STAYED,APPEAL,LC02,PROTO
Eastern District of Washington U.S. District Court (Richland) CIVIL DOCKET FOR CASE #: 4:19-cv-05210-RMP

State of Washington et al v. United States Department of Date Filed: 08/14/2019

Homeland Security et al

Jury Demand: None

Assigned to: Judge Rosanna Malouf Peterson

Nature of Suit: 899 Other Statutes:

Case in other court: 9CCA, 19-35914

Administrative Procedures

Cause: 05:0701 Judicial Review of Agency Decision Act/Review or Appeal of Agency

Decision

Jurisdiction: U.S. Government

Defendant

Plaintiff State of Washington

represented by Bryan MS Ovens Washington Office of the Attorney General - KENN 8127 West Klamath Court Building 6, Suite A Kennewick, WA 99336-2607 509-734-7451 Email: Bryan.Ovens@atg.wa.gov ATTORNEY TO BE NOTICED

Jeffrey T Sprung Attorney Generals Office - Seattle (Tort) 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-326-5492 Email: jeff.sprung@atg.wa.gov ATTORNEY TO BE NOTICED

Joshua Weissman Attorney General of Washington Ecology Division 2425 Bristol Court SW P O Box 40117 Olympia, WA 98504-0117 360-570-3401 Email: Joshua.Weissman@atg.wa.gov ATTORNEY TO BE NOTICED

Nathan Bays Attorney Generals Office - Seattle (Tort) 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-464-5870 Email: Nathan.Bays@atg.wa.gov ATTORNEY TO BE NOTICED
Paul Michael Crisalli Attorney Generals Office - Seattle (Tort) 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-389-3822 Email: Paul.Crisalli@atg.wa.gov ATTORNEY TO BE NOTICED
Rene David Tomisser Attorney General of Washington Complex Litigation Division P.O. Box 40111 Olympia, WA 98504-0126 360-586-6314 Fax: 360-586-6655 Email: Rene.Tomisser@atg.wa.gov TERMINATED: 01/24/2020
Spencer W Coates Attorney Generals Office - Seattle (Tort) 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-287-4173 Email: spencer.coates@atg.wa.gov ATTORNEY TO BE NOTICED
Zachary Pekelis Jones Washington State Attorney General's Office 800 Fifth Avenue Suite 2000

Plaintiff Commonwealth of Virginia

Seattle, WA 98104 206-332-7089 Fax: 206-359-4768 Email: zach.jones@atg.wa.gov ATTORNEY TO BE NOTICED
represented by Alice Anne Lloyd Office of the Attorney General - VA 202 North Ninth Street Richmond, VA 23219 804-786-5315 Email: alloyd@oag.state.va.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Merry Samuels Office of the Attorney General - VA 202 North Ninth Street Richmond, VA 23219 804-786-6835 Email: jsamuels@oag.state.va.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mamoona Hafeez Siddiqui Office of the Attorney General - VA 202 North Ninth Street Richmond, VA 23219 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle S Kallen Office of the Attorney General - VA 202 North Ninth Street Richmond, VA 23219 804-786-7704 Email: mkallen@oag.state.va.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Spreague Hardy

Plaintiff State of Colorado

Office of the Attorney General - VA 202 North Ninth Street Richmond, VA 23219 804-786-0969 Email: rhardy@oag.state.va.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Nathan Bays (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Eric R Olson Office of the Attorney General - CO 1300 Broadway, 10th Floor Denver, CO 80203 720-508-6548 Email: eric.olson@coag.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser

Plaintiff State of Delaware
Plaintiff State of Illinois

(See above for address) ATTORNEY TO BE NOTICED
represented by Christian Douglas Wright Delaware Department of Justice 820 North French Street 5th Floor Wilmington, DE 19801 302-577-8944 Email: christian.wright@delaware.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Monica A Horton Delaware Department of Justice 820 North French Street 5th Floor Wilmington, DE 19801 302-577-8324 Email: monica.horton@delaware.gov TERMINATED: 01/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Roberson-Young Office of the Attorney General - IL 100 West Randolph Street, 11th Floor Chicago, IL 60601 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Commonwealth of Massachusetts

Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Abigail B Taylor Office of the Attorney General - MA One Ashburton Place Boston, MA 02108 617-963-2232 Email: abigail.taylor@mass.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Angela R Brooks Office of Attorney General - MA One Ashburton Place Boston, MA 02108 617-963-2590 Email: angela.brooks@mass.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Urena Office of Attorney General - MA One Ashburton Place Boston, MA 02108 617-963-2675 Email: david.urena@mass.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dana Nessel Attorney General on behalf of the People of Michigan
Plaintiff

Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Fadwa Alawieh Hammoud Michigan Department of Attorney General 525 W Ottawa Street Lansing, MI 48933 517-335-7628 Email: hammoudf1@michigan.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Toni Lynn Harris Michigan Department of Attorney General 525 W Ottawa Street Lansing, MI 48933 517-335-7603 Email: harrist19@michigan.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED

State of Minnesota
Plaintiff State of Nevada
Plaintiff

represented by Ralph J Detrick Minnesota Attorney General's Office 445 Minnesota Street Suite 1100 St Paul, MN 55101-2128 651-757-1489 Email: rj.detrick@ag.state.mn.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Heidi Parry Stern Office of the Attorney General - NV 555 East Washington Avenue Suite 3900 Las Vegas, NV 89101 702-486-3594 Email: HStern@ag.nv.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED

State of New Jersey
Plaintiff State of New Mexico

represented by Glenn J Moramarco Office of the New Jersey Attorney General 25 Market Street PO Box 112 Trenton, NJ 08625 609-376-3235 Email: glenn.moramarco@law.njoag.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Marie L Soueid Office of the New Jersey Attorney General 25 Market Street PO Box 112 Trenton, NJ 08625 609-376-2564 Email: marie.soueid@law.njoag.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Tania Maestas Office of the Attorney General - NM Santa Fe 408 Galisteo Street Santa Fe, NM 87501 505-490-4048 Email: TMaestas@nmag.gov LEAD ATTORNEY PRO HAC VICE

Plaintiff State of Rhode Island
Plaintiff State of Maryland

ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Lauren E Hill Office of the Attorney General - RI 150 South Main Street Providence, RI 02903 401-274-4400 Email: lhill@riag.ri.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Paul Dunlap Office of the Attorney General - MD 200 St Paul Place Baltimore, MD 21202 410-576-4906 Email: jdunlap@oag.state.md.us LEAD ATTORNEY PRO HAC VICE

Plaintiff State of Hawai'i
V. Defendant United States Department of Homeland Security a federal agency

ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
Rene David Tomisser (See above for address) ATTORNEY TO BE NOTICED
represented by Lili A Young Department of the Attorney General Hawaii 425 Queen Street Honolulu, HA 96813 808-587-3050 Email: lili.a.young@hawaii.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey T Sprung (See above for address) ATTORNEY TO BE NOTICED
Spencer W Coates (See above for address) ATTORNEY TO BE NOTICED
represented by Jason Lynch U S Department of Justice (Civil) Federal Programs Branch 1100 L Street, NW Washington, DC 20005 202-514-1359 Email: jason.lynch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Michael Kolsky United States Department of Justice DC L St 1100 L Street NW Room 12002 Washington, DC 20003 202-305-7664 Email: joshua.kolsky@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kuntal V Cholera US Department of Justice - Federal Programs Branch 1100 L Street NW POB 883 Ben Franklin Station Washington, DC 20005 202-305-8645 Email: kuntal.cholera@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rachel Saslaw United States Department of Justice DC L St 1100 L Street NW Washington, DC 20530 202-514-4520 Email: alexandra.r.saslaw@usdoj.gov ATTORNEY TO BE NOTICED
Eric J Soskin United States Department of Justice DC L St 1100 L Street NW Room 12002 Washington, DC 20003 203-353-0533 Email: eric.soskin@usdoj.gov ATTORNEY TO BE NOTICED
Jordan L Von Bokern United States Department of Justice DC L St

Defendant
Kevin K McAleenan in his official capacity as Acting Secretary of the United States Department of Homeland Security

1100 L Street NW Room 12002 Washington, DC 20003 202-305-7919 Email: jordan.l.von.bokern2@usdoj.gov ATTORNEY TO BE NOTICED
Keri L Berman United States Department of Justice DC L St 1100 L Street NW Room 12002 Washington, DC 20003 202-305-7538 Email: keri.l.berman@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jason Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kuntal V Cholera (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rachel Saslaw (See above for address) ATTORNEY TO BE NOTICED
Eric J Soskin (See above for address) ATTORNEY TO BE NOTICED
Jordan L Von Bokern (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Citizenship and Immigration Services a federal agency
Defendant Kenneth T Cuccinelli, II in his official capacity as Acting Director of United States Citizenship and Immigration Services

Keri L Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Jason Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kuntal V Cholera (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rachel Saslaw (See above for address) ATTORNEY TO BE NOTICED
Eric J Soskin (See above for address) ATTORNEY TO BE NOTICED
Jordan L Von Bokern (See above for address) ATTORNEY TO BE NOTICED
Keri L Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Rachel Saslaw (See above for address) ATTORNEY TO BE NOTICED

Amicus Health Law Advocates

Eric J Soskin (See above for address) ATTORNEY TO BE NOTICED
Jordan L Von Bokern (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen Health Law Advocates Inc 1 Federal Street, Fifth Floor Boston, MA 02110 617-275-2981 Email: acohen@hla-inc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe Health Law Advocates Inc 1 Federal Street, Fifth Floor Boston, MA 02110 617-275-2981 Email: jlowe@hla-inc.org LEAD ATTORNEY PRO HAC VICE
Andrew London Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 617-988-1737 Email: alondon@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer Foley Hoag LLP - DC 1717 K Street NW Washington, DC 20036 202-261-7391 Email: cspringer@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
National Alliance to End Sexual Violence

Emily J Nash Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 617-832-3067 Email: enash@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 617-832-1000 Email: kbuncedefilipp@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet Health Law Advocates - NEU 416 Huntington Avenue Boston, MA 02116 617-373-2019 Email: w.parmet@northeastern.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams Northwest Immigrant Rights Project SEA 615 Second Avenue Suite 400 Seattle, WA 98104 206-957-8611 Email: matt@nwirp.org ATTORNEY TO BE NOTICED
represented by Alanna E Peterson Pacifica Law Group LLP 1191 Second Avenue Suite 2100 Seattle, WA 98101 206-245-1700 Email: alanna.peterson@pacificalawgroup.com

Amicus National Coalition Against Domestic Violence
Amicus National Network to End Domestic Violence
Amicus National Resource Center on Domestic Violence
Amicus

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J Lawrence Pacifica Law Group LLP 1191 2nd Avenue Suite 2100 Seattle, WA 98101-2945 206-245-1700 Fax: 206-245-1750 Email: paul.lawrence@pacificalawgroup.com ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED

National Domestic Violence Hotline

represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus API Chaya

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Battered Womens Justice Project

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Sexual Violence Law Center

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Asian Pacific Institute on GenderBased Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J Lawrence

Amicus Futures Without Violence
Amicus Legal Momentum
Amicus Womens Legal Defense and Education Fund
Amicus Tahirih Justice Center
Amicus Arizona Coalition to End Sexual and Domestic Violence

(See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address)

Amicus End Domestic Abuse Wisconsin: The Wisconsin Coalition Against Domestic
Amicus Violence Free Colorado
Amicus Kansas Coalition Against Sexual and Domestic Violence
Amicus Maine Coalition to End Domestic Violence
Amicus Iowa Coalition Against Domestic Violence

ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
Montana Coalition Against Domestic and Sexual Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
Vermont Network Against Domestic and Sexual Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
SC Coalition Against Domestic Violence and Sexual Assault

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus Texas Council on Family Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus Ohio Domestic Violence Network

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
Idaho Coalition Against Sexual & Domestic Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus Jane Doe Inc

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
Massachusetts Coalition Against Sexual Assault and Domestic Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus Illinois Accountability Initiative

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
North Carolina Coalition Against Domestic Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Paul J Lawrence

Amicus
Washington State Coalition Against Domestic Violence

(See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
Nebraska Coalition to End Sexual and Domestic Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
Kentucky Coalition Against Domestic Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
Delaware Coalition Against Domestic Violence

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Amicus
National Council of Jewish Women

Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED

Paul J Lawrence

Amicus Illinois Coalition Against Domestic Violence
Amicus Rhode Island Coalition Against Domestic Violence
Amicus Nevada Coalition to End Domestic and Sexual Violence
Amicus Mississippi Coalition Against Domestic Violence
Amicus Legal Voice

(See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence

Amicus New Jersey Coalition to End Domestic Violence
Amicus Casa de Esperanza
Amicus DC Coalition Against Domestic Violence
Amicus Ujima Inc
Amicus National Center on Violence Against Women in the Black Community

(See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence

Amicus Washington Coalition of Sexual Assault Programs
Amicus Health Care For All

(See above for address) ATTORNEY TO BE NOTICED
represented by Alanna E Peterson (See above for address) ATTORNEY TO BE NOTICED
Paul J Lawrence (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address)

Amicus
Massachusetts Law Reform Institute

PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams

Amicus Northeastern University's Center for Health Policy and Law
Amicus

(See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED

Health in Justice Action Lab
Amicus Public Health Law Watch

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE

Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Northwest Health Law Advocates

Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus
Charlotte Center for Legal Advocacy

Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Latino Coalition for a Healthy California

Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
California Pan-Ethnic Health Network

Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Korean Community Center of the East Bay

Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE

Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
California Immigrant Policy Center

Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Alexandra B Plutshack Latham & Watkins, LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 (415) 395-8065 Email: alexandra.plutshack@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy Latham & Watkins, LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 (415) 391-0600 Email: brittany.lovejoy@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus

Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Huseny Latham & Watkins, LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 (415) 391-0600 Email: sadik.huseny@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet Latham & Watkins, LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 (415) 391-0600 Email: tess.curet@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED

Kentucky Equal Justice Center
Amicus Michigan Immigrant Rights Center

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Florida Health Justice Project

Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus
Maine Immigrant Rights Coalition

Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus New York Immigration Coalition

Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Community Healthcare Network

Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Arab Community Center for Economic and Social Services

Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Treatment Action Group

Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Welcome Project
Amicus

Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED

Families USA

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE

Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus UMass Memorial Health Care Inc

Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Community Catalyst

Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE
Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J Lowe (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus American Civil Liberties Union

Andrew London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Bunce DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy E Parmet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Emily Chiang ACLU of Washington 901 5th Avenue Suite 630 Seattle, WA 98164 206-624-2184 Email: echiang@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague Latham & Watkins LLP - SF 505 Montgomery Street Suite 2000 San Francisco, CA 94111-6538

Amicus Center for Public Representation

415-395-8115 Email: charles.sprague@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar Latham & Watkins LLP - SF 505 Montgomery Street Suite 2000 San Francisco, CA 94111-6538 415-391-0600 TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien Latham & Watkins LLP - SF 505 Montgomery Street Suite 2000 San Francisco, CA 94111-6538 415-395-8074 Email: kyle.virgien@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray Latham & Watkins LLP - SF 505 Montgomery Street Suite 2000 San Francisco, CA 94111-6538 415-395-8029 Email: sarah.ray@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar

Amicus American Association of People with Disabilities
Amicus Association of University Centers on Disabilities

(See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Autistic Self Advocacy Network
Amicus

Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Coelho Center for Disability Law, Policy and Innovation

represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE

Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Disability Rights Advocates

Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE

Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Disability Rights Education and Defense Fund
Amicus Judge David L. Bazelon Center for Mental Health Law

Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE

Amicus Little Lobbyists
Amicus Mental Health America

Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE

Amicus National Association of Councils on Developmental Disabilities
Amicus National Council on Independent Living

ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address)

Amicus
National Disability Rights Network

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address)

Amicus National Federation of the Blind
Amicus The Arc of United States

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien

Amicus United Spinal Association
Amicus Disability Rights Washington

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Chiang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Ferer Sprague (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus America's Essential Hospitals
Amicus American Hospital Association

Diana A Aguilar (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Kyle A Virgien (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas C Ross Davis Wright Tremaine LLP - SEA 920 Fifth Avenue Suite 3300 Seattle, WA 98104-1610 206-622-3150 Fax: 206-757-7700 Email: douglasross@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean M. Marotta Hogan Lovells US LLP 555 Thirteenth Street NW Washington, DC 20004 202-637-4881 Email: sean.marotta@hoganlovells.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas C Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean M. Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Association of American Medical Colleges

represented by Douglas C Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Catholic Health Association of the United States

Sean M. Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas C Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Children's Hospital Association

Sean M. Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas C Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Federation of American Hospitals

Sean M. Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas C Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Sean M. Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Justice in Aging
Amicus American Society on Aging

represented by Vanessa Soriano Power Stoel Rives LLP 600 University Street Suite 3600 Seattle, WA 98101 206-624-0900 Fax: 206-386-7500 Email: vspower@stoel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Hirschhorn Proskauer Rose - NY Eleven Times Square New York, NY 10036-8299 212-969-3286 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Denny Chan Justice in Aging - CA 3660 Wilshire Blvd, Suite 718 Los Angeles, CA 90010 213-639-0930 Email: dchan@justiceinaging.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Soriano Power (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Kean Justice in Aging - DC 1444 I Street NW, Suite 1100 Washington, DC 20005 220-621-1038 Email: nkean@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters Proskauer Rose LLP DC

Amicus Caring Across Generations

1001 Pennsylvania Avenue NW Suite 600 South Washington, DC 20004-2533 202-416-6828 Email: omasters@proskauer.com TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Regan Bailey Justice in Aging - DC 1444 I Street NW, Suite 1100 Washington, DC 20005 202-289-6976 Email: rbailey@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Hirschhorn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Denny Chan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Soriano Power (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Jewish Family Service of Los Angeles
Amicus The National Asian Pacific Center on Aging

Regan Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Hirschhorn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Denny Chan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Soriano Power (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Hirschhorn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Denny Chan (See above for address)

Amicus National Council on Aging

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Soriano Power (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Hirschhorn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Denny Chan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Soriano Power (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
National Hispanic Council on Aging

Owen Masters (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Hirschhorn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Denny Chan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Soriano Power (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Hirschhorn

Amicus MAZON
Amicus PHI

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Denny Chan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Soriano Power (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Hirschhorn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Denny Chan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Soriano Power (See above for address)

Amicus
Massachusetts General Hospital Chelsea Healthcare Center

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/28/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Regan Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Hirschhorn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy Lane Powell PC - SEA 1420 Fifth Avenue Suite 4200 PO Box 91302 Seattle, WA 98111-9402 206-223-7000 Fax: 12062237107 Email: duffyb@lanepowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McDermott Morgan Lewis & Bockius LLP - DC 1111 Pennsylvania Avenue NW Washington, DC 20004 202-739-5458 Email: kathleen.mcdermott@morganlewis.com LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal Lawyers for Civil Rights 91 Batterymarch Street, 5th Floor Boston, MA 02110 617-988-0624 Email: iespinoza@lawyerscom.org PRO HAC VICE ATTORNEY TO BE NOTICED
John A Cosgriff Morgan, Lewis & Bockius - MA One Federal Street, 16th Floor Boston, MA 02110 617-341-7774 PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders Morgan Lewis & Bockius LLP - DC 1111 Pennsylvania Avenue NW Washington, DC 20004 202-739-5828 Email: jonelle.saunders@morganlewis.com PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson Lawyers for Civil Rights 91 Batterymarch Street, 5th Floor Boston, MA 02110 617-988-0609 Email: lsampson@lawyersforcivilrights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom Lawyers for Civil Rights 91 Batterymarch Street, 5th Floor Boston, MA 02110 617-988-0608 Email: osellstrom@lawyersforcivilrights.org

Amicus International Community Health Services
Amicus Community Health Network of Washington

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McDermott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John A Cosgriff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Housing Works

Kathleen McDermott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John A Cosgriff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McDermott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE

Amicus Latino Commission on AIDS

ATTORNEY TO BE NOTICED
John A Cosgriff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McDermott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John A Cosgriff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders (See above for address)

Amicus Bienestar Human Services

PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McDermott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John A Cosgriff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom

Amicus Gay Men's Health Crisis
Amicus Mazzoni Center

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McDermott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John A Cosgriff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Massachusetts Public Health Association

Kathleen McDermott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John A Cosgriff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Barbara J Duffy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen McDermott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivan Espinoza-Madrigal (See above for address)

Amicus American Medical Association

PRO HAC VICE ATTORNEY TO BE NOTICED
John A Cosgriff (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonelle Saunders (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Sampson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Oren Sellstrom (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher B Durbin Cooley LLP 1700 Seventh Avenue Suite 1900 Seattle, WA 98101-1355 206-452-8769 Email: cdurbin@cooley.com ATTORNEY TO BE NOTICED
Elizabeth L Stameshkin Cooley LLP 3175 Hanover Street Palo Alto, CA 94304 650-843-5000 Email: lstameshkin@cooley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Susan M Krumplitsch Cooley LLP 3175 Hanover Street Palo Alto, CA 94304

Amicus American Academy of Pediatrics

650-843-5000 Email: skrumplitsch@cooley.com TERMINATED: 06/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher B Durbin (See above for address) ATTORNEY TO BE NOTICED

Elizabeth L Stameshkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus American College of Physicians

Susan M Krumplitsch (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher B Durbin (See above for address) ATTORNEY TO BE NOTICED

Elizabeth L Stameshkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Washington Chapter of American Academy of Pediatrics

Susan M Krumplitsch (See above for address) TERMINATED: 06/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher B Durbin (See above for address) ATTORNEY TO BE NOTICED

Elizabeth L Stameshkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Washington State Medical Association
Amicus Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration

Susan M Krumplitsch (See above for address) TERMINATED: 06/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher B Durbin (See above for address) ATTORNEY TO BE NOTICED
Elizabeth L Stameshkin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Susan M Krumplitsch (See above for address) TERMINATED: 06/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto Winston & Cashatt - SPO 601 W Riverside Avenue Suite 1900 Spokane, WA 99201-0695 509-838-6131 Fax: 509-838-1416 Email: dmd@winstoncashatt.com ATTORNEY TO BE NOTICED
David P Gardner Winston & Cashatt

Amicus Economic Progress Institute

601 West Riverside Suite 1900 Spokane, WA 99201 509-838-6131 Fax: 509-838-1416 Email: dpg@winstoncashatt.com ATTORNEY TO BE NOTICED
Nancy L Isserlis Winston & Cashatt - SPO 601 W Riverside Avenue Suite 1900 Spokane, WA 99201-0695 509-838-6131 Email: nli@winstoncashatt.com ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto (See above for address) ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED

Amicus Oasis Legal Services

Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto (See above for address) ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED
Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Community Action Marin
Amicus Child Care Law Center

represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto (See above for address) ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED
Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto (See above for address)

Amicus Boundless Immigration

ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED
Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto (See above for address) ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED
Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE

Amicus National Center for Law and Economic Justice
Amicus Virginia Interfaith Center for Public Policy

ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto (See above for address) ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED
Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Kids Forward

Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto (See above for address) ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED
Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexandra B Plutshack (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brittany N Lovejoy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Darren Michael Digiacinto (See above for address) ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED

Amicus
California Immigrant Policy Center

Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED
Sadik Huseny (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L Curet (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Darren Michael Digiacinto (See above for address) ATTORNEY TO BE NOTICED
David P Gardner (See above for address) ATTORNEY TO BE NOTICED
Nancy L Isserlis (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/14/2019
08/14/2019 08/14/2019
08/15/2019

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400; Receipt # 09803237736) Filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Civil Cover Sheet)(Tomisser, Rene) (Entered: 08/14/2019)
Notice of Judge Assignment. Judge Rosanna Malouf Peterson assigned to case. (LR, Case Administrator) (Entered: 08/14/2019)
2 Summons Issued as to United States Department of Homeland Security. (Attachments: # 1 Summons Issued as to Kevin K McAleenan, # 2 Summons Issued as to United States Citizenship and Immigration Services, # 3 Summons Issued as to Kenneth T Cuccinelli, II)(LR, Case Administrator) (Entered: 08/14/2019)
3 CERTIFICATE OF SERVICE as to 1 Complaint, filed by State of Washington. (Sprung, Jeffrey) (Entered: 08/15/2019)

08/21/2019 08/21/2019
08/26/2019 08/26/2019 08/26/2019 08/26/2019
08/26/2019 08/27/2019

4 MOTION to Appear Pro Hac Vice re Attorney: Glenn J. Moramarco. Filing fee $ 200, receipt number 0980-3242349. by State of Washington. Motion Hearing set for 8/21/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/21/2019)
5 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 4 , Motion for Leave to Appear Pro Hac Vice. Attorney Glenn J. Moramarco, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for Plaintiff State of New Jersey. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 08/21/2019)
6 MOTION to Appear Pro Hac Vice re Attorney: Michelle S. Kallen. Filing fee $ 200, receipt number 0980-3245255. by State of Washington. Motion Hearing set for 8/26/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/26/2019)
7 MOTION to Appear Pro Hac Vice re Attorney: Alice Anne Lloyd. Filing fee $ 200, receipt number 0980-3245273. by State of Washington. Motion Hearing set for 8/26/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/26/2019)
8 MOTION to Appear Pro Hac Vice re Attorney: Monica A. Horton. Filing fee $ 200, receipt number 0980-3245281. by State of Washington. Motion Hearing set for 8/26/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/26/2019)
9 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 6 , 7 , and 8 , Motions for Leave to Appear Pro Hac Vice. Attorneys Michelle S. Kallen, Alice Anne Lloyd, and Monica A. Horton, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for Plaintiff Commonwealth of Virginia and Plaintiff State of Delaware, respectively. This text-only entry constitutes the Court's ruling on these matters. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 08/26/2019)
10 MOTION to Appear Pro Hac Vice re Attorney: R.J. Detrick. Filing fee $ 200, receipt number 0980-3246371. by State of Washington. Motion Hearing set for 8/26/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/26/2019)
11 MOTION to Appear Pro Hac Vice re Attorney: Ryan Spreague Hardy. Filing fee $ 200, receipt number 0980-3246908. by State of Washington. Motion Hearing set for 8/27/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/27/2019)

