183. And a diversion of resources does not constitute a harm if “it results not from any actions taken by [the defendant], but rather from the [organization’s] own budgetary choices.” Lane, 703 F.3d at 675 (quoting Fair Emp’t Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C.Cir.1994)) (internal quotation marks omitted).
CASA alleges that it has suffered an injury in fact because the Public Charge Rule frustrates its mission and diverts its resources. CASA’s mission is “to create a more just society by building power and improving the quality of life in low-income immigrant communities.” ECF No. 27 at ¶ 14. CASA offers social, health, job training, employment, and legal services to immigrant communities in Maryland, Washington, D.C., Virginia, and Pennsylvania. Id. CASA alleges that its mission has been frustrated, as it “has had to shift its organizational focus from an affirmative posture—seeking to improve conditions for immigrant families (for example, by lobbying state legislatures to enact laws expanding medical benefits available to immigrants)—to a defensive one—seeking to mitigate the harm of the Public Charge Rule on the communities it serves.” Id. at ¶ 123. Likewise, CASA alleges that it “has incurred significant costs in advising its members” on the Public Charge Rule and “will continue to incur such costs” while the Public Charge Rule is in effect. ECF No. 27 at ¶ 121. For example, CASA states that is has “devoted significant resources to educating its members about the Rule and its expected impacts on immigrant families.” Id. at ¶ 15. “This diversion of resources has come at the expense of other time-sensitive work; for example, reducing advocacy for health-care expansion efforts at the state level in Maryland and at the local level in Prince George’s County, Maryland. Id. at ¶ 123. CASA is also
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“redirect[ing] its resources to ensure that its members who are chilled from participating in public benefits programs have access to the supportive services they need to thrive.” Id. at ¶ 124.
In Havens Realty Corp. v. Coleman, the Supreme Court affirmed the Fourth Circuit’s finding that an organizational plaintiff, HOME, had standing where the organization’s mission had been frustrated by the defendants’ racial steering practices. 455 U.S. 363, 366, 370 (1982). HOME’s mission was “to make equal opportunity in housing a reality in the Richmond Metropolitan Area” and its membership was “multi-racial and include[d] approximately 600 individuals.” Id. at 368. HOME’s activities “included the operation of a housing counseling service, and the investigation and referral of complaints concerning housing discrimination.” Id. HOME alleged that it was “frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services” and that it “had to devote significant resources to identify and counteract the defendant's [sic] racially discriminatory steering practices.” Id. at 379. Based on these allegations, the Supreme Court found that “there can be no question that the organization has suffered injury in fact” and that “[s]uch concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests . . . .” Id.
The injury in Havens Realty is similar to CASA’s injury here. Both organizations were focused on improving opportunities for marginalized communities; both conducted a variety of activities to further that mission including counseling members; and both alleged that they had to spend significant resources to counteract the effect of the defendants’ actions, which they viewed as inimical to their organizations’ missions.
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Several recent decisions from this Court also support CASA’s standing. In Casa De Md. v. U.S. Dep’t of Homeland Sec., this Court found that the very same organizational plaintiff— CASA—had standing to challenge the proposed rescission of the Deferred Action for Childhood Arrivals (“DACA”) program on the grounds that it violated the APA and the Fifth Amendment. 284 F. Supp. 3d 758, 771 (D. Md. 2018) aff’d in part, vacated in part on other grounds, rev’d in part on other grounds, 924 F.3d 684 (4th Cir. 2019).4 In finding that CASA had organizational standing, the court noted, “Casa De Maryland . . . [is] . . . directly focused on aiding immigrants and their communities. The fact that one of their primary functions has been assisting their members with ‘tens of thousands of DACA initial and renewal applications’ is sufficient for standing in and of itself.” Id. The same is true here. CASA has advised over one thousand of its members on the impacts of the Public Charge Rule, which adopts a sweeping expansion of the definition of the term public charge and uproots over two decades of agency policy. The immediacy of the Rule’s scheduled effective date has forced CASA to “redirect its resources to ensure that its members who are chilled from participating in public benefits programs have access to the supportive services they need to thrive.” ECF No. 27 at ¶¶ 122, 124.
Similarly, in Baltimore v. Trump, this Court found that Baltimore had standing to challenge the State Department’s changes to the Foreign Affairs Manual (“FAM”) relating to the public charge inadmissibility ground5 because the City was “compelled to reallocate its finite resources in response to the FAM for the purpose of combatting the injurious effects that the FAM will have
4 Plaintiffs’ standing was not raised on appeal. Reviewing the issue de novo, the Fourth Circuit found that the individual plaintiffs in that case had standing, so did not consider whether the organizational plaintiffs also had standing. Casa De Maryland v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 701 n.14 (4th Cir. 2019). 5 The State Department is responsible for public charge inadmissibility determinations at consular offices.
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on its residents, and the public programs it administers” at the expense of other public programs. 18-cv-3636-ELH, 2019 WL 4598011, at *18 (D. Md. Sept. 20, 2019). The same principle applies here. CASA has reallocated its finite resources including 15 part-time health promoters and 15 to 20 community organizers to address the effects of the Public Charge Rule at the expense of other time-sensitive activities, including lobbying efforts at the state and local level in Maryland. See ECF No. 27 at ¶¶ 122–24.
The Government argues that CASA has voluntarily diverted its resources, and this does not constitute an injury because it was the result of CASA’s “own budgetary choices.” ECF No. 52 at 8–9 (quoting Lane, 703 F.3d at 674). Further, the Government argues that there was no genuine diversion because CASA is in the business of educating immigrant communities about relevant immigration laws and providing legal education services, and the funds spent were in line with CASA’s core mission. Id. at 9. But this argument is too clever by half, as it ignores the fact that the only reason for CASA’s reallocation of its resources is that DHS has adopted a definition of the public charge rule that is dramatically more threatening to its members, and, in response, CASA has had to divert resources that otherwise would have been expended to improve the lives of its members in ways unrelated to the issues raised by the public charge inquiry. Thus, the circumstances in this case differ from those in cases where there was no standing because the organization elected to allocate its resources in furtherance of its core mission. In Lane, two individual plaintiffs and an organization challenged federal and state laws that restricted the interstate transfer of handguns. 703 F.3d at 669. The organization alleged that it had suffered an injury in fact because its resources were “taxed by inquiries into the operation and consequences of interstate handgun transfer provisions.” Id. at 675. The Fourth Circuit found that this “mere expense” did not constitute an injury in fact because it was a budgetary choice. Id. But unlike the
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organization in Lane, CASA alleges that the diversion of its resources frustrated its mission by preventing it from continuing an affirmative advocacy posture, including, for example, advocating on public health issues at the state and local level in Maryland. See ECF No. 27 at ¶¶ 122–24. Thus, CASA’s allegations are more like those in Havens Realty, Casa De Md. v. U.S. Dep’t of Homeland Sec., and Baltimore v. Trump.
Therefore, based on CASA’s allegations in its complaint, taken as true for the purposes of this motion, CASA has established injury in fact. The injuries are also fairly traceable to the Defendant’s actions in enacting the Public Charge Rule. But for the Rule, CASA’s mission would not have been frustrated and its resources would not have been diverted as alleged. The alleged injury also can be redressed by Plaintiffs’ proposed relief of setting aside the Rule as unlawful and enjoining DHS from enforcing the Rule. Therefore, CASA has established organizational standing.
Because this Court finds that CASA has organizational standing, it need not consider whether it also has representational standing or whether the Individual Plaintiffs have standing. See Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (“‘[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.’”) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)). Those issues will be addressed when the Court rules on any motion to dismiss that the Defendants may file.
B. Ripeness “To determine whether the case is ripe, we ‘balance the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration.’” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (quoting Franks v. Ross, 313 F.3d 184, 194 (4th Cir. 2002);
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Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998)) (internal quotation marks omitted). “A case is fit for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.” Id. (citing Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992)). “The hardship prong is measured by the immediacy of the threat and the burden imposed on the [plaintiffs] who would be compelled to act under threat of enforcement of the challenged law.” Id. (citing Charter Bank, 976 F.2d at 208–09). “When considering hardship, we may consider the cost to the parties of delaying judicial review.” Id. (citing Fort Sumter Tours, Inc. v. Andrus, 564 F.2d 1119, 1124 (4th Cir. 1977)).
Here the case is fit for judicial review as it presents purely legal questions: whether the Public Charge Rule violates the APA or the Fifth Amendment. Cf. Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (“This case is fit for judicial review. The only issue in the case is whether Virginia's open primary law violates the plaintiffs’ First Amendment rights to freely associate, which presents a purely legal question.”). The Public Charge Rule is final, and is scheduled to go into effect on October 15, 2019. Therefore the case does not depend on future uncertainties.
With respect to the hardship prong, CASA is already experiencing harms through the frustration of its mission and diversion of funds at the expense of other time-sensitives activities as described above. CASA will continue to bear these costs if judicial review is delayed. Cf. Mayor and City Council of Balt. v. Trump, 18-3636-ELH, 2019 WL 4598011, at *21 (D. Md. Sept. 20, 2019) (“The primary injury alleged by the City . . . is that [it] must bear the financial costs of the defendants’ unlawful action.”).
Defendants argue that the case is not ripe for review with respect to CASA’s claims because they are “premised on the decisions of its members who are not parties to this suit” and the Rule
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“does not create adverse consequences of a strictly legal kind” for CASA. ECF No. 52 at 11–12. But defendants either misunderstand or mischaracterize CASA’s organizational harms. They do not depend on the actions of third parties or require further factual development. They are premised on the current and ongoing frustration of CASA’s mission and the diversion of its resources. These are harms stemming directly from the enactment of the Public Charge Rule.
Therefore, this case is ripe for review. II. Zone of Interest
“[A] person suing under the APA must satisfy not only Article III’s standing requirements, but an additional test: The interest he asserts must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (“Patchak”) (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970)). Importantly, this test “‘is not meant to be especially demanding.’” Id. at 225 (quoting Clarke v. Securities Industry Assn., 479 U.S. 388, 399 (1987)). The test is applied “in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’” Id. (quoting Clarke, 479 U.S. at 399. The test “do[es] not require any ‘indication of congressional purpose to benefit the would-be plaintiff.’” Id. (quoting Clark, 479 U.S. at 399– 400). A plaintiff need only establish that it is “arguably” within the zone of interest, such that “the benefit of any doubt goes to the plaintiff.” Id. “The test forecloses suit only when a plaintiff's ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” Id. (quoting Clark, 479 U.S. at 399).
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Although the zone of interest test has sometimes been called a prudential standing limitation, the Supreme Court recently clarified that this is a “misnomer” and should not be treated as such. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014) (citing Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675–676 (2013) (Silberman, J., concurring opinion). Instead, “[w]hether a plaintiff comes within the zone of interests is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Id.
The Fourth Circuit has adopted a two-part test when determining if the plaintiff falls within the zone of interest of a statutory provision. First, the reviewing court must “discern the interest arguably to be protected by the statutory provision at issue” and second, “inquire whether the plaintiff’s interest affected by the agency action are among them.” TAP Pharmaceuticals v. U.S. Dept. of Health & Human Services, 163 F.3d 199, 203 (4th Cir. 1998); see also Pye v. United States, 269 F.3d 459 (4th Cir. 2001).
Under the first prong of the Fourth’s Circuit’s test, Section 212(a)(4) of the INA states, “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” The plain language of this provision indicates that the interests to be regulated are the health and economic status of immigrants who are granted admission to the United States.
As to the second prong, CASA’s interests affected by the agency action are clearly among the interests to be regulated by the statute. CASA’s mission is “to create a more just society by building power and improving the quality of life in low-income immigrant communities” and it provides “social, health, job training, employment, and legal services to immigrant communities”
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in support of that mission. ECF No. 27 at ¶ 14. These are squarely within the bounds of Section 212(a)(4)’s interest in the health and economic status of immigrants admitted in the United States. They are not “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Patchak, 567 U.S. at 225 (internal quotation marks and citation omitted); cf. E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 768 (9th Cir. 2018) (“Although the Organizations are neither directly regulated nor benefitted by the INA, we nevertheless conclude that their interest in ‘provid[ing] the [asylum] services [they were] formed to provide’ falls within the zone of interests protected by the INA.”).
Further, the Public Charge Rule acknowledges the very role played by non-profits like CASA in providing services related to the Rule. See 84 Fed. Reg. at 41,301 (“[I]mmigration lawyers, immigration advocacy groups, health care providers of all types, non-profit organizations, [and] non-governmental organizations . . . among others, may need or want to become familiar with the provisions of this final rule . . . to provide information to those foreign-born non-citizens that might be affected by a reduction in federal and state transfer payments.”). DHS’s use of this language would be curious indeed if the interests of non-profit organizations like CASA were so marginally related to the new Rule as to fall outside the zone of interest. If they were not within the zone, why bother to address them? Therefore, the Rule itself provides further support that CASA is within Section 212(a)(4)’s statutory concern of regulating the health and economic welfare of immigrants who are granted LPR status. Cf. Patchak, 567 U.S. at 226 (“The Department’s regulations make this statutory concern . . . crystal clear.”).
Therefore, CASA has demonstrated that it is “arguably within the zone of interests” of Section 212(a)(4) of the INA.
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This case is similar to Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260 (E.D.N.Y. 2018). There the court found that an immigrants’ rights organization was within the zone of interest of the INA in a case challenging the proposed rescission of the DACA program where “DACA recipients are members, clients, and employees” of the organization, which “advocates for immigrants’ rights.” Id. at 270 n.3. Further, the court in Make the Road New York v. Cuccinelli found that the same immigrants’ rights organization was within the INA’s zone of interest in a challenge to the Public Charge Rule. 19-cv-7993-GBD, at *12 (S.D.N.Y. Oct. 11, 2019). There the court explained, “Plaintiffs plainly fall within the INA’s zone of interests. The interests of immigrants and immigrant advocacy organizations such as Plaintiffs are inextricably intertwined.” Id.; but see La Clinica de La Raza v. Donald Trump, 19-cv-4980-PJH, at *72 (N.D. Cal. Oct. 11, 2019) (finding that organizational plaintiffs in another case challenging the Public Charge Rule failed to establish they were within the zone of interests where they “simply fail[ed] to explain how their interests relate to § 1182(a)(4)’s purpose of excluding immigrants likely to become public charges.”)
Defendants argue that it is only “aliens improperly determined inadmissible” that are within the zone of interests of the statute. ECF No. 52 at 11. But such a myopic view is not supported by the case law interpreting the zone of interest test. As the Supreme Court explained, the test “do[es] not require any ‘indication of congressional purpose to benefit the would-be plaintiff.’” Patchak, 567 U.S. at 225 (quoting Clark, 479 U.S. at 399–400). Therefore, the zone of interests need not be drawn so narrowly as to encompass only aliens that have received an adverse determination under the statute. Instead, the test only excludes plaintiffs whose interests are “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id.
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Defendants tout INS v. Legalization Assistance Project, in which Justice O’Connor as Circuit Justice for the Ninth Circuit, granted a stay after finding that four Justices likely would conclude that an immigrants’ rights organization was outside the zone of interests of provisions of the Immigration Reform and Control Act (“IRCA”). 510 U.S. 1301, 1304 (1993) (O’Connor, J., in chambers) (“As a Circuit Justice dealing with an application like this, I must try to predict whether four Justices would vote to grant certiorari should the Court of Appeals affirm the District Court order without modification; try to predict whether the Court would then set the order aside; and balance the so-called ‘stay equities.’ This is always a difficult and speculative inquiry, but in this case it leads me to conclude that a stay is warranted.”) (internal citation omitted). In making this determination, Justice O’Connor found that the relevant IRCA provisions were “clearly meant to protect the interests of undocumented aliens, not the interests of organizations” and that the fact that a “regulation may affect the way an organization allocates its resources . . . does not give standing to an entity which is not within the zone of interests the statute meant to protect”). Id. at 1305.
But that case involved a challenge on various statutory and constitutional grounds to INS policies and regulations interpreting the IRCA. See Legalization Assistance Project of Los Angeles Cty. Fed’n of Labor (AFL-CIO) v. I.N.S., 976 F.2d 1198, 1202 (9th Cir. 1992) (explaining case background). Here, the plaintiffs bring a challenge under the APA regarding the Public Charge Rule.6 Although it is true that the focus of the zone of interest test remains on the relevant statutory
6 The Plaintiffs also bring a challenge under the Due Process Clause and Equal Protection Component of the Fifth Amendment. The application of the zone of interest test to challenges based on the Constitution is unclear. See Sierra Club v. Trump, 929 F.3d 670, 700–02 (9th Cir. 2019) (discussing question of whether zone of interest tests applies to Constitutional claims following Clinton v. City of New York, 524 U.S. 417 (1998) and Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). This question is not analyzed at this time, as the
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provision in both cases, as distinct from the APA, that does not render the context of an APA challenge irrelevant to the zone of interest inquiry, as actions brought under the APA are afforded “generous review” that “may not do [] for other purposes.” Bennett v. Spear, 520 U.S. 154, 163 (1997); see also Sierra Club v. Trump, 929 F.3d 670, 703 n.26 (9th Cir. 2019) (explaining that Bennett instructed that “when analyzing whether a plaintiff falls within the zone of interests of a particular statute, courts should be particularly lenient if a violation of that statute is being asserted through an APA claim.”).
Moreover, in INS, Justice O’Connor was writing not for the full Court, but as a Circuit Justice deciding whether to grant a petition to stay a lower court order, and engaged in the “speculative” and “difficult” task of predicting what the full Court would find if it took up the issue. But here, we need not resort to speculation, as the Court has spoken, and far more recently than in INS. Indeed, in Patchak, the Supreme Court explained that “[w]e apply the test in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’” 567 U.S. at 225 (quoting Clarke v. Securities Industry Assn., 479 U.S. 388, 399– 400 (1987)). The Court further explained that the test “is not meant to be especially demanding” and that it “always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff.” Id. Applying this standard, and for the reasons discussed above, CASA has established that it is arguably within the zone of interests of Section 212(a)(4) of the INA.
Court finds the Plaintiffs’ claims under the APA are sufficient to establish likelihood of success on the merits. See Section III, infra.
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III. Likelihood of Success on the Merits
Plaintiffs argue that this Court should enjoin the Public Charge Rule from going into effect because it is “not in accordance with law.” ECF No. 28 at 10 (quoting 5 U.S.C. § 706(2)(A)). Here we must use the Supreme Court’s Chevron framework to determine whether this Court should defer to DHS’s interpretation of the INA. Under Chevron Step One, a court must determine “whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If so, the court “must give effect to the unambiguously expressed intent of Congress.’” Id. at 843. But, if the court finds that the statute is silent or ambiguous with respect to the specific issue, under Chevron Step Two, “a reviewing court must respect the agency’s construction of the statute so long as it is permissible.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).
For the reasons discussed below, the Plaintiffs have established a likelihood of success on the merits that under Chevron Step One Congress has spoken directly to the issue here and precluded DHS’s definition of Public Charge. Alternatively, for the same reasons, the Plaintiffs have established a likelihood of success on the merits that the Public Charge Rule fails at Chevron Step Two as an impermissible reading of the statute. Therefore, Plaintiffs have demonstrated a likelihood of success of showing that the Public Charge Rule is “not in accordance with law” in violation of 5 U.S.C. § 706(2)(A).
To begin, it is not contested that Congress has not explicitly defined the meaning of “public charge” in INA Section 212(a)(4). Nor is it disputed that DHS has some authority to interpret the meaning of “public charge.” Indeed, Plaintiffs point to the 1999 Field Guidance as a permissible interpretation of the term. Defendants argue the same with respect to DHS’s definition in the Public Charge Rule. Therefore, under Chevron Step One, the question here is whether Congress
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unambiguously precluded DHS’s definition of the term public charge in the Public Charge Rule: the likely receipt of 12 months of benefits within a 36 month span, including short term non-cash benefits. See FDA v. Brown & Williamson, 529 U.S. at 133 (finding where the statutory provisions were not defined that “Congress has directly spoken to the issue here and precluded the FDA’s jurisdiction to regulate tobacco products”).
We look first to the plain language of the statute. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1569 (2017). “In the absence of” a statutory definition of a term, courts “construe a statutory term in accordance with its ordinary or natural meaning,” including by looking to relevant dictionary definitions. FDIC v. Meyer, 510 U.S. 471, 476 (1994). As it first appeared in 1882, the Immigration Act prohibited the entry to the United States of “any convict, lunatic, idiot, or any other person unable to take care of himself or herself without becoming a public charge.” Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214, 214. In 1891, Congress amended this provision to exclude “[a]ll idiots, insane persons, paupers or persons likely to become a public charge.” Act of Mar. 8, 1891, ch. 551, § 1, 26 Stat. 1084, 1084.
Plaintiffs offer two contemporary dictionary definitions. Webster’s 1828 dictionary defined a “charge” as “The person or thing committed to another[’]s custody, care or management; a trust.” Charge, Webster’s Dictionary (1828 online ed.). Similarly, Webster’s 1886 dictionary defined a “charge” as a “person or thing committed or intrusted to the care, custody, or management of another; a trust.” Charge, Webster’s Dictionary (1886 ed.) Therefore these definitions indicate that to be a public charge requires that the Government has taken care, custody, or management of a person. This suggests something more than temporary receipt of benefits as defined in the Public Charge Rule. Instead, it indicates something closer to the “primary dependent” standard enacted in the 1999 Field Guidance.
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Defendants cite Stewart Rapalje et al., Dict. of Am. and English Law (1888). That dictionary defines “charge” as “an obligation or liability,” such as “a pauper being chargeable to the parish or town.” Id. But that definition supports Plaintiffs. As Defendants concede, “When Congress originally enacted the public charge inadmissibility ground, the term ‘pauper’ was in common use for a destitute person in extreme poverty.” ECF No. 52 at 14. This indicates that “public charge” requires a higher level of Government reliance than the “12/36” standard defined in the Public Charge Rule. Defendants also point to Frederic Jesup Stimson, Glossary of the Common Law (1881), which defines “charge” as “[a] burden, incumbrance, or lien; as when land is charged with a debt.” But that also misses the mark, as it defines charge in the context of a financial burden to property, instead of relating to the self sufficiency of an individual like the other definitions. Therefore the weight of these early dictionary definitions favors the Plaintiffs.
Courts should also look to the context of the statue as a whole to derive legislative intent. See FDA v. Brown & Williamson, 529 U.S. at 132 (“In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”) In addition to the public charge admissibility provision, the Immigration Act of 1882 created an “immigrant fund” that provided for the “care of immigrants arriving in the United States, [and] for the relief of such.” 1882 Act at § 1. The Act also empowered immigration officials “to provide for the support and relief of such immigrants therein landing as may fall into distress or need public aid.” Id. at § 2. This indicates that Congress did not mean public charge to include merely the receipt of temporary benefits. See FDA v. Brown & Williamson, 529 U.S. at 132 (“A court must . . . interpret the statute ‘as a symmetrical and coherent regulatory scheme,’ . . . and ‘fit, if possible, all parts into an
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harmonious whole.’”) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995) and FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)). Therefore the broader context of the Immigration Act of 1882 also supports Plaintiffs’ argument.
Defendants point to a statement of Representative Warner in 1894 that “[i]t will not do for [an alien] [to] earn half his living or three-quarters of it, but that he shall presumably earn all his living . . . [to] not start out with the prospect of being a public charge.” 26 Cong. Rec. 657 (1894). However, the legislative debate in 1882 at the time of the Act indicated that Congress was concerned with preventing foreign nations from “‘send[ing] to this country blind, crippled, lunatic, and other infirm paupers, who ultimately become life-long dependents on our public charities.’” 13 Cong. Rec. 5108-10 (June 19, 1882) (statement of Rep. Van Voorhis) (emphasis added). This provides a stronger indication of Congress’s intent at the time of the 1882 Act. Further, the creation of the immigrant fund in 1882 as discussed indicates that Congress’s intention in 1882 was not that expressed by Representative Warren more than a decade later.
Federal case law interpreting the public charge provision also supports Plaintiffs’ argument. In Gegiow v. Uhl, the Supreme Court considered the question of whether someone could be denied admission to the United States as a public charge based on the conditions of local labor markets. 239 U.S. 3, 9–10 (1915). Based on the plain language of the Immigration Act of 1907, which had reenacted the public charge provision, the Court found that the term “likely to become a public charge” should be read to exclude immigrants based on permanent personal characteristics:
‘Persons likely to become a public charge’ are 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. The persons enumerated, in short, are to be excluded on the ground of permanent
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personal objections accompanying them irrespective of local conditions unless the one phrase before us is directed to different considerations than any other of those with which it is associated. Presumably it is to be read as generically similar to the others mentioned before and after.
Id. at 10.
Defendants point out that following the Gegiow decision, Congress amended the public charge provision in the Immigration Act of 1917, separating “public charge” from the terms “pauper” and “professional beggar.” Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 875–76 (denying admission to “[a]ll idiots, imbeciles, feeble-minded persons, epileptics, insane persons; . . . paupers; professional beggars; vagrants; persons not comprehended within any of the foregoing excluded classes who are found to be and are certified by the examining surgeon as being mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living; [and] . . . persons likely to become a public charge”). According to the Secretary of Labor, the purpose of the change was to “associate [public charge] in the law with a provision the economic object of which is unmistakable, and disassociate it from the provisions the immediate objects of which are of a sanitary nature.” H.R. Doc. No. 64-886, at 4 (Mar. 11, 1916). But this change provides little support for Defendants’ position. In U.S. ex rel. Iorio v. Day, Judge Learned Hand explained that following the amendments, the public charge clause “however construed, overlaps other provisions; e.g., paupers, vagrants, and the like” and that “[i]t is certainly now intended to cover cases like Gegiow . . ., where the occasion leads to the conclusion that the alien will become destitute, though generally capable of standing on his own feet.” 34 F.2d 920, 922 (2d Cir. 1929). In other words, the term “public charge” still overlaps with the term “paupers” in the statute and the amendment simply clarified that the term public charge covers people that would become “destitute” due to the inability to work in a local
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economy. The definition of “public charge” in the Public Charge Rule, however, would exclude
immigrants based on their receipt of a small amount of benefits—much less than the level required
to support someone who is “destitute” and unable to work. See ECF No. 27 at ¶ 69 (“[T]he average
monthly SNAP benefit per person in 2018 was $126.96, meaning that a noncitizen could be denied
a green card if a USCIS officer were to deem her likely to receive little more than $1,500 in SNAP
benefits within a 36-month period.”) (citing U.S. Dep’t of Agric., Supplemental Nutrition
Assistance Program Participation and Costs (Aug. 2, 2019), https://fns-
prod.azureedge.net/sites/default/files/resource-files/SNAPsummary-8.pdf).
Executive branch immigration opinions also support Plaintiffs’ argument. For example, in
Matter of Martinez-Lopez, Attorney General Robert F. Kennedy summarized the meaning of the
public charge admissibility provision as follows:
The provision in the immigration laws excluding aliens likely to become public charges had its origin in section 2 of the Immigration Act of 1882, 22 Stat. 214, and has been continued in all subsequent immigration statutes. It has been the subject of extensive judicial interpretation. The general tenor of the holdings is that the statute requires more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present. A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relatives in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.
10 I. & N. Dec. 409, 421–22 (AG 1964) (citing Ex parte Mitchell, 256 Fed. 229 (N.D.N.Y. 1919);
Ex parte Hosaye Sakaguchi, 277 Fed. 913, 916 (9th Cir. 1922); U.S. ex rel. Mantler v.
Commissioner of Immigration, 3 F.2d 234 (2nd Cir. 1924); Ex parte Turner, 10 F.2d 816, 817
(S.D.Cal. 1926); Ex parte Sturgess, 13 F.2d 624, 625 (6th Cir. 1926); Gabriel v. Johnson, 29 F.2d
347, 349 (1st Cir. 1928); U.S. ex rel. Minuto v. Reimer, 83 F.2d 166, 168 (2nd Cir. 1936) (emphasis
added). The Public Charge rule is wholly inconsistent with this interpretation of the public charge
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admissibility standard. While these cases established that the public charge provision requires “more than a showing of a possibility that the alien will require public support,” that is precisely how the Rule now defines public charge. And even though “[a] healthy person in the prime of life cannot ordinarily be considered likely to become a public charge” the Rule defines public charge so expansively that it could cover as much as 50% of the U.S. population. See ECF No. 27 ¶ at 68 (citing Danilo Trisi, Ctr. on Budget & Policy Priorities, Trump Administration’s Overbroad Public Charge Definition Could Deny Those Without Substantial Means the Chance to Come to or Stay in the U.S. 4–5 (May 30, 2019), https://www.cbpp.org/sites/default/files/atoms/files/5-3019pov.pdf (“Approximately 43 to 52 percent of U.S.-born individuals present in the PSID survey in 2017 participated in either SNAP, Medicaid, TANF, SSI, or housing assistance over the 19972017 period.”)).
Further, Matter of Martinez-Lopez is binding on DHS. See 8 C.F.R. § 1003.1(g)(1) (“Except as Board decisions may be modified or overruled by the Board [of Immigration Appeals] or the Attorney General, decisions of the Board and decisions of the Attorney General are binding on all officers and employees of DHS or immigration judges in the administration of the immigration laws of the United States.”) The Government has presented no evidence that this opinion has been overturned. Therefore on this point alone Plaintiffs have raised a serious question as to whether the Public Charge Rule is “not in accordance with the law.” 5 U.S.C. § 706.
Indeed, in the 2018 Proposed Rule, the final Public Charge Rule, and its Brief in Opposition to Plaintiffs’ Motion for a Preliminary Injunction, the Government cites no cases in which the reviewing court or agency concluded that an alien’s receipt of benefits that would not have counted in determining whether an immigrant was a public charge as defined by the 1999 Field Guidance, but which do fall within the scope and duration of the new Rule’s definition, constituted a public
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charge. Instead, Defendants largely cite cases outside of the public charge admissibility context for the proposition that a small amount of public benefits can qualify someone as a public charge. But in fact, many of these cases support Plaintiffs. See, e.g., Town of Hartford v. Town of Hartland, 19 Vt. 392, 397–98 (Vt. 1847) (concerning widow who was “sickly and subject to fits” with children “of tender age” and “little reliance for support could therefore be placed upon the personal efforts or labor of the family”); Poor Dist. of Edenburg v. Poor Dist. of Strattanville, 5 Pa. Super. 516 (Pa. Super. Ct. 1897) (concerning “unmarried woman” who was a “cripple” and “forced to abandon her work” after teaching 50 years and who became a public charge after a friend submitted a complaint under oath stating she was “poor and indigent and unable to procure the necessaries of life by reason of sickness and other infirmities”). At best, Defendants cite a 1929 immigration treatise that defines public charge as “any maintenance, or financial assistance, rendered from public funds.” Arthur Cook et al., Immigration Laws of the U.S., § 285 (1929). But this definition carries little weight compared to contemporary federal court and binding executive branch opinions interpreting the term to the contrary.
Congress also has rejected multiple attempts to define “public charge” in the way that DHS now does through administrative rulemaking. The Supreme Court has repeatedly considered rejected legislative proposals as one tool in determining legislative intent. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. at 144; I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 441–43 (1987); Bob Jones Univ. v. United States, 461 U.S. 574, 600–01 (1983); Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). Here, in the lead up to the 1996 passage of IIRIRA, under the House-passed conference report, an immigrant could be deported if he or she received federal public benefits for 12 months aggregate over seven years. See 142 Cong. Rec. S11872, S11882. During final negotiations, that provision was removed under threat of veto “in order to ensure
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passage” of the bill. H.R. Rep. 104-828, at 137–40 (statement of Sen. Kyl). This demonstrates that Congress was aware of how it could define public charge in a way that DHS does now and that it rejected that definition. Cf. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1570 (“Surrounding provisions of the INA guide our interpretation . . . .”) (citing A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012)). This is particularly significant given the weight that DHS places on the 1996 Welfare Reform Act and IIRIRA in enacting the Public Charge Rule. See, e.g., Public Charge Rule, 84 Fed. Reg. at 41355–56 (“[A]lthough the INA does not mention self-sufficiency in the context of section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), DHS believes that there is a strong connection between the self-sufficiency policy statements elsewhere in Title 8 of the United States Code (even if not codified in the INA itself) at 8 U.S.C. 1601 and the public charge inadmissibility language in section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), which were enacted within a month of each other.”). But in fact, in 1996 Congress considered and rejected the Rule’s new approach to the definition of public charge.
And in 2013, the Senate rejected an amendment by then-Senator Sessions to S. 744, a proposed immigration bill, that would have broadened the public benefits considered for public charge determinations to include non-cash benefits. See S. Rep. No. 113-40 at 42, 63 (2013). Senators who opposed the proposed amendment “cited the strict benefit restrictions and requirements already included in both S. 744 and existing law, and the amendment was rejected by voice vote.” Id. at 42. This is precisely what the DHS’s Public Charge Rule does through administrative regulation. Although S. 744 ultimately failed when the House did not pass its version of the bill, this demonstrates that Congress was aware of the benefits that were included in the public charge determination, knew how to change them if they could muster the votes to do so, and specifically rejected a proposal to include non-cash benefits in public charge determinations.
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Again this is significant given the reliance that DHS places on Congressional intent. See Public Charge Rule, 84 Fed. Reg. at 41,366 (“[T]he inclusion of the designated benefits into the public benefits definition, is consistent with congressional statements in 8 U.S.C. 1601 concerning selfsufficiency of foreign nationals.”) Taken together, these rejected legislative proposals provide additional indication that DHS’s interpretation of public charge is contrary to the meaning intended by Congress.
The 1999 Proposed Rule and Field Guidance provide further support for Plaintiffs’ arguments. The DOJ explained that its adoption of the “primary dependent” definition was “based on the plain meaning of the word ‘charge,’ the historical context of public dependency when the public charge immigration provisions were first enacted more than a century ago, and the expertise of the benefit-granting agencies that deal with subsistence issues.” 1999 Proposed Rule, 64 Fed Reg. at 28,677. The DOJ also explained that its definition was “consistent with factual situations presented in the public charge case law.” Id. In the 2018 Proposed Rule and final Rule, DHS argues that “INS’s reasoning nor any evidence provided, forecloses the agency adopting a different definition consistent with statutory authority.” 84 Fed Reg. at 41350 n.310; 83 Fed Reg at 51133.
In sum, traditional tools of statutory interpretation provide the following evidence that supports Plaintiffs’ argument that the definition of “public charge” in the Rule is precluded by the meaning of term as enacted by Congress: 1) dictionary definitions during the time the public charge rule was first enacted; 2) the history and context of the Immigration Act of 1882, including the creation of an immigrant fund; 3) federal court precedent, including from the Supreme Court, interpreting the meaning of public charge; 4) binding executive branch precedent interpreting the meaning of public charge; 5) Congress’s rejection of a similar definition of public charge in 1996 when enacting IIRIRA and the rejection of including non-cash benefits in public charge
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determinations in 2013; and 6) affirmance of this history and case law in the 1999 Proposed Rule and Field Guidance. In the face of this evidence, the Government primarily relies on the argument that none of this forecloses its definition.
Based on this record, Plaintiffs have demonstrated a likelihood of success on the merits that the definition of public charge in the Rule is “unambiguously foreclosed” by Congress’s intention at Chevron Step One, and is therefore “not in accordance with law” in violation of 5 U.S.C. § 706. Cf. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 (2017) (“We have no need to resolve whether the rule of lenity or Chevron receives priority in this case because the statute, read in context, unambiguously forecloses the Board’s interpretation.”)
If a reviewing court determines that the term public charge is ambiguous under Chevron Step One, this Court must defer to DHS’s interpretation of the statute in the Public Charge rule, “so long as it is permissible.” FDA v. Brown & Williamson, 529 U.S. at 132. But for the same reasons as discussed above, the Plaintiffs have demonstrated a likelihood of success in showing that the Public Charge Rule is not a permissible construction of the statute. In other words, the record above indicates that the Rule likely is outside the bounds of any ambiguity. Therefore Plaintiffs have also demonstrated a likelihood of success on the merits that the definition of public charge in the Rule is an impermissible reading of the INA at Chevron Step Two, and is therefore “not in accordance with law” in violation of 5 U.S.C. § 706. Cf. Whitman v. Am. Trucking Associations, 531 U.S. 457, 481 (2001) (“[W]e find the statute to some extent ambiguous. We conclude, however, that the agency’s interpretation goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear. We therefore hold the . . . policy unlawful.”).
Plaintiffs also argue that the rule is arbitrary and capricious, and violates the Due Process Clause and Equal Protection Components of the Fifth Amendment. Because I find that CASA is
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likely to prevail on its claim that the Public Charge Rule is “not in accordance with law” in violation of 5 U.S.C. § 706, I do not address these arguments for purposes of determining whether to issue a preliminary injunction. IV. Likely to Suffer Irreparable Harm
A “plaintiff seeking a preliminary injunction must demonstrate . . . that he is likely to suffer irreparable harm in the absence of preliminary relief . . . .” Winter, 555 U.S. at 20. “To establish irreparable harm, the movant must make a ‘clear showing’ that it will suffer harm that is ‘neither remote nor speculative, but actual and imminent.’” Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes Powell, 915 F.3d 197, 216 (4th Cir. 2019) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991)). “Additionally, the harm must be irreparable, meaning that it ‘cannot be fully rectified by the final judgment after trial.’” Id. (quoting Stuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 680 (7th Cir. 2012).
As discussed above, CASA has established that it is suffering an injury in fact based on frustration of its mission and diversion of its resources. At least some of these harms are irreparable, as they are based on time sensitive advocacy. For example, CASA alleges that it “has had to reduce its advocacy for health-care expansion efforts at the state level in Maryland and at the local level in Prince George’s County, Maryland” which are “necessarily time-sensitive, as they are dependent on political will and the legislative cycle” and “cannot simply be undertaken with equal efficacy at a different time.” ECF No. 27 at ¶ 123. Further, CASA argues that it will need to continue redirecting its efforts as an organization to address the Public Charge Rule if it is not granted an injunction. ECF No. 28 at 28. These allegations, taken as true for the purposes of this motion, establish that CASA will be irreparably harmed in the absence of a preliminary
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injunction. Cf. League of Women Voters of United States v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016) (obstacles to organization’s mission dependent on election cycle constituted irreparable harm).
V. The Balance of Equities and Public Interest CASA must also establish that “the balance of equities” tips in its favor and that “an
injunction is in the public interest.” Winter, 555 U.S at 20 (2008). Where, as here, the government is a party, these factors merge. See Kravitz v. U.S. Dep’t of Commerce, 366 F. Supp. 3d 681, 755 (D. Md. 2019) (quoting Pursuing Am. Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016)).
Plaintiffs argue that if a preliminary injunction is not granted, it will continue to suffer a frustration of its mission and diversion of its resources because of the Public Charge Rule. See ECF No. 28 at 43. Defendants argue that the government has a substantial interest in administering the national immigration system. See ECF No. 58 at 40. While this is true, preserving the status quo would not create a significant break in the enforcement of the immigration laws. Rather, it would allow DHS to continue administering the public charge admissibility standards in the way that it has done for arguably more than a century and at least since 1999 when the INS issued its Field Guidance. Therefore the balance of equities tips in favor of Plaintiffs and it is in the public interest to preserve the status quo and grant a preliminary injunction. VI. Remedy
“Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam). However, the scope of the relief “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). “An
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injunction should be carefully addressed to the circumstances of the case.” Virginia Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 393 (4th Cir. 2001), overruled on other grounds by The Real Truth About Abortion, Inc. v. Fed. Election Comm’n, 681 F.3d 544 (4th Cir. 2012). Nonetheless, “[n]ationwide injunctions are appropriate if necessary to afford relief to the prevailing party.” Id.
Several factors weigh in favor of national injunction in this case. First, a nationwide injunction is appropriate to provide complete relief to CASA. CASA has over 100,000 members located in Maryland, Virginia, D.C., and Pennsylvania. ECF No. 27 at ¶ 14. But the Rule also applies to all ports of entry in the United States, such that if CASA’s members are traveling and enter through a port of entry outside of this geographic area, they could be subject to a Public Charge determination. More generally, if the Rule is only enjoined as to part of the country, that may create further confusion among CASA’s membership. The upshot is that the alleged harms to CASA as an organization will continue while the Rule remains in effect, frustrating CASA’s mission and causing it to continue to divert resources. Cf. East Bay Sanctuary Covenant v. Trump, 354 F.Supp. 3d 1094, 1120 (N.D. Cal. 2018) (“The Organizations’ harms are not limited to their ability to provide services to their current clients, but extend to their ability to pursue their programs writ large . . . .)
Second, the ordinary remedy in APA challenges to a rulemaking is to set aside the entire rule if defective. See Nat’l Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“We have made clear that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.’”) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n. 21 (D.C.Cir.1989)); Pennsylvania v. President United States, 930 F.3d 543, 575–76 (3d Cir.
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2019), as amended (July 18, 2019) (“[O]ur APA case law suggests that, at the merits stage, courts invalidate—without qualification—unlawful administrative rules as a matter of course, leaving their predecessors in place until the agencies can take further action. . . . [B]y enjoining enforcement of the Rules we provide a basis to ensure that a regulation that the States have shown likely to be proven to be unlawful is not effective until its validity is finally adjudicated.”) Plaintiffs have established likelihood of success on the merits that the Public Charge Rule is “not in accordance with law” in violation of Section 706 of the APA. A nationwide preliminary injunction ensures that the Rule is not effective until its validity is fully adjudicated.
Finally, the Fourth Circuit has recognized that “nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that ‘the immigration laws of the United States should be enforced vigorously and uniformly.’” Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.), as amended (June 15, 2017), vacated and remanded on other grounds sub nom., Trump v. Int'l Refugee Assistance, 138 S. Ct. 353 (2017) (quoting Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (emphasis in original)); see also E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (“In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.”); but see E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029 (9th Cir. 2019) (limiting injunction in immigration context to the Ninth Circuit where district court “fail[ed] to consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged harms.”). The Public Charge Rule presents a major change in the immigration policy of the United States. A limited geographical injunction could create a patchwork of immigration policies applied across the nation. This is particularly serious, where, as here, dramatically different policies would be enforced depending on location. Therefore, preserving the “the vigorous and uniform enforcement
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of immigration laws” weighs in favor of a nationwide injunction, particularly given that the nationwide scope of the immigration policies is tied to Plaintiffs’ alleged harms.
The Fourth Circuit instructed that this Court should be cautious in issuing nationwide injunction, because they could preclude other circuits from ruling on issues. Virginia Soc’y for Human Life, 263 F.3d at 393. “Such a result conflicts with the principle that a federal court of appeals’s decision is only binding within its circuit.” Id. (citing United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir.1994); Right to Life of Dutchess County, Inc. v. FEC, 6 F.Supp.2d 248, 252 (S.D.N.Y.1998) (RLDC )). “A contrary policy would ‘substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.’” Id. (quoting United States v. Mendoza, 464 U.S. 154, 160 (1984). A nationwide injunction could also “deprive the Supreme Court of the benefit of decisions from several courts of appeals.” Id.
These important concerns are mitigated in this case. Three other federal district courts have already considered challenges to the Public Charge Rule and issued injunctions and at least two other challenges are pending. See note 2, supra. Accordingly, at least the Second, Fourth, Seventh, and Ninth Circuits will have an opportunity to review these issues if the parties in these cases should appeal. Therefore a nationwide injunction here will not thwart the development of this legal issue or deprive the Supreme Court of the benefit of decisions from several courts of appeals.
Therefore, a nationwide preliminary injunction is appropriate in this case. This Court also should consider whether the preliminary injunction should apply to the President himself. Neither party has raised this issue. However, in Int’l Refugee Assistance Project v. Trump, the Fourth Circuit vacated a preliminary injunction against the President, finding it to be unwarranted. 857 F.3d at 605. The Fourth Circuit explained that “in general, ‘this court
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has no jurisdiction of a bill to enjoin the President in the performance of his official duties’” and that a “grant of injunctive relief against the President himself is extraordinary, and should . . . raise[ ] judicial eyebrows.” Id. (quoting Franklin v. Massachusetts, 505 U.S. 788, 802–03 (1992) (opinion of O'Connor, J.)). Therefore “such relief should be ordered only in the rarest of circumstances.” Id. Here a preliminary injunction against the President is not necessary to preserve the status quo and prevent irreparable harm to CASA. CASA has established a likelihood of success on the merits that the Public Charge Rule violates the APA. DHS and its officers and employees are enjoined from enforcing the Public Charge Rule during the pendency of this litigation. This does not present the “rarest of circumstances” in which a preliminary injunction should extend to the President.
As an alternative or in addition to a preliminary injunction, Plaintiffs request that this Court postpone the effective date of the Rule. 5 U.S.C. § 705 (“On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court . . . may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.”) The standard for a preliminary injunction and a stay pursuant to 5 U.S.C. § 705 are the same. See Texas v. EPA, 829 F.3d 405, at 424, 435 (5th Cir. 2016); Humane Soc’y of United States v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009); Cronin v. U.S. Dep’t of Agric., 919 F.2d 439, 446 (7th Cir. 1990); Schwartz v. Covington, 341 F.2d 537, 538 (9th Cir. 1965); Assoc. Sec. Corp. v. SEC, 283 F.2d 773, 774–75 (10th Cir. 1960); Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam). Therefore, for the reasons discussed above, the effective date of the Rule is postponed during the pendency of this case.
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Case 8:19-cv-02715-PWG Document 65 Filed 10/14/19 Page 39 of 40 Conclusion
For the foregoing reasons, CASA de Maryland has made a “clear showing” that it should be granted a preliminary injunction and stay of the effective date of the Public Charge Rule. Winter, 555 U.S. at 22.
* * *
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ORDER For the reasons stated in this Memorandum Opinion, it is, this 14th day of October, 2019, hereby ORDERED that Plaintiffs’ Corrected Motion for Preliminary Injunction, ECF No. 28, IS GRANTED as follows: 1. Pursuant to Federal Rule of Civil Procedure 65(a), Defendants U.S. DEPARTMENT
OF HOMELAND SECURITY, KEVIN K. McALEENAN, in his official capacity as Acting Secretary of Homeland Security, and KENNETH T. CUCCINELLI II, in his official capacity as Acting Director, U.S. Citizenship and Immigration Services, are ENJOINED from
a. Enforcing, applying, or treating as effective, or allowing persons under their control to enforce, apply, or treat as effective, the Public Charge Rule; and
b. Implementing, considering in connection with any application, or requiring the use of any new or updated forms whose submission would be required under the Rule, including the new Form I-944, titled “Declaration of Self Sufficiency,” and the updated Form I-485, titled “Application to Register Permanent Residence of Adjust Status”; and,
2. Pursuant to 5 U.S.C. § 705, the effective date of the Rule is POSTPONED pending further Order of the Court. /S/ Paul W. Grimm United States District Judge
40

 
 CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)

971 F.3d 220 United States Court of Appeals, Fourth Circuit.
CASA DE MARYLAND, INC.; Angel Aguiluz; Monica Camacho Perez, Plaintiffs – Appellees,
v. Donald J. TRUMP, in his official capacity as President of the United States; Chad Wolf, in his official capacity as Acting Secretary of Homeland Security; U.S. Department of Homeland Security; Kenneth T. Cuccinelli, II, in his official capacity as Acting Director, U.S. Citizenship and Immigration Services; U.S. Citizenship and Immigration
Services, Defendants – Appellants. Immigration Reform Law Institute, Amicus
Supporting Appellants. 104 Businesses and Organizations; American
Academy of Pediatrics; Maryland Chapter, American Academy of Pediatrics; Virginia Chapter, American Academy of Pediatrics; American Medical Association; Maryland State Medical Society; American College of Physicians;
American College of Obstetricians and Gynecologists; Institute for Policy Integrity at New
York University School of Law; United States House of Representatives; Legal Historians; Center for Reproductive Rights; Members of Congress; Judy Chu, Chair of the CAPAC; Adriano Espaillat, CHC Whip; Yvette D. Clarke, Chair of the CBC Immigration Task Force; Joaquin Castro, Chair of the CHC; Karen Bass, Chair of the CBC; Pramila Jayapal, Chair of the CAPAC Immigration Task Force; Barbara Lee, Co-Chair of the CAPAC Healthcare Task Force; Nonprofit Anti-Domestic Violence and Sexual Assault Organizations; Immigration Law Professors; Fiscal Policy
Institute; Presidents’ Alliance on Higher Education and Immigration; Public Justice
Center, Amici Supporting Appellees.
No. 19-2222 |
Argued: May 8, 2020 |
Decided: August 5, 2020
Synopsis
1

Background: Immigrant-rights interest group and individual aliens brought suit under the Administrative Procedure Act (APA) challenging immigration rule adopted by the Department of Homeland Security (DHS) regarding “public charge” alien admissibility determinations. The United States District Court for the District of Maryland, Paul W. Grimm, J., found in favor of plaintiffs and enjoined the rule nationwide. Government appealed.
Holdings: The Court of Appeals, Wilkinson, Circuit Judge, held that:
interest group’s reallocation of resources in response to new rule did not constitute an injury in fact for organizational standing purposes;
individual aliens forgoing specific financial resources out of concern that it might render them “public charges” under the new rule had standing to challenge rule;
a “public charge,” for purposes of Immigration and Nationality Act (INA) public charge admissibility provision, is someone who produces a money charge upon the public for support and care;
rule defining “public charge” as an alien who was likely to receive certain public benefits, including many cash and noncash benefits, for more than 12 months in the aggregate over any 36-month period, fell within scope of permissible executive interpretations of public charge admissibility provision;
preliminary injunction was not warranted; and
drastic remedy of a nationwide injunction was improper.
Reversed and remanded.
King, Circuit Judge, filed dissenting opinion.
Procedural Posture(s): Review of Administrative Decision; Motion for Preliminary Injunction.
*227 Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:19-cv-02715-PWG)

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
Attorneys and Law Firms
ARGUED: Gerard Joseph Sinzdak, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Jonathan Backer, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellees. Adam A. Grogg, UNITED STATES HOUSE OF REPRESENTATIVES, Washington, D.C., for Amicus Curiae. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Daniel Tenny, Joshua Dos Santos, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellants. Amy L. Marshak, Joshua A. Geltzer, Mary B. McCord, Institute for Constitutional Advocacy and Protection, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellees. Michael M. Hethmon, Lew Olowski, IMMIGRATION REFORM LAW INSTITUTE, Washington, D.C., for Amicus Immigration Reform Law Institute. Paul W. Hughes, Michael B. Kimberly, Matthew A. Waring, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Amici 104 Businesses and Organizations. Susan M. Krumplitsch, Elizabeth Stameskin, Priyamvada Arora, COOLEY LLP, Palo Alto, California, for Amici American Academy of Pediatrics; Maryland Chapter, American Academy of Pediatrics; Virginia Chapter, American Academy of Pediatrics; American Medical Association; Maryland State Medical Society; American College of Physicians; American College of Obstetricians and Gynecologists. Richard L. Revesz, Jack Lienke, Max Sarinsky, INSTITUTE FOR POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL OF LAW, New York, New York, for Amicus Institute for Policy Integrity at New York University School of Law. Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, Emily Green, Washington, D.C., Rene Kathawala, Jessica Edmundson, Allison Epperson, New York, New York, M. Todd Scott, ORRICK, HERRINGTON & SUTCLIFFE LLP, San Francisco, California; Douglas N. Letter, General Counsel, Todd B. Tatelman, Principal Deputy General Counsel, Megan Barbero, Josephine Morse, Adam A. Grogg, William E. Havemann, Office of General Counsel, UNITED STATES HOUSE OF REPRESENTATIVES, Washington, D.C., for United States House of Representatives. Alexandra Wald, COHEN & GRESSER LLP, New York, New York; Elizabeth B. Wydra, Brianne J. Gorod, Dayna J. Zolle, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amici Legal Historians. Jenny Ma, Pilar Herrero, Amy
2