08/27/2019 08/27/2019 08/28/2019
08/28/2019 08/28/2019
08/29/2019 08/29/2019 08/29/2019

12 MOTION to Appear Pro Hac Vice re Attorney: Fadwa Alawieh Hammoud. Filing fee $ 200, receipt number 0980-3247011. by State of Washington. Motion Hearing set for 8/27/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/27/2019)
13 MOTION to Appear Pro Hac Vice re Attorney: Toni Lynn Harris. Filing fee $ 200, receipt number 0980-3247015. by State of Washington. Motion Hearing set for 8/27/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/27/2019)
14 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 10 , 11 , 12 , and 13 , Motions for Leave to Appear Pro Hac Vice. Attorneys Ralph J. Detrick, Ryan Spreague Hardy, Fadwa Alawieh Hammoud, and Toni Lynn Harris, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for Defendants State of Minnesota, Commonwealth of Virginia, and Attorney General Dana Nessel, on behalf of the People of Michigan, respectively. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 08/28/2019)
15 MOTION to Appear Pro Hac Vice re Attorney: Tania Maestas. Filing fee $ 200, receipt number 0980-3248347. by State of Washington. Motion Hearing set for 8/28/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/28/2019)
16 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 15 , Motion for Leave to Appear Pro Hac Vice. Attorney Tania Maestas, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for Plaintiff State of New Mexico. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 08/28/2019)
17 MOTION to Appear Pro Hac Vice re Attorney: Lauren E. Hill. Filing fee $ 200, receipt number 0980-3248614. by State of Washington. Motion Hearing set for 8/29/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/29/2019)
18 MOTION to Appear Pro Hac Vice re Attorney: Eric R. Olson. Filing fee $ 200, receipt number 0980-3248762. by State of Washington. Motion Hearing set for 8/29/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/29/2019)
19 MOTION to Appear Pro Hac Vice re Attorney: Heidi Parry Stern. Filing fee $ 200, receipt number 0980-3248990. by State of Washington. Motion Hearing set for 8/29/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/29/2019)

08/29/2019 08/30/2019
08/30/2019 08/30/2019 08/30/2019
09/03/2019 09/03/2019 09/03/2019

20 MOTION to Appear Pro Hac Vice re Attorney: Jeffrey Paul Dunlap. Filing fee $ 200, receipt number 0980-3249075. by State of Washington. Motion Hearing set for 8/29/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/29/2019)
21 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 17, 18, 19, and 20, Motions for Leave to Appear Pro Hac Vice. Attorneys Lauren E. Hill, Eric R. Olson, Heidi Parry Stern, and Jeffrey Paul Dunlap, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for Plaintiffs State of Rhode Island, State of Colorado, State of Nevada, and State of Maryland, respectively. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MF, Courtroom Deputy) (Entered: 08/30/2019)
22 MOTION to Appear Pro Hac Vice re Attorney: Mamoona Hafeez Siddiqui. Filing fee $ 200, receipt number 0980-3249930. by State of Washington. Motion Hearing set for 8/30/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 08/30/2019)
23 MOTION for Leave to File Excess Pages by All Plaintiffs. Motion Hearing set for 9/6/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Sprung, Jeffrey) (Entered: 08/30/2019)
24 ORDER granting ECF No. 23 , Plaintiffs' Motion for Leave to File Excess Pages, upon a finding of good cause under LCivR 7(f)(5) and (i)(2), on an expedited basis. Plaintiffs may file a memorandum in support of their anticipated Motion for Stay or Preliminary Injunction of no more than 60 pages. Amicus briefs filed in connection with Plaintiffs' motion shall be no longer than 30 pages. Correspondingly, Defendants may file an overlength response of up to 60 pages. This text-only entry constitutes the Courts ruling on this matter. TEXT ORDER - NO PDF ATTACHED Signed by Judge Rosanna Malouf Peterson. (Peterson, Rosanna) (Entered: 08/30/2019)
25 MOTION to Appear Pro Hac Vice re Attorney: Angela R. Brooks. Filing fee $ 200, receipt number 0980-3250645. by State of Washington. Motion Hearing set for 9/3/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 09/03/2019)
26 MOTION to Appear Pro Hac Vice re Attorney: Abigail B. Taylor. Filing fee $ 200, receipt number 0980-3250654. by State of Washington. Motion Hearing set for 9/3/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 09/03/2019)
27 MOTION to Appear Pro Hac Vice re Attorney: David Urena. Filing fee $ 200, receipt number 0980-3250696. by State of Washington. Motion

09/03/2019 09/03/2019 09/05/2019
09/05/2019 09/05/2019 09/06/2019
09/06/2019

Hearing set for 9/3/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 09/03/2019)
28 MOTION to Appear Pro Hac Vice re Attorney: Elizabeth RobersonYoung. Filing fee $ 200, receipt number 0980-3251179. by State of Washington. Motion Hearing set for 9/3/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 09/03/2019)
29 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 22 , Motion for Leave to Appear Pro Hac Vice. Attorney Mamoona Hafeez Siddiqui, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for the Commonwealth of Virginia. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 09/03/2019)
30 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 25 , 26 , 27 , and 28 , Motions for Leave to Appear Pro Hac Vice. Attorneys Angela R. Brooks, Abigail B. Taylor, David Urena, and Elizabeth Roberson-Young, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for Plaintiffs Commonwealth of Massachusetts and the State of Illinois, respectively. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 09/05/2019)
31 AMENDED COMPLAINT against All Defendants. Filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A)(Tomisser, Rene) (Entered: 09/05/2019)
32 MOTION to Appear Pro Hac Vice re Attorney: Lili A. Young. Filing fee $ 200, receipt number 0980-3253387. by State of Washington. Motion Hearing set for 9/5/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Tomisser, Rene) (Entered: 09/05/2019)
33 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 32 , Motion for Leave to Appear Pro Hac Vice. Attorney Lili A. Young, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for State of Hawai'i. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.) (Entered: 09/06/2019)
34 MOTION for Preliminary Injunction by All Plaintiffs. Motion Hearing set for 10/3/2019 at 10:00 AM in Richland Courtroom 189 before Judge

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Rosanna Malouf Peterson. (Attachments: # 1 Proposed Order)(Sprung, Jeffrey) (Entered: 09/06/2019)
35 DECLARATION by Nathan Bays in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Exhibit A-Z, # 2 Exhibit AA-ZZ, # 3 Exhibit AAA-DDD)(Sprung, Jeffrey) (Entered: 09/06/2019)
36 DECLARATION by Tom Wong in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Sprung, Jeffrey) (Entered: 09/06/2019)
37 DECLARATION by Taylor Linke in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
38 DECLARATION by Joshua Sharfstein in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
39 DECLARATION by Erin Emerson in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
40 DECLARATION by Elisa Neira in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
41 DECLARATION by Catherine Betts in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
42 DECLARATION by Dr. Ngozi Ezike in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
43 DECLARATION by Pam MacEwan in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
44 DECLARATION by Judith Persichilli in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
45 DECLARATION by Sharon Boyle in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
46 DECLARATION by Margaret Kelly in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)

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47 DECLARATION by Theresa Eagleson in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
48 DECLARATION by Richard Whitley in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
49 DECLARATION by Joseph Curtatone and Mary Skipper in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
50 DECLARATION by Maria Lucia Chavez in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
51 DECLARATION by Elizabeth Winders in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
52 DECLARATION by Sarah Polk, M.D., Sc.M. in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
53 DECLARATION by Kristen Hanulcik in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
54 DECLARATION by Kelli Bohanon in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
55 DECLARATION by Marie Zimmerman in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Sprung, Jeffrey) (Entered: 09/06/2019)
56 DECLARATION by Rachel Pryor in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
57 DECLARATION by Leanne Berge in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
58 DECLARATION by Stephen Groff in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
59 DECLARATION by Nate Clark in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)

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60 DECLARATION by Teresita Batayola in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
61 DECLARATION by Paula Basta in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
62 DECLARATION by Stacy Twite in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
63 DECLARATION by Katrina Hotrum-Lopez in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
64 DECLARATION by Grace B. Hou in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
65 DECLARATION by Lacy Fehrenbach in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
66 DECLARATION by Sarah K. Peterson in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
67 DECLARATION by S. Duke Storen in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
68 DECLARATION by Jovon Perry in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
69 DECLARATION by Eve Sternberg in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
70 DECLARATION by Angela Medrano in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
71 DECLARATION by M. Norman Oliver in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
72 DECLARATION by Courtney Hawkins in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)

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73 DECLARATION by Priya Tahiliani in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
74 DECLARATION by Amy Hundley in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
75 DECLARATION by Raymond Fitzgerald in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
76 DECLARATION by Maureen G. Ohle in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
77 DECLARATION by Roberta Rubin in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
78 DECLARATION by Ryan Baumtrog in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
79 DECLARATION by Patrick Carey in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
80 DECLARATION by Erik Johnston in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
81 DECLARATION by Emily Grossman in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
82 DECLARATION by Bill Moss in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
83 DECLARATION by Mary Bourque in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
84 DECLARATION by Daron Korte in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)
85 DECLARATION by Amy Hundley in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/06/2019)

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86 DECLARATION by Richard Stolz in Support re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/09/2019)
87 Errata filed by All Plaintiffs Re 86 DECLARATION by Richard Stolz in Support Re 34 MOTION for Preliminary Injunction . (Attachments: # 1 Errata)(Sprung, Jeffrey) Modified on 9/9/2019: Add additional document link. (TR, Case Administrator). (Entered: 09/09/2019)
88 Amicus Curiae APPEARANCE entered by Matthew H Adams on behalf of Health Law Advocates (Adams, Matthew) (Entered: 09/09/2019)
89 MOTION LEAVE TO FILE BRIEF OF AMICI CURIAE NONPROFIT ANTI-DOMESTIC VIOLENCE AND SEXUAL ASSAULT ORGANIZATIONS IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION re 24 Order on Motion for Leave to File Excess Pages,, by National Alliance to End Sexual Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, National Resource Center on Domestic Violence, National Domestic Violence Hotline, API Chaya, Battered Womens Justice Project, Sexual Violence Law Center, Asian Pacific Institute on Gender-Based Violence, Futures Without Violence, Legal Momentum, Womens Legal Defense and Education Fund, Tahirih Justice Center, Arizona Coalition to End Sexual and Domestic Violence, End Domestic Abuse Wisconsin: The Wisconsin Coalition Against Domestic, Violence Free Colorado, Kansas Coalition Against Sexual and Domestic Violence, Maine Coalition to End Domestic Violence, Iowa Coalition Against Domestic Violence, Montana Coalition Against Domestic and Sexual Violence, Vermont Network Against Domestic and Sexual Violence, SC Coalition Against Domestic Violence and Sexual Assault, Texas Council on Family Violence, Ohio Domestic Violence Network, Idaho Coalition Against Sexual & Domestic Violence,, Jane Doe Inc., Massachusetts Coalition Against Sexual Assault and Domestic Violence, Illinois Accountability Initiative, North Carolina Coalition Against Domestic Violence, Washington State Coalition Against Domestic Violence, Nebraska Coalition to End Sexual and Domestic Violence, Kentucky Coalition Against Domestic Violence, Delaware Coalition Against Domestic Violence, National Council of Jewish Women, Illinois Coalition Against Domestic Violence, Rhode Island Coalition Against Domestic Violence, Nevada Coalition to End Domestic and Sexual Violence, Mississippi Coalition Against Domestic Violence, Legal Voice, New Jersey Coalition to End Domestic Violence, Casa de Esperanza, DC Coalition Against Domestic Violence, Ujima, Inc., National Center on Violence Against Women in the Black Community, Washington Coalition of Sexual Assault Programs. Motion Hearing set for 10/3/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Amicus Brief, # 2 Appendix Appendix A to

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Brief of Amici, # 3 Text of Proposed Order Proposed Order)(Lawrence, Paul) Modified on 9/13/2019 See Praecipe ECF No. 89 . (VR, Courtroom Deputy). (Entered: 09/09/2019)
90 MOTION for Leave to File Brief of Amici Curiae Health Law Advocates and Other Organizations Interested in Public Health in Support of Plaintiffs' Motion for Preliminary Injunction by Health Law Advocates, Health Care For All, Massachusetts Law Reform Institute, Northeastern University's Center for Health Policy and Law, Health in Justice Action Lab, Public Health Law Watch, Northwest Health Law Advocates, Charlotte Center for Legal Advocacy, Latino Coalition for a Healthy California, California Pan-Ethnic Health Network, Korean Community Center of the East Bay, California Immigrant Policy Center, Kentucky Equal Justice Center, Michigan Immigrant Rights Center, Florida Health Justice Project, Maine Immigrant Rights Coalition, New York Immigration Coalition, Community Healthcare Network, Arab Community Center for Economic and Social Services, Treatment Action Group, Welcome Project, Families USA, UMass Memorial Health Care, Inc., Community Catalyst. Motion Hearing set for 10/3/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Adams, Matthew) (Entered: 09/09/2019)
91 MOTION to Appear Pro Hac Vice re Attorney: Kristyn Bunce DeFilipp. Filing fee $ 200, receipt number 0980-3257401. by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Adams, Matthew) (Entered: 09/09/2019)
92 MOTION to Appear Pro Hac Vice re Attorney: Andrew London. Filing fee $ 200, receipt number 0980-3257405. by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal

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Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Adams, Matthew) (Entered: 09/09/2019)
93 MOTION to Appear Pro Hac Vice re Attorney: Emily J. Nash. Filing fee $ 200, receipt number 0980-3257408. by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Adams, Matthew) (Entered: 09/09/2019)
94 MOTION to Appear Pro Hac Vice re Attorney: Christian Springer. Filing fee $ 200, receipt number 0980-3257409. by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Adams, Matthew) (Entered: 09/09/2019)
95 MOTION to Appear Pro Hac Vice re Attorney: Justin J. Lowe. Filing fee $ 200, receipt number 0980-3257410. by Arab Community Center for Economic and Social Services, California Immigrant Policy Center,

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California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Adams, Matthew) (Entered: 09/09/2019)
96 MOTION to Appear Pro Hac Vice re Attorney: Justin J. Lowe. Filing fee $ 200, receipt number 0980-3257412. by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Adams, Matthew). Motion was granted. see ECF No. 117 . Modified on 9/13/2019 (PL, Case Administrator). (Entered: 09/09/2019)
97 MOTION to Appear Pro Hac Vice re Attorney: Wendy E. Parmet. Filing fee $ 200, receipt number 0980-3257414. by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. Motion Hearing set for 10/9/2019 Without Oral

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Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Adams, Matthew) (Entered: 09/09/2019)
98 MOTION to Appear Pro Hac Vice re Attorney: Sarah M. Ray. Filing fee $ 200, receipt number 0980-3257430. by American Civil Liberties Union, Center for Public Representation, American Association of People with Disabilities, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, United Spinal Association, Disability Rights Washington. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 09/09/2019)
99 MOTION to Appear Pro Hac Vice re Attorney: Kyle A. Virgien. Filing fee $ 200, receipt number 0980-3257432. by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Washington, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, United Spinal Association. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 09/09/2019)
100 MOTION to Appear Pro Hac Vice re Attorney: Diana A. Aguilar. Filing fee $ 200, receipt number 0980-3257434. by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Washington, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, United Spinal Association. Motion Hearing set

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for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 09/09/2019)
101 MOTION to Appear Pro Hac Vice re Attorney: Charles Ferer Sprague. Filing fee $ 200, receipt number 0980-3257435. by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Washington, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, United Spinal Association. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 09/09/2019)
102 MOTION for Leave to File as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Washington, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, United Spinal Association. Motion Hearing set for 10/9/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 [Proposed] Brief of Amici Curiae The American Civil Liberties Union, Center for Public Representation, et al. in Support of Plaintiffs' Motion for Preliminary Injunction, # 2 Text of Proposed Order)(Chiang, Emily) (Entered: 09/09/2019)
103 NOTICE of Appearance by Joshua Michael Kolsky on behalf of Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security (Attorney Joshua Michael Kolsky added to party Kenneth T Cuccinelli, II(pty:dft), Attorney Joshua Michael Kolsky added to party Kevin K McAleenan(pty:dft), Attorney Joshua Michael Kolsky added to party United States Citizenship and Immigration Services(pty:dft), Attorney Joshua Michael Kolsky added to party United States Department of Homeland Security(pty:dft))(Kolsky, Joshua) (Entered: 09/10/2019)

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104 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 91 , 92 , 93 . 94 , 95 , and 97 , Motions for Leave to Appear Pro Hac Vice. Attorneys Kristyn Bunce DeFilipp, Andrew London, Emily J. Nash, Christian Springer, Justin J. Lowe, Wendy E. Parmet, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., and Welcome Project. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 09/12/2019)
105 TEXT-ONLY ORDER (no PDF will issue) finding as MOOT, ECF No. 96 , Motion for Leave to Appear Pro Hac Vice (duplicate of ECF No. 95 ). Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant). Order was stricken. See ECF No. 117 . Modified on 9/13/2019 (PL, Case Administrator). (Entered: 09/12/2019)
106 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 98 , 99 , 100 , and 101 , Motions for Leave to Appear Pro Hac Vice. Attorneys Sarah M. Ray, Kyle A. Virgien, Diana A. Aguilar, and Charles Ferer Sprague, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Washington, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, and United Spinal Association. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 09/12/2019)

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107 Praecipe filed by API Chaya, Arizona Coalition to End Sexual and Domestic Violence, Asian Pacific Institute on Gender-Based Violence, Battered Womens Justice Project, Casa de Esperanza, DC Coalition Against Domestic Violence, End Domestic Abuse Wisconsin: The Wisconsin Coalition Against Domestic, Futures Without Violence, Idaho Coalition Against Sexual & Domestic Violence, Illinois Accountability Initiative, Illinois Coalition Against Domestic Violence, Iowa Coalition Against Domestic Violence, Jane Doe Inc, Kansas Coalition Against Sexual and Domestic Violence, Kentucky Coalition Against Domestic Violence, Legal Momentum, Legal Voice, Maine Coalition to End Domestic Violence, Massachusetts Coalition Against Sexual Assault and Domestic Violence, Mississippi Coalition Against Domestic Violence, Montana Coalition Against Domestic and Sexual Violence, National Alliance to End Sexual Violence, National Center on Violence Against Women in the Black Community, National Coalition Against Domestic Violence, National Council of Jewish Women, National Domestic Violence Hotline, National Network to End Domestic Violence, National Resource Center on Domestic Violence, Nebraska Coalition to End Sexual and Domestic Violence, Nevada Coalition to End Domestic and Sexual Violence, New Jersey Coalition to End Domestic Violence, North Carolina Coalition Against Domestic Violence, Ohio Domestic Violence Network, Rhode Island Coalition Against Domestic Violence, SC Coalition Against Domestic Violence and Sexual Assault, Sexual Violence Law Center, Tahirih Justice Center, Texas Council on Family Violence, Ujima Inc, Vermont Network Against Domestic and Sexual Violence, Violence Free Colorado, Washington Coalition of Sexual Assault Programs, Washington State Coalition Against Domestic Violence, Womens Legal Defense and Education Fund: Re 89 MOTION LEAVE TO FILE BRIEF OF AMICI CURIAE NONPROFIT ANTIDOMESTIC VIOLENCE AND SEXUAL ASSAULT ORGANIZATIONS IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION re 24 Order on Motion for Leave to File Excess Pages,, . Description: To correct a typographical error in the Table of Contents. (Attachments: # 1 Corrected Brief Dkt. 891)(Peterson, Alanna) (Entered: 09/12/2019)
108 ORDER Granting 89 , 90 , and 102 Motions for Leave to File Briefs of Amici Curiae. Signed by Judge Rosanna Malouf Peterson. (PL, Case Administrator) (Entered: 09/13/2019)
109 BRIEF OF AMICI CURIAE by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California PanEthnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a

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Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care Inc, Welcome Project. (PL, Case Administrator) (Entered: 09/13/2019)
110 BRIEF OF AMICI CURIAE by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Washington, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Coalition Against Domestic Violence, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, United Spinal Association. (PL, Case Administrator) (Entered: 09/13/2019)
111 BRIEF OF AMICI CURIAE NONPROFIT ANTI-DOMESTIC VIOLENCE AND SEXUAL ASSAULT ORGANIZATIONS IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION by API Chaya, Arizona Coalition to End Sexual and Domestic Violence, Asian Pacific Institute on Gender-Based Violence, Battered Womens Justice Project, Casa de Esperanza, DC Coalition Against Domestic Violence, End Domestic Abuse Wisconsin: The Wisconsin Coalition Against Domestic, Futures Without Violence, Idaho Coalition Against Sexual & Domestic Violence, Illinois Accountability Initiative, Illinois Coalition Against Domestic Violence, Iowa Coalition Against Domestic Violence, Jane Doe Inc, Kansas Coalition Against Sexual and Domestic Violence, Kentucky Coalition Against Domestic Violence, Legal Momentum, Legal Voice, Maine Coalition to End Domestic Violence, Massachusetts Coalition Against Sexual Assault and Domestic Violence, Mississippi Coalition Against Domestic Violence, Montana Coalition Against Domestic and Sexual Violence, National Alliance to End Sexual Violence, National Center on Violence Against Women in the Black Community, National Coalition Against Domestic Violence, National Council of Jewish Women, National Domestic Violence Hotline, National Network to End Domestic Violence, National Resource Center on Domestic Violence, Nebraska Coalition to End Sexual and Domestic Violence, Nevada Coalition to End Domestic and Sexual Violence, New Jersey Coalition to End Domestic Violence, North Carolina Coalition Against Domestic Violence, Ohio Domestic Violence Network, Rhode Island Coalition Against Domestic Violence, SC Coalition Against Domestic Violence and Sexual Assault, Sexual Violence Law Center, Tahirih Justice Center, Texas Council on Family

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Violence, Ujima Inc, Vermont Network Against Domestic and Sexual Violence, Violence Free Colorado, Washington Coalition of Sexual Assault Programs, Washington State Coalition Against Domestic Violence, Womens Legal Defense and Education Fund. (Attachments: # 1 Appendix)(PL, Case Administrator) (Entered: 09/13/2019)
112 NOTICE of Appearance by Douglas C Ross on behalf of America's Essential Hospitals, American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, Children's Hospital Association, Federation of American Hospitals (Attorney Douglas C Ross added to party America's Essential Hospitals(pty:am), Attorney Douglas C Ross added to party American Hospital Association(pty:am), Attorney Douglas C Ross added to party Association of American Medical Colleges(pty:am), Attorney Douglas C Ross added to party Catholic Health Association of the United States(pty:am), Attorney Douglas C Ross added to party Children's Hospital Association(pty:am), Attorney Douglas C Ross added to party Federation of American Hospitals(pty:am))(Ross, Douglas) (Entered: 09/13/2019)
113 MOTION for Leave to File Amici Curiae Brief by America's Essential Hospitals, American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, Children's Hospital Association, Federation of American Hospitals. Motion Hearing set for 9/27/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Exhibit Proposed Amici Curiae Brief, # 2 Text of Proposed Order)(Ross, Douglas) (Entered: 09/13/2019)
114 MOTION to Appear Pro Hac Vice re Attorney: Sean Marotta. Filing fee $ 200, receipt number 0980-3261820. by America's Essential Hospitals, American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, Children's Hospital Association, Federation of American Hospitals. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Ross, Douglas) (Entered: 09/13/2019)
115 DECLARATION by Sean Marotta in Support re 114 MOTION to Appear Pro Hac Vice re Attorney: Sean Marotta. Filing fee $ 200, receipt number 0980-3261820. filed by America's Essential Hospitals, American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, Children's Hospital Association, Federation of American Hospitals. (Ross, Douglas) (Entered: 09/13/2019)
116 MOTION to Appear Pro Hac Vice re Attorney: Russell Hirschhorn. Filing fee $ 200, receipt number 0980-3261999. by Justice in Aging,

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American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, The National Asian Pacific Center on Aging, National Council on Aging, National Hispanic Council on Aging, MAZON, PHI. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Power, Vanessa) (Entered: 09/13/2019)
117 TEXT-ONLY ERRATA ORDER (no PDF will issue). The Court denied as moot the Motion for Leave to Appear Pro Hac Vice at ECF No. 96 , as a duplicate of ECF No. 95 , because the docket text indicated that both ECF Nos. 95 and 96 sought leave for the same attorney to appear pro hac vice. See ECF No. 105 . However, the PDF Motion for Admission Pro Hac Vice filed at ECF No. 96 seeks admission of attorney Andrew Paul Cohen, whose admission the Court has not yet approved. Accordingly, the Court strikes the text order at ECF No. 105 and GRANTS ECF No. 96 . Attorney Andrew Paul Cohen, having applied for pro hac vice status and being found to meet the requirements for pro hac vice members, is hereby added as counsel for amici curiae Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University's Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., and Welcome Project. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson.(PL, Case Administrator) (Entered: 09/13/2019)
118 MOTION to Appear Pro Hac Vice re Attorney: Natalie Kean. Filing fee $ 200, receipt number 0980-3262024. by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Power, Vanessa) (Entered: 09/13/2019)
119 MOTION to Appear Pro Hac Vice re Attorney: Denny Chan. Filing fee $ 200, receipt number 0980-3262049. by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National