Myrick, Elyssa Spitzer, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, for Amicus Center for Reproductive Rights. Gare Smith, Kristyn DeFilipp, Andrew London, Emily J. Nash, FOLEY HOAG, LLP, Boston, Massachusetts; Justin Lowe, Wendy Parmet, HEALTH LAW ADVOCATES, INC., Boston, Massachusetts, for Amici Health Law Advocates, Inc. and Other Organizations Interested in Public Health. Nilda Isidro, Amanda Burns, Christine Armellino, New York, New York, Caroline H. Bullerjahn, GOODWIN PROCTOR LLP, Boston, Massachusetts, for Amici Members of Congress Judy Chu, Chair of the CAPAC; Adriano Espaillat, CHC Whip; Yvette D. Clarke, Chair of the CBC Immigration Task Force; Joaquin Castro, Chair of the CHC; Karen Bass, Chair of the CBC; Pramila Jayapal, Chair of the CAPAC Immigration Task Force; Barbara Lee, Co-Chair of the CAPAC Healthcare Task Force, et al. Paul J. Lawrence, Alanna E. Peterson, PACIFICA LAW GROUP LLP, Seattle, Washington, for Amici Nonprofit Anti-Domestic Violence and Sexual Assault Organizations. Harry Lee, Mary Woodson Poag, Johanna Dennehy, STEPTOE & JOHNSON LLP, Washington, D.C., for Amici Immigration Law Professors. Monisha Cherayil, Sally Dworak-Fisher, Tyra Robinson, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amicus Public Justice Center. Sadik Huseny, Brittany N. Lovejoy, Joseph C. Hansen, Tess L. Curet, Alexandra B. Plutshack, LATHAM & WATKINS LLP, San Francisco, California, for Amici Fiscal Policy Institute & Presidents’ Alliance on Higher Education and Immigration, et al.
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Opinion
Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer joined. Judge King wrote a dissenting opinion.
WILKINSON, Circuit Judge:
*229 The Immigration and Nationality Act (“INA”) says that any alien who is “likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A).1 Congress has included some version of a “public charge” provision in the nation’s immigration laws since 1882, but

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
it has never defined the term, instead leaving its implementation to the executive branch. Recently, the Department of Homeland Security (“DHS”) sought via rulemaking to define “public charge” as an alien who was likely to receive certain public benefits, including many cash and noncash benefits, for more than 12 months in the aggregate over any 36-month period (“DHS Rule” or “Rule”). The district court here enjoined the Rule nationwide.
In this case, statutory interpretation meets the separation of powers. To invalidate the Rule would visit palpable harm upon the Constitution’s structure and the circumscribed function of the federal courts that document prescribes. Striking the Rule would also entail the disregard of the plain text of a duly enacted statute, all in an area where the Constitution commands “special judicial deference” to the political branches in light of the intricacies and sensitivities inherent in immigration policy. Fiallo v. Bell, 430 U.S. 787, 793, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). Finally, we are asked here to endorse a particular remedy—a nationwide injunction of the Rule—that reaches expansively beyond any proper conception of the judicial role.
The above does not mean that the plaintiffs’ view of the public charge provision is definitively wrong. Nor does it mean that the government’s view of the public charge provision is definitively right. Rather, the public charge provision has led for almost a century and a half a long and varied life, with different administrations advancing varied interpretations of the provision, depending on the needs and wishes of the nation at a particular point in time. To be sure, the public charge provision ties alien admissibility to prospective alien self-sufficiency. But within that broad framework, Congress has charged the executive with defining and implementing what can best be described as a purposefully elusive and ambiguous term. Congress has assiduously resisted giving the term the kind of fixed and definite meaning that the plaintiffs to this lawsuit seek, and we are reluctant to step in and perform that task ourselves, thus transferring primacy in national immigration policy from the democratically accountable branches where it has long been thought to reside.
There is a further and daunting obstacle to invalidating the Rule. In the course of prolonged litigation in the lower federal courts, the Second and Seventh Circuits declined to stay injunctions issued by trial courts precluding enforcement of the Rule. See New York v. Dep’t of
3

Homeland Sec., No. 19-3591, 2020 WL 95815 (2d Cir. Jan. 8, 2020); Order, Cook Cty., Illinois v. Wolf, No. 19-3169 (7th Cir. Dec. 23, 2019). The Supreme Court thereupon granted the government’s emergency request to stay the preliminary injunctions, an action which would have been improbable if not impossible had the government, as the stay applicant, not made “a strong showing that it was likely to succeed on the merits.” See Wolf v. Cook Cty., Illinois, ––– U.S. ––––, 140 S. Ct. 681, 206 L.Ed.2d 142 (2020); *230 Dep’t of Homeland Sec. v. New York, ––– U.S. ––––, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020); see also Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). We may of course have the technical authority to hold that, notwithstanding the Supreme Court’s view, the plaintiffs are likely after all to succeed on the merits of their challenge. But every maxim of prudence suggests that we should decline to take the aggressive step of ruling that the plaintiffs here are in fact likely to succeed on the merits right upon the heels of the Supreme Court’s stay order necessarily concluding that they were unlikely to do so. Such a step would require powerful evidence that the Supreme Court’s stay was erroneously issued. Such evidence is absent here.
It is surprising that the dissenting opinion makes light of the Supreme Court’s action in these parallel cases. See Dissenting Op., post at 281 n.16. The Supreme Court does not ordinarily issue such stays. See Fargo Women’s Health Org. v. Schafer, 507 U.S. 1013, 1014, 113 S.Ct. 1668, 123 L.Ed.2d 285 (1993) (O’Connor, J., concurring) (finding the case not “one of those rare and exceptional cases in which a stay pending appeal is warranted”). Moreover, those two cases were more than ordinary cases. They involved the exact same issue before us today. It is curious, to say the least, that we might even suggest that the Supreme Court gave scant attention to the stay request and thus treat the stay order as merely “perfunctory.” Dissenting Op., post at 281 n.16.
The stays here were granted by the whole court, not a single Justice. See Cook Cty., 140 S. Ct. at 681 (referring stay application presented to Justice Kavanaugh to whole court); New York, 140 S. Ct. at 599 (referring stay application presented to Justice Ginsburg to whole court). In such cases, “the affirmative votes of a majority of the participating Justices are required to grant it.” Stephen M. Shapiro et al., Supreme Court Practice 892 (10th ed. 2013) (collecting cases). Thus, this case is not a situation in which “matters cannot be predicted with certainty,” such that one Justice must weigh whether “it is more

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
likely than not that at least five Justices will agree with the” judgment below. Araneta v. United States, 478 U.S. 1301, 1304, 107 S.Ct. 1, 92 L.Ed.2d 751 (1986) (Burger, C.J., in chambers). Rather, five Justices necessarily “conclude[d] there [wa]s a ‘fair prospect’ that a majority of this Court w[ould] decide the issue in favor of the applicants” in order to grant the stay. Id. This stay gives us a window into the Supreme Court’s view of the merits. Our court should not cultivate the appearance of denying the Supreme Court action its obvious and relevant import.
We are of course duty-bound to give this appeal a thorough and conscientious review. For the reasons that follow, we think the Rule is a permissible interpretation of the public charge provision, and that to hold otherwise would be a stark transgression of the judiciary’s proper role. Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion.
I.
A.
We begin with a brief overview of the public charge provision’s long history. Though, as discussed below, the provision has been amended numerous times over the past 138 years, its motivating purpose has remained the same—to prevent the admission of aliens who, to one degree or another, would depend on the public for their support and care.
Congress first enacted a public charge provision in 1882. See Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214. The 1882 Immigration Act specified in relevant part that *231 no “person unable to take care of himself or herself without becoming a public charge” would “be permitted to land” in the United States. Id. The 1882 Act did not define the term “public charge,” nor did it specify the amount or type of public support that would render an alien inadmissible on that basis.
Instead, the interpretation and application of the public charge provision was entrusted to the executive branch.
4

The 1882 Act charged the Secretary of the Treasury “with the duty of executing the provisions of this act and with supervision over the business of immigration to the United States,” 22 Stat. 214, and vested him with the power to “establish such regulations and rules ... for carrying out the provisions of this act and the immigration laws of the United States,” id.
In 1891, Congress revised the federal immigration laws, including the public charge provision. See Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084. Specifically, the 1891 amendment divided the 1882 Act’s general bar on admitting public charges into two complementary provisions, the “inadmissibility provision” and the “deportation provision.” The inadmissibility provision called for a prospective assessment of whether an alien seeking to enter the United States was “likely to become a public charge” and prohibited the admission of all such aliens. Id. § 1. The deportation provision, on the other hand, required a retrospective assessment of whether an alien who had already been admitted to the United States had “become[ ] a public charge within one year after his arrival in the United States from causes existing prior to his landing therein.” Id. § 11. If so, the Act provided that such an alien could be deported. These two provisions were designed to work hand-in-hand: the latter served as a backstop when immigration officials applying the former failed to accurately predict that a given alien was likely to become a “public charge.” And this bifurcation in the law persists today. 8 U.S.C. §§ 1182(a)(4), 1227(a)(5). The 1891 amendment, like the 1882 Act, did not define the term “public charge.” But the 1891 amendment, like the 1882 Act, confirmed that the executive would be responsible for enforcing this component of national immigration policy. See § 8, 26 Stat. 1084, 1085.
Between 1891 and 1917, Congress amended the federal immigration statute three times. See Act of Mar. 3, 1903, ch. 1012, 32 Stat. 1213; Act of Feb. 20, 1907, ch. 1134, 34 Stat. 898; Act of Mar. 26, 1910, ch. 128, 36 Stat. 263. Three points bear noting. First, none of these amendments provided a definition of “public charge.” Second, Congress retained both the inadmissibility and deportation provisions in each amendment. Third, Congress continued to afford the executive wide latitude in enforcing the relevant grounds for inadmissibility, including interpretation of the public charge provision. See, e.g., § 16, 34 Stat. 898, 903.
In 1915, a Supreme Court decision prompted yet another set of amendments. That year, the Court issued its first

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
decision directly interpreting the public charge provision. See Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915). The “single question” presented in Gegiow was “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.” Id. at 9–10, 36 S.Ct. 2. The Supreme Court said no. It noted that “[t]he statute deals with admission to the United States, not to” a particular locality. Id. at 10, 36 S.Ct. 2. And it reasoned that the term “public charge” should “be read as generically similar to the others mentioned before and after” it in the 1910 Act, which then included “paupers *232 and professional beggars.” Id. As such, the Court concluded that public charge determinations should be made “on the ground of permanent personal objections” to the alien, rather than “local [labor] conditions.” Id. at 10, 36 S.Ct. 2.
In 1917, Congress responded to the Gegiow decision. Specifically, it moved the public charge provision to the end of a list of factors rendering an alien inadmissible. The revised statute made inadmissible, among others,
persons ... who are ... mentally or physically defective, such 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 ... persons likely to become a public charge. Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 875–76.
The legislature amended the statute in this manner “in order to indicate the intention of Congress that aliens shall be excluded upon [the public charge] ground for economic as well as other reasons” and did so, specifically, “to overcome[e] the decision of the Supreme Court in [Gegiow].” See 70 Cong. Rec. 3620 (1929). While Congress moved the placement of the public charge provision to respond to Gegiow, it still did not define the term, leaving the application of the provision in the hands of immigration officials and the executive branch.
5

For its part, the executive branch regarded the public charge provision as a flexible one, varying its interpretation and enforcement strategy in light of its policy objectives and prevailing national conditions. For example, in the early 20th century, immigration officers often utilized the provision as a “catchall,” excluding aliens on public charge grounds when no other basis for inadmissibility seemed applicable. See Jane Perry Clark, Deportation of Aliens from the United States to Europe 104 (1931). Later, in response to high levels of unemployment brought on by the Great Depression, President Hoover ordered that the provision be enforced more stringently, such that all aliens who would “probably be a public charge at any time, even during a considerable period subsequent to [their] arrival” would be inadmissible. See Roger Daniels, Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882, at 60–62 (2004). The executive eventually began to develop more formal standards to govern public charge determinations. For example, the Board of Immigration Appeals promulgated a three-part test for an alien to be found deportable as a “public charge” in 1948. Matter of B-, 3 I. & N. Dec. 323 (BIA 1948). Specifically, the BIA concluded that in order for someone to be designated a deportable public charge, “(1) the State or other governing body must, by appropriate law, impose a charge for the services rendered to the alien ... (2) make demand for payment of the charges[,] ... [and] (3) there must be a failure to pay for the charges.” Id. at 326.
In 1952, Congress comprehensively reformed federal immigration law. Since then, “[t]he foundation of our laws on immigration and naturalization [has been] the Immigration and Nationality Act.” Kansas v. Garcia, ––– U.S. ––––, 140 S. Ct. 791, 797, 206 L.Ed.2d 146 (2020). As relevant here, the INA included a revised public charge inadmissibility provision, which codified for the first time what was already well-established in practice: that the executive branch is accorded significant discretion in dealing with the provision. See Immigration and Nationality Act, Pub. L. No. 82-414, tit. II, ch. 2, § 212, 66 Stat. 163, 183 (1952). Importantly, the INA rendered inadmissible *233 all aliens who “in the opinion of the Attorney General ... are likely at any time to become public charges.” Id. (emphasis added). The INA included a revised deportation provision with similar language. See id. ch. 5, § 241(a)(8) (pegging such decisions to the “opinion of the Attorney General”). Congress once again declined to define the term “public charge,” “but rather ... establish[ed] the specific

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
qualification that the determination of whether an alien falls into that category rests within the discretion of the” relevant executive branch immigration officials. S. Rep. No. 81-1515, 347, 349 (1950). It is this iteration of the inadmissibility provision, as amended, that the DHS Rule at issue here purports to interpret.
Congress subsequently amended the public charge inadmissibility provision twice more. First, in 1990, it eliminated various antiquated bases for inadmissibility, such as whether the alien was a “pauper[ ], professional beggar[ ], or vagrant[ ].” See 136 Cong. Rec. 36844 (1990). In their place, Congress retained the single generic phrase “likely to become a public charge.” Immigration Act of 1990, Pub. L. No. 101-649, tit. VI, § 601, 104 Stat. 4978, 5072. Then, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Omnibus Consolidated Appropriations Act, tit. V, § 531, 110 Stat. 3009 (1996). That statute recodified the inadmissibility provision in its current form, specifying that “[a]ny alien who, in the opinion of the ... Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” Id.; see also id. tit. III, § 308; 8 U.S.C. § 1182(a)(4)(A).2 Moreover, although the IIRIRA did not define “public charge,” it specified five non-exclusive factors that executive branch officials were required to take into account when making public charge admissibility determinations: the alien’s “age;” “health;” “family status;” “assets, resources, and financial status;” and “education and skills.” See 8 U.S.C. § 1182(a)(4)(B).
While Congress continued to tweak the statutory language, the executive branch continually refined its working definition of “public charge.” In 1974, the BIA announced that the three-part test for deportation determinations set forth in Matter of B- would not apply to public charge inadmissibility decisions. See Matter of Harutunian, 14 I. & N. Dec. 583, 585 (BIA 1974). Instead, whether an alien was likely to become a “public charge” for admissibility purposes would be based on the totality of the alien’s circumstances, with an eye toward whether the alien would “need public support” to some unenumerated degree. Id. at 589–90. Then, in 1999, the Department of Justice initiated a rulemaking in which it sought to define the term “public charge” for purposes of both the inadmissibility and deportation provisions. See 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). Specifically, the
6

1999 Rule would have defined “public charge” as “an alien who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) 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).” Id. at 28,681. Though it proposed to adopt a unified definition of “public charge,” the 1999 Rule retained the *234 “totality of the circumstances” and the three step Matter of B- tests for assessing inadmissibility and deportability, respectively. See id. at 28,679–80.
The 1999 Rule was never finalized. Nevertheless, the Department of Justice issued a “field guidance” that instructed immigration officials to apply the “primarily dependent” definition set forth in the failed 1999 Rule to public charge determinations. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689–91 (May 26, 1999). Prior to the Rule at issue in this case, the 1999 Field Guidance has governed.
B.
1.
On October 10, 2018, DHS issued a notice of proposed rulemaking that signaled its intent to abandon the 1999 Field Guidance and adopt a new definition of “public charge” for purposes of admissibility determinations. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (October 10, 2018). DHS issued a final version of the Rule on August 14, 2019, see Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (August 14, 2019), which was initially scheduled to take effect on October 15, 2019.
The Rule made three relevant changes to the administration of the inadmissibility prong of the public charge provision. First, it replaced the 1999 Field Guidance’s definition of “public charge,” which asked

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
whether an alien was likely to become “primarily dependent” on government assistance, with a durational threshold. Specifically, under the Rule, a “public charge” is defined as “an alien who receives one or more public benefits ... for more than 12 months in the aggregate within any 36-month period.” 84 Fed. Reg. at 41,501. Second, the Rule jettisoned the 1999 Field Guidance’s exclusive focus on cash benefits, instead providing that both cash and certain in-kind benefits count as “public benefits” and can be considered in making public charge determinations. See id. Thus, an alien’s receipt of noncash benefits such as Section 8 housing, SNAP (i.e., food stamps), and certain Medicaid benefits would each count towards the 12-month threshold. Id. Third, the Rule enumerated a host of factors that DHS officials are to consider, in addition to those set forth in the INA, before determining whether a given alien is likely to become a “public charge.” See id. at 41,504.
The process that DHS followed in promulgating the Rule was both thorough and procedurally sound. After issuing the requisite notice of proposed rulemaking in October 2018, DHS received 266,077 public comments on the Rule in just sixty days. 84 Fed. Reg. at 41,297. DHS then spent the next ten months refining the Rule and responding to those comments. Many of the changes implemented during this period addressed specific comments DHS had received, and its detailed responses spanned nearly 200 pages of the Federal Register.
Importantly, in formulating the Rule’s durationally specific definition of “public charge,” DHS did not simply pluck the operative time period out of thin air. Instead, it relied on several empirical analyses regarding patterns of welfare use in the United States, including studies conducted by the Census Bureau, the Department of Health and Human Services, and DHS itself. See id. at 41,359–62. According to DHS, those studies indicate that a substantial portion of individuals who receive public benefits do so for fewer than 12-months, id. at 41,360, and that those who receive such benefits over a longer period are more likely to become “long-term recipients” *235 of welfare, id. at 41,360. Thus, DHS concluded that the 12-of-36-month threshold would best effectuate its three objectives in replacing the “primarily dependent” standard, namely “(1) provid[ing] meaningful guidance to aliens and adjudicators, (2) accomodat[ing] meaningful short-term and intermittent access to public benefits, and (3) ... not excus[ing] continuous or consistent public benefit receipt that denotes a lack of self-sufficiency.” Id. at 41,361.
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Before proceeding, a few points regarding the scope of the Rule bear noting. First off, the Rule retains the prevailing test that “[t]he determination of an alien’s likelihood of becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances.” 84 Fed. Reg. at 41,502. Next, the Rule governs only public charge determinations made in the context of admissibility; deportations, by contrast, would still be decided under the 1999 Field Guidance and the three-part Matter of B- test. See id. at 41,462. And lastly, the Rule applies only to public charge inadmissibility determinations made by DHS, not the other two executive agencies (the Department of State and the Department of Justice) that are tasked with making public charge decisions in related contexts. Id. at 41,294 n.3.
2.
DHS’s promulgation of a final version of the Rule launched a flurry of litigation. The crux of most of these challenges was that the Rule violated both the Administrative Procedure Act (“APA”) and the Fifth Amendment to the United States Constitution.
Initially, these suits met with some success. In the Ninth Circuit, two district courts issued preliminary injunctions barring enforcement of the Rule, one of which applied nationwide, see Washington v. United States Dep’t of Homeland Sec., 408 F. Supp. 3d 1191, 1224 (E.D. Wash. 2019), and the other of which applied only to persons residing in certain California counties as well as a number of states and the District of Columbia, see City & Cty. of San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1129–30 (N.D. Cal. 2019). A district judge in the Southern District of New York also issued two preliminary nationwide injunctions against the Rule, see Make the Rd. New York v. Cuccinelli, 419 F. Supp. 3d 647, 667–68 (S.D.N.Y. 2019), while another judge in the Northern District of Illinois enjoined enforcement of the Rule only within Illinois, see Cook Cty., Illinois v. McAleenan, 417 F. Supp. 3d 1008, 1030–31 (N.D. Ill. 2019).
But this run of preliminary injunctions did not last long. On December 5, 2019, the Ninth Circuit stayed the injunctions within its jurisdiction, concluding that “DHS

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay” pending appeal. City & Cty. Of San Francisco v. USCIS, 944 F.3d 773, 781 (9th Cir. 2019). Though the Second and Seventh Circuits declined to follow suit, the Supreme Court eventually granted the government’s emergency requests to stay the preliminary injunctions issued by both the Southern District of New York and the Northern District of Illinois. See Dep’t of Homeland Sec. v. New York, ––– U.S. ––––, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020); Wolf v. Cook Cty., Illinois, ––– U.S. ––––, 140 S. Ct. 681, 206 L.Ed.2d 142 (2020). In so doing, five Justices of that Court necessarily concluded that the government had made “a strong showing that [it was] likely to succeed on the merits.” Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting *236 Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). Such a stay would have been unlikely if not impossible had that showing not been made. DHS began enforcing the Rule on February 24, 2020.
C.
In September 2019, plaintiffs CASA de Maryland, Inc. (“CASA”), Angel Aguiluz, and Monica Camaco Perez filed this lawsuit in the United States District Court for the District of Maryland. CASA is a non-profit organization based in Maryland that “offers a wide variety of social, health, job training, employment, and legal services to the immigrant communities in Maryland, Washington, D.C., Virginia, and Pennsylvania.” J.A. 65. It claims to be the “largest membership-based immigrant rights organization in the mid-Atlantic region, with more than 100,000 members.” Id. Aguiluz and Perez are both CASA members who immigrated to the United States as children. Defendants are federal officials charged with enforcing the Rule: Donald J. Trump, President of the United States; Chad Wolf, Acting Secretary of DHS; and Kenneth T. Cuccinelli II, Acting Director of United States Citizenship and Immigration Services. Each is sued in his official capacity.
Plaintiffs claim that the DHS Rule violates both the APA and the Fifth Amendment. Specifically, they assert that
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the Rule is “not in accordance with law” under § 706 of APA because (1) the term “public charge” “means ‘primarily dependent on the government for subsistence,’ ” (2) this meaning is “unambiguous,” and (3) as a result, “DHS lacks the statutory authority to reinterpret public-charge admissibility in a way that is contrary to that definition.” J.A. 63. They also state the Rule is arbitrary and capricious, and violates the Due Process Clause and the Equal Protection Component of the Fifth Amendment.
In September 2019, plaintiffs moved for a preliminary injunction to block the Rule from going into effect, or, in the alternative, for an order pursuant to APA § 705 postponing the effective date of the Rule during the pendency of this litigation. Defendants opposed the motion and also argued that plaintiffs could not maintain this action because they lacked standing, fell outside the “zone of interests” protected by the public charge provision, and because their case was not ripe for adjudication. After briefing and oral argument, the district court granted plaintiffs’ motion and enjoined defendants from enforcing the Rule nationwide. Casa de Maryland, Inc. v. Trump, 414 F. Supp. 3d. 760, 767 (D. Md. 2019).
At the outset, the district court concluded that CASA was an appropriate party to challenge the Rule. The court first held that CASA had Article III standing because the Rule could potentially harm its members, and CASA was thus forced “to divert resources that otherwise would have been expended to improve the lives of its members” to combat the Rule’s assertedly deleterious effects. Casa de Maryland, 414 F. Supp. 3d at 773. Since it concluded that CASA had adequately alleged organizational standing, the district court did not decide whether the individual plaintiffs had standing or whether CASA had representational standing to sue on their behalf. The court also found that the case was ripe for review and CASA fell within the relevant statutory zone of interests. Id. at 774–78.
Turning to the merits, the district court held that CASA was likely to succeed on its APA claim that the Rule was “not in accordance with law.”3 In reaching this *237 decision, it applied the familiar two-step Chevron framework for analyzing agency interpretations of statutory provisions. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As part of this analysis, the district court considered various pieces of evidence regarding the meaning of the term “public charge,” from the time that it

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
first appeared in law in 1882 to the various legislative, executive, and judicial attempts to change or to interpret the provision in the many decades since. Casa de Maryland, 414 F. Supp. 3d at 784. According to the court, this evidence, taken together, established that “Congress has spoken directly to the issue here and precluded DHS’s definition of Public Charge” such that the Rule failed at the first step of the Chevron analysis or, alternatively, that “the Public Charge Rule fails at Chevron Step II as an impermissible reading of the statute.” Id. at 778. The district court also found that CASA satisfied the other requirements for preliminary injunctive relief under Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); specifically, that the organization was likely to suffer irreparable harm absent preliminary relief and, moreover, that the balance of equities and the public interest tipped in CASA’s favor. See Casa de Maryland, 414 F. Supp. 3d at 785.
Finally, in terms of relief, the district court entered a preliminary injunction that applied nationwide, preventing defendants from enforcing the Rule against anyone. It provided three justifications for issuing such a broad remedy: (1) a nationwide injunction was necessary to provide complete relief to CASA because its members could be subject to public charge determinations outside of the district’s geographic boundaries, (2) there is a particular need for uniformity in immigration law, and (3) that “the ordinary remedy in APA challenges to a rulemaking is to set aside the entire rule if defective.” Casa de Maryland, 414 F. Supp. 3d at 786–87. For these same reasons, the district court also granted CASA’s request to stay the effective date of the Rule during the pendency of this litigation. Id. at 787–88.
On motion by the government, we stayed the district court’s preliminary injunction by order dated December 9, 2019. This appeal followed.
II.
We begin with the question of plaintiffs’ standing. “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818, 117
9

S.Ct. 2312, 138 L.Ed.2d 849 (1997) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). As such, before litigants can avail themselves of the judicial power, they must satisfy the familiar three-part test for standing. A “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). An organization like CASA “may suffer an injury in fact when a defendant’s actions impede its efforts to carry out its mission.” Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)); see also Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
*238 The district court held that CASA had alleged such an organizational injury here and, because the other elements of standing are not in dispute, was able to bring this suit. The court reasoned that the DHS Rule impeded CASA’s efforts to carry out its mission because the organization was forced to reallocate resources and, in turn, shift from an “affirmative advocacy posture” (i.e., advocating for certain policies) to a “defensive one” (i.e., advising members on the Rule’s impact). Casa de Maryland, Inc. v. Trump, 414 F. Supp. 3d 760, 771–73 (D. Md. 2019). The court also intimated that CASA’s choice to divert these funds was not really voluntary, as the Rule’s “dramatically more threatening” nature effectively forced its hand. Id. at 773.
This was error. Basic Article III principles as well as precedent from this circuit and the Supreme Court all preclude the notion that CASA has organizational standing here. In holding otherwise, the district court countenanced a virtually limitless view of Article III injury that gives short shrift to the separation of powers values that standing doctrine preserves. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (noting that standing “is built on separation-of-powers principles [and] serves to prevent the judicial process from being used to usurp the powers of the political branches”).4
For starters, the district court’s opinion cannot be squared with our decision in Lane. There, a gun-rights organization whose activities included advocacy as well as “education, research, publishing and legal action,” tried to challenge a federal firearm statute. Lane, 703 F.3d at

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
671. The group alleged that it had suffered an Article III injury because it needed to divert resources in order to help its members navigate the new law, and thus could not spend those funds on other goals. Id. We disagreed for the simple reason that voluntary “budgetary choices” like spending money on legal action instead of research are not cognizable Article III injuries. Id. at 675 (internal quotation marks omitted). A moment’s reflection reveals why. “To determine that an organization that decides to spend its money on educating members, responding to members inquiries, or undertaking litigation in response to legislation suffers a cognizable injury would be to imply standing for organizations with merely ‘abstract concern[s] with a subject that could be affected by an adjudication.’ ” Id. (quoting Simon, 426 U.S. at 26, 96 S.Ct. 1917).
What held for the gun-rights organization in Lane holds for CASA here. Contrary to the district court’s suggestion, the DHS Rule forced CASA to do absolutely nothing as a matter of law. As in Lane, CASA’s unilateral and uncompelled response to the shifting needs of its members cannot manufacture an Article III injury.
To put a finer point on it, it is not relevant for Article III purposes whether CASA felt moved to act in a particular manner. It is axiomatic that “standing is not measured by the intensity of the litigant’s interest or the fervor of his advocacy,” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 486, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), and that *239 “a plaintiff’s voluntary expenditure of resources to counteract governmental action that only indirectly affects the plaintiff does not support standing,” People for the Ethical Treatment of Animals v. U.S. Dept. of Agriculture, 797 F.3d 1087, 1099 (D.C. Cir. 2015) (Millett, J., dubitante). Accordingly, we did not bother to ask in Lane whether the gun-rights organization’s activities changed one way or the other. Many statutes and regulations may spur private organizations to react to them in some fashion. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And a voluntary budgetary decision, however well-intentioned, does not constitute Article III injury, in no small part because holding otherwise would give carte blanche for any organization to “manufacture standing by choosing to make expenditures” about its public policy of choice. Clapper, 568 U.S. at 402, 133 S.Ct. 1138. We have never taken the demands of standing, and the core separation of powers principles upon which the doctrine is based, to be so easily circumvented or so readily checked-off.
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Moreover, the district court’s view of organizational standing is fundamentally at odds with Supreme Court precedent—in particular, Havens Realty. In that case, a group dedicated to promoting equal housing opportunities (HOME) brought a claim against an apartment complex under the Fair Housing Act. HOME, which was covered by the Act as an “association,” claimed that it had suffered an injury because the complex was showing apartments only to white people. HOME averred that this directly frustrated its mission to connect minorities with housing because the complex owner (that is, a supplier of housing) was simply refusing to abide by the law. The Supreme Court agreed. Critically, the Court held that HOME adequately alleged Article III injury because the complex “perceptibly impaired HOME’s ability to provide counseling and referral services” and frustrated its “role of facilitating open housing.” Havens Realty, 455 U.S. at 379 & n.21, 102 S.Ct. 1114. While the Court noted that HOME needed to divert resources as a result of these discriminatory practices, it cast HOME’s injury in terms of its ability to function.
The injury in Havens Realty was different in kind from what is at issue here. Organizational injury, properly understood, is measured against a group’s ability to operate as an organization, not its theoretical ability to effectuate its objectives in its ideal world. Quite simply, nothing in the Rule directly impairs CASA’s ability to provide counseling, referral, or other services to immigrants. Of course, we respect the fact that CASA feels strongly that it must reallocate resources to best serve its members amidst a changing legal landscape and that it would prefer to operate in an environment where the Rule does not exist. But untold numbers of organizations regularly voice dissatisfaction with public laws and actions that may affect their ordering of priorities in some way. Resource reallocations motivated by the dictates of preference, however sincere, are not cognizable organizational injuries because no action by the defendant has directly impaired the organization’s ability to operate and to function. See Whitmore v. Arkansas, 495 U.S. 149, 155–56, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990).
The district court, by contrast, gave Havens Realty an essentially boundless reading that wrongly brought the case into stark tension with core precepts of standing doctrine. On its view, Havens Realty supports organizational standing any time a group (1) alleges that a governmental action undermines its policy mission, and

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
(2) spends some money in response to *240 that action. See Casa de Maryland, 414 F. Supp. 3d at 770–74. But the Supreme Court has made clear that standing demands the same of organizations as it does of individuals. See Havens Realty, 455 U.S. at 378–79, 102 S.Ct. 1114. For this reason, “an organization’s abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art[icle] III.” Simon, 426 U.S. at 40, 96 S.Ct. 1917. And, just like individuals, an organization cannot satisfy this “concrete injury” requirement through standalone philosophical objections to a law, Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), gripes with how the law is enforced against other persons, Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), or decisions to voluntarily spend money to combat the effects of a given policy, Clapper, 568 U.S. at 410–14, 133 S.Ct. 1138. A reading of Havens Realty focused on operational harm—that is, the ability of an organization to function—comports with these principles. The district court’s position, though, essentially waives them for any entity with a policy position and a dollar.
The “duty of ... every judicial tribunal[ ] is limited to determining rights of persons or of property which are actually controverted in the particular case before it.” California v. San Pablo & T.R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747 (1893). In light of the above, it is plain that we cannot allow this case to proceed on the district court’s theory of subject matter jurisdiction if we are to remain faithful to these fundamental principles. CASA has not suffered an organizational injury, and thus it lacks organizational standing to bring this case.
There remains the question of whether the two individual plaintiffs to this action possess standing to bring it or whether CASA has standing in a representational capacity. We could of course remand this issue for a determination on that score. That course of action, however, imposes large costs. It would impart to this case an up-and-down-the-ladder quality that would delay its resolution almost indefinitely on a matter where the district court itself reached the merits and where the parties have extensively briefed the issue and urged its timely resolution upon our court. The issue, moreover, is, as both the parties and the amici recognize, one of large importance and one on which we presume that we will not have the final word. The matter of the Rule’s validity should be presented to the Supreme Court in as timely fashion as possible consistent with the considered views
11

of an intermediate court.
With that in mind, we take stock of the fact that this court “review[s] judgments, not opinions” and therefore may affirm the district court’s jurisdictional holding on alternative grounds. Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013) (internal quotation marks omitted). In light of the above, we choose to do so here. The record of this case makes plain that the two individual plaintiffs have standing to challenge the DHS Rule. They are two Deferred Action for Childhood Arrivals (DACA) recipients who plan to adjust their status in the future, J.A. 38, 43–44, and, more importantly, are presently forgoing specific financial resources (such as applying for student loans), J.A. 40, 45, out of concern that doing so would render them “public charges” at that later point. Unlike with CASA, this is the sort of concrete and particularized harm necessary to establish an Article III injury. The plaintiffs have also alleged sufficient facts to show that this injury is sufficiently actual or imminent, as they have explained how the Rule is having an immediate effect on their lives *241 today, as they make specific plans in anticipation of adjusting their status in the future. See Clapper, 568 U.S. at 414 n.5, 133 S.Ct. 1138; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183–84, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Lastly, the two plaintiffs meet the causation and redressability prongs of standing.5 We therefore shall proceed to address the plaintiffs’ arguments on the merits.
III.
“A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690–91, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (internal quotation marks and citation omitted). To obtain a preliminary injunction, a plaintiff must “establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We review a district court’s decision to grant an injunction for abuse of discretion. Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). We believe that the district court erred in this case

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
because, above all else, the plaintiffs are not likely to succeed on the merits. As explained above, the same assessment underlay the Supreme Court’s issuance of a stay of the injunctions of the Rule, and we think after careful review that the grounds are not there for contradicting the Supreme Court’s assessment.
A.
The INA states that any alien who the executive determines is “likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). This case turns on the meaning of “public charge” and whether the Rule is based on a permissible construction of that term.
Plaintiffs maintain that it is not. In particular, they aver that “public charge” has always meant someone “primarily dependent” on the government for support, and that the DHS Rule would apply to aliens who fall well below that threshold. The government, by contrast, maintains that “public charge” has a broad meaning that has been flexibly interpreted by the executive over time and can encompass individuals who rely on public benefits to meet their basic needs, even if those persons are not “primarily dependent” on welfare or other public aid. As noted, the district court sided with plaintiffs, reasoning that the Rule was “unambiguously foreclosed by Congress’s intention.” Casa de Maryland v. Trump, 414 F. Supp. 3d 760, 784 (D. Md. 2019) (internal quotation marks omitted). We think this was error.
Plaintiffs contend that their view of the public charge provision is the only correct one. But that cannot be right. The term is broad and even elusive enough to accommodate multiple views and meanings, as indeed it has since it first appeared in immigration law. The text, structure, and *242 history of the INA in fact all indicate that the Rule before us rests on an interpretation of “public charge” that comports with a straightforward reading of the Act. Moreover, fundamental separation of powers principles, and the concomitantly limited role of the federal courts over sensitive matters of immigration policy, only buttress what traditional tools of statutory interpretation make clear: the DHS Rule is a lawful one.
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1.
As always, we start with the text. While some version of a public charge provision has been a part of federal immigration law since 1882, Congress has never defined the term. When phrases used in a statute are undefined, “we look to the ordinary meaning of the term ... at the time Congress enacted the statute.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). Congress enacted the INA in 1952. The ordinary meaning of “public charge” in 1952 was “one who produces a money charge upon, or an expense to, the public for support and care.” Public Charge, Black’s Law Dictionary (4th ed. 1951) (defining as used in 1917 Immigration Act); Black’s Law Dictionary (3d ed. 1933) (same); see also Arthur Cook et al., Immigration Laws of the United States § 285 (1929) (defining as person who needs “any maintenance, or financial assistance, rendered from public funds, or funds secured by taxation”). And “charge,” in this context, meant a “cost” or “expense.” See, e.g., Charge, The New Century Dictionary (2d ed. 1946); Webster’s New Century Dictionary of the English Language (1941).
The district court, though, took up a different starting point. It looked to the meaning of “charge” in 1882, the first year a public charge provision was included in federal law. The court, relying mostly on two contemporary dictionaries, reasoned that “charge” meant a “person or thing committed or entrusted to the care, custody, or management of another,” Casa de Maryland, 414 F. Supp. 3d at 779 (quoting Charge, Webster’s Dictionary (1886 ed.)), so “public charge” therefore meant a person who “the Government has taken care, custody, or management of,” id. at 779. Put otherwise, the district court said, a “public charge” in 1882 meant something akin to a “pauper,” and it has meant the same thing ever since. Id.
For starters, we strongly doubt that “public charge” has been consistently understood as synonymous with “pauper.” See, e.g., Lam Fung Yen v. Frick, 233 F. 393, 396 (6th Cir. 1916) (“It seems clear that the term ‘persons likely to become a public charge’ is not limited to paupers or those liable to become such.”); Matter of M-, 2 I. & N. 131, 131 (BIA 1944) (holding someone was a public

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
charge but was not a pauper); Public Charge, Black’s Law Dictionary (4th ed. 1951) (“As so used, the term [public charge] is not limited to paupers or those liable to become such.”); Stewart Repalje et al., Dict. of Am. and English Law (1888) (defining “charge” as “an obligation or liability”); see also Richard A. Boswell, Restrictions on Non-Citizens’ Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. Rev. 1475, 1486 n.40 (1995) (“[T]he term ‘public charge,’ which was written into the statute over a hundred years ago, has had different meanings over this entire period of time.”). Indeed, from 1891 to 1990, Congress listed both “public charge” and “pauper” in the same statutory provision. And it is a fundamental canon of statutory interpretation that courts, whenever possible, should give independent statutory terms independent meaning. See, e.g., *243 Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004).
In all events, the present structure of the INA confirms that “public charge” should be given its broad ordinary meaning, as understood when the INA was enacted in 1952. See Gustafson v. Alloyd Co., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). Most importantly, the INA is structured to give the executive discretion to administer the public charge provision, which undermines the idea that the term has the sort of fixed and circumscribed definition ascribed to it by the district court. As noted, the INA does not define the term “public charge,” let alone contain anything like a “primarily dependent” standard within its text. Rather, it expressly entrusts the decision of who is a “public charge” to the “opinion of the [DHS Secretary].” 8 U.S.C. § 1182(a)(4)(A); see also id. § 1103(a)(1). Ordinarily, this sort of language indicates that the executive has extensive discretion over the relevant determination. See Martin v. Mott, 25 U.S. (12 Wheat.) 19, 31–32, 6 L.Ed. 537 (1827) (Story, J.). Especially so here, where Congress has baked discretion into the statutory scheme many times over. For instance, the INA lays out five non-exclusive factors that executive officials should look to when making public charge determinations, but also states that such factors should be considered “at a minimum.” 8 U.S.C. § 1182(a)(4)(B)(i). This reinforces the point that it is the executive which has the ultimate discretion under the INA over who is a “public charge” and what is most relevant to that decision. See also id. § 1103(a)(3) (giving DHS Secretary rulemaking authority). In other words, nothing about these broad grants of power suggests that the term must be read more narrowly than its ordinary meaning.
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Surrounding sections of the INA point in the same direction. Take the sponsorship-and-affidavit scheme that Congress designed to work in conjunction with the public charge provision. Under this scheme, as a necessary condition for avoiding a public charge designation, many aliens must obtain sponsors, be it a family member or employer, who will provide a legally-enforceable “affidavit of support” on their behalf. See 8 U.S.C. §§ 1182(a)(4)(C)–(D), 1183a. An alien’s sponsor must pledge “to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line,” id. § 1183a(a)(1)(A), and reimburse the relevant government agency if the alien uses “any means-tested public benefit,” id. § 1183a(a)(1)(B). Failing to obtain a sponsor renders a covered alien automatically inadmissible as a public charge, no matter his personal financial circumstances. See id. §§ 1182(a)(4)(C)(ii), (D).
This sponsor-and-affidavit scheme affirms that “public charge” should be given its ordinary meaning. The content of what is required by the affidavit—including both its minimum income and reimbursement guarantees—coupled with the fact it is required for many aliens, underscores that the public charge provision is naturally read as extending beyond only those who may become “primarily dependent” on public support. Indeed, adopting plaintiffs’ definition, as the district court did, would create an odd gap between the public charge provision and the sponsorship-and-affidavit system designed to accompany it. The clear object and effect of the sponsorship-scheme is to guarantee that aliens will be self-sufficient and not impose any meaningful burden on the public. But, on plaintiffs’ view, the same Congress that fashioned this system (as well as every Congress since 1882) also believed that the public charge provision only applied (and could only apply) to aliens likely to become primarily dependent on public support. *244 This does not fit; that is, it does not make sense that Congress designed a sponsorship-scheme focused on self-reliance as a necessary part of complying with a statutory provision concerned exclusively with primary dependence. It would be like an amusement park having parents sign a form attesting that their kids are five feet tall in order for them to get on rides that only require persons to be three feet. Giving “public charge” its ordinary meaning, however, avoids this sort of incongruity and allows both provisions to work together.
What is more, related immigration statutes support this reading of the public charge provision. See Felix Frankfurter, Some Reflections on the Reading of Statutes,

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
47 Colum. L. Rev. 527, 539 (1947) (“Statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes.”). When Congress last amended the public charge provision, it also passed the Personal Responsibility and Work Opportunity Act of 1996 (“PRWOA”). The PRWOA barred most aliens from receiving many cash and noncash benefits for five to ten years, 8 U.S.C. §§ 1611–1613, 1641, and it established that an alien’s income would include his sponsor’s for the purposes of qualifying for other aid, id. § 1631(a)(1). Congress passed these provisions “in order to assure that aliens be self-reliant” and “not burden the public benefits system.” Id. §§ 1601(5), (4). Giving “public charge” its ordinary meaning brings that provision into line with this surrounding program and its stated goal that “aliens within the Nation’s borders not depend on public resources to meet their needs.” Id. § 1601(2)(A). Adopting plaintiffs’ proposed definition, on the other hand, would give the public charge provision a notably more limited scope, distinct from similar provisions in related laws. We do not see anything in the text of these statutes to indicate that Congress understood the public charge provision to be such a circumscribed outlier.
In sum, the text, structure, and statutory context of the INA all confirm that “public charge” should be given its ordinary meaning; that is, someone who produces a money charge upon the public for support and care. Of course, this does not mean the public charge provision must apply as broadly as its ordinary meaning permits. Instead, as the text of the INA makes clear, the term enjoys, in practice, a certain ambiguity, giving the executive discretion over the type, amount, and duration of public assistance that will render someone a “public charge.” But, at the same time, the term is unambiguous as to the statutory floor it sets for the executive; a floor that the judiciary is powerless to alter sua sponte.
In practical terms, what this means is that both the DHS Rule and the 1999 Field Guidance may be seen to rest on sound footing. While the two policies involve different levels of public benefits at which receipt would render someone a “public charge,” both turn on, at the end of the day, aliens producing money charges upon the public for support and care. The fact that two administrations set this bar at different places does not bear on the legality of each respective policy; rather, it underscores how the public charge provision’s very flexibility was designed to work. In that light, the DHS Rule is plainly permissible. The Rule defines “public charge” as someone who is likely to receive certain public benefits for more than 12
14

months over any 36-month period; put otherwise, someone who is likely to produce a money charge upon the public for support over some period of time. This is all the INA requires.
*245 Curiously, the district court seemed to put greater stock into what Congress did not pass. Specifically, the court relied heavily on two failed proposals that attempted to define “public charge”: the first, from 1996, would have defined the term as an alien who received certain public benefits for 12 months over any 7-year period; and the second, from 2013, would have expressly extended the provision to include the use of noncash benefits. See Casa de Maryland, 414 F. Supp. 3d at 782–83. The DHS Rule, the court surmised, was essentially an attempt to get into law a definition of “public charge” that two prior Congresses had rejected. But the Supreme Court has often warned that “[f]ailed legislative proposals are particularly dangerous ground on which to rest an interpretation of a prior statute,” and the district court’s decision shows why. Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169–70, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (internal quotation marks omitted). The never-enacted 1996 and 2013 proposals relied upon by the district court cut as much in the other direction. Indeed, they equally support the idea that Congress has long resisted enumerating a fixed definition of “public charge,” and has instead preferred to entrust the executive with implementing the provision flexibly in accordance with its ordinary meaning and the national interest.
Similarly, the district court erred when it held up the Supreme Court’s decision in Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915), as support for its claim that “public charge” should be read narrowly. The court, in short, read Gegiow to stand for the proposition that “public charge” must mean something akin to a “pauper”; that is, someone “destitute and unable to work.” Casa de Maryland, 414 F. Supp. 3d at 781 (internal quotation marks omitted).
This reading of Gegiow is untenable. Even on its own terms, Gegiow has nothing to do with this case. There, the Court decided a “single question,” and held that an alien could not be designated a “public charge” based on the local labor market to which he was headed, rather than his personal characteristics. Gegiow, 239 U.S. at 9–10, 36 S.Ct. 2. The Rule, which involves a totality-of-the-circumstances individualized inquiry, entirely complies with this holding. In all events, there is considerable doubt as to Gegiow’s continuing relevance,

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
as Congress amended the Immigration Act two years later “to nullify [Gegiow’s] restrictive interpretation of the statute.” Matter of Harutunian, 14 I. & N. Dec. 583, 587 (BIA 1974).
We recognize that the Rule before us is controversial. As in all matters of controversy, there are passionate pros and cons. Our inquiry, however, concerns not the wisdom of the Rule but its legality. As to that, the text and structure of the INA yield a clear answer: the term “public charge” is naturally read as meaning just that—someone who produces a money charge upon the public for support or care. And the DHS Rule comports with this reading.
2.
Perhaps in light of what the text and structure of the INA seem to compel, plaintiffs urge that we take a different tack and look to the history. As touched on above, plaintiffs’ core argument is that “public charge” has meant the same thing from 1882 to present day: someone primarily dependent, for one reason or another, on the public for subsistence. According to plaintiffs, when Congress repeatedly reenacted the public charge provision without adding a definition of “public charge,” it implicitly ratified this widely-shared view *246 of what the term meant and accordingly created an enforceable gloss upon the law’s text.
Of course, plaintiffs are right that when a statutory phrase has been “given a uniform interpretation by inferior courts or the responsible agency, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012); see also Stokeling v. United States, ––– U.S. ––––, 139 S. Ct. 544, 551, 202 L.Ed.2d 512 (2019). But the Supreme Court has also stressed that Congressional reenactment of a glossed term cannot alter or overcome its plain meaning. See, e.g., Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991).
At any rate, these sorts of implicit ratification arguments are tall orders. See Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). Congress has never enacted the language
15

plaintiffs now advance as the statute’s sole and indisputable meaning. Before a court may infer an atextual gloss on a statute, the backdrop against which Congress was legislating must be settled and unambiguous. Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 349, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (requiring, for judicial opinions, a “judicial consensus” that is “broad and unquestioned”); FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 437, 106 S.Ct. 1931, 90 L.Ed.2d 428 (1986) (requiring, for administrative practice, a “longstanding interpretation”). This condition flows directly from the separation of powers’ command that the federal courts are to apply statutes, not build upon or augment them in some common law manner.
The district court overlooked this threshold requirement when it accepted plaintiffs’ historical claim. The district court’s core error was that it lost sight of fact that plaintiffs needed to show that “public charge” has had a uniform and fixed definition that amounted to “settled law” both when Congress enacted the INA and when it most recently amended the public charge provision. Keene Corp. v. United States, 508 U.S. 200, 212–13, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993).
Plaintiffs cannot shoulder this concededly heavy burden. Indeed, executive and judicial practice from 1882 to the present rebuts any idea that “public charge” has been uniformly understood by either branch as pertaining only to those who are “primarily dependent” on public aid. We consider the practice of each in turn.
To begin with, if “public charge” had the sort of ubiquitous definition that plaintiffs claim, it seems that nobody told the branch tasked with implementing the provision. As then-INS General Counsel Charles Gordon put it in 1949, the provision has always been understood as “highly ambiguous” and, at times, has had the effect of “thrust[ing] upon the immigration officer’s shoulders the mantle of prophecy.” Charles Gordon, “Aliens and Public Assistance,” Immigration and Naturalization Service Monthly Review, vol. VI, no. 9 (Mar. 1949), 116; see also Kim R. Anderson & David A. Gifford, Consular Discretion in the Immigrant Visa-Issuing Process, 16 San Diego L. Rev. 87, 124–25 (1978). And it seems that the practical ambiguity of the phrase remained constant for the next fifty years. For instance, even the 1999 Field Guidance, which is the rock upon which plaintiffs have built their case, declared that the term was ambiguous and that guidance was “necessary” because of “confusion over the meaning of ‘public charge.’ ” *247 Field Guidance on

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (May 26, 1999); see also Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676, 28,677 (May 26, 1999) (referring to the term as “ambiguous”). This is not good for plaintiffs’ argument premised on everyone being in on the same understanding.
Further, as one would expect considering the evolving executive policies described above, see Part I.A supra, it is not possible to glean a longstanding “primarily dependent” standard from executive practice. For one, any express articulation of such a standard is conspicuously absent from pre-1999 immigration opinions. See Matter of B-, 3 I. & N. Dec. 323, 325 (BIA 1948) (noting that a definition of “public charge” was no more than “implicit” in two federal court decisions); Matter of J-, 2 I. & N. Dec. 99, 99 (BIA 1944) (emphasizing that an alien was “not shown to have been a recipient of public aid of any kind in the past”); see also Matter of V-, 2 I. & N. Dec. 78, 79–80 (BIA 1944); Matter of H-, 1 I. & N. Dec. 166, 167–68 (BIA 1941). And it does not seem that any such standard has been long followed on the ground, in the bulk of ordinary decisions that never reached judicial or formal executive review. See S. Rep. No. 99-132, at 47–48 (1985) (observing “the State Department and INS have interpreted ‘public charge’ to exclude persons receiving assistance through such programs as ‘food stamps’ and ‘rent subsidies’ ”); Gordon, supra, at 116 (explaining “[n]o fixed standard thus can be established” for such decisions and “the standards applied [in 1949] are a bit more exacting, particularly during times of economic dislocation”); Immigration Services, Annual Report of the Commissioner-General of Immigration to the Secretary of the Treasury 10 (1896) (recognizing “1,946 immigrants fell into temporary distress and became public charges”).
All in all, before a federal court may infer that Congress has silently ratified an interpretation put forward by an executive agency, that interpretation must be discernible and longstanding. See, e.g., Young v. Cmty. Nutrition Inst., 476 U.S. 974, 983, 106 S.Ct. 2360, 90 L.Ed.2d 959 (1986). Here executive practice reveals that the public charge provision has enjoyed an enduring ambiguity, as different administrations have built upon the INA’s statutory baseline in different ways at different times. See City and Cnty. of San Francisco v. USCIS, 944 F.3d 773, 796–97 (9th Cir. 2019).
We turn next to judicial precedent—and here too
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plaintiffs come up short. Preliminarily, we note that our focus—like that of the district court, parties, and amici—is on cases decided between the initial enactment of the public charge provision in 1882 and the passage of the INA in 1952. See, e.g., Casa de Maryland, 414 F. Supp. 3d at 780–81; Appellant’s Opening Br. 28–32; Appellee’s Response Br. 34–35; Brief of Immigration Law Professors as Amicus Curiae 7–15; Brief of United States House of Representatives as Amicus Curiae 8–9. Obviously, only those judicial opinions published prior to the INA’s enactment would have been available to Congress when drafting that statute. As such, for Congress to have implicitly ratified a settled judicial interpretation of “public charge,” that interpretation must be evident in pre-1952 caselaw. What is more, very few cases dealing with the public charge provision have been decided since 1952. Congress’s decision to entrust public charge determinations to “the opinion of” the executive naturally limited robust judicial review. See Immigration and Nationality Act, Pub. L. No. 82-414, tit. II, ch. 2, § 212, 66 Stat. 163, 183 (1952). Likewise, Congress has stripped the federal courts of jurisdiction to review many discretionary decisions by immigration officials, see, e.g., *248 8 U.S.C. § 1252(a)(2)(B), which, in addition to limiting the number of reported opinions interpreting the underlying provisions, further reinforces the point that Congress intended such decisions to be made by the executive, not the courts.
That said, there is a notable absence of any express articulation of a “primarily dependent” standard in reported decisions over the relevant time-period. See, e.g., Skrmetta v. Coykendall, 16 F.2d 783, 784 (N.D. Ga. 1926) (describing “public charge” as persons who cannot “maintain themselves in society by the ordinary means”); In re Keshishian, 299 F. 804, 805 (S.D.N.Y. 1924) (noting that “there must be evidence that [an alien is] likely to be supported at the expense of the public”); In re Feinknopf, 47 F. 447, 447 (E.D.N.Y. 1891) (observing that an alien “ha[d] not received public aid or support” at all). In fact, it was not uncommon for federal courts to look to dictionary definitions of “public” and “charge” separately when interpreting the provision, which would be quite curious if there was a settled judicial construction of the term out there, as plaintiffs insist. See, e.g., Ex Parte Horn, 292 F. 455, 457 (W.D. Wash. 1923); Ex Parte Machida, 277 F. 239, 241 (W.D. Wash. 1921).
When courts did endeavor to define the term “public charge,” they often adopted its ordinary meaning. See, e.g., Ex Parte Kichmiriantz, 283 F. 697, 698 (N.D. Cal.