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Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Power, Vanessa) (Entered: 09/13/2019)
120 MOTION to Appear Pro Hac Vice re Attorney: Owen Masters. Filing fee $ 200, receipt number 0980-3262080. by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Power, Vanessa) (Entered: 09/13/2019)
121 MOTION to Appear Pro Hac Vice re Attorney: Regan Bailey. Filing fee $ 200, receipt number 0980-3262096. by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Power, Vanessa) (Entered: 09/13/2019)
122 MOTION for Leave to File Brief of Amici Curiae by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 proposed Brief, # 2 Text of Proposed Order)(Power, Vanessa) (Entered: 09/13/2019)
123 Amicus Curiae APPEARANCE entered by Barbara J Duffy on behalf of Massachusetts General Hospital Chelsea Healthcare Center, International Community Health Services, Community Health Network of Washington, Housing Works, Latino Commission on AIDS, Bienestar Human Services, Gay Men's Health Crisis, Mazzoni Center, Massachusetts Public Health Association (Attorney Barbara J Duffy added to party Massachusetts General Hospital Chelsea Healthcare Center(pty:am), Attorney Barbara J Duffy added to party International Community Health Services(pty:am), Attorney Barbara J Duffy added to party Community Health Network of Washington(pty:am), Attorney Barbara J Duffy added to party Housing Works(pty:am), Attorney Barbara J Duffy added to party Latino Commission on AIDS(pty:am), Attorney Barbara J Duffy added to party Bienestar Human Services(pty:am), Attorney Barbara J Duffy added to party Gay Men's Health Crisis(pty:am), Attorney Barbara J Duffy added to party Mazzoni Center(pty:am), Attorney Barbara J Duffy added to party Massachusetts

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Public Health Association(pty:am))(Duffy, Barbara) (Entered: 09/13/2019)
124 MOTION Leave to File Brief of Amici Curiae by Bienestar Human Services, Community Health Network of Washington, Gay Men's Health Crisis, Housing Works, International Community Health Services, Latino Commission on AIDS, Massachusetts General Hospital Chelsea Healthcare Center, Massachusetts Public Health Association, Mazzoni Center. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Amici Brief, # 2 Proposed Order)(Duffy, Barbara) (Entered: 09/13/2019)
125 MOTION to Appear Pro Hac Vice re Attorney: Kathleen McDermott. Filing fee $ 200, receipt number 0980-3262362. by Bienestar Human Services, Community Health Network of Washington, Gay Men's Health Crisis, Housing Works, International Community Health Services, Latino Commission on AIDS, Massachusetts General Hospital Chelsea Healthcare Center, Massachusetts Public Health Association, Mazzoni Center. Motion Hearing set for 9/13/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Duffy, Barbara) (Entered: 09/13/2019)
126 MOTION to Appear Pro Hac Vice re Attorney: John A. Cosgriff. Filing fee $ 200, receipt number 0980-3262374. by Bienestar Human Services, Community Health Network of Washington, Gay Men's Health Crisis, Housing Works, International Community Health Services, Latino Commission on AIDS, Massachusetts General Hospital Chelsea Healthcare Center, Massachusetts Public Health Association, Mazzoni Center. Motion Hearing set for 9/13/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Duffy, Barbara) (Entered: 09/13/2019)
127 MOTION to Appear Pro Hac Vice re Attorney: Jonelle Saunders. Filing fee $ 200, receipt number 0980-3262383. by Bienestar Human Services, Community Health Network of Washington, Gay Men's Health Crisis, Housing Works, International Community Health Services, Latino Commission on AIDS, Massachusetts General Hospital Chelsea Healthcare Center, Massachusetts Public Health Association, Mazzoni Center. Motion Hearing set for 9/13/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Duffy, Barbara) (Entered: 09/13/2019)
128 MOTION to Appear Pro Hac Vice re Attorney: Ivan Espinoza-Madrigal. Filing fee $ 200, receipt number 0980-3262395. by Bienestar Human Services, Community Health Network of Washington, Gay Men's Health Crisis, Housing Works, International Community Health Services, Latino Commission on AIDS, Massachusetts General Hospital Chelsea Healthcare Center, Massachusetts Public Health Association, Mazzoni Center. Motion Hearing set for 9/13/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Duffy, Barbara) (Entered: 09/13/2019)

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129 MOTION to Appear Pro Hac Vice re Attorney: Lauren Sampson. Filing fee $ 200, receipt number 0980-3262399. by Bienestar Human Services, Community Health Network of Washington, Gay Men's Health Crisis, Housing Works, International Community Health Services, Latino Commission on AIDS, Massachusetts General Hospital Chelsea Healthcare Center, Massachusetts Public Health Association, Mazzoni Center. Motion Hearing set for 9/13/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Duffy, Barbara) (Entered: 09/13/2019)
130 MOTION to Appear Pro Hac Vice re Attorney: Oren Sellstrom. Filing fee $ 200, receipt number 0980-3262407. by Bienestar Human Services, Community Health Network of Washington, Gay Men's Health Crisis, Housing Works, International Community Health Services, Latino Commission on AIDS, Massachusetts General Hospital Chelsea Healthcare Center, Massachusetts Public Health Association, Mazzoni Center. Motion Hearing set for 9/13/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Duffy, Barbara) (Entered: 09/13/2019)
131 MOTION for Leave to File Amici Curiae Brief by American Medical Association, American Academy of Pediatrics, American College of Physicians, WASHINGTON CHAPTER OF AMERICAN ACADEMY OF PEDIATRICS, WASHINGTON STATE MEDICAL ASSOCIATION. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Durbin, Christopher) (Entered: 09/13/2019)
132 MOTION to Appear Pro Hac Vice re Attorney: Susan M. Krumplitsch. Filing fee $ 200, receipt number 0980-3262467. by American Academy of Pediatrics, American College of Physicians, American Medical Association, WASHINGTON CHAPTER OF AMERICAN ACADEMY OF PEDIATRICS, WASHINGTON STATE MEDICAL ASSOCIATION. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Durbin, Christopher) (Entered: 09/13/2019)
133 MOTION to Appear Pro Hac Vice re Attorney: Elizabeth L. Stameshkin. Filing fee $ 200, receipt number 0980-3262468. by American Academy of Pediatrics, American College of Physicians, American Medical Association, WASHINGTON CHAPTER OF AMERICAN ACADEMY OF PEDIATRICS, WASHINGTON STATE MEDICAL ASSOCIATION. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Durbin, Christopher) (Entered: 09/13/2019)
134 Amicus Curiae APPEARANCE entered by Nancy L Isserlis on behalf of Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration, Economic Progress Institute, Oasis Legal Services,

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Community Action Marin, Child Care Law Center, Boundless Immigration, National Center for Law and Economic Justice, Virginia Interfaith Center for Public Policy, Kids Forward, California Immigrant Policy Center (Attorney Nancy L Isserlis added to party Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration(pty:am), Attorney Nancy L Isserlis added to party Economic Progress Institute(pty:am), Attorney Nancy L Isserlis added to party Oasis Legal Services(pty:am), Attorney Nancy L Isserlis added to party Community Action Marin(pty:am), Attorney Nancy L Isserlis added to party Child Care Law Center(pty:am), Attorney Nancy L Isserlis added to party Boundless Immigration(pty:am), Attorney Nancy L Isserlis added to party National Center for Law and Economic Justice(pty:am), Attorney Nancy L Isserlis added to party Virginia Interfaith Center for Public Policy(pty:am), Attorney Nancy L Isserlis added to party Kids Forward(pty:am), Attorney Nancy L Isserlis added to party California Immigrant Policy Center(pty:am))(Isserlis, Nancy) (Entered: 09/14/2019)
135 MOTION to Appear Pro Hac Vice re Attorney: Tess L. Curet. Filing fee $ 200, receipt number 0980-3262505. by Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Virginia Interfaith Center for Public Policy. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Isserlis, Nancy) (Entered: 09/14/2019)
136 MOTION to Appear Pro Hac Vice re Attorney: Sadik Huseny. Filing fee $ 200, receipt number 0980-3262506. by Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Virginia Interfaith Center for Public Policy. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Isserlis, Nancy) (Entered: 09/14/2019)
137 MOTION to Appear Pro Hac Vice re Attorney: Brittany N. Lovejoy. Filing fee $ 200, receipt number 0980-3262507. by Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Virginia Interfaith Center for Public

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Policy. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Isserlis, Nancy) (Entered: 09/14/2019)
138 MOTION to Appear Pro Hac Vice re Attorney: Alexandra B. Plutshack. Filing fee $ 200, receipt number 0980-3262508. by Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Virginia Interfaith Center for Public Policy. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Isserlis, Nancy) (Entered: 09/14/2019)
139 MOTION for Leave to File as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction by Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Virginia Interfaith Center for Public Policy. Motion Hearing set for 10/15/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Proposed Amicus Brief, # 2 Text of Proposed Order)(Isserlis, Nancy) (Entered: 09/14/2019)
140 Amicus Curiae APPEARANCE entered by David P Gardner on behalf of Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Virginia Interfaith Center for Public Policy (Attorney David P Gardner added to party Boundless Immigration(pty:am), Attorney David P Gardner added to party California Immigrant Policy Center(pty:am), Attorney David P Gardner added to party Child Care Law Center(pty:am), Attorney David P Gardner added to party Community Action Marin(pty:am), Attorney David P Gardner added to party Economic Progress Institute(pty:am), Attorney David P Gardner added to party Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration(pty:am), Attorney David P Gardner added to party Kids Forward(pty:am), Attorney David P Gardner added to party National Center for Law and Economic Justice(pty:am), Attorney David P Gardner added to party Oasis Legal Services(pty:am), Attorney David P Gardner added to party Virginia Interfaith Center for Public Policy(pty:am))(Gardner, David) (Entered: 09/14/2019)

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141 Amicus Curiae APPEARANCE entered by Darren Michael Digiacinto on behalf of Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Virginia Interfaith Center for Public Policy (Attorney Darren Michael Digiacinto added to party Boundless Immigration(pty:am), Attorney Darren Michael Digiacinto added to party California Immigrant Policy Center(pty:am), Attorney Darren Michael Digiacinto added to party Child Care Law Center(pty:am), Attorney Darren Michael Digiacinto added to party Community Action Marin(pty:am), Attorney Darren Michael Digiacinto added to party Economic Progress Institute(pty:am), Attorney Darren Michael Digiacinto added to party Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration(pty:am), Attorney Darren Michael Digiacinto added to party Kids Forward(pty:am), Attorney Darren Michael Digiacinto added to party National Center for Law and Economic Justice(pty:am), Attorney Darren Michael Digiacinto added to party Oasis Legal Services(pty:am), Attorney Darren Michael Digiacinto added to party Virginia Interfaith Center for Public Policy(pty:am))(Digiacinto, Darren) (Entered: 09/16/2019)
142 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 132 , 133 , Motions for Leave to Appear Pro Hac Vice. Attorneys Susan M. Krumplitsch and Elizabeth L. Stameshkin, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for American Academy of Pediatrics; American Medical Association; American College of Physicians; Washington Chapter of American Academy of Pediatrics, and Washington State Medical Association. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) Modified on 9/18/2019 (MS, Judicial Assistant). (Entered: 09/18/2019)
143 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 114 , Motion for Leave to Appear Pro Hac Vice. Attorney Sean Marotta, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for American Hospital Association; America's Essential Hospitals; Association of American Medical Colleges; Catholic Health Association of the United States; The Children's Hospital Association; and The Federation of American Hospitals. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 09/18/2019)

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144 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 116 , Motion for Leave to Appear Pro Hac Vice. Attorney Russell Hirschhorn, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for Justice in Aging; American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, The National Asian Pacific Center on Aging, National Council on Aging, National Hispanic Council on Aging, MAZON, and PHI. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 09/18/2019)
145 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 118 , 119 , 120 , 121 , Motions for Leave to Appear Pro Hac Vice. Attorneys Natalie Kean; Denny Chan; Owen Masters; and Regan Bailey, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, The National Asian Pacific Center on Aging, National Council on Aging, National Hispanic Council on Aging, MAZON, and PHI. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 09/18/2019)
146 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 125 , 126 , 127 , 128 , 129 , and 130 , Motions for Leave to Appear Pro Hac Vice. Attorneys Kathleen McDermott; John A. Cosgriff; Jonelle Saunders; Ivan Espinoza-Madrigal; Lauren Sampson; and Oren Sellstrom, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for Bienestar Human Services, Community Health Network of Washington, Gay Men's Health Crisis, Housing Works, International Community Health Services, Latino Commission on AIDS, Massachusetts General Hospital Chelsea Healthcare Center, Massachusetts Public Health Association, and Mazzoni Center. This textonly entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) Modified on 9/19/2019 (MS, Judicial Assistant). (Entered: 09/18/2019)
147 TEXT-ONLY ORDER (no PDF will issue) granting ECF Nos. 135 , 136 , 137 , 138 , Motions for Leave to Appear Pro Hac Vice. Attorneys Tess L. Curet, Sadik Huseny, Brittany N. Lovejoy, and Alexandra B. Plutshack, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, are hereby added as counsel for Boundless Immigration; California Immigrant Policy Center; Child Care Law Center; Community Action Marin, Economic Progress Institute, Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration; Kids Forward; National

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Center for Law and Economic Justice; Oasis Legal Services; and Virginia Interfaith Center for Public Policy. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 09/19/2019)
148 SECOND ORDER GRANTING MOTIONS FOR LEAVE TO FILE BRIEFS OF AMICI CURIAE, granting 113 , 122 , 124 , 131 and 139 Motion for Leave to File Briefs of Amici Curiae. Signed by Judge Rosanna Malouf Peterson. (LR, Case Administrator) (Entered: 09/19/2019)
149 AMICI CURIAE BRIEF of the American Hospital Association, America's Essential Hospitals, Association of American Medical Colleges, Catholic Health Association of the United States, Children's Hospital Association, and Federation of American Hospitals. (LR, Case Administrator) (Entered: 09/19/2019)
150 BRIEF OF AMICI CURIAE by Justice in Aging, American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, National Asian Pacific Center on Aging, National Council on Aging, National Hispanic Council on Aging, MAZON, and PHI. (LR, Case Administrator) (Entered: 09/19/2019)
151 AMICUS BRIEF by Massachusetts General Hospital Chelsea Healthcare Center, International Community Health Services, Community Health Network of Washington, Housing Works, Latino Commission on AIDS, Bienestar Human Services, Gay Men's Health Crisis, Mazzoni Center, and Massachusetts Public Health Association. (LR, Case Administrator) (Entered: 09/19/2019)
152 BRIEF OF AMICI CURIAE by American Academy of Pediatrics, American Medical Association, American College of Physicians, Washington Chapter of American Academy of Pediatrics, and Washington State Medical Association. (LR, Case Administrator) (Entered: 09/19/2019)
153 BRIEF OF AMICI CURIAE by Fiscal Policy Institute and the Presidents' Alliance on Higher Education and Immigration. (LR, Case Administrator) (Entered: 09/19/2019)
154 NOTICE of CHANGE OF LOCATION OF HEARING by Court (text entry; no PDF document) re ECF No. 34 , MOTION for Preliminary Injunction. Motion Hearing reset for October 3, 2019, at 10:00 AM in Spokane Courtroom 901 before Judge Rosanna Malouf Peterson. LOCATION CHANGE ONLY. (MS, Judicial Assistant) (Entered: 09/19/2019)
155 MEMORANDUM in Opposition re 34 MOTION for Preliminary Injunction filed by Kenneth T Cuccinelli, II, Kevin K McAleenan, United

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States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 09/20/2019)
156 MOTION for Leave to File Excess Pages by All Plaintiffs. Motion Hearing set for 9/27/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Sprung, Jeffrey) (Entered: 09/25/2019)
157 TEXT-ONLY ORDER (no PDF shall issue) GRANTING on an expedited basis, for good cause shown under LCivR 7(f)(5) and (i)(2) and based on Plaintiffs representation that Defendants do not object, Plaintiffs Motion to Exceed Page Limits, ECF No. 156. Plaintiffs may file a reply in support of their Motion for Stay or Preliminary Injunction, ECF No. 34, of no more than 30 pages. This text-only entry constitutes the Courts ruling on this matter. Signed by Judge Rosanna Malouf Peterson. (MF, Courtroom Deputy) (Entered: 09/26/2019)
158 REPLY MEMORANDUM re 34 MOTION for Preliminary Injunction filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 09/27/2019)
159 NOTICE of Appearance by Keri L Berman on behalf of United States Department of Homeland Security (Attorney Keri L Berman added to party United States Department of Homeland Security(pty:dft))(Berman, Keri) (Entered: 10/01/2019)
160 NOTICE by Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security (Attachments: # 1 Exhibit (Correction))(Kolsky, Joshua) (Entered: 10/01/2019)
161 Minute Entry for proceedings held before Judge Rosanna Malouf Peterson: Motion Hearing held on 10/3/2019 re 34 MOTION for Preliminary Injunction filed by State of Delaware, State of Rhode Island, Commonwealth of Massachusetts, State of Minnesota, Dana Nessel, State of Hawai'i, State of Nevada, State of New Jersey, State of Maryland, State of New Mexico, State of Illinois, Commonwealth of Virginia, State of Washington, State of Colorado. (Reported/Recorded by: Allison Anderson) (MF, Courtroom Deputy) (Entered: 10/03/2019)
162 ORDER granting 34 Motion for Preliminary Injunction. Signed by Judge Rosanna Malouf Peterson. (MF, Courtroom Deputy) (Entered: 10/11/2019)
163 SCHEDULING CONFERENCE NOTICE : Telephonic Scheduling Conference set for 11/20/2019 at 02:30 PM via Teleconference before Judge Rosanna Malouf Peterson. (MF, Courtroom Deputy) (Entered: 10/16/2019)

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Remark: Notice Setting Telephonic Scheduling Conference mailed on 10/16/2019 to: R. Hirschhorn, M. Siddiqui, J. Cosgriff, E. RobersonYoung, and D. Aguilar. (MF, Courtroom Deputy) (Entered: 10/16/2019)
166 Unopposed MOTION to Stay Deadline for Defendants to Respond to Amended Complaint by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 11/25/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 10/24/2019)
167 TEXT-ONLY ORDER GRANTING Defendants' Motion to Stay the Deadline to file an answer or otherwise respond to Plaintiffs' Amended Complaint, ECF No. 166 . Defendants represent that Plaintiffs do not oppose staying the deadline until the parties and the Court determine the schedule for the remainder of this litigation at the upcoming scheduling conference. ECF No. 166 at 2; see also ECF No. 163 (Scheduling Conference Notice). Accordingly, Defendants' deadline to file an answer or otherwise respond to Plaintiffs' Amended Complaint, ECF No. 31 , is stayed nunc pro tunc, until the Court issues a scheduling order setting a new deadline. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 10/25/2019)
168 Unopposed MOTION Exceed Page Limitation Applicable to Motion by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 11/25/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 10/25/2019)
169 MOTION to Stay Preliminary Injunction by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 11/25/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 10/25/2019)
170 DECLARATION by Daniel Renaud in Support re 169 MOTION to Stay Preliminary Injunction filed by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 10/25/2019)
171 TEXT-ONLY ORDER (no PDF will issue) granting, for a showing of good cause, ECF No. 168 , Defendants' Unopposed Motion to Exceed Page Limitation. There being no objection, Defendants' Motion to Stay Preliminary Injunction at ECF No. 169, is accepted in its entirety. This

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text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 10/25/2019)
173 MOTION to Expedite Defendants' Motion for Stay of Injunction Pending Appeal by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 11/8/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 10/30/2019)
174 LODGED NOTICE OF APPEAL from District Court decision as to 162 Order on Motion for Preliminary Injunction by Kenneth T Cuccinelli, II, United States Citizenship and Immigration Services, Kevin K McAleenan, United States Department of Homeland Security. Filing fee $ 505, receipt number WAIVED. (Kolsky, Joshua) (Entered: 10/30/2019)
175 NOTICE OF INTERLOCUTORY APPEAL as to 162 Order on Motion for Preliminary Injunction by All Defendants. cc: Court Reporter: Allison Anderson. (SG, Case Administrator) Modified on 10/31/2019 9CCA Case No. 19-35914 (LR, Case Administrator). (Entered: 10/30/2019)
176 9CCA Payment Notification form re 175 Notice of Interlocutory Appeal. Fee Waived. (SG, Case Administrator) (Entered: 10/30/2019)
177 Letter from Appeal Deputy Clerk to Attorney Joshua Kolsky dated 10/30/2019. (Attachments: # 1 Notice of Appeal, # 2 Docket Sheet)(SG, Case Administrator) (Entered: 10/30/2019)
178 TEXT-ONLY ORDER (no PDF shall issue) setting response and reply deadlines for Federal Defendants' Motion to Expedite, ECF No. 173 . In light of Federal Defendants' representation in ECF No. 173 at 2 that Plaintiff States oppose an expedited hearing of Federal Defendants' Motion to Stay the Preliminary Injunction, ECF No. 169 , Plaintiff States may file any response to the Motion to Expedite, ECF No. 173 , by November 6, 2019. Federal Defendants may file any reply by November 7, 2019. Hearing without oral argument for the Motion to Expedite, ECF No. 173 , remains set for November 8, 2019, at 6:30 p.m. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 10/31/2019)
179 9CCA Appeal Case Number 19-35914 for 175 Notice of Interlocutory Appeal, filed 10/30/2019. (LR, Case Administrator) (Entered: 10/31/2019)
180 MOTION to Appear Pro Hac Vice re Attorney: Jessica Merry Samuels. Filing fee $ 200, receipt number 0980-3299084. by Commonwealth of

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Virginia. Motion Hearing set for 12/4/2019 Without Oral Argument before Judge Rosanna Malouf Peterson. (Bays, Nathan) (Entered: 11/04/2019)
182 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 180 , Motion for Leave to Appear Pro Hac Vice. Attorney Jessica Merry Samuels, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for Plaintiff Commonwealth of Virginia. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 11/06/2019)
183 RESPONSE to Motion re 173 MOTION to Expedite Defendants' Motion for Stay of Injunction Pending Appeal filed by All Plaintiffs. (Bays, Nathan) (Entered: 11/06/2019)
184 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion for Preliminary Injunction Hearing. Proceedings held on 10/3/2019 in Spokane, Washington before Judge Rosanna Malouf Peterson. Page Numbers: 1 - 65

Parties have seven (7) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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 through PACER.

Information regarding the policy can be found on the court website at www.waed.uscourts.gov.