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
1922) (“[T]he words ‘public charge,’ as used in the Immigration Act [of 1917], mean just what they mean ordinarily; that is to say, a money charge upon, or an expense to, the public for support and care.”); see also Dunn v. Bryan, 77 Utah 604, 299 P. 253, 256 (1931) (finding that “public charge” has this “well-defined meaning” from Ex Parte Kichmiriantz). And many scholars, noting these cases, followed suit. See Jane Perry Clark, Deportation of Aliens from the United States to Europe 110 (1931) (“The words ‘public charge’ mean a financial liability on, or expense to, the public for support and care.”); Will Maslow, Recasting Our Deportation Law: Proposals for Reform, 56 Colum. L. Rev. 309, 340 (1956); Leo M. Alpert, The Alien and the Public Charge Clauses, 49 Yale L.J. 18, 23 (1939).
Judicial decisions thus cut against the idea that courts have uniformly applied a “primarily dependent” standard in practice. In fact, simpatico with the executive’s approach, courts have often held that failure to repay upon demand a single specific expense charged to the public fisc could render an alien a deportable “public charge.” See, e.g., Zurbrick v. Woodhead, 90 F.2d 991, 991–92 (6th Cir. 1937) (holding someone regularly employed without a “blot upon her character” was a “public charge” because she could not pay hospital expenses). Moreover, for the first half of the twentieth century, when judicial review of public charge determinations was still common, there was a circuit split about the term’s meaning; specifically, whether someone who was imprisoned could be designated a “public charge.” United States ex re. Lehtola v. Magie, 47 F.2d 768, 770 (D. Minn. 1931) (detailing split). This does not augur well for the notion that “public charge” had a settled judicial meaning, let alone one focused solely on primary dependence. Recall that for a court to infer that Congress silently adopted a judicial interpretation of a statutory phrase, that interpretation must be the product of a “judicial consensus [that is] broad and unquestioned.” Jama, 543 U.S. at 349, 125 S.Ct. 694. It is not even close whether such a consensus existed around the standard plaintiffs champion.
While legislative history holds a precarious position as a source for statutory interpretation, the Supreme Court has made *249 clear that, in the context of arguments like the one plaintiffs make here, the absence of evidence might be the evidence of absence. That is, if Congress decided to ratify some settled administrative or judicial interpretation of a statutory phrase, one would expect there to be some sign of it. See Zenith Radio Corp. v.
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Hazeltine Research Inc., 401 U.S. 321, 336 n.7, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (looking for “direct evidence” that Congress considered the interpretation). But the legislative record—in particular, the legislative history of the 1952 INA and the most recent public charge amendments—comes up empty. For plaintiffs, this is the ballgame. See Brown v. Gardner, 513 U.S. 115, 121, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994).
Of course, Congress did enact the INA against some backdrop. But it was not the one that plaintiffs urge here, and the one that the district court adopted. Congress was expressly aware of many of the disagreements noted above and recognized that the public charge provision had been “left to the interpretation of the administrative officials and the courts.” S. Rep. No. 81-1515, at 348–49 (1950). Critically, Congress understood that “courts have given varied definitions of the phrase” and “different consuls, even in close proximity with one another, have enforced standards highly inconsistent with one another.” Id. at 347, 349 (internal quotation marks omitted). In light of this backdrop, the legislature made a conscious choice: keep “public charge” undefined and vest the executive branch with discretion as to how to best implement the provision, consistent with the national interest. As the Senate Judiciary report for INA put it: “Since the elements constituting the likelihood of becoming a public charge are varied, there should be no attempt to define the term in the law, but rather to establish the specific qualification that the determination of whether an alien falls into that category rests with the discretion of the consular officers or the Commissioner.” Id. at 349. Accordingly, Congress added in the 1952 INA that public charge determinations would turn on the “opinion” of the relevant executive officer. 8 U.S.C. § 1182(a)(4)(A).
The legislative history of the 1996 amendments to the public charge provision do nothing more for plaintiffs. It seems that at least some sponsors of the IIRIRA affirmatively rejected plaintiffs’ “primarily dependent” definition. See, e.g., 142 Cong. Rec. S4417 (daily ed. Apr. 30, 1996) (statement of Sen. Simpson) (“If the immigrant uses such taxpayer-funded assistance, he or she is a public charge. How else should the term ‘public charge’ be defined than someone who has received needs-based taxpayer-funded assistance?”). And the prior legislative debates do not reveal any indication that Congress was aware of plaintiffs’ proffered interpretation. See, e.g., 139 Cong. Rec. S1765 (daily ed. Feb. 18, 1993) (statement of Sen. Mitchell) (“Provisions in the act require applicants for visas to prove that they will not require public

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
assistance or become a ‘public charge.’ ”). Moreover, the Conference Report to the IIRIRA seems to endorse the ordinary meaning of “public charge,” and insists that the provision had been underenforced in the context of deportations. See H.R. Rep. No. 104-828, at 241 (1996) (Conf. Rep.) (“Aliens who access welfare have been deportable as public charges since 1917. However, only a negligible number of aliens who become public charges have been deported in the last decade.”). Put plainly, whatever value legislative history may have here, it only reinforces the lawfulness of the Rule.
The district court agreed with plaintiffs that “public charge” has retained a well-known and fixed meaning for the last 138 years, so much so that DHS’s interpretation of that term was foreclosed by the *250 “unambiguously expressed intent of Congress”—an intent that Congress expressed, we suppose, through repeated silence. See Casa de Maryland, 414 F. Supp. 3d at 778 (internal quotation marks omitted). We do not see it. The only constant feature of the public charge provision seems to be its mutability, a trait that Congress has purposefully codified as a feature of our immigration law, not a bug. Of course, none of this means that the executive has free reign to cram whatever policy it wishes into the public charge provision. Its discretion is still limited by the plain text of the INA. But the executive’s discretion over this provision cannot be restrained by adopting a fixed “primarily dependent” standard that has no basis in the text or history of that statute.
3.
The DHS Rule thus comports with the best reading of the INA—namely that Congress actively sought variability over time as different administrations responded to different exigencies and circumstances. To whatever extent this appeal presents a close question—and, again, we think it does not—Chevron makes the outcome clear. Under Chevron, courts must uphold an agency interpretation as long as it is a “permissible construction of the statute.” 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The DHS Rule satisfies this test.
As noted, the Rule made two substantive changes to the 1999 Field Guidance that was previously in place. First, it
18

replaced the “primarily dependent” standard with a more concrete metric, defining “public charge” as an alien who “receives one or more public benefits for more than 12 months in the aggregate within any 36-month period.” Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,297 (August 14, 2019). Second, the DHS Rule incorporated for the first time certain noncash federal benefits as part of its definition of “public benefit.” Id.
These changes follow from a permissible construction of the INA. DHS’s definition of “public charge” is clearly consistent, as mentioned, with at least “an ordinary understanding” of the term. Babbitt v. Sweet Home Chapter of Comm’s for a Great Or., 515 U.S. 687, 697, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). Further, the Rule facilitates the broader congressional policy goals contained in the INA and related immigration statutes: in particular, Congress’s stated desire that “aliens within the Nation’s borders not depend on public resources to meet their needs.” 8 U.S.C. § 1601(2)(A); see also Cuozzo Speed Techs., LLC v. Lee, ––– U.S. ––––, 136 S. Ct. 2131, 2142–44, 195 L.Ed.2d 423 (2016). Lastly, the DHS Rule fits comfortably with the surrounding structure of the INA. See MCI Telecommunications Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 228–29, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994). For example, in addition to the sections noted above, the Rule’s decision to cover noncash benefits is supported by the fact that another provision of the INA bars DHS from “consider[ing] any benefits that the alien may have received” as part of its public charge determination if an alien “has been battered or subjected to extreme cruelty in the United States.” 8 U.S.C. §§ 1182(s), 1641(c)(1)(A). Congress’s use of “any” here would be odd if DHS only were permitted to consider cash benefits in its analysis.
All told, the text, purpose, and structure of the INA make clear that the DHS Rule is premised on a permissible construction of the term “public charge.” To hold otherwise is a serious error in statutory interpretation. More fundamentally, though, it is also a broadside against separation of powers and the role of Article III courts.
*251 The separation of powers concerns underlying Chevron are at their zenith in the context of immigration, a field that the Constitution assigns to the political branches. See Harisiades v. Shaughnessy, 342 U.S. 580, 596–97, 72 S.Ct. 512, 96 L.Ed. 586 (1952) (Frankfurter, J., concurring). The exercise of the federal immigration power is a “fundamental act of sovereignty,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542,

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
70 S.Ct. 309, 94 L.Ed. 317 (1950), vested preeminently in and shared by the political branches. Specifically, this fount of authority “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation,” id., such that when “Congress prescribes a procedure concerning the admissibility of aliens ... it is not dealing alone with a legislative power” but is also “implementing an inherent executive power,” id. When Congress chooses to delegate power to the executive in the domain of immigration, the second branch operates at the apex of its constitutional authority. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20, 57 S.Ct. 216, 81 L.Ed. 255 (1936).6
The other side of this coin is that the judicial role in overseeing the political branches’ exercise of the federal immigration power is circumscribed. The Supreme Court has repeatedly emphasized that “[j]udicial deference in the immigration context is of special importance, for executive officials ‘exercise especially sensitive political functions that implicate questions of foreign relations,’ ” Negusie v. Holder, 555 U.S. 511, 517, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (quoting INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)), while federal judges possess inherently limited competencies over this subject matter, see Fiallo v. Bell, 430 U.S. 787, 796, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). Immigration policy concerns not only the physical security of the country, but also the character and identity of the nation. Federal judges, drawn from one profession and lacking even a patina of democratic sanction, are ill-suited to supervise these issues and the difficult balances that inhere in them. Accordingly, we should be reluctant to disturb the authority expressly delegated to executive officials by Congress in this field. See Knauff, 338 U.S. at 542, 70 S.Ct. 309. Yet plaintiffs would have us barrel ahead as if we were sub silentio exempted from these settled axioms.
Properly evaluated, the DHS Rule is unquestionably lawful. Congress has delegated to the executive the power to implement a purposefully undefined provision of law in an area where the executive possesses inherent constitutional powers and unique structural competencies. To whatever extent the federal courts are empowered to review how the executive discharges this duty, the separation of powers demands careful deference from the judiciary and intervention, if at all, only in truly exceptional situations. This is not one of them.
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B.
In his fine dissenting opinion Judge King refers warmly to the Seventh Circuit’s *252 recent holding that the Rule is likely contrary to law. See, e.g., Dissenting Op., post at 267 & n.4 (citing Cook Cty. v. Wolf, 962 F.3d 208 (7th Cir. 2020)). At the outset, both our sister circuit and our dissenting colleague make a critical concession that the term “public charge” is an ambiguous one. Dissenting Op., post at 267; Cook Cty., 962 F.3d at 226. Ordinarily, such an acknowledgement of ambiguity would lead to considerable deference to the agency charged with implementing the statutory directive. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Far from following the usual course, however, those opinions declare that while the term “public charge” is ambiguous, it is somehow not ambiguous enough. See Dissenting Op., post at 276–77; Cook Cty., 962 F.3d at 229. Our dissenting colleague’s approach suggests different categories of ambiguity—a Chevron Step III for courts to determine whether maximum or moderate ambiguity is present in a given case. This multi-layering of ambiguity adds an additional element of complexity and subjectivity to a doctrinal area that has suffered no shortage of either.
The Seventh Circuit, in proceeding to Chevron Step II, identified a litany of faults with the Rule; but far from revealing the Rule as flawed, both our dissenting colleague’s and the Seventh Circuit’s opinions only underscored the significant difficulties with their own approaches. Indeed, Judge King’s praise of the Seventh Circuit’s reasoning is unsurprising as the two opinions suffer from many of the same infirmities.
Those difficulties are at least three in number. The first complication is that both opinions create more inconsistencies than they resolve and manufacture “floors” that are untethered from the statutory text. Second, both our dissenting colleague and the Seventh Circuit engage in sheer speculation about potential rules that do not exist, and the Seventh Circuit imagines prejudiced implementation that has not occurred. And third, they mistake policy unreasonableness for statutory unreasonableness. We address each of these problems in turn.

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
First, both the Seventh Circuit and dissenting opinions pick and scratch at the Rule in an effort to identify tensions with other provisions of immigration law and federal law generally. See Dissenting Op., post at 280–81; Cook Cty., 962 F.3d at 227. Of course, there is no end of conceivable “tensions” one may find while rummaging through the vast and complicated array of federal enactments. Under that approach, there would never be a perfectly seamless whole as every rule creates some conceivable “tension” that determined judges can discover. To dig at the Rule and unearth tension is to announce that every rule will be doomed to fall short from the start.
Worse still, both opinions, that of Judge King and the Seventh Circuit, skate blithely over the tensions and inconsistencies that their own positions create. The dissent embraces the Seventh Circuit’s divination of “a floor inherent in the words ‘public charge.’ ” Dissenting Op., post at 277 (quoting Cook Cty., 962 F.3d at 229). But this “floor” of benefits below which no one may be deemed a public charge is simply nowhere in the text itself. The statute contains no threshold of benefits—quantitative, qualitative, or durational—that one must accept before qualifying as a public charge. And even assuming that this floor can be properly divined, it is unclear how an agency could determine what the floor even is or whether an alien is “significantly dependent” on the government. The *253 exercise our dissenting friend envisions is one of pure guesswork.
Furthermore, the Seventh Circuit scarcely mentions what is in the text—such as the sponsorship-and-affidavit scheme, Cook Cty., 962 F.3d at 222—which evinces Congress’s intent “to aggressively protect the public fisc” and “is at odds with the view that [Congress] used the term ‘public charge’ to refer exclusively to primary and permanent dependence,” id. at 246 (Barrett, J., dissenting). In emphasizing that immigration law allows aliens to receive some benefits at some points, both the Seventh Circuit and our dissenting colleague rush over statutory text and nuance in a hurry to invalidate the Rule. See Dissenting Op., post at 280–81 (citing Cook Cty., 962 F.3d at 228 (majority opinion)). For example, aliens are in fact barred from receiving many benefits for their first five to ten years in the country. 8 U.S.C. §§ 1611–1613, 1641; see also Cook Cty., 962 F.3d at 247 (Barrett, J., dissenting). And the benefits available to aliens before five years of residency—that the opinions allege create tension—are largely irrelevant to the public charge
20

determination under the Rule. See Cook Cty., 962 F.3d at 235 n.1.
The statutory availability of some, but not all, benefits is readily reconcilable with the Rule: Congress tasked the executive with barring entry to those who are likely to need public benefits but also provided a backstop for those who face setbacks that were unforeseeable on the front end. See id. at 247 (citing 8 U.S.C. § 1227(a)(5)); Act of Mar. 3, 1891, ch. 551, § 11, 26 Stat. 1084, 1086); see also id. at 235 n.1 (citing Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,312 (Aug. 14, 2019) (“[The Rule’s] definition does not include benefits related exclusively to emergency response, immunization, education, or social services. ...”)); Inadmissibility, 84 Fed. Reg. at 41,482 (“[T]he [R]ule’s definition of public benefit does not include emergency aid, emergency medical assistance, or disaster relief.”)). Moreover, the dissent and the Seventh Circuit paint with far too broad a brush in defining what constitutes a benefit. See Dissenting Op., post at 280 n.14 (citing Cook Cty., 962 F.3d at 232 (majority opinion)). The term “charge” has never involved government services like fire protection or public education, but rather has “always been associated with dependence on a particular category of government programs: those available based on financial need.” Cook Cty., 962 F.3d at 250 (Barrett, J., dissenting).
In short, the “tensions” that the Seventh Circuit and our dissenting colleague manage to come up with are of a decidedly tangential variety, and inconsistencies in both approaches, not to mention the plain statutory language, are probative of the Rule’s validity.
The second drawback to the dissent’s and Seventh Circuit’s approach lies in their willingness to indulge in speculation. The Seventh Circuit suggests without a shred of evidence that the executive will apply the statutory factors—“age,” “health,” “family status,” “assets, resources, and financial status,” and “education and skills,” 8 U.S.C. § 1182(a)(4)(B)—on the basis of racial or ethnic stereotypes. Cook Cty., 962 F.3d at 232. And both that court and our dissenting colleague speculate on the horrors of the executive designating someone who receives “a single benefit on one occasion” as a public charge, id. at 229; see also Dissenting Op., post at 277–78, notwithstanding the fact that the Rule is both durationally and quantitatively far removed from the sort of public charge penny recipient about which those opinions speculate in their hypotheticals. Indeed, such a rule is *254 not before this court, and we reserve

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
discussion of its legality if and when it is presented.
The third difficulty with the analyses is their confidence in themselves as experts in immigration policy. The Seventh Circuit in fact begins with a description of the values that an ideal rule, in that majority’s view, ought to encapsulate. Cook Cty., 962 F.3d at 214–15. Both opinions fault the Rule for DHS’s ability to “stack benefits” and categorize non-cash public aid as a public charge. Id. at 229; see also Dissenting Op., post at 278. But there is nothing in the statutory language that precludes stacked or non-cash benefits from counting as public assistance. And history belies the notion that the form of benefit matters—in early twentieth-century cases, one kind of public assistance with which the public charge provision was concerned was institutionalization, a type of non-cash benefit. See, e.g., United States ex rel. Brugnoli v. Tod, 300 F. 913 (S.D.N.Y. 1923), aff’d, 300 F. 918 (2d Cir. 1924) (considering institutionalization in the Manhattan State Hospital). Moreover, the Seventh Circuit feels that the Rule “unreasonably imposes substantially disproportionate consequences for immigrants[ ] compared to the supposed drain on the public fisc they cause.” Cook Cty., 962 F.3d at 229.
These observations as to the Rule’s efficacy may or may not be valid, but they are blunt policy prescriptions that belong in a legislative hearing or notice-and-comment rulemaking, not in a judicial assault upon the Rule’s validity. See Kerry v. Din, 576 U.S. 86, 135 S. Ct. 2128, 2136, 192 L.Ed.2d 183 (2015) (recognizing that immigration distinctions “are ‘policy questions entrusted exclusively to the political branches of our Government’ ” (quoting Fiallo v. Bell, 430 U.S. 787, 798, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977))). At bottom, our sister circuit’s and dissenting colleague’s claim of statutory unreasonableness is really a claim of policy unreasonableness, designed to position the courts as singular arbiters in a field for which their expertise is limited and their democratic imprimatur is non-existent.
In combination, these drawbacks confirm every fear that the judiciary is on its way to projecting a major voice in a field of law that has long been reserved to the politically accountable branches the Founders established in Articles I and II. Cf. Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948) (recognizing that “the very nature of executive decisions as to foreign policy is political, not judicial,” and thus they “are wholly confided by our Constitution to the political departments of the
21

government, Executive and Legislative”). The Seventh Circuit and the dissent envision an immigration policy that, quite apart from its conformity to the preferred policy of a particular court, is static rather than dynamic. They take an ambiguous term and attempt to apply a singular meaning to it, when in fact their analyses admit multiple—and indeed possibly revolving—meanings.
Congress envisioned that the executive would be able to adapt immigration policy to political expressions and changing circumstances. See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (describing immigration as a field requiring “flexibility and the adaptation of the congressional policy to infinitely variable conditions” (quoting Lichter v. United States, 334 U.S. 742, 785, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948))). The Seventh Circuit and the dissent ignore this arrangement and wring all flexibility out of national immigration policy. It is difficult to think that any approach more restrictive than the “primarily dependent” or “significantly dependent” *255 standard will ever be acceptable. Only more permissive will do. But this misses Congress’s intention that there be room for both. Instead of the term’s ambiguity allowing for flexibility on the part of the executive, our dissenting colleague and the Seventh Circuit artificially constrict the term and install rigidity, along with an incipient judicial primacy, as the burgeoning hallmark of federal immigration policy.
C.
The plaintiffs are therefore unlikely to succeed on the merits because the DHS Rule is lawful. As the Supreme Court has noted, a likelihood of success on the merits is the most critical factor supporting issuance of a preliminary injunction, and that likelihood simply is not present here. Dep’t of Homeland Sec. v. New York, ––– U.S. ––––, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020); see also Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). This is enough to reverse the district court’s grant of a preliminary injunction. Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2423, 201 L.Ed.2d 775 (2018). It is worth noting also that the other Winter factors reinforce the conclusion that the district court erred in granting the injunction here. See Winter, 555 U.S. at 20, 129 S.Ct. 365.

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
For one, CASA did not establish that it would be irreparably harmed in the absence of an injunction. As noted, CASA’s purported injuries were not the product of the Rule’s dictates, but of its own priorities and choices. This is not “irreparable harm” in any judicially-cognizable sense. The final two Winter factors also did not assist CASA’s case. When the government is a party, these factors—the balance of the equities and the public interest—merge. The key flaw in the district court’s reasoning here was its implicit assumption that the individual interest must always trump the general. But whether one agrees with the Rule or not, the government is asserting the significant interest of not burdening the public fisc by admitting public charges—an interest that would be meaningfully harmed because of the difficulty, if not impossibility, of undoing the grants of permanent resident status that both Congress and the executive have found to be against the national interest. In this field of immigration and border integrity, the public interest can be vitiated when the legitimate expressions of the two political branches of government are disregarded by the branch whose experience and expertise is relatively slim and whose policy perspectives lack any democratic imprimatur.
* * *
We have no doubt that the “public charge” bar has been applied more narrowly in the past. After all, DHS engaged in an extensive notice-and-comment rulemaking to bring about a change in extant policy. But change in whatever direction is what Congress anticipated when it steadfastly refused to define or particularize the public charge provision. The only question before us is not whether DHS should have used its power in this fashion, but rather whether it could have. For the foregoing reasons, the answer to this question is clearly yes.
IV.
Alas, we wish we could say that this was the whole megillah. But the district court also erred in its choice of remedy. On this front, we review a decision to grant a preliminary injunction under a “particularly exacting” version of the abuse of discretion standard. Pashby v.
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Delia, 709 F.3d 307, 319 (4th Cir. 2013) (internal quotation marks omitted). And, critically, “an overbroad injunction is an abuse of discretion.” *256 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (internal quotation marks omitted).
The injunction issued in this case was plainly overbroad. Rather than enjoin the defendants from applying the Rule to CASA and its members, the district judge instead chose to enter a so-called “nationwide” injunction, preventing enforcement of the Rule against anyone. It should not have done this.
A.
A nationwide injunction is a drastic remedy and it was plainly improper here.
The federal courts exercise “[t]he judicial power of the United States.” U.S. Const. Art. III § 1. This is a significant but carefully circumscribed authority, the limits of which are cabined by both the Constitution and Congress. Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10, 1 L.Ed. 718 (1799). Nationwide injunctions, by which a single district judge completely blocks the enforcement of a federal policy against everyone, transgress the bounds of that authority at least thrice over. See Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2424–29, 201 L.Ed.2d 775 (2018) (Thomas, J., concurring); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 420–21 (2017) (hereinafter “Bray”). First, this capacious remedy, which has become common only recently, seriously contravenes traditional notions of the judicial role. Second, nationwide injunctions likely exceed the constitutional and statutory limits on the federal equity power. Finally, the third branch of our government is in the end a diverse and collective enterprise. A single trial judge of course most often makes the initial call, but to imbue that call with nationwide scope and power, even temporarily, elevates the individual over the collective in a fashion that shuts off other voices to the detriment of sound resolutions and decisionmaking.