11/07/2019

To purchase a copy of the transcript contact Court Reporter/Transcriber Allison Anderson at 509-458-3465 or Allison_Anderson@waed.uscourts.gov. Redaction Request due 11/29/2019. Redacted Transcript Deadline set for 12/9/2019. Release of Transcript Restriction set for 2/5/2020. (Anderson, Allison) (Entered: 11/07/2019)
185 REPLY MEMORANDUM re 173 MOTION to Expedite Defendants' Motion for Stay of Injunction Pending Appeal filed by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 11/07/2019)

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186 ORDER DENYING 173 MOTION TO EXPEDITE HEARING OF MOTION FOR STAY OF INJUNCTION PENDING APPEAL. Signed by Judge Rosanna Malouf Peterson. (TR, Case Administrator) (Entered: 11/08/2019)
188 STATUS REPORT Joint by All Plaintiffs. (Weissman, Joshua) (Entered: 11/13/2019)
189 NOTICE OF CHANGE OF HEARING DATE (text entry; no PDF document). Pursuant to information provided by the parties in a status report, the Court is resetting the date for the formal scheduling conference. The Telephonic Scheduling Conference currently set for November 20, 2019, is STRICKEN and RESET for December 18, 2019, at 3:00 p.m. See ECF No. 188 . The parties shall call the Court's toll-free conference line at 888.363.4749 and enter access code 6699898. Please listen and carefully follow the automated instructions so that you will be added to the conference in a timely manner. Speaker phones are not compatible with the Court's audio system and may not be used for this hearing. Consistent with the parties' agreement, Defendants shall provide the administrative record to Plaintiffs no later than November 25, 2019. See ECF No. 188 at 3. The parties shall file a brief status report by December 16, 2019, informing the Court of any agreements they have reached regarding a discovery timetable, a cross-dispositive motion briefing schedule, and/or a deadline for Defendants to answer Plaintiffs' Amended Complaint. (MS, Judicial Assistant) (Entered: 11/14/2019)
190 RESPONSE to Motion re 169 MOTION to Stay Preliminary Injunction filed by All Plaintiffs. (Bays, Nathan) (Entered: 11/15/2019)
191 ORDER DENYING 169 DEFENDANTS' MOTION FOR STAY OF INJUNCTION PENDING APPEAL. Signed by Judge Rosanna Malouf Peterson. (AN, Courtroom Deputy) (Entered: 12/03/2019)
192 COPY OF 9CCA ORDER as to 175 Notice of Interlocutory Appeal filed by Kenneth T Cuccinelli, II, United States Citizenship and Immigration Services, Kevin K McAleenan, United States Department of Homeland Security. 9CCA: 19-35914. (PL, Case Administrator) (Entered: 12/06/2019)
193 STATUS REPORT Parties' Joint Status Report by All Plaintiffs. (Sprung, Jeffrey) (Entered: 12/16/2019)
194 TEXT-ONLY ORDER (no PDF shall issue) STRIKING the Telephonic Scheduling Conference set for December 18, 2019, in light of the parties' Joint Status Report at ECF No. 193 . The Court accepts the parties' proposed schedule for an anticipated Motion to Compel from the Plaintiff States. See id. at 3. Accordingly, the Plaintiff States' anticipated Motion to Compel shall be filed by December 19, 2019. The Federal Defendants'

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response is due by January 14, 2020. The Plaintiff States' reply is due by January 28, 2020. In accordance with the parties' stipulation, the page limit for all briefs on this motion shall be fifteen (15) pages. Within one week after the Court resolves the anticipated Motion to Compel, the parties shall submit a status report with a proposed schedule for the Federal Defendants' submission of an answer or other responsive pleading and the parties' submission of any dispositive motions. This text-only entry constitutes the Court's ruling on the matter.(MS, Judicial Assistant) Modified on 12/16/2019 (MS, Judicial Assistant). (Entered: 12/16/2019)
195 MOTION to Compel Production of Privilege Log and Discovery on Count IV of First Amended Complaint by All Plaintiffs. Motion Hearing set for 1/29/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Sprung, Jeffrey) (Entered: 12/19/2019)
196 COPY OF 9CCA ORDER re responses to motions for reconsideration en banc as to 175 Notice of Interlocutory Appeal. 9CCA: 19-35914. (LR, Case Administrator) (Entered: 12/20/2019)
197 COPY OF 9CCA ORDER re Consent Motion of Immigrant and Healthcare Service Organizations to Participate as Amici Curiae in Support of Plaintiffs-Appellees Motion for Reconsideration En Banc as to 175 Notice of Interlocutory Appeal, 9CCA: 19-35914. (LR, Case Administrator) (Entered: 01/03/2020)
198 RESPONSE to Motion re 195 MOTION to Compel Production of Privilege Log and Discovery on Count IV of First Amended Complaint filed by All Defendants. (Soskin, Eric) (Entered: 01/14/2020)
199 NOTICE OF WITHDRAWAL OF COUNSEL by Rene David Tomisser on behalf of Plaintiff State of Washington (Tomisser, Rene) (Entered: 01/24/2020)
200 REPLY MEMORANDUM re 195 MOTION to Compel Production of Privilege Log and Discovery on Count IV of First Amended Complaint filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 01/28/2020)
201 DECLARATION by Jeffrey T. Sprung in Support re 195 MOTION to Compel Production of Privilege Log and Discovery on Count IV of First Amended Complaint filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 01/28/2020)
202 NOTICE by All Plaintiffs re 195 MOTION to Compel Production of Privilege Log and Discovery on Count IV of First Amended Complaint Supplemental Authority (Sprung, Jeffrey) (Entered: 02/11/2020)
203 COPY OF 9CCA ORDER re Appellees' motions for rehearing and petition for rehearing en banc, filed December 19. 2019, are DENIED as

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to 175 Notice of Interlocutory Appeal. 9CCA: 19-35914. (LR, Case Administrator) (Entered: 02/18/2020)
204 RESPONSE re 202 Notice (Other) by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 02/21/2020)
205 NOTICE of Appearance by Eric J Soskin on behalf of All Defendants (Attorney Eric J Soskin added to party Kenneth T Cuccinelli, II(pty:dft), Attorney Eric J Soskin added to party Kevin K McAleenan(pty:dft), Attorney Eric J Soskin added to party United States Citizenship and Immigration Services(pty:dft), Attorney Eric J Soskin added to party United States Department of Homeland Security(pty:dft))(Soskin, Eric) (Entered: 03/26/2020)
206 NOTICE by All Defendants of Supplemental Authority (Soskin, Eric) (Entered: 03/26/2020)
207 NOTICE by All Plaintiffs re 206 Notice (Other) Plaintiffs' Response to Notice of Supplmental Authority (Sprung, Jeffrey) (Entered: 03/30/2020)
208 NOTICE by All Plaintiffs re 195 MOTION to Compel Production of Privilege Log and Discovery on Count IV of First Amended Complaint Supplemental Authority (Sprung, Jeffrey) (Entered: 04/03/2020)
209 RESPONSE to Plaintiffs' Notice of Supplemental Authority (ECF No. 208) by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 04/14/2020)
210 ORDER GRANTING 195 PLAINTIFFS' MOTION TO COMPEL. Signed by Judge Rosanna Malouf Peterson. (LR, Case Administrator) (Entered: 04/17/2020)
211 NOTICE by All Plaintiffs re 210 Order on Motion to Compel - PARTIES JOINT PROPOSED TIMELINE FOR DHS TO PROVIDE DISCOVERY RELATED TO THE STATES EQUAL PROTECTION CLAIM AND FILE A RESPONSIVE PLEADING, AND FOR DISPOSITIVE MOTIONS (Sprung, Jeffrey) (Entered: 05/01/2020)
212 SCHEDULING ORDER. Signed by Judge Rosanna Malouf Peterson. (LR, Case Administrator) (Entered: 05/04/2020)
213 MOTION to Stay re 210 Order on Motion to Compel by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 6/4/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 05/05/2020)

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214 MOTION to Expedite by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 5/12/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 05/05/2020)
215 TEXT-ONLY ORDER (no PDF shall issue) GRANTING IN PART and DENYING IN PART DHS's Motion to Expedite, ECF No. 214 . DHS's Motion to Stay, ECF No. 213 , is reset for hearing on the issue of the privilege log on May 12, 2020. Any response from the States regarding the Motion to Stay, ECF No. 213 , as it relates to the privilege log, shall be filed by May 11, 2020. However, the Court does not find good cause to expedite hearing of the Motion to Stay, ECF No. 213 , with respect to discovery on Plaintiffs' equal protection claim. Therefore, the remaining portion of the Motion to Stay, ECF No. 213, shall be heard according to the standard timeframe prescribed by LCivR7 on June 4, 2020. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 05/05/2020)
216 RESPONSE to Motion re 213 MOTION to Stay re 210 Order on Motion to Compel - Privilege Log Or, In The Alternative, For Extension of Time filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Sprung, Jeffrey) (Entered: 05/11/2020)
217 DECLARATION by JEFFREY T. SPRUNG in Opposition re 213 MOTION to Stay re 210 Order on Motion to Compel - Privilege Log Or, In The Alternative, For Extension of Time filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 05/11/2020)
218 REPLY MEMORANDUM re 213 MOTION to Stay re 210 Order on Motion to Compel filed by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Attachments: # 1 Exhibit)(Kolsky, Joshua) (Entered: 05/12/2020)
219 ORDER DENYING IN PART AND GRANTING IN PART 213 DEFENDANTS' MOTION TO STAY DISCOVERY ORDER RE: PRIVILEGE LOG. The Motion for Stay of Order, ECF No. 213 , shall remaining pending for further briefing on the issue of whether to stay discovery on the States' equal protection claim. See ECF No. 215 . Signed by Judge Rosanna Malouf Peterson. (CLP, Case Administrator) (Entered: 05/13/2020)
220 RESPONSE to Motion re 213 MOTION to Stay re 210 Order on Motion to Compel - DISCOVERY ON EQUAL PROTECTION CLAIM filed by All Plaintiffs. (Samuels, Jessica) (Entered: 05/18/2020)

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221 Unopposed MOTION for Leave to File Excess Pages for Motion to Dismiss by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 6/19/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 05/20/2020)
222 TEXT-ONLY ORDER (no PDF shall issue) GRANTING for good cause shown and in light of DHS's representation that the States do not oppose the relief sought, DHS's Motion for Leave to File Excess Pages, ECF No. 221. DHS may file a Motion to Dismiss that does not exceed 28 pages. This text-only entry constitutes the Court's ruling in this matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 05/21/2020)
223 MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 7/13/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 05/22/2020)
224 NOTICE of Appearance by Jordan L Von Bokern on behalf of All Defendants (Attorney Jordan L Von Bokern added to party Kenneth T Cuccinelli, II(pty:dft), Attorney Jordan L Von Bokern added to party Kevin K McAleenan(pty:dft), Attorney Jordan L Von Bokern added to party United States Citizenship and Immigration Services(pty:dft), Attorney Jordan L Von Bokern added to party United States Department of Homeland Security(pty:dft))(Von Bokern, Jordan) (Entered: 05/26/2020)
225 REPLY MEMORANDUM re 213 MOTION to Stay re 210 Order on Motion to Compel Discovery on Equal Protection Claim filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Von Bokern, Jordan) (Entered: 05/26/2020)
226 NOTICE OF WITHDRAWAL OF COUNSEL by Owen Masters on behalf of Amicus Parties American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging (Masters, Owen) (Entered: 05/28/2020)
227 NOTICE OF WITHDRAWAL OF COUNSEL by Sarah M Ray Diana A. Aguilar on behalf of Amicus Parties American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Coelho Center for Disability Law,

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Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Washington, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, United Spinal Association (Ray, Sarah) Modified on 5/29/2020 to edit docket text to reflect the correct withdrawing attorney as referenced in the attached PDF. (LMR, Case Administrator). (Entered: 05/29/2020)
228 NOTICE OF WITHDRAWAL OF COUNSEL by Elizabeth L Stameshkin Susan M. Krumplitsch on behalf of Amicus Parties American Academy of Pediatrics, American College of Physicians, American Medical Association, Washington Chapter of American Academy of Pediatrics, Washington State Medical Association (Stameshkin, Elizabeth) Modified on 6/2/2020 to edit docket text to reflect the correct withdrawing attorney as referenced in the attached PDF (LMR, Case Administrator). (Entered: 06/01/2020)
229 ORDER DENYING 213 DEFENDANTS' MOTION TO STAY DISCOVERY ORDER RE: EQUAL PROTECTION CLAIM. Signed by Judge Rosanna Malouf Peterson. (LMR, Case Administrator) (Entered: 06/04/2020)
230 MOTION for Leave to File Excess Pages -Response to Defendants' Motion to Dismiss Amended Complaint by All Plaintiffs. Motion Hearing set for 6/12/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Sprung, Jeffrey) (Entered: 06/08/2020)
231 TEXT-ONLY ORDER (no PDF shall issue) GRANTING, for good cause shown the States' Motion for Leave to File Excess Pages, ECF No. 230 . The States may file a response to DHS's Motion to Dismiss, ECF No. 223 , that does not exceed 40 pages. This text-only entry constitutes the Court's ruling in this matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 06/09/2020)
232 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 06/12/2020)
233 RESPONSE to Motion re 223 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by All Plaintiffs. (Weissman, Joshua) (Entered: 06/12/2020)
234 Unopposed MOTION for Leave to File Excess Pages by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and

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Immigration Services, United States Department of Homeland Security. Motion Hearing set for 7/24/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 06/24/2020)
235 TEXT-ONLY ORDER (no PDF shall issue) GRANTING DHS's Unopposed Motion to Exceed Page Limitation for Reply in Support of Motion to Dismiss, ECF No. 234 . DHS may file a 29-page reply regarding their Motion to Dismiss, ECF No. 223 . This text-only entry constitutes the Court's ruling on this matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 06/25/2020)
236 REPLY MEMORANDUM re 223 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 06/26/2020)
237 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 06/26/2020)
238 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 07/10/2020)
239 MOTION to Appear Pro Hac Vice re Attorney: Christian D. Wright. Filing fee $ 200, receipt number 0980-3513856. by State of Delaware. Motion Hearing set for 7/22/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Sprung, Jeffrey) (Entered: 07/22/2020)
240 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 07/24/2020)
241 NOTICE by Commonwealth of Massachusetts, Commonwealth of Virginia, Dana Nessel, State of Colorado, State of Delaware, State of Hawai'i, State of Illinois, State of Maryland, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of Rhode Island, State of Washington re 233 Response to Motion to Dismiss Amended Complaint (Bays, Nathan) (Entered: 07/31/2020)
242 NOTICE by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kolsky, Joshua) (Entered: 08/06/2020)

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243 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 08/07/2020)
244 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 239 , Motion for Leave to Appear Pro Hac Vice. Attorney Christian Douglas Wright, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for Plaintiff State of Delaware. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 08/12/2020)
245 NOTICE by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kolsky, Joshua) (Entered: 08/14/2020)
246 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 08/21/2020)
247 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 09/04/2020)
248 ORDER GRANTING IN PART AND DENYING IN PART 223 DEFENDANTS' MOTION TO DISMISS; Plaintiffs' Count II: Ultra Vires Claim is dismissed without prejudice and with leave to amend. Any amendment shall be filed by October 16, 2020. Signed by Judge Rosanna Malouf Peterson. (SG, Case Administrator) (Entered: 09/14/2020)
249 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 09/18/2020)
250 Unopposed MOTION for Extension of Time to File Answer re 31 Amended Complaint by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 10/23/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 09/23/2020)

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251 TEXT-ONLY ORDER (no PDF shall issue) GRANTING on an expedited basis, in light of Plaintiffs' non-opposition to the relief sought, Defendants' Motion to Extend the Deadline to Respond to Plaintiffs' Amended Complaint, ECF No. 250 . Defendants' deadline for filing an Answer is extended until November 27, 2020. Signed by Judge Rosanna Malouf Peterson. This text-only entry constitutes the Court's ruling in this matter. (LMR, Case Administrator) (Entered: 09/24/2020)
252 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 10/02/2020)
253 NOTICE of Association of Counsel by Spencer W Coates on behalf of State of Washington (Attorney Spencer W Coates added to party State of Washington(pty:pla))(Coates, Spencer) (Entered: 10/07/2020)
254 MOTION for Reconsideration re 248 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction, (Partial Reconsideration) by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. Motion Hearing set for 11/30/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 10/08/2020)
255 MOTION to Compel Documents Withheld Under Deliberative Process Privilege by All Plaintiffs. Motion Hearing set for 11/13/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order)(Coates, Spencer) (Entered: 10/14/2020)
256 DECLARATION by Jeffrey T. Sprung in Support re 255 MOTION to Compel Documents Withheld Under Deliberative Process Privilege filed by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Coates, Spencer) (Entered: 10/14/2020)
257 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 10/16/2020)
258 RESPONSE to Motion re 254 MOTION for Reconsideration re 248 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction, (Partial Reconsideration) filed by All Plaintiffs. (Sprung, Jeffrey) (Entered: 10/21/2020)

10/21/2020 10/28/2020
10/28/2020 10/28/2020 10/28/2020
10/30/2020 11/04/2020 11/13/2020 11/25/2020

259 DECLARATION by RYAN S. HARDY in Opposition re 254 MOTION for Reconsideration re 248 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction, (Partial Reconsideration) filed by All Plaintiffs. (Attachments: # 1 Exhibit)(Sprung, Jeffrey) (Entered: 10/21/2020)
260 NOTICE of Appearance by Alexandra Rachel Saslaw on behalf of All Defendants (Attorney Alexandra Rachel Saslaw added to party Kenneth T Cuccinelli, II(pty:dft), Attorney Alexandra Rachel Saslaw added to party Kevin K McAleenan(pty:dft), Attorney Alexandra Rachel Saslaw added to party United States Citizenship and Immigration Services(pty:dft), Attorney Alexandra Rachel Saslaw added to party United States Department of Homeland Security(pty:dft))(Saslaw, Alexandra) (Entered: 10/28/2020)
261 RESPONSE to Motion re 255 MOTION to Compel Documents Withheld Under Deliberative Process Privilege filed by All Defendants. (Saslaw, Alexandra) (Entered: 10/28/2020)
262 DECLARATION by Joshua M. Kolsky in Opposition re 255 MOTION to Compel Documents Withheld Under Deliberative Process Privilege filed by All Defendants. (Attachments: # 1 Exhibit)(Saslaw, Alexandra) (Entered: 10/28/2020)
263 REPLY MEMORANDUM re 254 MOTION for Reconsideration re 248 Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Dismiss/Lack of Jurisdiction, (Partial Reconsideration) filed by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 10/28/2020)
264 Report Pursuant to May 13, 2020 Order by Kenneth T Cuccinelli, II, Kevin K McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security. (Kolsky, Joshua) (Entered: 10/30/2020)
265 REPLY MEMORANDUM re 255 MOTION to Compel Documents Withheld Under Deliberative Process Privilege filed by All Plaintiffs. (Coates, Spencer) (Entered: 11/04/2020)
266 Report Pursuant to May 13, 2020 Order by All Defendants. (Kolsky, Joshua) (Entered: 11/13/2020)
267 COPY OF 9CCA ORDER as to 175 Notice of Interlocutory Appeal, filed by Kenneth T Cuccinelli, II, United States Citizenship and Immigration Services, Kevin K McAleenan, United States Department of Homeland Security. 9CCA: 19-35914. (TR, Case Administrator) (Entered: 11/25/2020)

11/27/2020 11/27/2020 12/02/2020 12/11/2020 12/17/2020
12/17/2020 12/18/2020 12/25/2020 01/05/2021
01/08/2021 01/14/2021 01/15/2021

268 Report Pursuant to May 13, 2020 Order by All Defendants. (Kolsky, Joshua) (Entered: 11/27/2020)
269 ANSWER to Complaint by All Defendants.(Saslaw, Alexandra) (Entered: 11/27/2020)
270 9CCA Slip Opinion: Decision of the District Court is AFFIRMED in part and VACATED in part. 9CCA Case No. 19-35914. (LMR, Case Administrator) (Entered: 12/02/2020)
271 Report Pursuant to May 13, 2020 Order by All Defendants. (Kolsky, Joshua) (Entered: 12/11/2020)
272 Stipulated MOTION for Protective Order / JOINT ENTRY by All Plaintiffs. Motion Hearing set for 12/17/2020 Without Oral Argument before Judge Rosanna Malouf Peterson. (Attachments: # 1 Text of Proposed Order, # 2 Supplement Acknowledgment and Agreement to be Bound)(Sprung, Jeffrey) (Entered: 12/17/2020)
273 STIPULATED PROTECTIVE ORDER; granting 272 parties' Motion for Protective Order. Signed by Judge Rosanna Malouf Peterson. (Attachments: # 1 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND) (AN, Courtroom Deputy) (Entered: 12/17/2020)
274 NOTICE by All Defendants re 261 Response to Motion Notice of Supplemental Authority (Attachments: # 1 Exhibit A)(Kolsky, Joshua) (Entered: 12/18/2020)
275 Report Pursuant to May 13, 2020 Order by All Defendants. (Kolsky, Joshua) (Entered: 12/25/2020)
276 NOTICE OF WITHDRAWAL OF COUNSEL by Jeffrey T Sprung Monica Horton on behalf of Plaintiff State of Washington State of Delaware (Sprung, Jeffrey) Modified on 1/5/2021: Attached PDF indicates that Monica Horton is withdrawing on behalf of the State of Delaware, not Jeffrey Sprung on behalf of State of Washington, as indicated in docket text. Updated docket text and docket, accordingly. (LMR, Case Administrator). (Entered: 01/05/2021)
277 Report Pursuant to May 13, 2020 Order by All Defendants. (Kolsky, Joshua) (Entered: 01/08/2021)
278 MOTION to Appear Pro Hac Vice re Attorney: Marie Soueid. Filing fee $ 200, receipt number 0980-3669686. by State of Washington. Motion Hearing set for 1/14/2021 Without Oral Argument before Judge Rosanna Malouf Peterson. (Sprung, Jeffrey) (Entered: 01/14/2021)
279 TEXT-ONLY ORDER (no PDF will issue) granting ECF No. 278 , Motion for Leave to Appear Pro Hac Vice. Attorney Marie Soueid, having applied for pro hac vice status and being found to meet the requirements for pro hac vice membership, is hereby added as counsel for

01/20/2021
01/22/2021 01/22/2021 02/01/2021 02/03/2021 02/05/2021 02/05/2021
02/19/2021 02/19/2021 02/22/2021

Plaintiff State of New Jersey. This text-only entry constitutes the Court's ruling on the matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 01/15/2021)
280 COPY OF 9CCA ORDER as to 175 Notice of Interlocutory Appeal, 9CCA: 19-35914. The motion to stay before the 9CCA is GRANTED as follows: the mandate is stayed pending the Supreme Court's final disposition of the pending petitions for certiorari. (LMR, Case Administrator) (Entered: 01/20/2021)
281 A petition for a writ of certiorari was filed with the Supreme Court of the United States on January 21, 2021 and placed on the docket January 21, 2021. (LMR, Case Administrator) (Entered: 01/22/2021)
282 Report Pursuant to May 13, 2020 Order by All Defendants. (Kolsky, Joshua) (Entered: 01/22/2021)
283 ORDER DENYING 254 DEFENDANTS' MOTION FOR RECONSIDERATION. Signed by Judge Rosanna Malouf Peterson. (LMR, Case Administrator) (Entered: 02/01/2021)
284 NOTICE by All Defendants Regarding Executive Order (Kolsky, Joshua) (Entered: 02/03/2021)
285 Report Pursuant to May 13, 2020 Order by All Defendants. (Kolsky, Joshua) (Entered: 02/05/2021)
286 TEXT-ONLY ORDER (no PDF shall issue) regarding the U.S. Department of Homeland Security (DHS) Defendants' Notice, ECF No. 284. The parties shall file a joint status report by February 19, 2021. In that report, in addition to the status update contemplated by DHS Defendants' Notice, the parties shall indicate to the Court whether they are ready to proceed to a trial scheduling conference. This text-only entry constitutes the Court ruling on this matter. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 02/05/2021)
287 STATUS REPORT (Joint) by All Defendants. (Kolsky, Joshua) (Entered: 02/19/2021)
288 Report Pursuant to May 13, 2020 Order by All Defendants. (Kolsky, Joshua) (Entered: 02/19/2021)
289 TEXT-ONLY ORDER (no PDF shall issue). Having reviewed the parties' Joint Status Report at ECF No. 287 , IT IS ORDERED that the parties shall file a follow-up Joint Status Report by February 24, 2021, indicating the Plaintiff States' position regarding the stay proposed by the DHS Defendants as well as the parties' joint position regarding whether they request a trial scheduling conference in this matter. This text-only entry constitutes the Court's ruling on this matter. Case Management Deadline set for February 24, 2021. Signed by Judge

02/24/2021 03/03/2021

Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 02/22/2021)
290 STATUS REPORT Joint by All Plaintiffs. (Sprung, Jeffrey) (Entered: 02/24/2021)
291 TEXT-ONLY ORDER (no PDF shall issue). Having reviewed the Joint Status Report at ECF No. 290 , the Court finds that a 2-week stay of this matter from the date of the status report is warranted to allow the DHS Defendants to concentrate their resources on the review required by Executive Order 14012 (Feb. 2, 2021). Accordingly, this matter is stayed until March 10, 2021. The Court clarifies that the DHS Defendants' obligation to file a status report regarding their progress toward completion of a privilege log, see ECF No. 219 at 6, is stayed through March 10, 2021, along with all other deadlines in this case. On March 11, 2021, the parties shall file a joint status report. This text-only entry constitutes the Court's ruling on this matter. Case Management Deadline set for March 12, 2021. Signed by Judge Rosanna Malouf Peterson. (MS, Judicial Assistant) (Entered: 03/03/2021)

PACER Service Center Transaction Receipt

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 Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.1 Page 1 of 176

1 ROBERT W. FERGUSON

Attorney General

2

RENE D. TOMISSER, WSBA #17509

3 Senior Counsel

JEFFREY T. SPRUNG, WSBA #23607

4 ZACHARY P. JONES, WSBA #44557

JOSHUA WEISSMAN, WSBA #42648

5 PAUL M. CRISALLI, WSBA #40681

NATHAN K. BAYS, WSBA #43025

6 BRYAN M.S. OVENS, WSBA #32901*

(*application for admission pending)

7 Assistant Attorneys General

8127 W. Klamath Court, Suite A

8 Kennewick, WA 99336

(509) 734-7285

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF WASHINGTON

AT RICHLAND

11

STATE OF WASHINGTON;

NO.

12 COMMONWEALTH OF VIRGINIA;

STATE OF COLORADO; STATE OF COMPLAINT FOR

13 DELAWARE; STATE OF ILLINOIS; DECLARATORY AND

STATE OF MARYLAND;

INJUNCTIVE RELIEF

14 COMMONWEALTH OF

MASSACHUSETTS; ATTORNEY

15 GENERAL DANA NESSEL ON

BEHALF OF THE PEOPLE OF

16 MICHIGAN; STATE OF

MINNESOTA; STATE OF

17 NEVADA; STATE OF NEW

JERSEY; STATE OF NEW MEXICO;

18 and STATE OF RHODE ISLAND,

19

Plaintiffs,

20

v.

21 UNITED STATES DEPARTMENT OF HOMELAND SECURITY, a
22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

i

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.2 Page 2 of 176

1 federal agency; KEVIN K. McALEENAN, in his official capacity
2 as Acting Secretary of the United States Department of Homeland
3 Security; UNITED STATES CITIZENSHIP AND IMMIGRATION
4 SERVICES, a federal agency; KENNETH T. CUCCINELLI II, in his
5 official capacity as Acting Director of United States Citizenship and
6 Immigration Services,

7

Defendants.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

COMPLAINT FOR

ii

DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.3 Page 3 of 176

1

TABLE OF CONTENTS

2 I. INTRODUCTION......................................................................................1

3 II. JURISDICTION AND VENUE.................................................................8

4 III. PARTIES....................................................................................................9

5 IV. HISTORY OF THE PUBLIC CHARGE EXCLUSION .........................13

6

A. Origins of Public Charge Exclusion in Colonial, State, and Federal

Statutes ...........................................................................................14

7

B. Early Administrative and Judicial Precedent on Public Charge....17

8

C. Modern Regulatory Framework.....................................................19

9

1. Immigration and Nationality Act of 1952 ...........................20

10

2. Current public charge legal framework...............................23

11

3. Illegal Immigration Reform and Immigrant Responsibility

12

Act of 1996 ..........................................................................26

13

4. Personal Responsibility and Work Opportunity Act of

1996 .....................................................................................27

14

5. Agency guidance .................................................................30

15

V. THE DEPARTMENT’S PUBLIC CHARGE RULE ..............................36

16

A. The Trump Administration’s Anti-Immigration Agenda ..............37

17

B. Rulemaking History .......................................................................41

18

C. The Department’s Proposed Public Charge Rule ..........................45

19

D. Plaintiff States’ Opposition to Proposed Rule ...............................49

20

1. Comments to proposed rule.................................................49

21

2. White House involvement and review ................................52

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

iii

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.4 Page 4 of 176

1

E. The Final Rule................................................................................54

2

1. Summary of the Final Rule..................................................56

3

a. Applicability of the Rule ...........................................56

4

b. Definitions of “public charge” and “public benefit”.57

5

c. Heavily weighted negative factors ............................58

6

d. Heavily weighted positive factors.............................60

7

e. Other criteria..............................................................61

8

f. Other provisions ........................................................62

9

2. The Department’s failure to provide reasoned analysis,

examine relevant data, or address public comments’

10

significant concerns .............................................................64

11

a. Definition of public charge .......................................64

12

b. The 12-month public benefit threshold .....................65

13

c. Heavily weighted negative factors ............................67

14

d. Private health insurance ............................................69

15

e. Nonimmigrant applications for change of status or

extension of stay........................................................71

16

f. Application to lawful permanent residents returning

17

from 180-day trips abroad .........................................72

18

g. Disparate impact........................................................73

19

h. Credit history and financial liabilities .......................74

20

i. Immigration fee waiver .............................................75

21

j. High school diploma .................................................76

22

k. English proficiency ...................................................77

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

iv

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.5 Page 5 of 176

1

l. Federalism summary impact statement.....................79

2

m. Cost-benefit analysis .....................................................80

3 VI. THE RULE’S CHILLING EFFECTS ON PARTICIPATION IN

FEDERAL AND STATE PUBLIC BENEFITS PROGRAMS...............84

4

A. Health Care Programs ....................................................................87

5

1. Federal health care benefits .................................................87

6

2. State health care benefits .....................................................89

7

a. The Plaintiff States’ medical assistance programs....91

8

b. Irreparable harm to medical assistance programs .....97

9

(1) Plaintiff States’ residents will lose medical care

10

and become uninsured.....................................99

11

(2) Shift of healthcare costs to the Plaintiff

States .............................................................101

12

(3) Significant public health concerns prompted by

13

reduced preventive care ................................103

14

(4) Harm to the Plaintiff States’ sovereign interests

in the successful operation of their health care

15

systems ..........................................................104

16

B. Food Assistance Programs...........................................................108

17

1. Federal Food Assistance Benefits .....................................108

18

2. State food assistance programs..........................................110

19

a. The Plaintiff States’ food assistance programs .......111

20

b. Irreparable harm to food assistance programs ........113

21

(1) Increased Hunger and Food Insecurity in the

Plaintiff States’ Residents .............................115

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

v

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.6 Page 6 of 176

1

(2) Significant public health concerns................116

2

C. Housing Assistance Programs......................................................117

3

1. Federal housing assistance benefits...................................117

4

2. State housing assistance programs ....................................120

5

a. The Plaintiff States’ housing assistance programs..121

6

b. Irreparable harms to the Plaintiff States’ housing

assistance programs.................................................124

7

(1) Homelessness and other public health

8

consequences ................................................. 125

9

(2) Poorer health, educational, and other

outcomes .......................................................127

10

D. Cash Assistance Programs ...........................................................128

11

1. Federal cash assistance benefits ........................................128

12

2. State cash assistance programs ..........................................131

13

a. The Plaintiff States’ cash assistance programs .......131

14

b. Irreparable harm to the Plaintiff States’ cash

15

assistance programs.................................................135

16

E. Other State Benefits Programs.....................................................136

17

1. Long term services and supports for elderly and disabled

residents .............................................................................137

18

2. Job and employment training programs ............................139

19

3. Irreparable harm to the Plaintiff States’ support services for

20

crime victims .....................................................................143

21 VII. THE RULE’S OTHER ADVERSE IMPACTS.....................................145

22

A. Family Reunification Impacts......................................................146

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

vi

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.7 Page 7 of 176

1

B. Workforce Impacts.......................................................................148

2

C. Other Macroeconomic Impacts....................................................149

3

D. Disparate Impacts.........................................................................150

4 VIII. CAUSES OF ACTION ..........................................................................153

5 IX. PRAYER FOR RELIEF.........................................................................163

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

vii

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.8 Page 8 of 176

1

Plaintiffs State of Washington, Commonwealth of Virginia, State of

2 Colorado, State of Delaware, State of Illinois, State of Maryland, Commonwealth

3 of Massachusetts, Attorney General Dana Nessel on behalf of the People of

4 Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of

5 New Mexico, and State of Rhode Island (together, the Plaintiff States) bring this

6 lawsuit against the United States Department of Homeland Security (the

7 Department or DHS); its Acting Secretary Kevin K. McAleenan, in his official

8 capacity; its sub-agency United States Citizenship and Immigration Services

9 (USCIS); and USCIS’s Acting Director Kenneth T. Cuccinelli, in his official

10 capacity.

11

I. INTRODUCTION

12

1. The Department’s Final Rule, Inadmissibility on Public Charge

13 Grounds, 84 Fed. Reg. 41,2921 (August 14, 2019) (the Public Charge Rule or the

14 Rule), effects a radical overhaul of federal immigration law transforming a

15 system that promotes economic mobility among immigrants into one that

16 advantages immigrants with wealth. It does so by penalizing legally present

17 immigrant families who access federally-funded health, nutrition, and housing

18 programs, even briefly. The Rule achieves this sweeping change unlawfully: it

19 expansively redefines the term “public charge”—a previously rare designation

20

21

1 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292

22 (Aug. 14, 2019) (to be codified at 8 C.F.R. § 212.20).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.9 Page 9 of 176

1 that triggers exclusion from the United States—in a manner that is contrary to

2 congressional intent and agency interpretation that has prevailed for nearly 70

3 years, and contrary to two 1996 federal statutes.

4

2. Since the late 19th century, federal immigration law has permitted

5 the government to deny entry to any noncitizen “likely to become a public

6 charge.” From colonial times to the present day, “public charge” was used

7 consistently in American law to mean a pauper—that is, someone permanently

8 and primarily dependent on the government for subsistence. Until the current

9 Administration, the Department itself, its predecessor agency the Immigration

10 and Naturalization Service, the U.S. Department of Justice, and the U.S. State

11 Department have all adhered to the established definition of public charge.

12

3. The Rule departs from this original meaning by redefining a public

13 charge as a noncitizen who receives common forms of federal and state public

14 assistance, even in small amounts and for a short period of time. Never before

15 has the Department considered in a public charge determination an immigrant’s

16 receipt of non-cash public benefits for which they are legally eligible such as

17 Medicaid, Supplemental Nutrition Assistance Program benefits, public housing

18 subsidies under the 1937 U.S. Housing Act, or Section 8 housing assistance.

19 Under the Rule, however, participation in those benefits—which are commonly

20 used by working families—would constitute a negative “heavily weighted factor”

21 triggering a public charge determination.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

2

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.10 Page 10 of 176

1

4. People who receive those benefits are neither paupers nor primarily

2 dependent on the government for subsistence. Over half of all non-elderly adults

3 receiving Medicaid are employed, and almost 80% are from a home where at

4 least one household member works. Indeed, more than 20% of the U.S.

5 population participates in such benefits programs on average each month. Yet,

6 under the Rule, legally present immigrants’ participation in those programs

7 would block their path to citizenship under the public charge exclusion.

8

5. The Public Charge Rule is contrary to law and arbitrary and

9 capricious in violation of the Administrative Procedure Act for numerous reasons

10 including:

11

6. First, the Department’s new definition of “public charge” is

12 contrary to its longstanding meaning in the Immigration and Nationality Act.

13 Since its origin in colonial residency requirements and through its reception into

14 state and then federal immigration laws, a “public charge” has been applied to

15 mean a person primarily dependent on the government for subsistence. The

16 Department’s Rule is not a clarification of a well-established rule, but marks the

17 rejection of the core principle underlying the long established unambiguous

18 definition.

19

7. Second, the Personal Responsibility and Work Opportunity

20 Reconciliation Act of 1996 allows many lawful immigrants to apply for public

21 benefits if they have been in the country for at least five years. The Rule

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

3

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.11 Page 11 of 176

1 eviscerates Congress’s intent by imposing an effective “bait and

2 switch”—punishing immigrants for using public benefits for which Congress

3 itself made them eligible. The Rule is contrary to this statute, as well as several

4 others.

5

8. Third, the Rule is arbitrary, capricious, and an abuse of discretion

6 because—among other reasons—it reverses a decades-old, consistent policy

7 without reasoned analysis, offers an explanation for the Rule that runs counter to

8 the overwhelming weight of evidence before the Department, and disingenuously

9 promotes as its purpose self-sufficiency in the immigrant population when, as

10 abundantly shown by the administrative record, its effect is precisely the

11 opposite.

12

9. The radical expansion of the public charge standard will cause

13 irreparable harm to the working families and children who live in the Plaintiffs

14 States, as well as the states themselves. The Rule will deter hundreds of thousands

15 of noncitizens from utilizing essential public assistance programs for which they

16 are legally eligible, so as not to jeopardize their hopes of becoming Americans.

17 Those “chilling effects” are of two types.

18

10. First, the Rule will deter lawfully present, legally eligible

19 immigrants or their family members from participating in the enumerated “public

20 benefit” programs. Many of these individuals will be forced into state emergency

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

4

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.12 Page 12 of 176

1 programs—for example, many will be forced to obtain routine medical care in

2 the far more expensive setting of state-funded emergency rooms.

3

11. Second, the Rule’s true impact sweeps more broadly by chilling

4 immigrant families’ participation in state and local assistance programs that the

5 Rule does not classify as public benefits in the public charge test. Out of both fear

6 of the Trump Administration’s anti-immigrant agenda and confusion over the

7 byzantine regulatory scheme that the Rule would create, many immigrant

8 families will disenroll or forbear enrollment in all public benefit programs to

9 avoid triggering the Department’s expansive and punitive public charge test.

10

12. Those chilling effects will lead to individuals and families forfeiting

11 health insurance, medical care, nutrition assistance, and shelter not only for

12 themselves but also for their entire households—including U.S. citizen adults and

13 children. In Washington State alone, the state Medicaid agency projects that up

14 to 140,000 families will lose health insurance, and State residents will forgo up

15 to $198 million annually in medical care and up to $55 million annually in food

16 and cash assistance. State and private hospitals will be forced to absorb the vastly

17 more expensive uncompensated care, to the detriment of the State treasury.

18

13. The resulting loss of economic activity will impose uncompensable

19 social and economic costs on the Plaintiff States that the Department entirely fails

20 to confront. Disenrollment and non-enrollment in health, nutrition, and other

21 state-run assistance programs will make many working class immigrant families

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

5

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.13 Page 13 of 176

1 less healthy, less productive, more reliant on state-covered emergency medical

2 care, and more likely to experience economic dislocation and homelessness,

3 which will result in increased strain on state agencies and programs. The broader

4 chilling effects among all state-run assistance programs will undermine those

5 programs’ administration and effectiveness. And direct costs to the States will

6 result from immigrants who shift from federal programs to state programs that

7 do not qualify as “public benefits” under the Rule.

8

14. In Washington State, for example, economic analysis points to the

9 Rule reducing total economic output by up to $97.5 million annually, cutting

10 wages by up to $36.7 million annually, and eliminating up to 782 jobs. Franklin

11 County, less than five miles from where this Court sits and where, according to

12 Census Bureau data, over half the population is Hispanic and over 15% legal

13 noncitizen, will face particularly harsh increases in public costs and decreases in

14 economic output as a result of the Rule. These consequences will be replicated

15 across the Plaintiff States.

16

15. The Department’s expansive new public charge test applies to two

17 groups of lawfully present non-citizens: immigrants such as visa-holders seeking

18 to adjust to permanent resident status, and nonimmigrant visitors seeking to

19 extend their visa or change their visa category. It would apply, for example, to:

20

• An immigrant mother with a U.S. citizen spouse and U.S.

21

citizen children who applies for lawful permanent residency. Even if she

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

6

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.14 Page 14 of 176

1

and her spouse both work full-time, she could be classified as a public

2

charge simply because the family received food stamps for one year in a

3

three-year period.

4

• A lawful permanent resident who travels abroad to care for

5

his ailing mother and, after her passing, to help with funeral preparations

6

and settle her estate. If previously he had received Section 8 housing

7

assistance vouchers for 12 months in any amount, upon his return to the

8

United States six months later, he could be denied admission under the new

9

public charge test, which applies to lawful permanent residents after a

10

foreign trip longer than 180 days. Although a federal statute entitles this

11

green card holder to receive federal, state, and local public benefits, the

12

Rule would exclude him from the United States for taking advantage of his

13

statutory right.

14

• And an immigrant granted entry for urgent humanitarian

15

reasons (a “humanitarian parolee”), who has two U.S. citizen children and

16

files for permanent residency. If for just four months in the past three years

17

she received Medicaid coverage, food stamps, and Section 8 housing

18

assistance in any amounts, it could trigger a public charge determination

19

and denial of her green card application because each separate benefit

20

would count as an extra month towards the Rule’s 12-month threshold.

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

7

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.15 Page 15 of 176

1

16. The Administration, unable to implement its restrictive immigration

2 agenda through legislation, now attempts to implement its agenda through an

3 administrative overhaul of immigration policy that cannot be squared with the

4 terms of statutes duly enacted by Congress or with the United States Constitution.

5 To avert irreparable injury to the Plaintiff States and their residents, the Plaintiff

6 States bring this suit to vacate and set aside the Public Charge Rule.2

7

II. JURISDICTION AND VENUE

8

17. This Court has personal jurisdiction over the Defendants pursuant to

9 28 U.S.C. § 1391(e) because Defendants are agencies and officers of the United

10 States.

11

18. This Court has jurisdiction over the subject matter of this lawsuit

12 pursuant to 28 U.S.C. § 1331 because this action arises under federal law.

13

19. Defendants’ publication of the Final Rule in the Federal Register on

14 August 14, 2019, constitutes a final agency action and is therefore judicially

15 reviewable within the meaning of the APA, 5 U.S.C. §§ 704, 706.

16

20. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(a)

17 because this is a judicial district in which Plaintiff State of Washington resides,

18 the Rule will adversely affect the health and welfare of residents in this district,

19

20

2 This Complaint uses the terms “immigrant” and “noncitizen”

21 interchangeably to refer to a foreign national living in the United States, while

22 the Rule generally refers to these individuals as “aliens.”

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

8

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.16 Page 16 of 176

1 and the finances of the State, and this action seeks relief against federal agencies

2 and officials acting in their official capacities.

3

III. PARTIES

4

21. The States of Washington, Colorado, Delaware, Illinois, Maryland,

5 Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, and Attorney

6 General Dana Nessel on behalf of the People of Michigan, and the

7 Commonwealths of Virginia and Massachusetts, represented by and through their

8 respective Attorneys General, are sovereign states of the United States of

9 America.

10

22. Bob Ferguson is the chief legal adviser to the State of Washington.

11 His powers and duties include acting in federal court on behalf of the State on

12 matters of public concern.

13

23. Mark Herring is the chief legal adviser to the Commonwealth of

14 Virginia. His powers and duties include acting in federal court on behalf of the

15 State on matters of public concern.

16

24. Phil Weiser is the chief legal adviser to the State of Colorado. His

17 powers and duties include acting in federal court on behalf of the State on matters

18 of public concern.

19

25. Kathleen Jennings is the chief legal adviser to the State of Delaware.

20 Her powers and duties include acting in federal court on behalf of the State on

21 matters of public concern.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

9

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.17 Page 17 of 176

1

26. Kwame Raoul is the chief legal adviser to the State of Illinois. His

2 powers and duties include acting in federal court on behalf of the State on matters

3 of public concern.

4

27. Plaintiff State of Maryland is a sovereign state of the United States

5 of America. Maryland is represented by and through its chief legal officer,

6 Attorney General Brian Frosh. Under the Constitution of Maryland, and as

7 directed by the Maryland General Assembly, the Attorney General has the

8 authority to file suit to challenge action by the federal government that threatens

9 the public interest and welfare of Maryland residents.

10

28. Maura Healey is the chief legal adviser to the Commonwealth of

11 Massachusetts. Her powers and duties include acting in federal court on behalf

12 of the State on matters of public concern.

13

29. Dana Nessel is Michigan’s chief law enforcement officer. Her

14 powers and duties include acting in federal court on behalf of the people of the

15 State of Michigan on matters of public concern.

16

30. Keith Ellison is the chief legal adviser to the State of Minnesota. His

17 powers and duties include acting in federal court on behalf of the State on matters

18 of public concern.

19

31. Aaron D. Ford is the chief legal adviser to the State of Nevada. His

20 powers and duties include acting in federal court on behalf of the State on matters

21 of public concern.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

10

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.18 Page 18 of 176

1

32. Gurbir Singh Grewal is the chief legal adviser to the State of New

2 Jersey. His powers and duties include acting in federal court on behalf of the State

3 on matters of public concern.

4

33. Hector Balderas is the chief legal adviser to the State of New

5 Mexico. His powers and duties include acting in federal court on behalf of the

6 State on matters of public concern.

7

34. Peter F. Neronha is the chief legal adviser to the State of Rhode

8 Island. His powers and duties include acting in federal court on behalf of the State

9 on matters of public concern.

10

35. The Plaintiff States bring this action to redress harms to their

11 sovereign, proprietary, and quasi-sovereign interests and their interests as parens

12 patriae in protecting the health and well-being of their residents. The Plaintiff

13 States are affected by the Public Charge Rule, are directly injured by it, and the

14 relief requested will redress their injuries.3

15

36. The power to create and enforce a legal code is a uniquely sovereign

16 interest. The Plaintiff States have adopted health care programs as parts of their

17 legal codes that operate to improve and protect the health of their residents. These

18 include cooperative federal-state programs such as Medicaid, which Congress

19 has given them substantial financial incentives to establish and administer. The

20 success and effectiveness of the Plaintiff States’ legislative health care programs

21

22

3 A copy of the Final Rule is attached as Exhibit A.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

11

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.19 Page 19 of 176

1 will be significantly undercut by the Rule. The Plaintiff States’ sovereign

2 interests in enforcing their statutory codes and achieving their purposes are

3 harmed by Defendants’ challenged action.

4

37. As a proprietor, a state is likely to have the same interests as other

5 similarly situated proprietors. The Plaintiff States have created and operate

6 programs and institutions to promote and ensure the health, housing stability,

7 nutrition and well-being of their residents. The success and effectiveness of these

8 facilities will be harmed by the Rule. The Plaintiff States’ proprietary and

9 financial interests in programs and institutions they paid for with state taxpayer

10 funds, and which are managed by their employees and subcontractors are injured

11 by the Rule.

12

38. A state has a quasi-sovereign interest in the health and

13 well-being—both physical and economic—of its residents in general. The

14 Plaintiff States’ have a quasi-sovereign interest in protecting the health, safety,

15 and well-being of their residents. The Final Rule dissuades state residents from

16 utilizing the benefits of the Plaintiff States’ benefits programs. It therefore

17 jeopardizes the health, housing, nutrition, and well-being of their residents,

18 citizen and noncitizen alike.

19

39. The Plaintiff States and their residents will suffer significant and

20 irreparable harm if the Final Rule goes into effect.

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

12

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.20 Page 20 of 176

1

40. Defendant DHS is an executive agency with responsibility for

2 administering federal immigration laws.

3

41. Defendant Kevin K. McAleenan is the Acting Secretary of DHS. He

4 is sued in his official capacity.

5

42. Defendant USCIS is a component agency of DHS. Since

6 March 1, 2003, USCIS has had primary responsibility for the immigration

7 service functions of the federal government, including the administration of

8 applications by foreign nationals in the United States for adjustment of status to

9 lawful permanent residency, immigrant and nonimmigrant visas, change of status

10 to a different visa category, or extension of stay.

11

43. Kenneth T. Cuccinelli II is the Acting Director of USCIS. He is sued

12 in his official capacity.4

13

IV. HISTORY OF THE PUBLIC CHARGE EXCLUSION

14

44. The term “public charge” has an established meaning in American

15 law that dates back to the 17th century. Since its origin in colonial residency

16

17

4 Challenges have been raised to the propriety of Cuccinelli’s appointment

18 to this position. Joel Rose, Trump Administration Taps Hard-Liner Cuccinelli

19 For Top Immigration Job, Nat’l Pub. Radio Jun. 10, 2019 (“Legal experts say

20 that [allowing] Cuccinelli to serve as acting director . . . would violate the spirit

21 of the [Federal Vacancies Reform Act], according to Anne Joseph O’Connell, an

22 expert on administrative law at Stanford Law School.”).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.21 Page 21 of 176

1 requirements and through its reception into state and then federal immigration

2 laws, a “public charge” has consistently meant a person primarily dependent on

3 the government for subsistence. The Department’s Final Rule disregards that

4 unambiguous, centuries-old definition.

5 A. Origins of Public Charge Exclusion in Colonial, State, and Federal Statutes
6 45. As early as the 1650s, the American colonies adopted “poor” laws
7 requiring each town to recognize its permanent residents’ claims for relief if they
8 became destitute.5 Based on English models, colonial poor laws made the local
9 governments responsible for supporting its poor residents, for whom the towns
10 cared generously.6 At the same time, however, such laws permitted towns to
11 expel transient beggars or vagrants as “public charges.”7
12

13

14

15

5 Historians’ Cmt. at 2, DHS Notice of Proposed Rule “Inadmissibility on

16 Public Charge Grounds,” FR 2018-21106 (Oct. 5, 2018) (Historians’ Cmt.);

17 Gerald L. Neuman, The Lost Century of American Immigration Law

18 (1776-1875), 93 Colum. L. Rev. 1833, 1846 (1993).

19

6 Minor Myers III, A Redistributive Role for Local Government, 36 Urb.

20 Law. 753, 773 (2004).

21

7 Historians’ Cmt. at 2; Shapiro v. Thompson, 394 U.S. 618, 628

22 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

14

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.22 Page 22 of 176

1

46. After the American Revolution, state governments came to play a

2 greater role in administration of relief for the poor. When a person without a town

3 “settlement” (or recognized residency right) fell into extreme need, he became a

4 charge of the state or a “state pauper,” as distinguished from a “town pauper.”8

5 In each case, in its original public meaning, “public charge” was synonymous

6 with “pauper.”

7

47. State measures against immigration of “foreign paupers” developed

8 alongside the state poor laws of the early Republic. As European migration to the

9 United States grew in the early 19th century, states enacted or expanded laws to

10 “prevent the introduction of [p]aupers” at ports of entry as “liable to become

11 chargeable,” i.e., public charges.9 For example, a New York statute prohibited

12 landing of “any lunatic, idiot, deaf and dumb, blind or infirm persons . . . likely

13 to become permanently a public charge.”10 Under that law and similar ones in

14

15 (1974) (“Newcomers to a city, town, or county who might become public charges

16 were ‘warned out’ or ‘passed on’ to the next locality.”).

17

8 Kunal M. Parker, State, Citizenship, and Territory: The Legal

18 Construction of Immigrants in Antebellum Massachusetts, 19 L. & Hist. Rev.

19 583, 591 (2001).

20

9 Act of Feb. 25, 1820, ch. 290, 1820 Mass. Laws 428.

21

10 Annual Reps. of the Comm’rs of Emigration of the State of New York,

22 May 5, 1847, to 1860, 1851 Ch. 105, at 339. (Boston: Dutton and Wentworth,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

15

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.23 Page 23 of 176

1 other states, vessel captains were required to post bond or pay a fee to indemnify

2 the state in the event foreign passengers were to become public charges.11 Again,

3 these state immigration statutes used the terms “paupers” and “public charges”

4 interchangeably and in the “legal, technical sense” as persons “unable to maintain

5 themselves,” and not “merely” those who temporarily had “no visible means of

6 support.”12 “Public charge” thus referred to people unlikely to ever become

7 self-sufficient.

8

48. Eventually, the U.S. Supreme Court struck down such state statutes

9 under the Commerce Clause, ushering in the end of the era of state immigration

10

11 1951) (emphasis added); Act of Mar. 20, 1850, ch. 105, § 1, 1850 Mass. Acts &

12 Resolves 338, 339 (“a pauper, lunatic, or idiot, or maimed, aged, infirm or

13 destitute, or incompetent to take care of himself or herself without becoming

14 a public charge as a pauper”).