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
1.
As the Supreme Court has emphasized, our “constitutionally prescribed role is to vindicate the individual rights of the people appearing before [us].” Gill v. Whitford, ––– U.S. ––––, 138 S. Ct. 1916, 1933, 201 L.Ed.2d 313 (2018). Of course, specific cases can have general implications. But the sole duty of the federal courts is not to decide general questions for everyone, but rather to settle particular “cases” or “controversies” between particular parties. See Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011) (“Under Article III, the Federal Judiciary is vested with the ‘Power’ to resolve not questions and issues but ‘Cases’ or ‘Controversies.’ ”); see also Summers v. Earth Island Inst., 555 U.S. 488, 492–93, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).
Our power to grant equitable remedies is commensurate with this duty. As Justice Gorsuch recently explained, “[e]quitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.” Dep’t of Homeland Security v. New York, ––– U.S. ––––, 140 S. Ct. 599, 600, 206 L.Ed.2d 115 (2020) (Mem.) (Gorsuch, J., concurring). As such, Article III requires that injunctions be tailored to protect only the plaintiffs in a specific case from the defendants to that suit. See Bray at 469. And while it is true that even such plaintiff-protective injunctions may benefit non-parties, these benefits are purely “collateral[ ]” because the “judicial power exists only to redress or otherwise to protect against injury to the complaining party.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
*257 Nationwide injunctions are plainly inconsistent with this conception of the judicial role and the proper scope of the federal courts’ remedial power. A nationwide injunction, by its nature, extends relief far beyond the parties to an individual case. Indeed, by issuing such an injunction, a single district court, whose decisions are non-precedential in its own circuit, does not simply resolve a given lawsuit, but rather decides a general question for the entire nation. And far from being precisely tailored to redress a particular plaintiff’s injuries, the very purpose of a nationwide injunction is to protect everyone from the challenged policy. It is, to put it
23

mildly, “hard to see how the court could still be acting in the judicial role of resolving cases or controversies” when it issues such a far-reaching and pervasive equitable remedy. New York, 140 S. Ct. at 600 (Gorsuch, J., concurring).7
2.
Nationwide injunctions also run afoul of the prescribed scope of our equitable power. Since the Judiciary Act of 1789 gave the federal courts jurisdiction over “all suits ... in equity,” 1 Stat. 73 § 11, the Supreme Court has consistently understood general statutory grants of equity jurisdiction to confer “authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.” Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999) (quoting Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 568, 59 S.Ct. 657, 83 L.Ed. 987 (1939)). Any inherent equitable authority that the courts possess under Article III is likely bounded by the same. Hawaii, 138 S. Ct. at 2425–26 (Thomas, J., concurring); 1 John N. Pomeroy, A Treatise on Equity Jurisprudence § 294 (A.L. Bancroft & Co. 1881).
In practice, this means that the core doctrines of American equity—namely, principles of equity jurisdiction, procedure, and remedies—must be rooted in English tradition. See Payne v. Hook, 74 U.S. (7 Wall.) 425, 430, 19 L.Ed. 260 (1868) (holding that “the equity jurisdiction conferred on the Federal courts is the same that the High Court of Chancery in England possesses”); Russell v. Farley, 105 U.S. 433, 437, 26 L.Ed. 1060 1881 (noting that the default procedures to be applied in suits in equity are “the practice[s] of the High Court of Chancery in England”); Boyle v. Zacharie, 31 U.S. (6 Pet.) 648, 658, 8 L.Ed. 532 (1832) (holding that remedies must link back “to the practice of courts of equity in the parent country”). Thus, as relevant here, a federal court sitting in equity is empowered to grant only those remedies that could have been issued by the English Chancellor in 1789 or that have some clear analogue in traditional equity practice. See Grupo Mexicano, 527 U.S. at 318–19, 119 S.Ct.

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
1961.
Nationwide injunctions are irreconcilable with these limitations, as they lack any basis in traditional equity practice. New York, 140 S. Ct. at 600 (Gorsuch, J., concurring). In eighteenth-century English equity “there were no injunctions against the Crown,” or anything like a nationwide injunction. Bray at 425; accord 3 W. Blackstone, Commentaries on the Laws of England 428 (1768). At the Founding, the English *258 Chancellor would issue injunctions to protect the immediate parties, and, at times, equity would extend relief to a “small and cohesive” group of persons who shared a common interest. Bray 425–27. But that was it. The thought that an injunction could extend to protect scores of non-parties was not contemplated; indeed, it was resolutely avoided. Conway v. Taylor’s Ex’r, 66 U.S. (1 Black) 603, 632, 17 L.Ed. 191 (1861) (noting that a court of equity will not “go beyond the case before it”).
Both Article III and federal statutes incorporated these limitations on the equity power. See Hawaii, 138 S.Ct. at 2427 (Thomas, J., concurring); see also Joseph Story, Commentaries on Equity Pleadings § 69 (1838). It is unsurprising then that nationwide injunctions have not existed in American jurisprudence for most of our history. Instead, until the mid-twentieth century, federal judges recognized that their ability to grant equitable relief was limited to the parties before them. See Bray at 428–37. And attempts by litigants to extend the judiciary’s power to encompass universal relief were uniformly rebuffed. See, e.g., Perkins v. Lukens Steel Co., 310 U.S. 113, 117, 123, 60 S.Ct. 869, 84 L.Ed. 1108 (1940); Frothingham v. Mellon, 262 U.S. 447, 487–89, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). As the Supreme Court explained in Scott v. Donald, 165 U.S. 107, 115, 17 S.Ct. 262, 41 L.Ed. 648 (1897), “[t]he theory ... that the plaintiff is one of a class of persons whose rights are infringed and threatened, and that he so represents such class that he may pray an injunction on behalf of all persons that constitute it ... is too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction.”
The recent proliferation of nationwide injunctions plainly cannot be squared with these longstanding precepts, which are meant to cabin our discretion and limit application of the judicial power to actual legal disputes rather than overarching policy questions. And their widespread use also cannot be squared with the constitutional and statutory limitations on our equitable authority.
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3.
The fundamental infirmity of the nationwide injunction is confirmed by how poorly it fits alongside related doctrines that also flow from the concept of “judicial power.”
Take, for starters, Article III standing. To maintain a cause of action in federal court, “a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized,” and that threat must be “actual and imminent, not conjectural or hypothetical.” Summers, 555 U.S. at 493, 129 S.Ct. 1142. Moreover, every plaintiff “bears the burden of showing that he has standing for each type of relief sought.” Id. Nationwide injunctions effectively vitiate this requirement by permitting a single plaintiff to obtain equitable relief on behalf of countless non-parties, wholly without inquiry into whether they have suffered or will imminently suffer any injury-in-fact. But standing is not a clown car into which all interested parties may pile, provided the driver-cum-plaintiff has met its requirements. On the contrary, “Article III does not give federal courts the power to order relief to any uninjured plaintiff.” Tyson Foods, Inc. v. Bouaphakeo, ––– U.S. ––––, 136 S. Ct. 1036, 1053, 194 L.Ed.2d 124 (2016) (Roberts, C.J., concurring). That nationwide injunctions almost certainly result in the federal courts doing just that should, at a minimum, raise doubts as to their propriety.
Relatedly, nationwide injunctions are incompatible with the well-recognized *259 bar against litigants raising the rights of others. Pursuant to third-party standing doctrine, “even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, ... the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties.” Warth, 422 U.S. at 499, 95 S.Ct. 2197. But by requesting a nationwide injunction, a plaintiff is by definition seeking to vindicate the legal rights of all third-parties who may be subject to the challenged policy.
A similar point is true with respect to the doctrines of ripeness and mootness. Generally, federal courts

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
adjudicate only those cases that are ripe, in that the relevant “administrative decision has been formalized and its effects felt in a concrete way by the challenging parties,” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotation marks omitted), and that are not moot, which obtains “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome,” Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (internal quotation marks omitted). Once again, nationwide injunctions allow non-parties to slip the bonds of these requirements, as a single plaintiff who obtains nationwide relief has done so on behalf of innumerable non-parties whose claims may very well have been premature or long stale.
But the list of doctrinal inconsistencies does not end there. Not only do nationwide injunctions conflict with the foregoing justiciability rules, but they also cannot be reconciled with congressional policy regarding the availability of aggregate equitable relief in the federal courts. Congress has already created an avenue by which a group of litigants that share a common interest can obtain an injunction protecting the entire group—a class-action pursuant to Federal Rule of Civil Procedure 23(b)(2). Quite obviously, class actions are the appropriate way to resolve the small subset of cases in which an injunction protecting only the plaintiff could prove too narrow. See Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996) (recognizing “injunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification”). And, unlike nationwide injunctions, Rule 23 injunctions have a clear analogue in traditional equity practice. Bray at 426 (analogizing to the device known as a “bill of peace”); see also 7A Charles Alan Wright et al., Federal Practice and Procedure § 1751, at 11 (3d ed. 2005).
The ready availability of nationwide injunctions is difficult to square with the policy choices embodied in Rule 23. Only those who can satisfy the rigorous requirements Congress imposed for class certification are eligible to avail themselves of Rule 23 injunctions. But nationwide injunctions allow plaintiffs to obtain the benefits of class-wide relief without ever satisfying these criteria. See Bray at 476. This makes no sense. Indeed, as the Seventh Circuit aptly put it, “[a] wrong done to plaintiff in the past does not authorize prospective class-wide relief unless a class has been certified. Why
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else bother with class actions?” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997).
B.
Even if the federal trial courts somehow possessed the power to issue nationwide injunctions, the attendant practical consequences of this drastic and extraordinary remedy should restrict its use to the most exceptional circumstances. See *260 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). There is no doubt that “[t]hese injunctions are beginning to take a toll on the federal court system.” Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring); see also New York, 140 S. Ct. at 600 (Gorsuch, J., concurring) (describing as “patently unworkable”). A survey of some of the bad effects brought about by the rise of nationwide injunctions shows just how ill-advised a remedy they have become.
To begin with, nationwide injunctions limit valuable “percolation” of legal issues in the lower courts. By entering a nationwide injunction, a district judge precludes the government’s ability to bring enforcement actions pursuant to the challenged policy and simultaneously reduces prospective plaintiffs’ incentives to file additional suits challenging that policy. In tandem, these effects reduce the likelihood that a given question will be debated widely. But as the Supreme Court has recognized, it is generally “preferable to allow several courts to pass on a given [issue] in order to gain the benefit of adjudication by different courts in different factual contexts.” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979); see also Arizona v. Evans, 514 U.S. 1, 23 n.1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (Ginsburg, J., dissenting). And the value of percolation is at its apex where, as here, “a regulatory challenge involves important or difficult questions of law.” Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011). Nationwide injunctions limit dialogue in the lower courts, favoring quick and uniform answers to the more deliberate—and likely more accurate—method of doctrinal development that is intended under our judiciary’s very design. The class is called “The Federal Courts and the Federal System” for a reason.

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
Relatedly, nationwide injunctions promote sprints to the courthouse and rushed judicial decisionmaking, often under immense time pressure, based on expedited briefing, and in the absence of a factual record. See New York, 140 S. Ct. at 600 (Gorsuch, J., concurring). Nationwide injunctions are often issued early in the litigative process, meaning that both the district judge’s initial decision to grant the injunction and any subsequent appeals of that decision will take place without a record. See Bray at 461–62. Moreover, an injunction completely blocking the implementation of a federal policy can wreak havoc on the executive’s agenda, which in turn incentivizes immediate, emergency stay requests. And the urgent need for resolution of such consequential questions often forces the Supreme Court to initially consider a given legal issue on a stay motion. Id. Again, this is exactly what happened on this very question. New York, 140 S. Ct. at 599 (granting stay of nationwide injunction).
This helter-skelter behavior is not what our legal system was designed to encourage. Indeed, as much becomes obvious when one considers the structure of the federal judiciary itself. For starters, Congress deliberately created a system of regional courts of appeals whose decisions are not binding on one another. Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001). The Supreme Court has recognized that the motivation behind limiting intercircuit stare decisis was to avoid the possibility that “the indiscreet action of one court might become a precedent,” such that “the whole country [would be] tied down to an unsound principle.” Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488, 20 S.Ct. 708, 44 L.Ed. 856 (1900). The doctrine of intercircuit nonacquiescence, which permits executive branch officials to continue enforcing a *261 policy outside of a circuit in which it has been invalidated, flows directly from this rule. See, e.g., Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1093 (D.C. Cir. 1992). The Supreme Court has likewise recognized that the federal government is generally free to relitigate issues it has already lost, except against parties to such prior litigation. See United States v. Mendoza, 464 U.S. 154, 160–63, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984). Finally, as for the district courts, a “decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (internal quotation marks omitted).
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As should be apparent, these structural principles prioritize percolation, considered decisionmaking, and intercircuit dialogue over haste and uniformity. But nationwide injunctions lay waste to this finely reticulated system, transforming the non-precedential decision of a lone district judge into the law of the land, for circuits and citizens alike.
Perhaps most importantly, the growth of the nationwide injunction also risks the perception of the federal courts as an apolitical branch. The availability of this sweeping remedy has enabled litigants to challenge nearly every major executive branch policy in federal court. In effect, nationwide injunctions have “turn[ed] every individual plaintiff into a roving private attorney general,” Michael T. Morley, De Facto Class Actions?, 39 Harv. J.L. & Pub. Pol’y 487, 527 (2016), which has, in turn, left the executive beholden to the whim of any single district judge, freed even from the constraints of collegial deliberation.
Unsurprisingly, given the enormous stakes associated with such lawsuits, plaintiffs seeking to block executive action via nationwide injunction are incentivized to forum shop with abandon. See Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring); Bray at 457–61. This patently political manipulation of the judiciary undermines the public’s confidence in the federal courts and casts judges as advocates for their favored policy outcomes. What is more, because “plaintiffs generally are not bound by adverse decisions in cases to which they are not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.” New York, 140 S. Ct. at 601 (Gorsuch, J., concurring). In other words, while the government must win every challenge brought against a policy to ensure its implementation, prospective plaintiffs need only find a single sympathetic audience of one in order to secure complete victory.
This is nothing more than “government by injunction,” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) (internal quotation marks omitted), and a clear violation of the traditional judicial understanding that we are not “continuing monitors of the wisdom and soundness of Executive action,” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 612, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (opinion of Alito, J.) (quoting Allen v. Wright, 468 U.S. 737, 760, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). And that is not all. Indeed, along with what has been discussed, the list of negative consequences

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associated with nationwide injunctions seems virtually endless. See, e.g., California v. Azar, 911 F.3d 558, 583 (9th Cir. 2018) (noting that nationwide injunctions may harm “non-parties who are deprived the right to litigate in other forums”); United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008) (discussing risks to judicial comity); Getzel *262 Berger, Nationwide Injunctions Against the Federal Government, 92 N.Y.U. L. Rev. 1068, 1087–90 (2017) (enumerating still more downsides). Among the greatest victims of this unfortunate practice will be the courts themselves.
C.
In light of the above costs, it is clear that, even assuming the federal courts have the power to issue nationwide injunctions, they should be handed down only in extraordinary circumstances. The district court rejected this limit by issuing such a remedy in this case.
To begin with, it is plain that a nationwide injunction would be wholly unnecessary to protect the rights of the only plaintiffs to this lawsuit who have standing, namely Aguiluz and Perez. As the Supreme Court has repeatedly cautioned, “[a] plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Gill, 138 S. Ct. at 1934. Here, it is the real prospect of the Rule being enforced against them individually that gives rise to Aguiluz and Perez’s Article III injuries. See Part II supra. Thus, an injunction preventing DHS from applying the Rule to either of them would fully redress their injuries. Blocking the enforcement of the Rule against everyone provides absolutely no additional protection to the individual plaintiffs to this suit and would clearly be overbroad.
And even on the district court’s view that CASA had standing to challenge the Rule, the decision to grant a nationwide injunction was still wrong. There is no reason—none—that the district court, if it felt the Rule unlawful, could not have issued a narrower injunction barring the federal government from enforcing the DHS Rule against CASA’s members. And the arguments advanced to the contrary are unpersuasive. At bottom, the district court justified its remedy on the ground that uniformity is important to immigration law and anything
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other than a nationwide injunction would be impractical. This rationale is unpersuasive. First off, it lacks any limiting principle; after all, if a general interest in uniformity could sustain a nationwide injunction, then it would justify such a remedy in all cases when federal law is implicated. Further, the district court improperly stepped into the shoes of DHS and displaced our democratic process of governance when it insisted that a nationwide injunction was necessary for pragmatic reasons. This would be troubling enough in any context, but especially so in the area of immigration, where the executive branch holds inherent constitutional powers and the judiciary does not.8
*263 In sum, the district court compounded its error of granting relief with its choice of remedy. It could have awarded complete relief on its view of the merits with a far narrower remedy. It is beyond the power of any one person to set himself up as the arbiter of law in these entire United States. The trial court sits as the judge for the District of Maryland, a court that on its own terms and in its own right has earned the greatest respect. But it is not the district court for the District of the United States.
V.
This case is not about the propriety of any policy, but rather about the power of the federal courts. Immigration is a complex and controversial topic that arouses intense emotions on the part of many. On the one hand, immigration is indispensable to cultural diversity and national renewal, an economic engine that can serve to rejuvenate an aging workforce and to fulfill critical societal needs. On the other hand, it can in unrestricted numbers overwhelm the nation’s capacity for assimilation and, if unlawful, undermine an indispensable sense of national sovereignty and a commitment to the rule of law. Where to strike the balance between these two valid and competing perspectives is no easy task—but a task that the Constitution principally assigns to the political branches.
Those representative branches of government have struck this careful balance in the public charge provision of the INA. Congress made the decision that the executive was best positioned to define and implement the public charge

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provision, consistent with the term’s ordinary meaning and the national interest. The essence of this choice turns on Congress’s view that the public charge provision should function, at heart, like an accordion; to expand or contract depending on the nation’s needs and a given administration’s policy. At times a policy like the 1999 Field Guidance might be best; and, at other times, the DHS Rule might be preferable. But this is a call for the executive. For the judiciary to seize this decision for itself, and insist, where Congress did not, upon a crystalline meaning of “public charge” is not only to stretch our limited competencies beyond their bounds, but also, more fundamentally, to nullify the careful judgments of the people’s representatives.
Of course, we take no position on the merits of the DHS Rule. Nor could we. The question before us today is whether the challenged action comports with law. It is plain that the answer here is yes. For the above reasons, we reverse the judgment and remand for proceedings consistent with this opinion.
REVERSED AND REMANDED
KING, Circuit Judge, dissenting:
The Massachusetts Constitution of 1780, in recognizing the critical importance of separation of powers, coined a phrase that has become a mantra of our constitutional republic: The government should be “of laws, and not of men.” See Mass. Const. pt. 1, art. XXX (1780). The Constitution of the United States enshrines that indispensable ideal by creating a three-branch government with power divided among the branches. As part of that ingenious scheme of separated power, the Constitution vests legislative power solely in Congress. That means Congress alone — not the President and not the judiciary — holds the power to enact new statutes or alter existing ones.
Nevertheless, in these proceedings, the President, the Department of Homeland Security, and the other defendants (collectively, “DHS”) have redefined the statutory term “public charge” — far beyond the limits set by Congress — to narrow the *264 protections afforded by our immigration system. That executive overreach led the district court to preliminarily enjoin the
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implementation of DHS’s new definition of “public charge.” See Casa de Maryland, Inc. v. Trump, 414 F. Supp. 3d 760 (D. Md. 2019). Our panel majority, however, has now acquiesced in DHS’s new definition of “public charge” and condemned the district court for its efforts to keep DHS in check.
The majority expresses reticence to question DHS on this immigration matter, decreeing that unelected federal judges lacking expertise in such matters should steer clear. But this is not a matter of political choice regarding immigration policy; it is a matter of statutory interpretation, which falls within the exclusive bailiwick of the judiciary. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). And when interpreting statutes, it is our duty to ensure that the coequal branches of our government do not transgress the bounds of their authority. To be sure, whether the national interest is best served by a broad or narrow reading of the term “public charge” is not our concern. But whether the executive has ventured beyond the statutory bounds staked out by the legislative branch is emphatically our concern. In the circumstances of this case, the judiciary is duty bound to support the separation of powers. I therefore write separately and dissent.
I.
In August 2019, DHS promulgated an administrative rule (the “DHS Rule” or the “Rule”) — pursuant to its rulemaking authority under the Immigration and Nationality Act (the “INA”) and the Administrative Procedure Act (the “APA”) — purporting to interpret and apply an INA provision that governs the ability of an “alien” deemed “likely at any time to become a public charge” to gain admission to the United States or to adjust an immigration status. See 8 U.S.C. § 1182(a)(4) (the “Public Charge Statute”).1 Historically, public charge provisions, including the Public Charge Statute, applied only to aliens likely to be significantly dependent on the government. In other words, the acceptance of temporary, supplemental benefits was insufficient to render an alien excludable as a public charge.

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But the DHS Rule changed that settled understanding by dramatically redefining the term “public charge.” Under the Rule, an alien who might receive, at any point in his life, certain supplemental public assistance for 12 months within a 36-month period is excludable from this country as an alien likely to become a public charge. In addition, each discrete benefit received is counted as a full month of benefits, so that accepting three different types of benefits in a single month (e.g., housing, nutrition, and medical benefits) is counted as accepting three months of benefits. Accordingly, an alien will be declared likely to become a public charge if he might receive just a few months’ worth of supplemental benefits at any point in his life.
In light of the DHS Rule’s 2019 redefinition of the term “public charge,” the plaintiffs filed this case in the District of Maryland. The plaintiffs include Angel Aguiluz *265 and Monica Camacho Perez, two individuals who immigrated to the United States as children, plus CASA de Maryland, Inc., an immigrant rights organization with over 100,000 members that focuses on proactive outreach to improve the quality of life in immigrant communities of Maryland, Virginia, the District of Columbia, and Pennsylvania. In their complaint, the plaintiffs challenge the Rule on the ground that its redefinition of “public charge” is antithetical to the Public Charge Statute and should thus be set aside as not “in accordance with law” under the APA. See 5 U.S.C. § 706(2)(A). More specifically, the plaintiffs allege that all the typical tools of statutory construction reveal that the term “public charge,” as used in the Public Charge Statute, has a well-understood meaning that conflicts with the Rule.
Contemporaneous with the filing of their complaint, the plaintiffs moved the district court to preliminarily enjoin DHS from implementing the Rule. The plaintiffs contended that they satisfied each of the four factors essential to securing a preliminary injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”). After confirming that CASA has Article III standing as an organization to pursue the plaintiffs’ APA claim, the court determined that the Rule should be preliminarily enjoined on a nationwide basis.
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DHS noted this interlocutory appeal and launches a dual attack against the preliminary injunction. First, DHS contends that the injunction is ultra vires because CASA lacks standing to sue and CASA’s interests fall outside of the zone of interests protected by the Public Charge Statute. Second, DHS argues that the district court erred in enjoining the Rule because its definition of the term “public charge” is lawful and, in any event, the award of injunctive relief is overbroad.
The panel majority today rules that CASA lacks Article III standing to contest the DHS Rule. On the other hand, the majority recognizes that the individual plaintiffs possess the necessary Article III standing. The majority also reverses the preliminary injunction, sanctioning the Rule’s redefinition of “public charge” and concluding that the plaintiffs have satisfied none of the four preliminary injunction factors. Finally, after invalidating the injunction, the majority criticizes the injunction’s nationwide scope.
II.
In reversing the district court, the panel majority erroneously decides numerous legal issues. First, the majority has erroneously ruled that CASA lacks Article III standing. Second, my colleagues have improperly defined the statutory term “public charge,” thereby erroneously ruling that the plaintiffs are not likely to succeed on the merits. Third, the majority has erroneously concluded that the plaintiffs have not satisfied the remaining preliminary injunction factors and that the nationwide scope of the injunctive relief is improper. As explained below, I dissent from all of those rulings.
A.
At the outset, although the panel majority is correct to rule that the individual plaintiffs possess Article III

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
standing, my friends err in concluding that CASA lacks *266 standing.2 Simply put, by alleging in the complaint that it must spend significant resources to counter the effects of the DHS Rule and that the Rule precludes it from undertaking its core advocacy mission, CASA sufficiently alleges a “concrete and demonstrable injury to [its] activities[,]” paired with a “consequent drain on [its] resources.” See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); see also Cook Cty., Ill. v. Wolf, 962 F.3d 208, 218-19 (7th Cir. 2020) (concluding that Illinois immigrant rights organization claiming similar organizational injuries possessed Article III standing to challenge DHS Rule). The Supreme Court requires nothing more — particularly at this stage of the proceedings, when CASA’s standing-related allegations must be accepted as true. See Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018).
In reaching its improper conclusion that CASA lacks Article III standing, the majority twice errs. First, the majority misconstrues the Supreme Court’s Havens Realty decision. In so doing, the majority excoriates the district court for giving Havens Realty an “essentially boundless reading” that would support “organizational standing any time a group (1) alleges that a governmental action undermines its policy mission, and (2) spends some money in response to that action.” See ante 239–40. But the test decried by my good friends of the majority is the very test for organizational standing devised by the Havens Realty Court. As the Court related, a “concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests.” See Havens Realty, 455 U.S. at 379, 102 S.Ct. 1114. In such a situation, the Court explained, there is “no question that the organization has suffered injury in fact.” Id. So, despite what the majority says, if an organization’s core policy mission is undermined by allegedly unlawful governmental action and it must spend money in response thereto, the organization has suffered a cognizable Article III injury.
Second, the majority minimizes CASA’s injuries to bring them in line with our decision in Lane v. Holder, 703 F.3d 668 (4th Cir. 2012). To be sure, we ruled in Lane that the plaintiff organization did not suffer an organizational injury for purposes of standing because its sole allegation was that a new federal law caused a drain on its resources. Id. at 675. In so ruling, we explained that a “mere
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expense” resulting from the voluntary shift in an organization’s resources is not a sufficient injury to the organization because it “results not from any actions taken by the defendant, but rather from the organization’s own budgetary choices.” Id. (internal quotation marks and alterations omitted). Importantly, however, we predicated our Lane decision on the fact that the organization had alleged only that the new law resulted in a voluntarily expenditure of its resources. Id. at 671. Put another way, the organization did not allege that the new law impaired its organizational mission.
In these proceedings, CASA claims that the DHS Rule both impairs its organizational mission and causes it to divert resources *267 from that mission. Together, those harms yield a cognizable organizational injury sufficient for CASA’s Article III standing. See Havens Realty, 455 U.S. at 379, 102 S.Ct. 1114 (ruling that broad allegations of frustration of organizational purpose in complaint were sufficient to establish injury-in-fact at pleading stage).3
B.
I now turn to the panel majority’s reversal of the district court’s preliminary injunction barring implementation of the DHS Rule. Like the majority, my focus today is primarily on the most important preliminary injunction factor — the likelihood that the plaintiffs will succeed on the merits of their claim that the Rule is “not in accordance with law” because it defines the term “public charge” contrary to the Public Charge Statute. See 5 U.S.C. § 706(2)(A).
In evaluating the DHS Rule’s lawfulness, we employ the familiar two-step framework for evaluating federal agency rulemaking set forth by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Step one of Chevron requires using all the tools of statutory construction to evaluate whether the Public Charge Statute provides an unambiguous definition of the term “public charge.” If so, we are bound to give effect to that definition and must set aside the Rule if it conflicts therewith. If not, however, we proceed to step two of Chevron and evaluate whether the Rule’s