15

11 Historians’ Cmt. at 2; Gerald L. Neuman, The Lost Century of American

16 Immigration Law (1776-1875), 93 Colum. L. Rev. 1833, 1849–51, 1901 & n.151

17 (1993); State, Citizenship, and Territory: The Legal Construction of Immigrants

18 in Antebellum Massachusetts, 19 Law & Hist. Rev. 583, 624 (2001); Act of

19 June 1847, 1847 R.I. Acts 27; R.I. Rev. Stat. ch. 51, §§ 5-8 (1857); Act of

20 June 27, 1820, ch. 26, 1820 Me. Laws 35; Act of Mar. 22, 1838, ch. 339, 1838

21 Me. Pub. Acts 497.

22

12 City of Boston v. Capen, 61 Mass. 116, 121–22 (1851).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

16

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.24 Page 24 of 176

1 laws.13 In their place, Congress enacted the Immigration Act of 1882, which

2 borrowed from state laws in erecting a public charge ground of inadmissibility.14

3 The Act prohibited the landing of “any convict, lunatic, idiot, or any other person

4 unable to take care of himself . . . without becoming a public charge.”15

5 Consistent with the plain text and historical context, the legislative history

6 confirms that “public charges” were those living in “poor-houses and

7 alms-houses.”16 Indeed, in 1891, Congress amended the exclusion to preclude

8 admission of “idiots, insane persons, paupers or persons likely to become a public

9 charge.”17

10 B. Early Administrative and Judicial Precedent on Public Charge

11

49. Judicial and administrative decisions applying the federal public

12 charge ground of inadmissibility interpreted the statute consistently with the

13 original public meaning of the term “public charge,” namely, as a person

14 primarily and permanently dependent on the state for subsistence.

15

16

17

13 See, e.g., Passenger Cases, 48 U.S. (7 How.) 283 (1849); Henderson v.

18 Mayor of New York, 92 U.S. 259, 274 (1875).

19

14 22 Stat. 214 (1882).

20

15 Id.

21

16 13 Cong. Rec. 5109 (statement of Sen. Voorhis).

22

17 26 Stat. 1084, 1084 (1891) (emphasis added).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

17

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.25 Page 25 of 176

1

50. For example, in Gegiow v. Uhl, the U.S. Supreme Court read “public

2 charge” consistent with the surrounding statutory categories of exclusions,

3 including “paupers and professional beggars, . . . idiots,” and “persons

4 dangerously diseased [or suffering from] . . . a physical defect of a nature to affect

5 their ability to earn a living.”18 In a decision by Justice Holmes, the Court thus

6 held that a public charge is excludable only “on the ground of permanent personal

7 objections accompanying them.”19 Likewise, an early Second Circuit case held

8 that the public charge category only “exclude[s] persons who were likely to

9 become occupants of almshouses.”20 Following those precedents, federal courts

10 in the first half of the 20th century consistently interpreted “public charge” as

11 “generically similar to ‘paupers,’ . . . ‘professional beggars,’ [and] . . . ‘occupants

12 of almshouses.’ ”21 In the context of the public charge deportability provision,

13 one court defined “public charge” even more narrowly to mean “a person

14 committed to the custody of a department of the government by due course of

15

16

18 239 U.S. 3, 9–10 (1915).

17

19 Gegiow, 239 U.S. at 10 (emphasis added).

18

20 Howe v. United States ex rel. Savitsky, 247 F. 292, 294 (2d Cir. 1917).

19

21 Ex parte Mitchell, 256 F. 229, 233 (N.D.N.Y. 1919); see also United

20 States v. Williams, 175 F. 274, 275 (S.D.N.Y. 1910) (L. Hand, J.) (noting that

21 “the primary meaning of the words, [‘likely to become a public charge’]” was

22 probably “likelihood of . . . becoming a pauper”).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

18

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.26 Page 26 of 176

1 law.”22 These cases reaffirmed the understanding of “public charge” as a person

2 permanently and primarily dependent on government for survival.

3

51. Federal agencies charged with enforcing immigration laws also

4 interpreted the public charge ground of inadmissibility in accordance with the

5 settled meaning of the term. For example, in 1917, the Bureau of Immigration

6 ruled that “moral perverts” were not “public charges” under the immigration

7 laws, absent tangible proof of pauper status.23

8 C. Modern Regulatory Framework

9

52. It was against the foregoing legal backdrop that Congress enacted

10 the Immigration and Nationality Act of 1952 (INA),24 which codified the current

11 public charge ground of inadmissibility. In reenacting the federal public charge

12 exclusion—which itself borrowed from earlier state laws—Congress adopted the

13 settled understanding of public charge and ratified the judicial precedents

14

15

16

22 Ex parte Tsunetaro Machida, 277 F. 239, 241 (W.D. Wash. 1921).

17

23 See Parthenios Colones, Bureau of Immigr., U.S. Dep’t of Labor, INS

18 File No. 54134/62, Accession 60A600, Box 869, Records of the INS, cited in

19 William N. Eskridge, Jr., Law and the Construction of the Closet: American

20 Regulation of Same-Sex Intimacy, 1880-1946, 82 Iowa L. Rev. 1007, 1134

21 (1997).

22

24 Pub L. 82–414, 66 Stat. 163.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

19

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.27 Page 27 of 176

1 interpreting the term.25 In the 70 years since the INA’s enactment, numerous

2 statutes and administrative decisions have comported with and confirmed the

3 settled meaning of public charge as a person permanently and primarily

4 dependent on government for survival.

5

1. Immigration and Nationality Act of 1952

6

53. The INA overhauled federal immigration law, unifying previously

7 scattered sections and adding new provisions in a statutory framework that exists

8 to this day.26 Overriding President Truman’s veto, Congress declared its power

9 to “provide for the elimination of undesirable aliens” and set forth numerous new

10 categories of inadmissibility, including “anarchists,” “Communist[s],” or

11 “affiliated with . . . any . . . totalitarian party.”27

12

54. The INA also reenacted the public charge exclusion that had been

13 part of federal immigration law since 1882. Section 212(a) excluded from

14 admission into the United States “[a]liens who, in the opinion of the consular

15 officer at the time of application for a visa, or in the opinion of the Attorney

16

17

18

19

25 Bragdon v. Abbott, 524 U.S. 624, 645 (1998); Lorillard v. Pons,

20 434 U.S. 575, 580 (1978).

21

26 Act of June 27, 1952, 66 Stat. 163, codified as amended at Title 8 U.S.C.

22

27 66 Stat. 184, § 212(a)(28).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.28 Page 28 of 176

1 General at the time of application for admission, are likely at any time to become

2 public charges.”28

3

55. In applying the modern public charge exclusion, federal

4 immigration authorities considered the “totality of the alien’s circumstances,”29

5 including “economic factors” and “the alien’s physical and mental condition, as

6 it affects ability to earn a living.”30 The Board of Immigration Appeals (BIA)

7 held specifically that “[t]he fact that an alien has been on welfare does not, by

8 itself, establish that he or she is likely to become a public charge.”31 And in the

9 government’s appeal from a BIA decision overturning a public charge

10 determination, Attorney General Robert F. Kennedy affirmed, noting that the

11

12

13

28 66 Stat. 183, § 212(a)(15).

14

29 In re Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (citing Foreign Affairs

15 Manual, Part III, Vol. 9, Note 1 to 22 CFR 42.91(a)(15)).

16

30 In re Harutunian, 14 I. & N. Dec. 583, 588 (BIA 1974); see also

17 Adjustment of Status for Certain Aliens, 53 Fed. Reg. 43986-01, 43996 (1988)

18 (“In determining whether an alien is ‘likely to become a public charge’ financial

19 responsibility of the alien is to be established by examining the totality of the

20 alien’s circumstances at the time of his or her application for legalization.”),

21 codified at 8 C.F.R. § 245a.3(g)(4)(i).

22

31 In re Perez, 15 I. & N. Dec. at 137.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.29 Page 29 of 176

1 INA “requires more than a showing of a possibility that the alien will require

2 public support.”32

3

56. In 1989, DOJ issued a final rule establishing guidelines for public

4 charge determinations in various contexts, including adjustment to lawful

5 permanent resident status.33 In such determinations, the “financial responsibility

6 of the alien is to be established by examining the totality of the alien’s

7 circumstances at the time of his or her application,” and the “existence or absence

8 of a particular factor should never be the sole criteria for determining if an alien

9 is likely to become a public charge.”34 The determination “should be a

10 prospective evaluation based on the alien’s age, health, income, and vocation.”35

11 And even where an immigrant’s “income may be below the poverty level,” he is

12 “not excludable” as a public charge if he “has a consistent employment history

13 which shows the ability to support himself.”36 Though a noncitizen’s past

14 acceptance of “public cash assistance” may “enter into this decision,” the 1989

15

16

32 In re Martinez-Lopez, 10 I. & N. Dec. 409, 421 (A.G. 1962).

17

33 U.S. Dep’t of Justice, Final Rule: Adjustment of Status for Certain

18 Aliens, 54 FR 29442-01 (July 12, 1989), codified in relevant part at 8 C.F.R.

19 §§ 245a.2(k)(4), 245a.3(g)(4)(iii), 245a.4(b)(1)(iv)(C)

20

34 8 C.F.R. § 245a.3(g)(4)(i).

21

35 Id.

22

36 Id. § 245a.3(g)(4)(iii).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.30 Page 30 of 176

1 DOJ rule does not provide for consideration of non-cash public benefits.37 This

2 rule reaffirmed the understanding of a public charge as a person permanently and

3 primarily dependent on government for survival: a person unlikely to ever

4 become self-sufficient.

5

2. Current public charge legal framework

6

57. Congress amended the INA in 1990 to drop the “paupers,

7 professional beggars, or vagrants” exclusions, but retained the public-charge

8 inadmissibility ground.38 The ranking member of the House Judiciary

9 Committee, Representative Hamilton Fish IV (R-NY), explained that in

10 eliminating the “paupers, professional beggars, or vagrants” inadmissibility

11 ground, Congress was replacing an “antiquated” exclusion with “one generic

12 standard which exclude[s] aliens who are ‘likely to become a public charge.’ ”39

13

58. That provision, INA Section 212(a)(4), is one of two public charge

14 provisions in the INA. In its current form, Section 212(a)(4) provides that “[a]ny

15 alien who, . . . in the opinion of the [Secretary of DHS] at the time of application

16 for admission or adjustment of status, is likely at any time to become a public

17

18

19

37 Id.

20

38 See Immigration Act of 1990, Pub. L. No. 101-649, § 601(a)(4), 104

21 Stat. 4978, 5072 (codified as amended at 8 U.S.C. § 1182).

22

39 136 Cong. Rec. 36,844 (1990).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

23

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 charge is inadmissible.”40 Under the INA, an application for “adjustment of

2 status” means an application for lawful permanent residency (i.e., a green card).41

3 USCIS is the agency within DHS that processes applications from foreign

4 nationals in the United States—including those with immigrant visas and those

5 with temporary nonimmigrant visas (such as for business or tourism)—for

6 adjustment of status to lawful permanent residency.42

7

59. The same INA provision also provides that “[a]ny alien who, in the

8 opinion of the consular officer at the time of application for a visa . . . is likely at

9 any time to become a public charge is inadmissible.”43 This public charge

10 exclusion is administered by U.S. embassies and consulates abroad, which

11

12

13

40 Immigration and Nationality Act of 1952, Pub L. 82–414, 66 Stat. 163.,

14 § 212(a)(4), codified as amended at 8 U.S.C. §1182(a)(4). The text of Section

15 212(a)(4) refers to the “Attorney General,” but pursuant to Congress’s transfer of

16 adjudicatory functions of the former Immigration and Naturalization Service

17 (INS) to DHS, see 6 U.S.C. § 271(b)(5), the reference is “deemed to refer to the

18 Secretary” of Homeland Security.

19

41 See, e.g., 8 U.S.C. §§ 1255(a), 1101(a)(20).

20

42 See 6 U.S.C.A. § 271 (establishing USCIS under former name).

21

43 Immigration and Nationality Act of 1952, Pub L. 82–414, 66 Stat. 163.,

22 § 212(a)(4), codified as amended at 8 U.S.C. §1182(a)(4).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.32 Page 32 of 176

1 process visa applications by foreign nationals outside the Untied States.44

2 Although the Secretary of State may “direct a consular officer to refuse a visa,”45

3 the Homeland Security Act of 2002 vests the DHS Secretary “exclusively with

4 all authorities to issue regulations . . . relating to the functions of consular

5 officers . . . in connection with the granting or refusal of visas.”46

6

60. A separate section of the INA, Section 237(a)(5), provides that

7 “[a]ny alien who, within five years after the date of entry, has become a public

8 charge from causes not affirmatively shown to have arisen since entry is

9 deportable.”47 DOJ enforces this public charge provision under its authority to

10 adjudicate immigration cases, including removal proceedings.48 DOJ is currently

11 preparing a proposed public charge rule to “more closely conform [its]

12 regulations with the DHS public charge rule” challenged here.49 The Plaintiff

13 States do not now challenge DOJ’s forthcoming rule.

14

15

44 See 8 U.S.C. § 1201(a) (authorizing consular officers to issue immigrant

16 and nonimmigrant visas); 9 FAM 302.8.

17

45 6 U.S.C. § 236(c)(1).

18

46 Id.

19

47 8 U.S.C. § 1227(a)(5).

20

48 See 8 U.S.C. § 1103(g).

21

49 Inadmissibility on Public Charge Grounds, RIN 1125-AA84, Spring

22 2019 Spring Regulatory Agenda, Office of Information and Regulatory Affairs,

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25

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.33 Page 33 of 176

1

3. Illegal Immigration Reform and Immigrant Responsibility Act

of 1996

2 61. Section 212(a)(4)’s public charge exclusion has remained largely

3 identical throughout Congress’s many reenactments of the INA. The single

4 material revision came in the Illegal Immigration Reform and Immigrant

5 Responsibility Act of 1996 (Immigration Reform Act), when Congress codified

6 the BIA’s long-applied totality of circumstances test.50 Amending the INA, the

7 Immigration Reform Act set forth five factors that must be considered “at

8 minimum” to determine whether an alien is likely to become a public charge:

9 (1) age; (2) health; (3) family status; (4) assets, resources, and financial status;

10 and (5) education and skills.51 Congress also authorized consular and

11 immigration officers to consider any “affidavit of support” furnished on behalf

12 of an applicant and provide that certain family-sponsored and employment-based

13 immigrants are inadmissible without such affidavits.52

14 62. The Immigration Reform Act is also important for what Congress

15 did not do. The version of the law adopted by the House would have redefined

16

17 Office of Management and Budget, https://www.reginfo.gov/public/do/eAgenda

18 ViewRule?pubId=201904&RIN=1125-AA84 (last visited Aug. 2, 2019).

19

50 Pub. L. 104-208, Div. C, 110 Stat. 3009, Sec. 531(a)(4)(B), codified as

20 amended at 8 U.S.C. § 1182.

21

51 8 U.S.C. § 1182(a)(4)(B)(i).

22

52 8 U.S.C. §§ 1182(a)(4)(B)(ii), 1183a.

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26

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.34 Page 34 of 176

1 “public charge” for deportability purposes in a manner strikingly similar to the

2 Department’s new Rule. The unenacted bill defined “public charge” to “include[]

3 any alien who receives [means-tested public] benefits for an aggregate period of

4 at least 12 months.”53 That public charge definition was stricken from the bill

5 adopted by the full Congress and signed by the President.54

6

63. At no point did Congress ever indicate that it intended to alter the

7 long-settled meaning of the term, “public charge.” Other than the codification of

8 the totality of circumstances test, the INA has retained nearly identical language

9 throughout its many amendments (the most recent in 2013).

10

4. Personal Responsibility and Work Opportunity Act of 1996

11

64. The same year it enacted the Immigration Reform Act, Congress

12 enacted the Personal Responsibility and Work Opportunity Reconciliation Act of

13 1996 (Welfare Reform Act).55 Before 1996, lawfully present immigrants were

14 generally eligible for public benefits on similar terms as U.S. citizens, provided

15 they met the same means-tested eligibility criteria. The Welfare Reform Act

16 significantly altered that general rule, classifying immigrants into two general

17 categories: “qualified” and “non-qualified.”56 Qualified immigrants include

18

19

53 H.R. Rep. No. 104-828, at 138 (1996) (Conf. Rep.).

20

54 Pub. L. 104-208, Div. C, 110 Stat. 3009.

21

55 Pub. L. 104-193, 110 Stat. 2105.

22

56 8 U.S.C. § 1641(b).

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 lawful permanent residents, refugees, asylees, humanitarian parolees, Cuban and

2 Haitian entrants, noncitizens granted withholding of deportation or conditional

3 entry, and certain victims of battery or extreme cruelty by a spouse or other family

4 member.57 All other immigrants, regardless of their legal status, are non-qualified

5 under the Welfare Reform Act. With certain exceptions, non-qualified

6 immigrants are ineligible for federal public benefits.58

7

65. Qualified immigrants, however, generally may be eligible for

8 “federal means-tested public benefits” after five years of entry to the United

9 States.59 Such benefits include Medicaid, TANF, and State Child Health

10 Insurance Program (CHIP), and, with further limitations, food stamp benefits

11 under the Supplemental Nutrition Assistance Program (SNAP) and Supplemental

12 Security Income (SSI).60 For certain “designated federal programs” (namely,

13 TANF, social services block grants, and Medicaid), a “State is authorized to

14 determine the eligibility of” qualified immigrants.61

15

16

17

57 8 U.S.C. § 1641(b)–(c).

18

58 8 U.S.C. § 1611(a).

19

59 8 U.S.C. § 1613(a); Pimentel v. Dreyfus, 670 F.3d 1096, 1100 (9th Cir.

20 2012) (per curiam).

21

60 8 U.S.C. §§ 1611(c), 1612(b)(1).

22

61 8 U.S.C. § 1612(b)(1).

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

66. State and local public benefits are less restricted under the Welfare

2 Reform Act. Not only qualified immigrants, but also temporary, nonimmigrant

3 visitors, are eligible for state and local public benefits.62 The Welfare Reform Act

4 expressly authorizes each state to determine the eligibility for any state public

5 benefits of any qualified alien or nonimmigrant.63 In addition, a state may provide

6 by statute that “an alien who is not lawfully present in the United States is eligible

7 for any State or local public benefit.”64

8

67. In the wake of the Welfare Reform and Immigration Reform Acts,

9 “public confusion” emerged concerning the relationship between receipt of

10 federal, state, or local benefits and the public charge provisions of federal

11 immigration law.65 According to the U.S. Department of State, “such confusion

12 led many persons in the immigrant community to choose not to sign up for

13 important benefits, especially health-related benefits, which they were eligible to

14

15

16

17

18

62 8 U.S.C. §§ 1621(a), 1622(a).

19

63 8 U.S.C. § 1622(a).

20

64 8 U.S.C. § 1621(d).

21

65 Field Guidance on Deportability and Inadmissibility on Public Charge

22 Grounds, 64 Fed. Reg. 28689-01, 28,689 (May 26, 1999) (Field Guidance).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

29

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.37 Page 37 of 176

1 receive” out of “concern[s] it would affect their or a family member’s

2 immigration status.”66

3

5. Agency guidance

4

68. To alleviate public confusion, the Immigration and Naturalization

5 Service (INS) issued a memorandum (Field Guidance) providing “new guidance

6 on public charge determinations in light of the recent changes in law.”67 The Field

7 Guidance defined a “public charge” as an immigrant who is “primarily dependent

8

9

66 U.S. State Department Cable, INA 212(A)(4) Public Charge: Policy

10 Guidance, Ref: 9 FAM 40.41 (hereinafter State Department cable).

11

67 64 Fed. Reg. 28,690. On the same day it issued the Field Guidance, DOJ

12 also published a proposed rule adding further gloss to the public charge

13 definition. See Inadmissibility and Deportability on Public Charge Grounds,

14 64 Fed. Reg. 28,676 (May 26, 1999). That proposed rule observed that the

15 “primary dependence model of public assistance was the backdrop against which

16 the ‘public charge’ concept in immigration law developed in the late 1800s,” and

17 “[h]istorically, individuals who became dependent on the Government were

18 institutionalized in asylums or placed in ‘almshouses’ . . . long before the array

19 of limited-purpose public benefits now available existed.” Id. at 28,677.

20 Although DOJ never published a final public charge rule, the Field Guidance’s

21 public charge definition and policies were “adopt[ed] . . . immediately” and have

22 guided DOJ—and, later, DHS—policy ever since.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

30

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 on the government for subsistence, as demonstrated by either (i) the receipt of

2 public cash assistance for income maintenance or (ii) institutionalization for

3 long-term care at government expense.”68

4

69. That definition was not a product of INS’s administrative discretion,

5 but rather a direct application of the traditional, established meaning of the term

6 “public charge.” As INS explained in a separate regulation it proposed alongside

7 the Field Guidance, it based its definition on “the plain meaning of the word

8 ‘charge’” and “the historical context of public dependency when the public

9 charge immigration provisions were first adopted more than a century ago.”69

10 The ordinary meaning of the word “charge,” as used in the INA, is “a person or

11 thing committed or entrusted to the care, custody, management, or support of

12 another”—in the case of a public charge, to the government.70 Because a person

13 who receives only supplemental public assistance is not “committed” to the

14 government’s “care” or “custody,” INS concluded that the term “public charge”

15 encompasses only instances of “complete, or nearly complete, dependence on the

16 Government rather than the mere receipt of some lesser level of financial

17

18

19

68 64 Fed. Reg. at 28,689.

20

69 Inadmissibility and Deportability on Public Charge Grounds, 64 Fed.

21 Reg. 28,676, 28,677 (May 26, 1999).

22

70 Id. (quoting Webster’s Third New International Dictionary 337 (1986)).

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 support.”71 Although INS never published a final public charge rule, the

2 Field Guidance’s public charge definition and policies were

3 “adopt[ed] . . . immediately” and have guided DOJ—and, later, DHS—policy

4 ever since.72

5

70. The Field Guidance instructed that consular and immigration

6 “officers should not place any weight on the receipt of non-cash public benefits”

7 other than long-term institutionalization.73 INS explained that because “non-cash

8 benefits . . . are by their nature supplemental and do not, alone or in combination,

9 provide sufficient resources to support an individual or family,” participation in

10 such programs “is not evidence of poverty or dependence.”74 Among the list of

11 benefits that should not be considered for public-charge purposes, the Field

12 Guidance expressly listed “Medicaid and other health insurance and health

13 services,” CHIP, “[n]utrition programs,” and [h]ousing benefits.”75 Finally, the

14 Field Guidance made clear that it was designed to address “adverse impact . . . on

15 public health and the general welfare” caused by confusion over the public charge

16 standard—namely, that it had “deterred eligible aliens and their families,

17

18

71 Id.

19

72 64 Fed. Reg. at 28,689.

20

73 64 Fed. Reg. at 28,689.

21

74 Id. at 26,692–93.

22

75 64 Fed. Reg. at 28,693.

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 including U.S. citizen children, from seeking important health and nutrition

2 benefits that they are legally entitled to receive.”76

3

71. In sum, the Field Guidance embraced the traditional understanding

4 of a public charge as a person permanently and primarily dependent on

5 government for subsistence. That definition has guided the government’s

6 application of federal immigration law’s public charge provisions for 20

7 years—since the end of the Clinton Administration, and through the entire

8 George W. Bush and Obama Administrations, and even through the

9 reorganization of the agencies responsible for enforcing the INA.

10

72. In 2009, DOJ issued a Public Charge Fact Sheet (DOJ Fact Sheet),

11 which confirmed the Field Guidance’s definition of “public charge” to mean “an

12 individual who is likely to become ‘primarily dependent on the government for

13 subsistence.’ ”77 The DOJ Fact sheet reiterated that “a number of factors must be

14 considered,” in the public charge determination, “including age, health, family

15 status, assets, resources, financial status, education, and skills.”78 It also made

16

17

18

76 64 Fed. Reg. at 28,692.

19

77 U.S. Dep’t of Justice, Public Charge Fact Sheet, 2009 WL 3453730

20 (Oct. 29, 2011) (quoting “Field Guidance on Deportability and Inadmissibility

21 on Public Charge Grounds,” 64 Fed. Reg. 28689 (May 26, 1999)).

22

78 Id.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.41 Page 41 of 176

1 clear that “[n]o single factor—other than the lack of an affidavit of support, if

2 required—will determine whether an individual is a public charge.”79

3

73. The DOJ Fact Sheet echoed the Field Guidance rule that a public

4 charge determination may not be based on “non-cash benefits and

5 special-purpose cash benefits that are not intended for income maintenance.”

6 Further reflecting the understanding of a public charge as someone permanently

7 and primarily dependent on government for survival, the DOJ Fact Sheet

8 specifically identified the following public benefit programs as irrelevant to a

9 public charge determination:

10

• Medicaid and other health insurance and health services other

11

than support for long-term institutional care;

12

• Nutrition programs, including SNAP, the Special

13

Supplemental Nutrition Program for Women, Infants and Children (WIC),

14

the National School Lunch and School Breakfast Program, and other

15

supplementary and emergency food assistance programs;

16

• Housing benefits;

17

• Child care services;

18

• Job training programs; and

19

• Non-cash benefits under TANF such as subsidized child care

20

or transit subsidies.

21

22

79 Id.

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

74. The DOJ Fact Sheet further provided that while acceptance of “cash

2 assistance for income maintenance”—including SSI, TANF, or local cash general

3 assistance programs—could be considered in the public charge determination,

4 “the mere receipt of these benefits does not automatically make an individual

5 inadmissible” or “ineligible to adjust status to lawful permanent resident.”

6 Rather, “each determination is made on a case-by-case basis in the context of the

7 totality of the circumstances.”

8

75. In 2011, USCIS issued its own Public Charge Fact Sheet (USCIS

9 Fact Sheet) which affirmed that many common public benefits are not considered

10 in making a public charge inadmissibility determination.80 Those benefits

11 included Medicaid and other health insurance and health services assistance

12 (other than support for long-term care); CHIP; nutrition programs, such as food

13 stamps; housing benefits; child care services; energy assistance; emergency

14 disaster relief; foster care and adoption assistance; educational assistance; job

15 training programs; non-cash benefits under TANF; community-based programs

16 or services; and unemployment compensation.

17

76. Although the USCIS Fact Sheet explained certain cash assistance

18 programs could be considered in a public charge determination, receiving such

19 benefits could not, in and of itself, render an immigrant inadmissible on public

20 charge grounds. Rather, every public charge determination, USCIS confirmed,

21

22

80 Public Charge Fact Sheet, USCIS., Apr. 29, 2011.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.43 Page 43 of 176

1 must be made on a case-by-case basis in light of all of the available evidence,

2 considering the totality of the immigrant’s circumstances.

3

77. In sum, from the colonial era through 115 Congresses and 44

4 presidential administrations, American law uniformly interpreted and applied the

5 term “public charge” to mean a “pauper” or a person permanently and “primarily

6 dependent on the government for subsistence.” Specifically, federal agencies

7 reached consensus that an immigrant’s past receipt of non-cash public

8 benefits—such as health, nutrition, or housing assistance, all of which bolster

9 overall public health and economic growth—should not be considered for

10 purposes of the public charge exclusion. The Department’s Public Charge Rule

11 rejects that consensus, defying the original meaning of public charge and

12 substituting its own definition and criteria that cannot be reconciled with statutory

13 text, history, or precedent.

14

V. THE DEPARTMENT’S PUBLIC CHARGE RULE

15

78. During the 2016 campaign, President Trump ran on a platform to

16 radically transform U.S. immigration policy.

17

79. Having failed to secure passage of any immigration legislation, the

18 Trump Administration promulgated the Public Charge Rule to circumvent

19 Congress and implement the President’s anti-immigration agenda through the

20 regulatory backdoor. In issuing the Rule, the Department ignored hundreds of

21 thousands of public comments warning of its significant costs to working

22

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36

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.44 Page 44 of 176

1 families, children, patients, health care providers, American businesses, state and

2 local governments, and others, while failing to identify any tangible benefit the

3 Rule may conceivably produce.

4 A. The Trump Administration’s Anti-Immigration Agenda

5

80. As a candidate and in office, President Trump endorsed significant

6 cuts to legal immigration and challenged the centrality of family reunification to

7 federal immigration policy. The official White House website states that “the

8 President supports ending chain migration, eliminating the Visa Lottery, and

9 moving the country to a merit-based entry system.”81

10

81. Shortly after President Trump’s inauguration in January 2017, the

11 media obtained a draft of an “Executive Order on Protecting Taxpayer Resources

12 by Ensuring Our Immigration Laws Promote Accountability and Responsibility.”

13 The draft Executive Order instructed DHS to “rescind any field guidance” and

14 “propose for notice and comment a rule that provides standards for determining

15 which aliens are admissible or deportable on public charge grounds,” including

16 if a noncitizen receives or is likely to receive non-cash public benefits. The draft

17 Executive Order was never issued.82

18

19

81 White House, Immigration, https://www.whitehouse.gov/issues/

20 immigration/ (last visited July 27, 2019).

21

82 See Memorandum from Andrew Bremberg Regarding Executive Order

22 on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

37

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

82. In 2017, two U.S. senators introduced a bill designed to significantly

2 reduce legal immigration by, for example, curbing the government’s

3 long-established policy favoring family reunification. The Reforming American

4 Immigration for a Strong Economy (RAISE) Act would have given visa

5 preference only to immediate family and eliminated the diversity visa lottery,

6 which allots a limited number of visas to countries with historically low rates of

7 immigration to the United States.83 It also proposed a “merit-based immigration

8 system,” which gives preference to immigrants between the ages of 26 and 30,

9 with doctoral degrees, high English proficiency, and a job offer with a high

10 salary. The RAISE Act would have precluded parents of adult U.S. citizens from

11 applying for Legal Permanent Resident status and, if they entered as temporary

12 nonimmigrants, barred those parents from receiving federal, state, or local public

13 benefit.84

14

15

16

17

18 Accountability and Responsibility (Jan. 23, 2017), https://www.nafsa.org

19 /uploadedFiles/NAFSA_Dojo/Professional_Resources/Browse_by_Interest/Inte

20 rnational_Students_and_Scholars/DraftEOtaxprograms.pdf.

21

83 S.B. 354, 115th Cong., 1st sess. (2017).

22

84 Id. § 4(d)(2)(B).

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38

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

83. President Trump supported the RAISE Act.85 Explaining his

2 support, President Trump said “The RAISE Act prevents new migrants and new

3 immigrants from collecting welfare . . . . They’re not going to come in and just

4 immediately go and collect welfare.” The White House also asserted falsely that

5 “[m]ore than 50 percent of all immigrant households receive welfare benefits,

6 compared to only 30 percent of native households in the United States that

7 receive welfare benefits.”86 In fact, immigrants are less likely to consume public

8 assistance benefits than native-born Americans and, when they do, they generally

9 consume a lower dollar value of benefits. Overall, immigrants consume 27%

10 fewer benefits on average than native-born Americans with similar incomes and

11 ages.87

12

84. In June 2017, shortly before announcing his support for the RAISE

13 Act, President Trump received a briefing on immigration from White House

14 senior adviser Stephen Miller. (Miller, an ardent supporter of the Public Charge

15

16

85 White House, Fact Sheets, President Donald J. Trump Backs RAISE

17 Act, Aug. 2, 2017, https://www.whitehouse.gov/briefings-statements/president-

18 donald-j-trump-backs-raise-act/

19

86 Id.

20

87 Alex Nowrasteh & Robert Orr, Immigration and the Welfare State at 1,

21 7, Cato Institute, May 10, 2018, https://object.cato.org/sites/cato.org/ files/pubs/

22 pdf/irpb6.pdf.

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39

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.47 Page 47 of 176

1 Rule, had reportedly once told a former White House communications aide,

2 “I would be happy if not a single refugee foot ever touched American soil.”88) At

3 the briefing, after learning that 15,000 Haitians had received U.S. visas in 2017,

4 President Trump replied that they “all have AIDS.” When President Trump

5 learned that 40,000 Nigerians had received visas, he said that they would never

6 “go back to their huts.”89

7

85. Defendant Cuccinelli has expressed similar sentiments. In a 2012

8 interview, Cuccinelli compared U.S. immigration policy to local laws governing

9 treatment of rats, stating that a District of Columbia law prohibiting killing of rats

10 or separating rat families is “worse than our immigration policy—you can’t break

11 up rat families. Or raccoons or all the rest and you can’t even kill them. It’s

12 unbelievable.”90

13

14

15

88 Cliff Sims, Team of Vipers: My 500 Extraordinary Days in the Trump

16 White House 191 (2019).

17

89 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump

18 Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times,

19 Dec. 23, 2017, https://www.nytimes.com/2017/12/23/us/politics/trump-

20 immigration.html?module=inline.

21

90 Latino Voices, Ken Cuccinelli Protested With Live Rats Over Comments

22 About Immigrants, Huff. Post. Nov. 5, 2013.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

40

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.48 Page 48 of 176

1 B. Rulemaking History

2

86. In December 2017, DHS noted in the Unified Agenda of Federal

3 Regulatory and Deregulatory Actions its intent to publish a Notice for Public

4 Rulemaking regarding the public charge ground of inadmissibility. In early 2018,

5 it was widely reported that the new rule would dramatically expand the types of

6 public assistance programs that could be considered in the public charge test,

7 including non-cash benefits like SNAP and Medicaid.91 In January 2018, the

8 State Department revised the Foreign Affairs Manual (FAM) to instruct consular

9 officers to consider a wider range of public benefits when determining whether

10 visa applicants who have received or are currently receiving benefits are

11

12

13

91 See, e.g., Nick Miroff, Trump proposal would penalize immigrants who

14 use tax credits and other benefits, Wash. Post. Mar. 28, 2018, https://

15 www.washingtonpost.com/world/national-security/trump-proposal-would-pen

16 alize-immigrants-who-use-tax-credits-and-other-benefits/2018/03/28/4c6392e0-

17 2924-11e8-bc72-077aa4dab9ef_story.html?noredirect=on&utm_term=.e291852

18 f1728; Yeganeh Torbati, Exclusive: Trump administration may target

19 immigrants who use food aid, other benefits, Reuters, Feb. 8, 2018,

20 https://www.reuters.com/article/us-usa-immigration-services-exclusive/

21 exclusive-trump-administration-may-target-immigrants-who-use-food-aid-other

22 -benefits-idUSKBN1FS2ZK.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

41

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.49 Page 49 of 176

1 inadmissible on public charge grounds.92 As revised, the FAM also allowed State

2 Department officials to consider whether an applicant’s family member has

3 received public benefits as part of the public charge test.93

4

87. Also in January 2018, President Trump rejected a bipartisan

5 immigration proposal by members of Congress. In reference to the deal’s

6 protections for immigrants from Haiti and Africa, President Trump asked why he

7 should accept immigrants from “shithole countries” rather than from nations like

8 “Norway.”94

9

88. A detailed draft of DHS’s proposed public charge rule was leaked

10 in March 2018. Under the draft proposed rule, new criteria would be considered

11 as heavily weighted negative factors in public charge determinations, including

12

13

14

15

16

92 U.S. Dep’t of State, “Public Charge” Update to 9 FAM 302.8

17 (Jan. 4, 2018), https://fam.state.gov/fam/09FAM/09FAM030208.html#M302_8.

18

93 Id. at 302.8-2(B)(2)(f)(2)(b)(i).

19

94 Julie Hirschfeld Davis, Sheryl Gay Stolberg & Thomas Kaplan, Trump

20 Alarms Lawmakers With Disparaging Words for Haiti and Africa, N.Y. Times,

21 Jan. 11, 2018, https://www.nytimes.com/2018/01/11/us/politics/trump-shithole-

22 countries.html.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

42

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.50 Page 50 of 176

1 whether an immigrant has received non-cash benefits regardless of the

2 immigrant’s legal entitlement to participate in the benefit program.95

3

89. In spring 2018, shortly after the draft rule leaked, DHS informed the

4 Office of Management and Budget (OMB) that it “will propose regulatory

5 provisions guiding the inadmissibility determination on whether an alien is likely

6 at any time to become a public charge.”96 As first provided to OMB, the proposed

7 rule was not classified as a “significant regulatory action”97 or a “major” rule

8 pursuant to the Congressional Review Act.98

9

90. The same month, President Trump said in a meeting at the White

10 House that the United States has “the dumbest laws on immigration in the world”

11 and exhorted his administration officials to “do much better” in keeping out

12

13

95 Read the Trump administration’s draft proposal penalizing immigrants

14 who accept almost any public benefit, Wash. Post., http://apps.

15 washingtonpost.com/g/documents/world/read-the-trump-administrations-draft-

16 proposal-penalizing-immigrants-who-accept-almost-any-public-benefit/2841/.

17

96 Office of Management and Budget (OMB), Office of Information and

18 Regulatory Affairs (OIRA), Inadmissibility on Public Charge Grounds - Spring

19 2018, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&

20 RIN=1615-AA22.

21

97 Exec. Order 12,866, § 3(f).

22

98 5 U.S.C. § 804(2).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

43

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.51 Page 51 of 176

1 undesirable immigrants. “You wouldn’t believe how bad these people are,”

2 President Trump said. “These aren’t people, these are animals . . . .”99

3

91. In June 2018, Miller emailed then-USCIS Director L. Francis Cissna

4 regarding DHS’s public charge rule. Miller wrote, “Francis – The timeline on

5 public charge is unacceptable.” Miller continued, “I don’t care what you need to

6 do to finish it on time.” Miller also wrote, “It’s an embarrassment that we’ve been

7 here for 18 months and USCIS hasn’t published a single major reg.”100

8

92. In the same month, President Trump tweeted that immigrants are

9 “invad[ing]” and “infest[ing]” the United States.101 Of other countries, President

10

11

12

13

99 Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants

14 ‘Animals’ in Rant, N.Y. Times, May 16, 2018, https://www.nytimes.com/

15 2018/05/16/us/politics/trump-undocumented-immigrants-animals.html.

16

100 Ted Hesson, Emails show Miller pressed hard to limit green cards,

17 Politico, Aug. 2, 2019, available at https://subscriber.politicopro.com/

18 article/2019/08/emails-show-miller-pressed-hard-to-limit-green-cards-1630406.

19

101 Donald J. Trump (@realDonaldTrump), Twitter (June 24, 2018,

20 8:02 AM), https://twitter.com/realdonaldtrump/status/1010900865602019329;

21 Donald J. Trump (@realDonaldTrump), Twitter (June 19, 2018, 9:52 AM),

22 https://twitter.com/realDonaldTrump/status/1009071403918864385.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

44

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.52 Page 52 of 176

1 Trump said at a rally that same month, “They’re not sending their finest. We’re

2 sending them the hell back.”102

3

93. At a political campaign event in Arizona in October 2018, President

4 Trump referred to Latin American immigrants as “bad hombres.”103

5 C. The Department’s Proposed Public Charge Rule

6

94. On October 10, 2018, DHS published a notice of proposed

7 rulemaking and proposed rule entitled Inadmissibility on Public Charge Grounds

8 (the Proposed Rule).104 The Proposed Rule sought to significantly expand the

9 authority of the USCIS to designate an immigrant as inadmissible on the ground

10 that he or she is likely to become a “public charge,” far beyond the long-settled

11 meaning of the term and its prior application in the history of U.S. immigration

12 law.

13

14

102 Katie Rogers & Jonathan Martin, ‘We’re Sending Them the Hell Back,’

15 Trump Says of Securing the Country’s Borders, N.Y. Times, June 20, 2018,

16 https://www.nytimes.com/2018/06/20/us/politics/trump-minnesota-rally.html.

17

103 Christopher Cadelago and Brent D. Griffiths, Still hopeful of keeping

18 House, Trump torches Democrats in the Desert, Politico (Oct. 20, 2018).

19

104 U.S. Citizenship and Immigration Servs., U.S. Dep’t of Homeland

20 Security, Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114-01,

21 51,198, to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245, and 248)

22 (Oct. 10, 2018).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

45

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.53 Page 53 of 176

1

95. The Proposed Rule redefined the term “public charge” to mean “an

2 alien who receives one or more public benefit[s].”105 The Proposed Rule defined

3 “public benefit” to include not only a wide range of federal, state, local, or tribal

4 cash benefits but also, in a reversal of decades of past practice and precedent,

5 specific federally-funded non-cash benefits—namely SSI, SNAP, Section 8

6 housing assistance, and Medicaid.106

7

96. In fact, the Department’s Final Rule allowing consideration of

8 SNAP benefits is directly contrary to existing federal law governing those

9 programs.107

10

97. The Proposed Rule would have required DHS in making a public

11 charge determination to consider the immigrant’s “past receipt of public benefits”

12 above certain thresholds as a “heavily weighed negative factor” favoring

13 exclusion.108 The Proposed Rule’s thresholds differed based on whether the

14 benefit was “monetizable” or “non-monetizable.”

15

98. For “monetizable” benefits such as SNAP or TANF, the Proposed

16 Rule imposed a dollar-value and durational threshold: it would have weighed

17

18

105 83 Fed. Reg. at 51,157 & 51,289 (to be codified at 8 C.F.R.

19 § 212.21(a)).

20

106 83 Fed. Reg. at 51,289–90 (to be codified at 8 C.F.R. § 212.21(b)).

21

107 7 U.S.C. § 2017(b)

22

108 83 Fed. Reg. at 51,289–90 (to be codified at 8 C.F.R. § 212.22(c)(1)(3)).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

46

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.54 Page 54 of 176

1 heavily against an immigrant’s application if, within any one-year period, the

2 amount of public benefits received exceeds 15% of the Federal Poverty

3 Guidelines (FPG) for a household of one (the 15% threshold).109 For

4 non-monetizable benefits such as Medicaid and subsidized housing, the Proposed

5 Rule set a purely durational threshold: the heavily weighed negative factor would

6 apply whenever an immigrant received such benefits for 12 months total in any

7 36-month period, regardless of the actual value of the benefits received (the

8 12-month threshold).110

9

99. Any amount of cash assistance for income maintenance could be

10 considered as a negative factor favoring exclusion (though not “heavily

11 weighed”) under the Proposed Rule.111 However, it would not have permitted the

12 Department to consider at all an immigrant’s receipt of non-cash public benefits

13 below the applicable durational or dollar-value thresholds.

14

100. The Proposed Rule also sought to extend the public charge test into

15 two areas not provided by statute—noncitizens’ applications for (1) extension of

16 stay, and (2) change of status. Under the Proposed Rule, as a mandatory

17 “condition of approval,” a noncitizen would have had to “demonstrate” that since

18

19

20

109 83 Fed. Reg. at 51,289–90 (to be codified at 8 C.F.R. § 211.21(b)(1)).

21

110 83 Fed. Reg. at 51,290 (to be codified at 8 C.F.R. § 212.22(b)(2)).

22

111 83 Fed. Reg. at 51,292 (to be codified at 8. C.F.R. § 212.22(d)).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

47

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.55 Page 55 of 176

1 obtaining the nonimmigrant status she seeks to change or extend she has not

2 received, nor “is likely to receive,” a public benefit.112

3

101. The Department acknowledged that it had issued the Proposed Rule

4 despite “anticipat[ing] that a number of individuals would be likely to disenroll

5 or forego enrollment in a number of public benefits program as a result of the

6 proposed rule.”113 The Department acknowledged that it was “unable to

7 determine the exact percentage of individuals who would disenroll or forego

8 enrollment” in public benefit programs.114 The Department was also unable to

9 “determine whether immigrants are net contributors or net users of government-

10 supported public assistance programs.”115 Finally, the Department was “not able

11 to estimate potential lost productivity, health effects, additional medical expenses

12 due to delayed health care treatment, or increased disability insurance claims as

13 a result of this proposed rule.”116

14

15

16

112 83 Fed. Reg. 51,295 (to be codified at 8 C.F.R. § 214.1(a)(3)(iv)

17 extension of stay); 83 Fed. Reg. at 51,296 (to be codified at 8 C.F.R. § 248.1(a)

18 (change of status).

19

113 83 Fed. Reg. at 51,264.

20

114 83 Fed. Reg. at 51,274.

21

115 83 Fed. Reg. at 51,235.

22

116 83 Fed. Reg. at 51,236.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

48

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.56 Page 56 of 176

1 D. Plaintiff States’ Opposition to Proposed Rule

2

1. Comments to proposed rule

3

102. During the 60-day comment period, the Department received over

4 260,000 comments on the Proposed Rule. The vast majority of those public

5 comments opposed the Proposed Rule. Many comments focused on the

6 significant hardships the Proposed Rule would cause by deterring individuals and

7 families—immigrants, nonimmigrant visitors, and U.S. citizens alike—from

8 accessing public benefits for which they are eligible. Commenters also described

9 the significant administrative and financial burden the Proposed Rule, if

10 finalized, would impose on state and local government agencies, U.S. businesses,

11 families, and individuals.

12

103. The Attorneys General of New Mexico, Virginia, California, the

13 District of Columbia, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland,

14 Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania,

15 Rhode Island, Vermont, and Washington submitted a joint comment letter

16 opposing the Proposed Rule (the Multistate Comment).117 The Multistate

17 Comment urged the Department to modify or withdraw the Proposed Rule

18 because it would “burden states with additional healthcare costs,” “harm

19

20

117 Comment of Commonwealth of Virginia et al. on Proposed Rule:

21 Inadmissibility on Public Charge Grounds, DHS Dkt. No. USCIS-2010-0012

22 (Oct. 10, 2018), Dec. 10, 2018 (Multistate Cmt.).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

49

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.57 Page 57 of 176

1 families,” “discriminate against people with disabilities,” and “improperly

2 disfavor non-English speakers.”118 Fear of the new public charge rule “will cause

3 many eligible immigrants—including some who are exempt from the Proposed

4 Rule altogether—to drop their benefits or decline to enroll.”119 The Multistate

5 Comment noted that, following leaks of the draft proposed rule, “individuals and

6 families dropped out in noticeable numbers from support programs that are not

7 included in the Proposed Rule.”120 By leading to a reduction in Medicaid program

8 enrollment, the Proposed Rule would, if finalized, “increase costs to the States

9 and their residents for state-funded public health clinics, school health programs,

10 and uncompensated emergency care.”121

11

104. In addition to joining the Multistate Comment, Plaintiff State of

12 Washington submitted its own comment letter opposing the Proposed Rule (the

13 Washington Comment). Signed by Washington’s Governor and Attorney

14 General, as well as the Mayor of Seattle, the Washington Comment urged the

15 Department to withdraw the Proposed Rule because, if adopted, it “will gravely

16 harm Washingtonians, causing children in our State—noncitizens and citizens

17

18

19

118 Multistate Cmt. at 2.

20

119 Multistate Cmt. at 5.

21

120 Multistate Cmt. at 11.

22

121 Multistate Cmt. at 2.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

50

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.58 Page 58 of 176

1 alike—to forfeit meals, health insurance and a roof over their heads.”122 The

2 Washington Comment projected that the Proposed Rule would (1) cause “[o]ver

3 140,000 Washington residents [to] lose health insurance”; (2) cause

4 Washingtonians to forgo up to $55.3 million in State food and cash benefits and

5 $198.7 million in medical care annually; (3) reduce total state economic output

6 by up to $97.5 million annually; (4) cut wages up to $36.7 million per year; and

7 (5) eliminate up to 782 jobs.123

8

105. In addition to joining the Multistate Comment, Plaintiff

9 Commonwealth of Massachusetts and several of its agencies submitted

10 comments opposing the proposed rule and detailing harms to its health care,

11 public health, housing, and public welfare systems.

12

106. By law, the Department was required to review every public

13 comment received and describe and respond to each “significant” comment in

14 the preamble of any final regulation.124

15

16

122 Comment of Governor Jay Inslee, Attorney General Bob Ferguson, and

17 Mayor Jenny Durkan re DHS Dkt. No. USCIS-2010-0012, Proposed Rule:

18 Inadmissibility on Public Charge Grounds, RIN 1615–AA22 (Oct. 10, 2018),

19 Dec. 10, 2018, at 2 (Wash. Cmt.).

20

123 Wash. Cmt. at 1–2.

21

124 Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015); Office of

22 Information and Regulatory Affairs, Regulations and the Rulemaking Process,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

51

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.59 Page 59 of 176

1

2. White House involvement and review

2

107. By March 2019, the Department had not yet published a final rule.

3 At a meeting in the White House Situation Room that month, senior adviser

4 Stephen Miller expressed his frustration that the “transformative” public charge

5 rule had not yet been finalized. “You ought to be working on this regulation all

6 day every day,” Miller shouted. “It should be the first thought you have when

7 you wake up. And it should be the last thought you have before you go to bed.

8 And sometimes you shouldn’t go to bed.”125

9

108. Within weeks of the Situation Room meeting, President Trump

10 removed multiple DHS senior officials from their positions, including

11

12

13

14

15 https://www.reginfo.gov/public/jsp/Utilities/faq.myjsp

(last

visited

16 July 28, 2019). A “significant comment” is one that “raise[s] relevant points and

17 which, if adopted, would require a change in the agency’s proposed rule.” Am.

18 Mining Cong. v. EPA, 965 F.2d 759, 771 (9th Cir. 1992).

19

125 Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting

20 His Way on Immigration: His Own Officials, N.Y. Times, Apr. 14, 2019, https://

21 www.nytimes.com/2019/04/14/us/politics/trump-immigration-stephen-

22 miller.html.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

52

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.60 Page 60 of 176

1 then-Homeland Security Secretary Kirstjen Nielsen and then-USCIS Director L.

2 Francis Cissna.126

3

109. On July 12, 2019, the Department transmitted the Rule to the White

4 House Office of Management and Budget (OMB) for regulatory review pursuant

5 to Executive Order 12,866 (E.O. 12,866).127 As required by law, the OMB Office

6 of Information and Regulatory Affairs (OIRA) held E.O. 12,866 meetings with

7 interested parties in the two weeks following its receipt of the Rule. On

8 July 24, 2019, a coalition of 17 states, including the Plaintiff States, requested a

9 meeting with OIRA—both through the OIRA online E.O. 12866 meeting request

10 system and via letter transmitted by e-mail—to further express their “significant

11 concerns about the severe impact that [the public charge] rule would have on our

12 states’ residents.” Although OIRA held at least four E.O. 12,866 meetings on

13 July 25, 2019, for a full week the Plaintiff States’ July 24 meeting request

14 received no response from OIRA.128

15

16

126 Id.; Geneva Sands & Priscilla Alvarez, Trump’s Citizenship and

17 Immigration Services director out, CNN, May 24, 2019, https://www.cnn.com

18 /2019/05/24/politics/l-francis-cissna-citizenship-and-immigration-

19 services/index.html.

20

127 See E.O. 12,866 of Sept. 30, 1993.

21

128 EO 12866 Meetings Search Results, Office of Information and

22 Regulatory Affairs, Office of Management and Budget, https://

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

53

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.61 Page 61 of 176

1

110. OIRA completed its review of the Rule on July 31, 2019.129 That

2 day, OIRA responded to the Plaintiff States declining their E.O. 12,866 meeting

3 request.