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
definition of “public charge” is reasonable.
The district court concluded that the DHS Rule fails both Chevron steps and that the plaintiffs are thus likely to succeed on the merits of their claim that the Rule is unlawful. The majority, however, concludes that the plaintiffs are not likely to succeed on the merits because “[t]he term [‘public charge’] is broad and even elusive enough to accommodate multiple views and meanings,” see ante 241, and because “the text, purpose, and structure of the INA make clear that the DHS Rule is premised on a permissible construction of the term ‘public charge,’ ” id. at 250. A contrary ruling, decrees the majority, would be a “serious error in statutory interpretation.” Id.
Since 1882, however, the statutory term “public charge” has consistently described aliens significantly dependent on the government. Nevertheless, I am willing to assume for this appeal that some measure of ambiguity inheres in the meaning of “public charge,” as used in the Public Charge Statute. I thus would not resolve the plaintiffs’ challenge to the DHS Rule at Chevron’s first step and would instead proceed directly to its second step. There, I would rule that, in light of the statutory context and the history of the term “public charge,” the Rule’s definition is far too broad and ventures well outside the bounds of any reasonable construction of the term. Indeed, as the Seventh Circuit recently concluded, the Rule’s definition of “public charge” “does violence to the English language and the statutory context.” See Cook Cty., 962 F.3d at 229.4
*268 1.
The Public Charge Statute provides, in relevant part, as follows: “Any alien who ... 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.” See 8 U.S.C. § 1182(a)(4)(A).5 It also specifies a non-exhaustive list of factors that immigration officials are obliged to consider in determining whether an alien is likely to become a public charge. Those factors include the alien’s (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. Id. §
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1182(a)(4)(B)(i). And the Public Charge Statute allows those immigration officials to consider whether the alien has an “affidavit of support.” Id. § 1182(a)(4)(B)(ii); see also 8 U.S.C. § 1183a(a)(1)(A) (providing that an “affidavit of support” is a legally enforceable contract in which a “sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line”).
Although the Public Charge Statute does not explicitly define — and has never defined — the term “public charge,” that circumstance does not give the term limitless meaning. After all, the Supreme Court has instructed the inferior courts to survey the full statutory landscape when seeking to discern Congress’s intention regarding a given provision. See Chevron, 467 U.S. at 843 n.9, 104 S.Ct. 2778. I now undertake that task.
a.
Congress first established a public charge provision in 1882.6 Although the 1882 statute did not define the term “public charge,” the text and history of the statute shed light on the meaning of the term. To that end, the 1882 statute allowed the authorities to examine vessels arriving in the United States and to prohibit from landing “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” See Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214, 214 (1882). On its face, the 1882 statute thus excluded from our country those noncitizen immigrants who would consume a significant amount of governmental resources — that is, noncitizen immigrants with a condition or status that rendered them unable to care for themselves or those subject to government confinement. As detailed below, that construction is confirmed by contemporary dictionary definitions, other statutory provisions, legislative history, and judicial decisions.
*269 To begin, Webster’s 1828 American Dictionary of the English Language provides two relevant definitions of the term “charge” — both of which indicate that the term described someone dependent on, or under the primary care of, another. Those definitions are: (1) “That which is enjoined, committed, entrusted or delivered to another,

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
implying care, custody, oversight, or duty to be performed by the person entrusted”; and (2) “The person or thing committed to anothers [sic] custody, care or management; a trust.” See Charge, Webster’s Dictionary (1828 online ed.), http://webstersdictionary1828.com/Dictionary/charge (last visited June 30, 2020).
Importantly, Webster’s 1828 dictionary provides the most contextually appropriate definition of “charge” — that is, a person being the charge of someone or something (as opposed to, for example, an individual who merely imposes a charge upon another). Moreover, Webster’s 1828 dictionary is the gold standard, as that publication contained “approximately 70,000 entries and definitions that were models of clarity and conciseness.” See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227, 238 (1999) (internal quotation marks omitted); see also Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 389 (2014) (explaining that over time “the quality of [Webster’s 1828 dictionary] became appreciated” and that the “Supreme Court cites this dictionary often as evidence of the original meaning of the Constitution”).
The overall structure of the 1882 statute also indicates that the public charge provision was meant to exclude from the United States only those unable to care for themselves without significant government assistance, not simply those in need of some public aid. To that end, the statute provided for the collection of “a duty of fifty cents” for each noncitizen immigrant who arrived at a United States port. See Act of Aug. 3, 1882, ch. 376, § 1, 22 Stat. at 214. Once collected, that duty was to be paid “into the United States Treasury, and ... used, [inter alia,] ... for the care of immigrants arriving in the United States, for the relief of such as are in distress.” Id. The statute also authorized the Secretary of the Treasury to contract with state and local officials “to provide for the support and relief of such immigrants [arriving at United States ports] as may fall into distress or need public aid.” Id. § 2, 22 Stat. at 214. Accordingly, the prospect of needing some public aid did not — standing alone — render an arriving immigrant an inadmissible public charge.
Relevant legislative history further confirms that a noncitizen immigrant could not be declared a public charge predicated solely on his acceptance of any
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quantum of public aid. For example, in an 1882 debate in the House of Representatives, New York Congressman John Van Voorhis, one of the architects of the 1882 statute, warned of a perceived and troubling trend in immigration. See Anne Fleming, The Public Interest in the Private Law of the Poor, 14 Harv. L. & Pol’y Rev. 159, 169 (2019). According to Van Voorhis, the decisions of other countries to send “[t]housands of paupers, idiots, lunatics, criminals, and accused persons [to the United States] ... for the sole purpose of shifting onto this country the expense of supporting them” posed a grave danger. See 13 Cong. Rec. 5088, 5108 (June 19, 1882). But even as Van Voorhis warned of the perils inherent in admitting such individuals into the country, he explained — in advocating for the creation of the previously mentioned immigrant fund — that the United *270 States has historically provided support to arriving immigrants. More specifically, Van Voorhis said that arriving immigrants “in distress ... [will be] furnished with the needed aid ... [and] provided for in a manner suitable to their several cases ... [because it] is not the design of [the 1882 statute] to check immigration, but to continue the beneficent supervision [thereof].” Id. Van Voorhis’s statements thus explain that Congress intended the statute to exclude from the United States those subject to confinement or unable to care for themselves without significant dependence on the government, while simultaneously ensuring that arriving poor immigrants received any needed assistance.
Finally, judicial decisions from the late 1800s corroborate the aforementioned meaning of “public charge.” For example, in an 1884 decision, the Supreme Court recognized that the 1882 statute — particularly the provision creating the immigrant fund — was meant to help poor immigrants upon their arrival to the United States. See Edye v. Robertson, 112 U.S. 580, 590-91, 5 S.Ct. 247, 28 L.Ed. 798 (1884) (“That the purpose of [the statute and those like it] is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the protection of the people in whose midst they are deposited by the steam-ships, is beyond dispute.”).
In short, the text, structure, legislative history, and judicial interpretations of the 1882 statute reveal that Congress — when it first used the term “public charge” — did not intend to label as a “public charge” any alien in need of some public aid. If it had, the statute would have been internally inconsistent, as numerous sources reveal that its provisions were meant to aid poor and helpless arriving immigrants — a category of persons highly likely to need

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
some public aid. Rather, the term “public charge” was reserved for those unable to care for themselves without significant government assistance.
b.
As the years passed, Congress amended the public charge provision numerous times. For example, in 1891, Congress altered the methodology to be used in making public charge determinations by adding the phrase “likely to become” before the term “public charge.” In so doing, Congress empowered immigration officials to undertake a prospective examination to determine whether an arriving immigrant could become a public charge in the future. The 1891 amendments did not, however, alter the meaning of the term “public charge.” See United States v. Lipkis, 56 F. 427, 428 (S.D.N.Y. 1893) (ruling that a woman had become a public charge because “she became insane, and was sent to the public insane asylum of the city ... where only poor persons unable to pay for treatment are received, and she was there attended to for a considerable period at the expense of the municipality”). The court in Lipkis also explained that an immigrant who arrives with “little ready money” should not be declared likely to become a public charge. Id.
Other judicial decisions from the late 1800s likewise confirm that, as a general matter, the term “public charge” did not refer to those who merely accepted some public aid. See Twp. of Cicero v. Falconberry, 14 Ind.App. 237, 42 N.E. 42, 44 (1895) (“The mere fact that a person may occasionally obtain assistance from the [local government] does not necessarily make such person a pauper or a public charge.”); Yeatman v. King, 2 N.D. 421, 51 N.W. 721, 723 (1892) (observing that a person can be kept “from becoming a public charge by affording [him] temporary relief”).
*271 In 1903, 1907, and 1910, Congress made additional changes to the public charge provision. As with the amendments in the late 1800s, none of the changes in the first decade of the 1900s altered the meaning of the term “public charge.” The public charge provision thus continued to exclude from this country a narrow class of aliens who would likely be unable to care for themselves
33

without the government. Indeed, in 1916, only one percent of all arriving aliens were excluded on public charge grounds. See Br. of Legal Historians as Amicus Curiae 11-12.
In 1915, the Supreme Court assessed the 1910 version of the public charge provision in its decision in Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915). But Gegiow is not particularly helpful in the quest to discern the meaning of “public charge,” as the Court evaluated only a narrow question: Whether an alien could be declared likely to become a public charge because “the labor market in the city of his immediate destination [was] overstocked.” Id. at 9-10, 36 S.Ct. 2. And although the Court answered that question in the negative, Congress amended the public charge provision in 1917 to supersede Gegiow. See S. Rep. No. 352, at 5 (1916); see also An Act to Regulate the Immigration of Aliens to, and the Residence of Aliens in, the United States, ch. 29, § 3, 39 Stat. 874, 875-76 (1917).
The Supreme Court’s Gegiow decision and the congressional amendments that followed did not, however, alter the meaning of the statutory term “public charge.” Indeed, several contemporary judicial decisions confirm as much. See Ex parte Mitchell, 256 F. 229, 230 (N.D.N.Y. 1919); see also Ex parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922) (explaining that the post-Gegiow congressional amendments “d[id] not change the meaning that should be given [the term ‘public charge’]” and that the alien before the court was not likely to become a public charge because no evidence existed showing any “mental or physical disability or any fact tending to show that the burden of supporting the [alien] is likely to be cast upon the public”). Additionally, Judge Learned Hand, writing for the Second Circuit, explained that after the 1917 amendments, the public charge provision both overlapped “other provisions; e.g., paupers, vagrants, and the like” and covered cases “where the occasion leads to the conclusion that the alien will become destitute, though generally capable of standing on his own feet.” See United States ex rel. Iorio v. Day, 34 F.2d 920, 922 (2d Cir. 1929). Meanwhile, the Fifth Circuit explained that even after the post-Gegiow amendments, the public charge provision yet applied only to those with “a condition of dependence on the public for support.” See Coykendall v. Skrmetta, 22 F.2d 120, 121 (5th Cir. 1927).
Despite the consistency of the foregoing judicial decisions, my colleagues in the panel majority identify

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
early decisions that they see as demonstrating the lack of an express articulation of a “primarily dependent” meaning for the term “public charge.” See ante 247–49. Read in toto, however, those decisions demonstrate that the term “public charge” has always described an alien that is significantly dependent on the government. See, e.g., Skrmetta v. Coykendall, 16 F.2d 783, 784 (N.D. Ga. 1926) (“I agree rather with the idea that Congress had in mind those who from infirmity, great age, or small age, want of property, shiftless habits, profligacy, or other things, were apparently such persons as would not maintain themselves in society by the ordinary means, and would thereby become a public charge.”); see also Dunn v. Bryan, 77 Utah 604, 299 P. 253, 257 (1931) (explaining that the term “public charge” has a “well-defined meaning,” including a person whom “it may be *272 necessary to support at public expense by reason of poverty, insanity and poverty, disease and poverty, idiocy and poverty” (internal quotation marks omitted)).
c.
Moving into the mid-20th century, the term “public charge” continued to describe those significantly dependent on the government. The several sources described below demonstrate that the term’s meaning remained unchanged.
• A 1948 decision of the Board of Immigration Appeals (the “BIA”) explained that an alien could not be deemed a public charge based solely on the receipt of generally available government benefits. See Matter of B-, 3 I. & N. Dec. 323, 324-25 (BIA 1948). In so ruling, the BIA emphasized that the “fact that the State or the municipality pays for the services accepted by the alien is not, then, by itself, the test of whether the alien has become a public charge.” Id. at 325.7
• In 1952, when Congress first enacted the INA, it included a public charge provision similar to the one still in use today. A 1950 report from the Senate Judiciary Committee reveals that Congress, in passing the INA, did not desire to precisely delineate the circumstances to be considered by officials
34

conducting a “likely to become a public charge” inquiry. See S. Rep. No. 81-1515, at 349 (1950) (stating that there should be “no attempt to define” the phrase “likely to become a public charge” in the statute because “the elements constituting likelihood of becoming a public charge are varied”). Of course, Congress’s decision in that respect did not alter the baseline meaning of the term “public charge.”
• In 1962, the Attorney General issued an opinion confirming that the term “public charge” continued to describe those with some level of significant dependence on the government. See Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 421 (BIA 1964) (explaining that, in order to declare a person a public charge, “[s]ome specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present” and that a “healthy person in the prime of life cannot ordinarily be considered likely to become a public charge” (emphasis added)).
• In 1974, the BIA reiterated its longstanding view that a public charge is an alien with significant dependence on the government. See, e.g., Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (ruling that the “fact that an alien has been on welfare does not, by itself, establish that he or she is likely to become a public charge”); Matter of Harutunian, 14 I. & N. Dec. 583, 586 (BIA 1974) (observing that in Matter of B-, the “words ‘public charge’ had their ordinary meaning, that is to say, a money charge upon or an expense to the public for support and care, the alien being destitute” (emphasis added)); id. at 589 (“Everything in the statutes, the legislative comments and *273 the decisions points to one conclusion, that Congress intends that an applicant for a visa be excluded who is without sufficient funds to support himself, who has no one under any obligation to support him and who, being older, has an increasing chance of becoming dependent, disabled and sick.”); id. (suggesting that although the receipt of “individualized public support to the needy” could render someone a public charge, acceptance of “essentially supplementary benefits, directed to the general welfare of the public as a whole,” should not).
In short, although the public charge provision underwent several alterations in the mid-20th century, the meaning

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
of the term “public charge” remained unchanged. Indeed, decision after decision — both from the BIA and the Attorney General — reiterated that which had been apparent since the term’s initial use: An alien must be significantly dependent on the government, as opposed to a mere recipient of some public aid, to be considered a public charge.
d.
Arriving at the end of the 20th century, none of the various amendments to the INA during that period reveal a congressional desire to alter the established meaning of the term “public charge.” In 1990, Congress passed a new immigration act containing a public charge provision identical to the one in the 1952 INA. See Immigration Act of 1990, Pub. L. No. 101-649, tit. VI, § 601(a)(4), 104 Stat. 4978, 5072 (1990). Although Congress did not alter the language of the public charge provision, it did remove several of the enumerated classes of inadmissible persons, i.e., paupers, vagrants, and professional beggars. In so doing, Congress intended that the public charge provision would exclude those previously enumerated classes of inadmissible aliens. See 136 Cong. Rec. 36797, 36844 (Oct. 27, 1990).
Six years later, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which, inter alia, amended the INA to include the Public Charge Statute at issue in these proceedings. See Omnibus Consolidated Appropriations Act, Pub. L. No. 104-208, tit. V, § 531, 110 Stat. 3009, 3009-674 (1996). Simultaneous with its passage of the 1996 amendments to the INA, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which limited the ability of aliens living in the United States to access certain public benefits. See Pub. L. No. 104-193, 110 Stat. 2105 (1996) (codified at 8 U.S.C. § 1601 et seq.) (the “Welfare Reform Act”).
Although neither the Public Charge Statute nor the Welfare Reform Act altered the meaning of the term “public charge,” Congress included a policy statement at the outset of the Welfare Reform Act explaining that “[s]elf-sufficiency has been a basic principle of United
35

States immigration law since this country’s earliest immigration statutes.” See 8 U.S.C. § 1601(1). And Congress expressed its desire that “aliens within the Nation’s borders not depend on public resources to meet their needs” and that the “availability of public benefits not constitute an incentive for immigration to the United States.” Id. § 1601(2)(A)-(B). Despite the contrary insistence of the panel majority, the Welfare Reform Act has limited relevance to the term “public charge.” To be sure, the Welfare Reform Act conveys that Congress aimed to curtail the widespread use of public benefits by aliens. But the Welfare Reform Act accomplishes that goal by limiting the public benefits for which aliens *274 are eligible, not by redefining “public charge.”
Simply put, nothing in the 1990 Immigration Act, the Public Charge Statute, the other 1996 amendments to the INA, or the Welfare Reform Act changed the longstanding meaning of the term “public charge.” Accordingly, “public charge,” as used today in the Public Charge Statute, continues to mean an alien significantly dependent on the government.
e.
Finally, recent administrative rulemaking proceedings clearly demonstrate that the term “public charge” has always meant an alien with significant dependence on the government. For instance, in 1999, the Immigration and Naturalization Service (the “INS”), then an agency of the Department of Justice, published a proposed regulation entitled “Inadmissibility and Deportability on Public Charge Grounds.” See 64 Fed. Reg. 28,676 (May 26, 1999) (the “1999 Proposed Rule”). Confusion following the passage of the Welfare Reform Act necessitated the 1999 Proposed Rule, as some aliens had declined to accept public benefits for fear that they would be declared public charges.
The 1999 Proposed Rule defined the term “public charge” as, inter alia, “an alien ... who is likely to become ... primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” See 64 Fed.

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
Reg. at 28,677 (internal quotation marks omitted). The INS settled on the foregoing definition by relying on “the plain meaning of the word ‘charge,’ the historical context of public dependency when the public charge immigration provisions were first enacted more than a century ago, and ... [the] factual situations presented in the public charge case law.” Id. In addition to defining the term “public charge,” the 1999 Proposed Rule also emphasized that the plain meaning of the term suggests “a complete, or nearly complete, dependence on the Government rather than the mere receipt of some lesser level of financial support.” Id. (emphasis added).
Regarding the types of public benefits that could render an alien a public charge, the 1999 Proposed Rule explained that it has “never been [INS] policy that the receipt of any public service or benefit must be considered for public charge purposes.” See 64 Fed. Reg. at 28,678. Indeed, the 1999 Proposed Rule explicitly stated that because “[n]on-cash benefits, such as [supplemental nutrition assistance programs], are by their nature supplemental and frequently support the general welfare,” acceptance thereof should not be considered in public charge analyses. Id. Consequently, the 1999 Proposed Rule related that only the acceptance of “public cash assistance” or “institutionaliz[ation] for long-term care” should be factored into the public charge analysis. Id. Finally, the 1999 Proposed Rule adopted longstanding principles derived from the public charge precedents, such as the requirement that immigration officials employ a “totality of the circumstances” approach in “making a prospective public charge decision.” Id. at 28,679.
Although the 1999 Proposed Rule provided new details regarding public charge determinations, nothing therein purported to change the established meaning of the term “public charge.” On the contrary, the 1999 Proposed Rule actually sought to codify the definition derived from the term’s historical usage. See 64 Fed. Reg. at 28,677. Ultimately, however, the 1999 Proposed Rule was not finalized.
*275 Notwithstanding the failure to finalize the 1999 Proposed Rule, its definition of “public charge” was nevertheless implemented by the INS via a document entitled “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds.” See 64 Fed. Reg. 28,689 (Mar. 26, 1999) (the “1999 Field Guidance”). The INS issued the 1999 Field Guidance two months before the 1999 Proposed Rule as a stopgap measure to clarify confusion surrounding the interplay between the
36

Public Charge Statute and the Welfare Reform Act pending finalization of the 1999 Proposed Rule. To that end, the 1999 Field Guidance immediately adopted the definition of the term “public charge” contained in the 1999 Proposed Rule and barred immigration officials making public charge determinations from placing “any weight on the receipt of non-cash public benefits (other than institutionalization) or the receipt of cash benefits for purposes other than for income maintenance.” Id. at 28,689. Importantly, like the 1999 Proposed Rule, the 1999 Field Guidance explicitly contemplated that its definition of “public charge” would not significantly alter public charge determinations. Id. at 28,692 (explaining that the 1999 Field Guidance’s definition should not “substantially change the number of aliens who will be found ... inadmissible as public charges”). After its adoption, the 1999 Field Guidance controlled public charge determinations until the promulgation of the DHS Rule in 2018.
* * *
In sum, this review of the history of the term “public charge” reveals a simple truth that the panel majority and DHS fail to acknowledge: since its first use in 1882, the term has consistently described aliens who are significantly dependent on the government. The text, structure, legislative history, and judicial interpretations of the various public charge provisions permit no other conclusion. It is against this consistent history that the DHS Rule must be evaluated.
2.
Turning now to the DHS Rule, DHS promulgated it on August 14, 2019, pursuant to its rulemaking authority under the INA and the APA. See 84 Fed. Reg. 41,501 (Aug. 14, 2019). Put simply, the Rule extraordinarily expands the definition of “public charge,” resulting in a definition of staggering breadth.
The DHS Rule’s expansive sweep can be gleaned from its definitions alone. To that end, the Rule says that a “public charge” is “an alien who receives one or more public benefits ... for more than 12 months in the aggregate

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” See 84 Fed. Reg. at 41,501. And the term “public benefit,” as used in the Rule, includes: (1) “[a]ny Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits)”; (2) “Supplemental Nutrition Assistance Program (SNAP)”; (3) “Section 8 Housing Assistance”; (4) “Section 8 Project-Based Rental Assistance”; (5) certain Medicaid services; and (6) “Public Housing under section 9 of the U.S. Housing Act of 1937.” Id. Moreover, the Rule provides specific guidance regarding how immigration officials should conduct public charge assessments. To be sure, the Rule purportedly retains the totality-of-the-circumstances evaluation that has long applied to public charge determinations, but that evaluation is now singularly focused on whether an alien is “more likely than not at any time in the future to receive one or more public benefits ... for more than 12 months in the aggregate within any 36-month *276 period.” Id. at 41,502.8 Owing to the confluence of the Rule’s various provisions, an alien can now be deemed a public charge predicated on the potential acceptance of a small amount of government benefits for a short period of time.
3.
Having catalogued the history of the term “public charge” and the specifics of the DHS Rule, the question now is whether the Rule’s definition of “public charge” contravenes the Public Charge Statute. Although I bypass Chevron’s first step predicated on the assumption that some ambiguity inheres in the meaning of “public charge,” as used in the Public Charge Statute, it is clear that the Rule’s definition of “public charge” is unreasonable and thus fails at Chevron’s second step.
a.
As explained, the question at step two of the Chevron
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inquiry is whether the DHS Rule’s definition of “public charge” is reasonable. See Nat’l Elec. Mfrs. Ass’n v. U.S. Dep’t of Energy, 654 F.3d 496, 505 (4th Cir. 2011). That is because a court is obliged, at Chevron’s second step, to “afford ‘controlling weight’ to [a] ... reasonable interpretation even where [the court] would have, if writing on a clean slate, adopted a different interpretation.” Id. (quoting Regions Hosp. v. Shalala, 522 U.S. 448, 457, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998)); see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).
Importantly, however, the deference afforded to an agency’s reasonable interpretation of a statute at Chevron’s second step is not an open invitation to the agency to conjure up any interpretation. Indeed, even statutory terms lacking an unambiguous meaning at Chevron’s first step can have definitional limits beyond which the agency may not venture for purposes of Chevron’s second step. See Cuomo v. Clearing House Ass’n, 557 U.S. 519, 525, 129 S.Ct. 2710, 174 L.Ed.2d 464 (2009) (explaining that “the presence of some uncertainty does not expand Chevron deference to cover virtually any interpretation of” the statute at issue). The Supreme Court explained that principle in its Cuomo decision, clarifying that when there is “necessarily some ambiguity as to the meaning of [a] statutory term,” an executive branch agency “can give authoritative meaning to the statute within the bounds of that uncertainty.” Id. (emphasis added). And to discern the scope of the ambiguity beyond which the agency may not venture, a court is obliged to consider, inter alia, “[e]vidence from the time of the statute’s enactment,” “[court] cases,” and “normal principles of construction.” Id. Put another way, “even through the clouded lens of history,” typical tools of statutory construction allow courts to “discern the outer limits of [a statutory] term.” Id.9
*277 b.
Bearing in mind the principles espoused in Cuomo, the statutory context and history of the term “public charge” reveal that the term has an outer limit beyond which DHS may not traverse. As Chief Judge Wood of the Seventh

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
Circuit recently put it: “There is a floor inherent in the words ‘public charge,’ backed up by the weight of history.” See Cook Cty., 962 F.3d at 229. That floor requires a public charge finding to be predicated on some sort of significant dependence upon public benefits — even if the level of dependence falls somewhere below “primary dependence.” To say otherwise simply ignores the statutory context and extensive history of the term “public charge.”
But the panel majority, apparently content to brush aside statutory structure and history, opts to use the most broad and generic definition of the word “charge.” In my colleagues’ view, any alien who is likely to produce any “money charges upon the public for support and care” can be a public charge. See ante 244. The majority sees the word “charge” in the Public Charge Statute as akin to the type of charge people routinely encounter — a charge for a meal at a restaurant or for an airline ticket. The statutory context and the weight of history, however, plainly counsel that this cannot be the proper definition. Rather, the word “charge,” as used in the Public Charge Statute, defines a person dependent on someone or something else — that is, a person who is the charge of another.
Several indicators confirm that this latter meaning is the proper one. For one thing, since its earliest appearance in the immigration statutes, the term “public charge” has always accompanied other terms defining classes of persons — such as, “idiots, insane persons, [and] paupers.” See An Act in Amendment to the Various Acts Relative to Immigration, Ch. 551, § 1, 26 Stat. 1084, 1084 (1891). That circumstance strongly suggests that the word “charge,” as used in the Public Charge Statute, should not be given its broadest possible meaning, but rather should be read as describing a type of person — one who is the charge of another. See S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 378, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006) (explaining that, in statutory interpretation, “a word is known by the company it keeps” (internal quotation marks omitted)).
Additionally, as mentioned, the majority’s construction of the Public Charge Statute renders any alien who imposes a charge upon the public a “public charge.” But the Public Charge Statute does not sweep so broadly. It does not exclude from the country any alien likely to accept a public benefit and thereby impose a charge on the public; rather, it excludes aliens who are likely to become “a public charge.” If Congress wanted to exclude the former category, it could have done so. Indeed, other INA
38

provisions — for example, the *278 affidavit-of-support provision — reveal that Congress knows how to assign immigration consequences to those who accept any public benefit. See 8 U.S.C. § 1183a(b)(1)(A) (stating that sponsored alien must repay government for acceptance of “any means-tested public benefit” and specifying consequences for failure to repay). But Congress did not exclude via the Public Charge Statute aliens who receive any public benefit; it excluded those likely to become “a public charge.” And that choice carries meaning. Cf. Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 341, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (explaining that courts do not “lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply” and that the “reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest”).
At bottom, the statutory structure, when paired with the history of the term “public charge,” confirms that the term does not extend to cover any alien who may impose a money charge upon the government, but rather reaches only those who are significantly dependent on the government in some manner. Accordingly, the majority’s contention that DHS will struggle to discern the floor inherent in the term is wholly unfounded. As heretofore explained, the floor is a conspicuous one that DHS simply chose to flout.10
c.
Having identified the outer limits of the term “public charge” — that is, a significant level of dependence on the government — the remaining question is whether the DHS Rule’s definition of the term falls within those outer limits. And it plainly does not. Accordingly, the Rule’s boundless definition of “public charge” is unreasonable and fails at Chevron’s second step.
Initially, a cursory examination of the DHS Rule’s definition of “public charge” makes clear that the Rule has ventured beyond the outer limits of the statutory meaning of the term. Historically, an alien could be deemed a public charge only if that person was, in some way, significantly dependent on the government. No

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
longer. Under the Rule, any alien who receives 12 months’ worth of benefits in a 36-month period is a public charge. And those benefits stack, meaning that the acceptance of multiple discrete benefits in a single month equals multiple months’ worth of benefits. The Rule does not stop there, as it mandates that immigration officials consider the acceptance of supplemental public benefits that never before played a role in public charge determinations — like SNAP assistance, Section 8 Housing assistance, and Medicaid services. Additionally, the Rule goes even a step further by placing no minimum requirement on the amount of benefits accepted. The various features of the Rule thus work in concert to render any alien who receives a de minimis amount of public benefits for a de minimis period of time a “public charge.” See Cook Cty., 962 F.3d at 229. But an alien who receives such a miniscule amount of benefits cannot reasonably be declared significantly dependent on the government. Id. at 232 (explaining that the benefits covered in the Rule “are largely supplemental and not intended to be, or relied upon as, a primary resource for recipients” and that “[m]any recipients could get by *279 without them, though as a result they would face greater health, nutrition, and housing insecurity”).11
Additionally, the consequences of the DHS Rule’s redefinition of “public charge” underscore its unreasonableness. See Cuomo, 557 U.S. at 529, 129 S.Ct. 2710 (“The consequences of the regulation also cast doubt upon its validity.”). To capture the scope of the change caused by the Rule, consider the following real-world example regarding SNAP benefits. In order to qualify for the SNAP program, an individual must make less than $16,248 per year.12 Individuals who qualified for the program in 2019 — approximately 35.7 million people per month — received an average monthly benefit of $129.83.13 Accordingly, under the Rule, any alien applying for admission or adjustment of status who is more likely than not, at any point in his lifetime, to receive a monthly benefit of $129.83 for 12 out of 36 months is excludable from the country on public charge grounds. And if that alien happens to also receive housing and Medicaid assistance, in any amount, it would only take that person a mere four months to become a public charge. Such a person, however, cannot reasonably be declared significantly dependent on the government.
The DHS Rule’s unreasonableness is further compounded by the fact that the Rule’s definition of “public charge” is cut from whole cloth. DHS and the panel majority assure us, however, that the Rule’s definition is actually based
39

on data demonstrating that “a substantial portion of individuals who receive public benefits do so for fewer than 12-months and that those who receive such benefits over a longer period are more likely to become ‘long-term recipients’ of welfare.” See ante 234–35 (citation omitted); see also 84 Fed. Reg. 41,292, 41,359-41,362 (Aug. 14, 2019). But the Rule does not define a public charge as an individual who receives public benefits for 12 months or more; the Rule defines a public charge as any alien who receives 12 months’ worth of public benefits — in the aggregate — in a 36-month period. Accordingly, under the Rule’s definition, an alien who receives a miniscule amount of three supplementary public benefits for four months is a public charge. So, data indicating that the likelihood of long-term benefit usage increases for those persons who receive public benefits for 12 months or more are quite beside the point. If anything, the mismatch between the data DHS relied on to craft the Rule and the provisions of the Rule itself only underscore the unreasonableness of the Rule’s “public charge” definition. See Cook Cty., 962 F.3d at 229-33 (declaring Rule likely arbitrary and capricious because of serious mismatch between Rule and both data *280 DHS relied upon in crafting Rule and text of Public Charge Statute); see also Judulang v. Holder, 565 U.S. 42, 52 n.7, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) (explaining overlap between arbitrary and capricious evaluation and inquiry at Chevron’s second step).
The majority also seeks to justify the DHS Rule by way of the Welfare Reform Act, which restricts the public benefits that aliens may receive. In the majority’s view, the Rule’s definition of “public charge” must be reasonable because it harmonizes with the policy statement at the outset of the Welfare Reform Act, which expresses Congress’s desire that aliens be self-sufficient. My good friends are mistaken. To begin, a policy statement is always of limited persuasiveness. Cf. Comcast Corp. v. F.C.C., 600 F.3d 642, 654 (D.C. Cir. 2010) (“Policy statements are just that — statements of policy.”). And that persuasive power further fizzles when considering that this policy statement accompanies the Welfare Reform Act, which is not at issue in these proceedings and says nothing about the Public Charge Statute or the term “public charge.” See Cook Cty., 962 F.3d at 228. Additionally, to the extent that Congress expressed its concern about the self-sufficiency of aliens in the Welfare Reform Act, it addressed that concern therein by restricting the benefits for which aliens are eligible. Id. Accordingly, relying on the Welfare Reform Act’s policy statement to justify a boundless construction

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
of the term “public charge,” or to countenance the Rule’s cavernous definition thereof, is inappropriate.14
Finally, the unreasonableness of the DHS Rule is plainly apparent when considering the overall statutory context, as the Rule “creates serious tensions, if not outright inconsistencies, within the statutory scheme.” See Cook Cty., 962 F.3d at 228. Specifically, the Rule allows DHS to consider an alien’s acceptance of benefits that he is eligible to receive under both the Welfare Reform Act, see 8 U.S.C. §§ 1611, 1621, and the Farm Security and Rural Investment Act of 2002, see Pub. L. No. 107-171, 116 Stat. 134 (2002). Accordingly, under the Rule, an alien can be deemed likely to become a public charge because that alien might accept public benefits that Congress explicitly authorized him to receive. To put it mildly, that result verges on the absurd. See Cook Cty., 962 F.3d at 228 (explaining that the Rule sets a “trap for the unwary by penalizing people for accepting benefits Congress made available to them” (internal quotation marks omitted)). And it provides strong evidence that the Rule’s definition of “public charge” is unreasonable. Cf. *281 Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (explaining that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available”).15
At bottom, the Public Charge Statute does not exclude from the country any alien who is likely to need public assistance during his time in the country, it excludes those “likely at any time to become a public charge.” See 8 U.S.C. § 1182(a)(4)(A). And the history of the term “public charge” reveals that the term means an alien who is somehow significantly dependent on the government. See Cook Cty., 962 F.3d at 229. If Congress wanted to expand the exclusion by declaring inadmissible not just those likely to be significantly dependent on the government, but also those who might receive any quantum of public assistance, it could have done so. But DHS cannot unreasonably interpret a statutory term so that it may do by executive fiat what Congress has declined to do. The DHS Rule is a textbook example of executive branch overreach that is forbidden in our constitutional system. Cf. ante 263 (“It is beyond the power of any one person to set himself up as the arbiter of law in these entire United States.”).
In the face of the extensive history accompanying the term “public charge,” to conclude that the DHS Rule’s
40

definition of “public charge” is reasonable makes a mockery of the term “public charge,” “does violence to the English language and the statutory context,” and disrespects the choice — made consistently by Congress over the last century and a quarter — to retain the term in our immigration laws. See Cook Cty., 962 F.3d at 229. For those reasons, the Rule’s “public charge” definition ventures far beyond any ambiguity inherent in the meaning of the term “public charge,” as used in the Public Charge Statute, and thus fails at Chevron’s second step. In light of the foregoing, the plaintiffs are likely to succeed on the merits of their claim that the Rule is unlawful, and the majority is wrong to conclude otherwise.16
*282 C.
1.
Having concluded that the plaintiffs are likely to succeed on the merits of their claim against the DHS Rule, the next assessment is whether the other preliminary injunction factors weigh in favor of preliminarily enjoining implementation of the Rule. Those factors are whether (1) CASA is “likely to suffer irreparable harm in the absence of preliminary relief”; (2) “the balance of equities tips in [CASA’s] favor”; and (3) “an injunction is in the public interest.” See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).17 Despite the panel majority’s rulings to the contrary, each of those factors weighs in favor of preliminarily enjoining implementation of the Rule.
a.
Beginning with whether CASA will face irreparable harm in the absence of a preliminary injunction, we are obliged

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
to consider whether “irreparable injury is likely in the absence of an injunction.” See Winter, 555 U.S. at 22, 129 S.Ct. 365; see also Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (explaining that “more than just a ‘possibility’ of irreparable harm” is necessary). To carry its burden, CASA must make a “clear showing that it will suffer harm that is neither remote nor speculative, but actual and imminent.” See Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes Powell, 915 F.3d 197, 216 (4th Cir. 2019) (internal quotation marks omitted). Additionally, the harm must be truly irreparable, meaning that it must be incapable of being “fully rectified by the final judgment after trial.” Id. (internal quotation marks omitted).
In my view, the district court did not abuse its discretion in determining that CASA is likely to suffer irreparable harm if the DHS Rule is not enjoined. CASA claims that, because of the Rule, it must divert resources away from its core legislative advocacy mission and toward efforts to counsel its members about the effects of the Rule. And according to CASA, those advocacy efforts cannot be adequately undertaken at a different time because they are dependent on political will and the *283 legislative cycle. Such allegations demonstrate irreparable harm. See Mountain Valley Pipeline, LLC, 915 F.3d at 217; Mountain Valley Pipeline, LLC v. W. Pocahontas Props. Ltd. P’ship, 918 F.3d 353, 366 (4th Cir. 2019); see also League of Women Voters of U.S. v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016) (explaining that because decisions of the defendant “unquestionably ma[d]e it more difficult for the [plaintiff organization] to accomplish [its] primary mission,” the organization suffered injury sufficient for purposes of both “standing and irreparable harm”).
b.
The remaining pieces of the preliminary injunction puzzle to consider are whether the balance of equities and the public interest weigh in favor of granting relief. Because the government is a party in these proceedings, those two factors can be considered together. See Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016); see also Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).
41

In the panel majority’s view, DHS’s interest in “not burdening the public fisc by admitting public charges” is more important than the harm CASA will face from the impairment of its organizational mission and the diversion of its resources. See ante 255–56. I disagree. Absent a preliminary injunction, CASA’s organizational mission will undoubtedly continue to be frustrated and its resources diverted. Moreover, the public interest will be harmed if aliens living in the United States disenroll from public benefits for which they are eligible due to fear of immigration consequences stemming from the DHS Rule. On the other hand, DHS’s purported interests — when weighed against the significant harms CASA faces — fail to measure up.
At the end of the day, DHS contends that it has an overriding interest in immediately implementing its preferred policy and that such an interest tips the balance of equities and the public interest in its favor. Although the majority dutifully accepts that contention, I do not. If immediate implementation of a preferred policy were sufficient to tilt the balance of equities and public interest in favor of DHS, every plaintiff seeking a preliminary injunction against governmental action would be on a fool’s errand. Accordingly, the harm CASA will suffer absent a preliminary injunction far outweighs any interest DHS may have in immediately implementing its preferred policy. The majority errs in concluding otherwise.
2.
Finally, the panel majority launches a broadside against the propriety of nationwide preliminary injunctions. In the context of its other rulings, however, the majority’s attack is dicta. And in any event, my friends are wrong in their criticism of the scope of the district court’s injunction. To be sure, a nationwide preliminary injunction is a strong remedy. But district courts are entitled to wide discretion in fashioning injunctive relief. See South Carolina v. United States, 907 F.3d 742, 753 (4th Cir. 2018). And here, the district court’s decision to preliminarily enjoin implementation of the DHS Rule nationwide is a perfectly appropriate exercise of that considerable discretion. See Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545,

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)

61 L.Ed.2d 176 (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.”); see also Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015) (affirming nationwide injunction barring implementation of immigration policy and emphasizing *284 that immigration policy should be uniform throughout the country).

lands far afield of any reasonable interpretation of the Public Charge Statute. Accordingly, the plaintiffs are likely to succeed on the merits of their challenge to the lawfulness of the Rule. And because the remaining preliminary injunction factors weigh in favor of granting relief, the district court did not abuse its discretion in preliminarily enjoining implementation of the Rule, even on a nationwide basis.

* * *

In sum, the Public Charge Statute excludes aliens from

this country and prohibits aliens already living in the

country from adjusting their immigration statuses if they

are likely to become public charges. Although the Public

III.

Charge Statute does not define the term “public charge,”

the usual tools of statutory construction reveal that “public charge” has always described an alien likely to be significantly dependent on the government. The DHS Rule, however, alters that definition, declaring that any

Pursuant to the foregoing, I would affirm the preliminary injunction entered by the district court. I therefore respectfully dissent.

alien likely to receive a de minimis amount of

supplemental public benefits for a de minimis period of time is excludable as a public charge. Under any

All Citations

reasonable construction, a person receiving such a

971 F.3d 220

miniscule amount of benefits cannot be said to be

significantly dependent on the government. Because the

Rule fixes a boundless definition of “public charge,” it

Footnotes

1

Consistent with the INA, the DHS Rule, and our dissenting colleague, we employ the term “alien” throughout this

opinion. See 8 U.S.C. § 1101(a)(3) (defining the term “alien” as “any person not a citizen or national of the United

States”); Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019).

2

Specific classes of aliens, including asylum seekers and refugees, are not subject to the public charge provision. See 8

U.S.C. §§ 1157, 1158, 1159.

3

The district court accordingly did not consider plaintiffs’ other APA or Fifth Amendment claims. See Casa de

Maryland, 414 F. Supp. 3d at 784.

4

The dissent’s suggestion that we cannot consider CASA’s standing is simply incorrect. See Dissenting Op., post at 266

n.2. The party in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, ––– U.S. ––––, 140 S.Ct. 2367,

2379-380 n.6, 207 L.Ed.2d 819 (2020), was an intervenor at the appellate stage of the litigation, not a party on

whose standing the district court erroneously predicated its jurisdiction.

5

We also find that the two plaintiffs fall within the relevant statutory zone of interests—an inquiry that the Supreme

Court has stressed is “not meant to be especially demanding.” Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209, 225, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (quoting Clarke v. Sec. Indus. Ass’n, 479

42

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)

U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). As noncitizens presently residing in the United States who intend to adjust their status in the future, the individual plaintiffs are persons who will be directly regulated under the DHS Rule. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014).

6

To be sure, Chevron has been overused to enlarge the power of the administrative state, Gutierrez-Brizuela v. Lynch,

834 F.3d 1142, 1151–58 (10th Cir. 2016) (Gorsuch, J., concurring), and to incentivize open-ended delegations of

power from Congress to the Executive, Neomi Rao, Administrative Collusion: How Delegation Diminishes the

Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015). But deference is plainly appropriate here where Congress has

expressly and specifically delegated power to the executive in an area that overlaps with the executive’s traditional

constitutional function.

7

A geographically-focused injunction is not a sound alternative to a nationwide injunction. See Bray at 422 n.19. A

geographically-limited injunction suffers from the same infirmities as a nationwide injunction, albeit on a smaller

scale, i.e., it protects non-parties and purports to decide a general question of law rather than a specific dispute.

8

Equally unpersuasive is the district court’s suggestion that the APA justifies its choice of remedy. True, the APA

authorizes courts to “hold unlawful and set aside agency action” that is “not in accordance with law.” 5 U.S.C. §

706(2)(A). But we have squarely rejected the view that this provision mandates the issuance of a nationwide

injunction whenever a federal rule is held unlawful. See Virginia Soc’y, 263 F.3d at 393–94. In any event, the position

that § 706 even authorizes, much less compels, nationwide injunctions is baseless. See Bray at 438 n.121; see also

John Harrison, “Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other

Universal Remedies,” Yale Journal on Regulation, Notice & Comment (Apr. 12, 2020),

https://www.yalejreg.com/nc/section-706-of-the-administrative-procedure-act-does-not-call-for-universal-injunctio

ns-or-other-universal-remedies-by-john-harrison/. The APA was passed in 1946, seventeen years before the first

nationwide injunction was issued by a federal court. That Congress would have implicitly codified such a radical

departure from settled equity practice is quite illogical. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 320, 102

S.Ct. 1798, 72 L.Ed.2d 91 (1982) (“[A] major departure from the long tradition of equity practice should not be lightly

implied.”).

1

I use “Public Charge Statute” to refer to the current public charge provision in the INA. Other references to public

charge provisions relate to earlier iterations thereof. And in keeping with the language of the INA, I use the term

“alien” to describe those noncitizens subject to the Public Charge Statute. See 8 U.S.C. § 1101(a)(3) (defining the

term “alien” as “any person not a citizen or national of the United States”).

2

Aside from erring in its analysis of CASA’s Article III standing, the majority errs by considering that issue at all, having

recognized the individual plaintiffs’ standing. Cf. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,

––– U.S. ––––, 140 S.Ct. 2367, 2379-80 n.6, 207 L.Ed.2d 819 (2020) (ruling that court erred in inquiring into Article III

standing of intervenor organization, in that another party seeking same relief possessed standing).

3

Although the majority does not reach the issue, I am satisfied that CASA’s interests fall within the zone of interests

protected by the Public Charge Statute such that it can assert its claim against the DHS Rule under the APA. See

Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); see also

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225, 132 S.Ct. 2199, 183 L.Ed.2d

211 (2012) (observing that the “zone of interests” test “is not meant to be especially demanding” and that

Congress’s “evident intent when enacting the APA [was] to make agency action presumptively reviewable” (internal

quotation marks omitted)).

43

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)

4

As related by the well-reasoned Cook County majority opinion in early June, the DHS Rule has been contested in

district courts in New York, California, Washington, and Illinois, plus in Maryland as part of these proceedings. See

962 F.3d at 217-18. Without exception, each district court to consider the Rule preliminarily enjoined its

implementation. Id. at 217. And the Seventh Circuit affirmed the injunction entered by the district court in the

Northern District of Illinois. Id. at 234. Against this authority, the majority today is the first court in the nation to

overturn a preliminary injunction that prohibited implementation of the Rule.

5

In 2002, Congress transferred the power to make inadmissibility determinations from the Attorney General to the

Secretary of Homeland Security. See 8 U.S.C. § 1103(a).

6

The panel majority insists that a review of the statutory history should begin in 1952, the year Congress enacted the

first iteration of the INA. But when Congress created the public charge provision in that legislation, it did not write

on a clean slate. By 1952, the term “public charge” had already amassed seventy years’ worth of meaning.

7

Matter of B- is relevant to this appeal only insofar as it illuminates the BIA’s view regarding the definition of the

term “public charge.” That is because the BIA later clarified that the test set forth in Matter of B- applied to

deportations on public charge grounds and not inadmissibility determinations like those covered by the DHS Rule.

See Matter of Harutunian, 14 I. & N. Dec. 583, 585 (BIA 1974).

8

The DHS Rule instructs immigration officials, in assessing the totality of the circumstances, to consider a panoply of

factors. Some of those factors are of questionable relevance. For example, the Rule instructs officials to consider

“[w]hether the alien is proficient in English or proficient in other languages in addition to English.” See 84 Fed. Reg.

at 41,504. English proficiency had never been considered as part of the public charge inquiry, and the Rule does not

indicate why English proficiency is now relevant. See Br. of U.S. House of Representatives as Amicus Curiae 20-21.

9

The panel majority maintains that the Public Charge Statute’s use of the phrase “in the opinion of” confers some

extraordinary discretion upon DHS regarding its ability to define the term “public charge.” See 8 U.S.C. §

1182(a)(4)(A) (“Any alien who ... 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.” (emphasis added)); see also

ante 242. The location of the “in the opinion of” phrase demonstrates, however, that it affords discretion in

determining — based on the totality of the circumstances — whether a given alien is “likely at any time to become a

public charge.” See Matter of Harutunian, 14 I. & N. Dec. at 588 (observing that “Congress inserted the words ‘in the

opinion of’ ... with the manifest intention of putting borderline adverse determinations beyond the reach of judicial

review”); see also S. Rep. No. 81-1515, at 349 (explaining that because there is “no definition of the term ‘likely to

become a public charge’ in the statutes, its meaning has been left to the interpretation of the administrative officials

and the courts”). The phrase clearly does not expand DHS’s authority to define the term “public charge.”

10 My colleagues criticize this dissent for concluding that the term “public charge” has a definitional outer limit, but even they tacitly acknowledge that “public charge” has a definitional floor. See ante 253–54 (reserving for another day question of precise floor of term).

11 The majority insists that it is fanciful to conclude that an alien who is likely to receive a small amount of supplemental public benefits for a short period of time will be declared likely to become a public charge under the DHS Rule. See ante 253–54. But that conclusion flows directly from the plain text of the Rule. See 84 Fed. Reg. at 41,501. In reality, it is my friends who have resorted to speculation in predicting that DHS will not — for reasons left unexplained — apply the Rule according to its plain text.

12 For additional context, according to calculations from the Center for Poverty Research at the University of California, 44

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020)
Davis, an individual in the United States working full-time for minimum wage earns $15,080 per year. See https://poverty.ucdavis.edu/faq/what-are-annual-earnings-full-time-minimum-wage-worker (last visited June 30, 2020).
13 The data regarding SNAP benefit usage was obtained from the website of the Food and Nutrition Service, an agency of the Department of Agriculture. The full data set can be found at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNAPsummary-6.pdf (last visited June 30, 2020).
14 In its recent Cook County decision, the Seventh Circuit explained the proper interplay between the Welfare Reform Act, the Public Charge Statute, and the DHS Rule. As Chief Judge Wood related: The INA does not call for total self-sufficiency at every moment; it uses the words “public charge.” DHS sees “lack of complete self-sufficiency” and “public charge” as synonyms: in its view, receipt of any public benefit, particularly one related to core needs such as health care, housing, and nutrition, shows that a person is not self-sufficient. This is an absolutist sense of self-sufficiency that no person in a modern society could satisfy; everyone relies on nonmonetary governmental programs, such as food safety, police protection, and emergency services. DHS does not offer any justification for its extreme view, which has no basis in the text or history of the INA. As we explained earlier, since the first federal immigration law in 1882, Congress has assumed that immigrants (like others) might face economic insecurity at some point. Instead of penalizing immigrants by denying them entry or the right to adjust status, Congress built into the law accommodations for that reality. See Cook Cty., 962 F.3d at 232 (citation omitted).
15 The majority attempts to minimize the tension between the DHS Rule and the federal immigration laws by accusing this dissent of “pick[ing] and scratch[ing] at the Rule” to unearth tangential inconsistencies. See ante 252. But discerning that the Rule is in outright conflict with both the Public Charge Statute and the Welfare Reform Act does not require any mental gymnastics. Indeed, a careful, straightforward examination of the statutory context and history of the term “public charge” — an examination free from the taint of any grand pronouncements about a preferred policy outcome — lays bare the irreconcilable conflict between the Rule and our immigration statutes. And that conflict dooms the Rule. See Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965) (“The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law ... but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity.” (internal quotations marks omitted)).
16 During the pendency of this appeal, the Supreme Court — on emergency request of the government — stayed injunctions entered by district courts in the Northern District of Illinois and the Southern District of New York that prohibited implementation of the DHS Rule. See Wolf v. Cook Cty., Ill., ––– U.S. ––––, 140 S. Ct. 681, 206 L.Ed.2d 142 (Feb. 21, 2020); Dep’t of Homeland Sec. v. New York, ––– U.S. ––––, 140 S. Ct. 599, 206 L.Ed.2d 115 (Jan. 27, 2020). Although my colleagues in the majority believe that the Court’s stay orders put a thumb on the scale in favor of DHS, see ante 229–31, I do not agree. In my view, assigning such significance to perfunctory stay orders is problematic. See Wolf, 140 S. Ct. at 683-84 (Sotomayor, J., dissenting) (observing that decisions rendered pursuant to emergency stay requests force the Court “to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument”). That is particularly so because, as Justice Sotomayor recently explained, such stays — which were once reserved for the rarest of cases — have become commonplace. Id. at 683 (explaining that the government, “[c]laiming one emergency after another,” has “come to treat the exceptional mechanism of stay relief as a new normal” and has “recently sought stays in an unprecedented number of cases” (internal quotation marks and alteration omitted)). If the Court’s decision to grant a stay could be understood to effectively hand victory to the government regarding the propriety of a preliminary injunction, there would be little need for an intermediate appellate court to even consider the merits of an appeal in
45

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (2020) which the Court has granted a stay. See Cook Cty., 962 F.3d at 234 (“The stay ... preserves the status quo while ... case[s] ... percolate up from courts around the country. There would be no point in the merits stage if an issuance of a stay must be understood as a sub silentio disposition of the underlying dispute.”). Indeed, even the Court’s orders staying the aforementioned preliminary injunctions contemplate full hearings on the merits by the courts of appeals. See Wolf, 140 S. Ct. at 681; New York, 140 S. Ct. at 599. Accordingly, the Court’s stay orders do not control our evaluation of the merits of the preliminary injunction at issue in these proceedings.
17 In assessing the remaining preliminary injunction factors, my focus, like that of the panel majority and the district court, is on CASA (as opposed to the individual plaintiffs).
46