4 E. The Final Rule

5

111. On August 12, 2019, the Department announced the issuance of the

6 Final Public Charge Rule and it was posted for public inspection. In a press

7 conference at the White House, Acting USCIS Director Kenneth T. Cuccinelli II

8 stated that in promulgating “President Trump’s public charge inadmissibility

9 rule,” the Department was “promoting our shared history” and

10 “implement[ing] . . . a law passed by Congress in 1996 that has not been given

11 meaningful effect.”130 Asked about the 1903 plaque on the Statue of Liberty that

12 invites “your tired, your poor, your huddled masses,” Cuccinelli said: “I’m

13 certainly not prepared to take anything down off the Statute of Liberty.”

14

15 www.reginfo.gov/public/do/eom12866SearchResults?pubId=201904&rin=1615

16 -AA22&viewRule=true (last visited July 28, 2019).

17

129 OIRA Conclusion of EO 12866 Regulatory Review, Office of

18 Information and Regulatory Affairs, Office of Management and Budget, https://

19 www.reginfo.gov/public/do/eoDetails?rrid=129323 (last visited Aug. 2, 2019).

20

130 Cuccinelli on “public charge” immigration rule, CBS News,

21 Aug. 12, 2019, https://www.cbsnews.com/video/immigration-official-ken-

22 cuccinelli-immigrants-public-charge-rule/.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

54

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

112. In response to questions about the Rule, Cuccinelli publicly stated

2 that the famous Emma Lazarus Statue of Liberty sonnet inscribed on the Statue

3 of Liberty “was referring back to people coming from Europe where they had

4 class-based societies” not to people coming to the United States from outside

5 Europe. He also reinterpreted it to “[g]ive me your tired and your poor who can

6 stand on their own two feet . . . .”131 When asked if the Rule changes the

7 definition of the American dream, Cuccinelli said, “[n]o one has a right to

8 become an American who isn’t born here as an American” and that “it is a

9 privilege to become an American, not a right for anybody who is not already an

10 American citizen.”132 He also said the Rule was “part of President Trump keeping

11 his promises.”133

12

13

14

15

16

17

131 Rebecca Morin, Immigration official Ken Cuccinelli: Statue of Liberty

18 poem refers to immigrants from Europe, USA Today Aug. 13, 2019.

19

132 Sasha Ingber and Rachel Martin, Immigration Chief: ‘Give Me Your

20 Tired, Your Poor Who Can Stand On Their Own 2 Feet’, Nat’l Pub. Radio,

21 Aug. 13, 2019.

22

133 Id.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

55

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.63 Page 63 of 176

1

113. On August 14, 2019, the Department published the Final Rule in the

2 Federal Register.134

3

1. Summary of the Final Rule

4

a. Applicability of the Rule

5

114. The Public Charge Rule applies to any noncitizen subject to section

6 212(a)(4) of the INA who, after the October 15, 2019 effective date, applies to

7 the Department for admission to the United States or for adjustment of status to

8 that of lawful permanent resident.135 The Rule catalogues a list of immigrant

9 groups that are exempted from its provisions, based on preexisting exemptions

10 created by Congress or DHS regulations. These include, for example, refugees

11 and asylees, certain Afghan or Iraqi nationals employed by or on behalf of the

12 U.S. government, and certain Cuban and Haitian entrants. See 84 Fed. Reg. at

13 41,504 (proposed 8 C.F.R. § 212.23).

14

115. The Rule also applies to requests for extension of stay and change

15 of status by nonimmigrant visitors to the United States. A nonimmigrant is

16 generally admitted into the United States for a limited period and for a particular

17 purpose. Section 212(a)(4) does not apply to an extension of stay or change of

18

19

134 U.S. Citizenship and Immigration Servs., U.S. Dep’t of Homeland

20 Security, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,292, to

21 be codified at 8 C.F.R. pts. 103, 212-214, 245, and 248) (August 14, 2019).

22

135 84 Fed. Reg. at 41,501 (proposed 8 C.F.R. § 212.20).

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56

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 status. Nevertheless, the Department asserts authority to apply its expanded

2 public charge provisions to a nonimmigrant’s application to extend his or her

3 status or change it from one classification to another.136

4

b. Definitions of “public charge” and “public benefit”

5

116. The Rule defines “public charge” to mean “an alien who receives

6 one or more public benefits . . . for more than 12 months in the aggregate within

7 any 36-month period (such that, for instance, receipt of two benefits in one month

8 counts as two months).”

9

117. “Public benefit” means any of the following six forms of public

10 assistance: (1) “[a]ny Federal state, local or tribal cash assistance for income

11 maintenance,” including SSI, TANF, or state “General Assistance”; (2) SNAP;

12 (3) Section 8 housing assistance vouchers; (4) Section 8 project-based rental

13 assistance; (5) Medicaid (with exceptions for benefits or services (i) for an

14 emergency medical condition, (ii) under the Individuals with Disabilities

15 Education Act, (iii) that are school-based, (iv) to immigrants who are under 21

16 years of age or a woman during pregnancy); and (6) public housing under section

17 9 of the U.S. Housing Act of 1937.137

18

118. In several respects, those core definitions are even more draconian

19 than the corresponding provisions of the Proposed Rule. First, the Department

20

21

136 See 84 Fed. Reg. at 41,507-08, (proposed 8 C.F.R. §§ 214.1, 248.1).

22

137 84 Fed. Reg. at 41,501 (to be codified at 8. C.F.R.§ 212.21(b)).

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57

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.65 Page 65 of 176

1 eliminated the Proposed Rule’s distinction between monetizable and

2 non-monetizable benefits. While the Proposed Rule would have considered

3 monetizable benefits received only if they exceeded 15% threshold, in the Final

4 Rule the Department applies the 12-month threshold to all public benefits. Thus,

5 any amount of benefits received for a total of 12 months in the aggregate in a

6 36-month period as a factor weighing “heavily” in favor of a public charge

7 determination.138 An additional benefit counts as an extra month, such that receipt

8 of two benefits triggers the threshold after six months; three benefits, after four

9 months; and four benefits, after just three months.

10

119. Second, the Final Rule permits the Department to consider as a

11 negative factor favoring a public charge determination any past receipt of

12 non-cash public benefits, even if below the 12-month threshold.139 The Proposed

13 Rule would have only permitted consideration of cash benefits below the

14 applicable thresholds.

15

c. Heavily weighted negative factors

16

120. The Rule establishes four factors that will “generally weigh heavily

17 in favor of a finding that an alien is likely to become a public charge.”

18

121. First, it is a “heavily weighted negative factor” if the immigrant “is

19 not a full-time student and is authorized to work, but is unable to demonstrate

20

21

138 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R.§ 212.22(c)(1)(ii)).

22

139 84 Fed. Reg. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(E)).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

58

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.66 Page 66 of 176

1 current employment, recent employment history or no reasonable prospect of

2 future employment.”140

3

122. Second, it is a “heavily weighted negative factor” if the immigrant

4 “has received or has been certified or approved to receive one or more public

5 benefits, as defined in § 212.21(b), for more than 12 months in the aggregate

6 within any 36 month period, beginning no earlier than 36 months immediately

7 preceding the alien’s application for admission or adjustment of status.141 The

8 lookback period can begin no earlier than 36 months before an immigrant’s

9 application for admission or adjustment of status on or after October 15, 2019.

10

123. Third, it is a “heavily weighted negative factor” if an immigrant both

11 (a) “has been diagnosed with a medical condition that is likely to require

12 extensive medical treatment or institutionalization or that will interfere with the

13 alien’s ability to provide for him- or herself, attend school, or work”; and (b) “is

14 uninsured and has neither the prospect of obtaining private health insurance, or

15 the financial resources to pay for reasonably foreseeable medical costs related to

16 a the medical condition.”142

17

18

19

20

140 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(1)(i)).

21

141 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(1)(ii)).

22

142 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(1)(iii)).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

59

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.67 Page 67 of 176

1

124. Fourth, it is a “heavily weighted negative factor” if the “alien had

2 previously been found inadmissible or deportable on public charge grounds by

3 an Immigration Judge or the Board of Immigration Appeals.”143

4

d. Heavily weighted positive factors

5

125. The Rule establishes three factors that “will generally weigh heavily

6 in favor of a finding that an alien is not likely to become a public charge.” First,

7 it is a “heavily weighted positive factor” if the noncitizen’s “household has

8 income, assets, or resources, and support . . . of at least 250 percent of the Federal

9 Poverty Guidelines for the alien’s household size.”144

10

126. Second, it is a “heavily weighted positive factor” if the “alien is

11 authorized to work and is currently employed in a legal industry with an annual

12 income . . . of at least 250 percent of the Federal Poverty Guidelines for the

13 alien’s household size.”145

14

127. Third, it is a “heavily weighted positive factor” if the “alien has

15 private health insurance” that is “appropriate for the expected period of

16 admission,” except health insurance for which an immigrant receives premium

17 tax credits under the Patient Protection and Affordable Care Act (ACA).146

18

19

143 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(1)(iv)).

20

144 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(2)(i)).

21

145 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(2)(ii)).

22

146 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(2)(iii)).

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60

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

e. Other criteria

2

128. The Rule requires DHS to consider various other criteria in any

3 public charge determination. Those other criteria that will weigh in favor of a

4 public charge determination include whether the immigrant: (1) is under the age

5 of 18 or over the minimum early retirement age for Social Security (currently age

6 62); (2) has a “medical condition that is likely to require extensive medical

7 treatment or institutionalization” or “interfere with [his] ability to provide and

8 care for himself,” to “attend school,” or “to work”; (3) has an annual household

9 gross income under 125% of the Federal poverty guideline (FPG) (or 100% for

10 active duty service members); (4) has a household size that makes the immigrant

11 “more likely than not to become a public charge at any time in the future”;

12 (5) lacks “significant assets, such as savings accounts, stocks, bonds, certificates

13 of deposit, real estate or other assets”; (6) lacks “sufficient household assets and

14 resources to cover any reasonably foreseeable medical costs related to a medical

15 condition,” (7) has “any financial liabilities”; (8) has applied for, “been certified

16 to receive” or received “public benefits” since [October 15, 2019]; (9) has applied

17 for or has received a USCIS fee waiver for an immigration benefit request since

18 [October 15, 2019]; has a lower “credit history and credit score”; (10) lacks

19 private health insurance or other sufficient assets and resources to cover

20

21

22

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61

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.69 Page 69 of 176

1 “reasonably foreseeable medical costs”; (11) lacks a high school diploma (or

2 equivalent) or a “higher education degree”; or (12) is not proficient in English.147

3

129. Under the Rule, the Department must also consider any required

4 affidavit of support meeting the statutory sponsorship and income requirements.

5 But an affidavit of support would not be dispositive, and its weight would depend

6 on the “likelihood that the sponsor would actually provide the statutorily-required

7 amount of financial support” in the judgment of USCIS.148 Again, this is a major

8 departure from prior agency practice and precedent, which had long treated a

9 compliant affidavit of support as a significant, if not outcome-determinative

10 factor in favor of the applicant.149

11

f. Other provisions

12

130. The Rule would apply a more exacting standard to applications for

13 adjustment of status or immigrant visas than to applications for temporary

14 nonimmigrant visas. Specifically, USCIS would consider the “immigration status

15 that the alien seeks and the expected period of admission as it relates to the alien’s

16 ability to financially support for [sic] himself or herself during the duration of the

17 alien’s stay.”150

18

19

147 84 Fed. Reg. at 41,502-04 (to be codified at 8. C.F.R.§ 212.22(b)).

20

148 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212(b)(7)).

21

149 83 Fed. Reg. at 51,186.

22

150 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(b)(6)(i)).

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62

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

131. The Rule also authorizes the Department to allow a lawful

2 permanent resident applicant determined likely to become a public charge to

3 submit a “public charge bond” as a condition of his or her green card approval.

4 The decision to allow a public charge bond is discretionary, but the Department

5 “generally will not favorably exercise discretion” if at least one heavily weighed

6 negative factors applies. The amount of the bond must be at least $8,100, which

7 is breached in full if the applicant receives any public benefits for more than 12

8 months in the aggregate within any 36-month period after becoming a lawful

9 permanent resident.151

10

132. Like the Proposed Rule, the Final Rule also imposes additional

11 requirements on nonimmigrants applying for a change of status or an extension

12 of stay, though the INA’s public charge exclusion applies in neither situation.

13 The Rule provides that such applications will be denied unless the applicant

14 demonstrates that he or she has not received public benefits since obtaining the

15 nonimmigrant status that he is seeking to extend or change for 12 months total

16 within a 36-month period.152 Unlike the Proposed Rule, the Final Rule does not

17 require or permit consideration of whether a nonimmigrant applicant for change

18 of status or extension of stay is “likely to receive public benefits” in the future.

19

20

151 84 Fed. Reg. at 41,505-07 (to be codified at 8 C.F.R. § 213.1).

21

152 84 Fed. Reg. at 41,507 (amending 8 C.F.R.§§ 214.1(a) & (c) and

22 248.1(a) & (c).

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63

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

2. The Department’s failure to provide reasoned analysis,

examine relevant data, or address public comments’ significant

2

concerns

3

133. As mentioned above, the Department received more than 260,000

4 public comments on the Proposed Rule, the “vast majority” in opposition.153 The

5 public comments raised significant concerns regarding the legality and impact of

6 the Department’s radical proposed transformation of the public charge exclusion.

7 In the preamble to the Final Rule, the Department failed to provide reasoned

8 analysis, examine the relevant data, or adequately address the significant

9 concerns raised in the public comments.

10

a. Definition of public charge

11

134. First and foremost, the Department failed to account for its decision

12 to redefine the term public charge in a manner inconsistent with the historical

13 understanding of public charge, Congressional intent, and more than a century of

14 judicial and administrative precedent. In response, the Department asserted that

15 the Rule interprets “ambiguous terms that Congress itself left undefined,”

16 offering the ipse dixit that it “believes that its definition with what it means to be

17 a public charge.”154

18

19

20

21

153 84 Fed. Reg. at 41,297 & 41,304.

22

154 84 Fed. Reg. at 41,317.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

64

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

b. The 12-month public benefit threshold

2

135. Many commenters criticized the Proposed Rule’s thresholds for

3 consideration of public benefits as arbitrary. Under the Proposed Rule,

4 monetizable public benefits would weigh in favor of a public charge

5 determination if they exceeded 15% of FPG in a 12-month period, while

6 non-monetizable benefits would be a negative factor if received for 12 months

7 within a 36-month period. Commenters noted that the Department had provided

8 no data to support its 15% threshold, which would have considered the receipt of

9 just $150 per month (or $5 per day) in benefits as a heavily weighted factor

10 favoring a public charge finding. Commenters also criticized the 12-month

11 standard for non-monetizable benefits as arbitrary and irrational, particularly

12 with respect to specific programs like Medicaid, which is designed for continuous

13 enrollment.

14

136. Implicitly acknowledging the arbitrariness of the 15% threshold, the

15 Department correctly abandoned it in the Final Rule—but only to adopt the

16 flawed 12-month threshold for monetizable benefits as well. Under the Rule’s

17 public charge test, the receipt of any public benefit—monetizable or not—for 12

18 or more months in a 36-month period would constitute a heavily weighted

19 negative factor. Each additional benefit received in the same period would count

20 as an additional month, such that just three months of Medicaid, housing

21 vouchers, food stamps, and income assistance could result in a public charge

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

65

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.73 Page 73 of 176

1 finding—no matter how small the actual dollar value of the benefits. The

2 Department acknowledged that by ignoring the value of benefits received, its

3 12-month threshold could result in a public charge finding based on an

4 immigrant’s receipt of “only hundreds of dollars or less in public benefits.” The

5 Department did not provide a reasoned explanation to justify the 12-month

6 threshold’s “incongruities.”155

7

137. Indeed, the only justification the Department provided for adopting

8 this strict 12-month threshold for all public benefits is that it is “simpler and more

9 administrable” than its 15% of FPG threshold.156 But just because a regulation is

10 administrable does not make it rational or non-arbitrary. The Department fails to

11 provide data, evidence, or reasoned analysis to explain why it believes an

12 immigrant’s past receipt of public assistance for as little as a few months is at all

13 predictive of whether she will become a public charge in the future. The

14 Department cited a Census Bureau study finding that 31.2% of participants in

15 “one or more means-tested assistance programs” ended their participation within

16 a year, ignoring that many of those participants may have received more than one

17 benefit program—rendering the study entirely irrelevant to the Rule’s 12-month

18 threshold.157 As the Department’s own analysis reveals, of individuals who

19

20

15584 Fed. Reg. at 41,360-61.

21

156 84 Fed. Reg. at 41,359.

22

157 84 Fed. Reg. at 41,360.

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66

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.74 Page 74 of 176

1 receive the enumerated public benefits, “at least nearly 35 percent received two

2 or more public benefits on average per month.”158 The Department’s decision to

3 aggregate multiple benefits in the 12-month threshold overlooks its own findings

4 on how beneficiaries utilize temporary public assistance in actual practice.

5

c. Heavily weighted negative factors

6

138. The Department received multiple comments criticizing the use of

7 “heavily weighted factors” (or “weighed,” in the Proposed Rule’s terminology),

8 separate from the enumerated considerations that Congress mandated the

9 Department to consider in the totality of circumstances test codified in the

10 Immigration Reform Act. Attempting to defend its decision to create

11 non-statutory heavily weighted factors, the Department asserts that it “does not

12 change that the public charge inadmissibility determination is one that is made

13 based on the totality of the alien’s individual facts and circumstances.”159 Yet the

14 Department fails to account for the fact that the Rule’s heavily weighted negative

15 factors—which overlap considerably to the point of double-counting—will often

16 be dispositive in operation, contrary to Congressional intent.

17

139. In particular, the public benefit factor is likely to be

18 outcome-determinative in most cases. That factor weighs heavily in a public

19 charge determination if an immigrant receives one or more public benefits for 12

20

21

158 84 Fed. Reg. at 41,361.

22

159 84 Fed. Reg. at 41,442.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

67

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.75 Page 75 of 176

1 months total within a 36-month period. The Department asserts that the factor

2 “will not necessarily be dispositive in the inadmissibility determination,”

3 overlooking that whenever it applies, at least one other enumerated negative

4 factor will always also apply. That is so because the Rule requires consideration

5 of evidence that the immigrant has “applied for,” “received,” or “been certified

6 or approved to receive” any public benefits.160 Furthermore, because the

7 enumerated public benefits are all means-tested, the vast majority of recipients

8 will also have an annual income below 125 percent of FPG, which would itself

9 also “generally be a heavily weighed negative factor.”161

10

140. So too, is the medical condition negative factor likely to be

11 dispositive. That heavily weighted factor is triggered where an applicant (1) has

12 a medical condition “likely to require extensive medical treatment or

13 institutionalization” and is (2) both uninsured and has neither the prospect of

14 obtaining private health insurance nor the resources to pay for medical costs.162

15 That standard is literally duplicative with the ostensibly separate “health” factor,

16 which weighs in favor of a public charge determination when an “alien has been

17 diagnosed with a medical condition that is likely to require extensive medical

18

19

20

160 84 Fed. Reg. at 41,503.

21

161 84 Fed. Reg. at 41,323.

22

162 84 Fed. Reg. at 41,445.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

68

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.76 Page 76 of 176

1 treatment or institutionalization.”163 And a person who meets that standard is also

2 likely to fail under the “assets, resources, and financial status factor,” which

3 considers whether he has “sufficient household assets and resources to cover any

4 reasonably foreseeable medical costs.”164 Here again, the Department stacks the

5 deck to convert the totality of circumstances inquiry into a bright-line test focused

6 myopically on non-statutory considerations (such as the receipt of public

7 assistance and private health insurance coverage) that the Department assigns

8 talismanic significance.

9

141. These factors thus do not merely “coincide or relate to each other,”

10 as the Department contends, but instead engender obvious double-counting.165

11 The Department does not provide a reasoned basis for creating duplicative—and

12 effectively dispositive—“heavily weighted factors” that outweigh the

13 considerations Congress has expressly set forth in the statutory totality of

14 circumstances test.

15

d. Private health insurance

16

142. Commenters expressed significant concern over the Proposed

17 Rule’s consideration of private health insurance as a factor in the public charge

18 test. As numerous commenters pointed out, many immigrants work in industries

19

20

163 84 Fed. Reg. at 41,502 (to be codified at 8 C.F.R. § 212.22(b)(2)).

21

164 84 Fed. Reg. at 41,502-03 (to be codified at 8 C.F.R. § 212(b)(4)).

22

165 84 Fed. Reg. at 41,406.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

69

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.77 Page 77 of 176

1 that tend not to provide employer-based health insurance. Many commenters also

2 noted that considering health insurance and related factors, such as having

3 sufficient household assets and resources to cover “reasonably foreseeable

4 medical costs,” would disproportionately and negatively affect certain

5 populations, including people with disabilities; people with chronic health

6 conditions; the elderly; and immigrants of color.166

7

143. The Department entirely disregarded those concerns, instead

8 elevating private health insurance coverage to a heavily weighted positive factor

9 in the Final Rule. The Department stated that it will proceed to consider “whether

10 a person has health insurance or has the household assets and resources to pay

11 for reasonably foreseeable medical costs,” and that having private insurance will

12 generally be weighed as a heavily positive factor (provided the insurance is not

13 for example offset by tax credits under the ACA).167 Further, the Department

14 readily conceded that “certain individuals may choose to forego public health

15 insurance, such as Medicaid, because of the impact on public charge.”168 The

16 Department did not explain how such disenrollment from health coverage could

17 possibly advance its purported goal to promote immigrants’ self-sufficiency and

18 economic independence.

19

20

166 84 Fed. Reg. at 41,442.

21

167 84 Fed. Reg. at 41,428.

22

168 84 Fed. Reg. at 41,428.

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

144. Although the Department notably stated it would not consider

2 programs other than Medicaid as public benefits, its response to these comments

3 clarifies that the “evaluation may in some cases require DHS to consider an

4 alien’s publicly funded or subsidized health insurance that is not defined as a

5 public benefit under this rule.”169 Finally, regarding the potentially

6 disproportionate impact on certain populations such as the disabled, the

7 Department responded simply that it “does not intend to disproportionately affect

8 such groups.”170 Such a cursory explanation does not justify the arbitrary and

9 capricious nature of the factor, which double counts certain evidence to

10 disadvantage immigrants who use medical benefits they are entitled to receive.

11

e. Nonimmigrant applications for change of status or

extension of stay 12

145. Numerous commenters criticized the Proposed Rule for applying a

13

public charge-like test to nonimmigrant applicants for a change of status or

14

extension of stay, neither of which is subject to the INA’s public charge

15

exclusion. Under the Public Charge Rule, extension of stay and change of status

16

applicants must establish that they have not received public benefits in an

17

aggregate of 12 months in the prior 36-month period. The Department denies that

18

it is “intended to “apply the public charge ground of inadmissibility to extension

19

20

21

169 84 Fed. Reg. at 41,428.

22

170 84 Fed. Reg. at 41,429.

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71

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 of stay or change of status applicants.” Rather, the Department claims that it is

2 simply “exercising its statutory authority to set a new condition for approval of

3 extension of stay and change of status applications.”171

4

146. The Department’s denial is implausible. Not only does this “new

5 condition of approval” appear in the very regulation called “Inadmissibility on

6 Public Charge Grounds,” but it bootstraps into change of status and extension of

7 stay applications the central criterion of the Department’s new public charge test

8 (i.e., the receipt of public benefits above the 12-month threshold). The

9 Department fails to explain how expanding that core criterion beyond the public

10 charge exclusion’s statutory bounds comports with its authority under the INA.

11

f. Application to lawful permanent residents returning

from 180-day trips abroad 12

147. Commenters also criticized the Department for failing to estimate

13

the consequences or costs of applying its expansive new public charge standard

14

to lawful permanent residents returning to the United States after 180 or more

15

days abroad. The Department’s only response is that it “does not believe such a

16

quantitative estimate is necessary.”172 That brusque response fails to give due

17

consideration to a significant concern about how the regulation will affect lawful

18

permanent residents on the path to U.S. citizenship.

19

20

21

171 84 Fed. Reg. at 41,329.

22

172 84 Fed. Reg. at 41,327.

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

g. Disparate impact

2

148. Numerous commenters pointed to the racially and ethnically

3 disparate impact the Department’s public charge test would have by

4 disproportionately affecting immigrants of color. For example, one analysis

5 predicted that the public charge test’s income thresholds would have

6 “disproportionate effects based on national origin and ethnicity, blocking 71

7 percent of applicants from Mexico and Central America, 69 percent from Africa,

8 and 52 percent from Asia—but only 36 percent from Europe, Canada and

9 Oceania.”173

10

149. The Department did not dispute that the Rule would have a disparate

11 impact on immigrants of color. Instead, the Department claimed it did not

12 intentionally “codify this final rule to discriminate”174 and that it “does not

13 understand commenters’ statements about the ‘unequal application’ of the public

14 charge inadmissibility rule.”175 Although it provided no evidence, the

15 Department “disagree[d] that the public charge inadmissibility rule would be

16 unequally applied to different groups of aliens along the lines of race.”176 That

17 bald denial fails to meaningfully address an important aspect of the

18

19

173 84 Fed. Reg. at 41,322.

20

174 84 Fed. Reg. at 41,309.

21

175 84 Fed. Reg. at 41,323.

22

176 84 Fed. Reg. at 41,323.

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73

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 problem—the Rule’s discriminatory effects—and to consider the significant

2 disadvantages and injustice of its decision.

3

h. Credit history and financial liabilities

4

150. Several commenters expressed concern that the Proposed Rule

5 sought to consider an immigrant’s credit history as a factor in the determination

6 of whether the immigrant is likely to become a public charge. As these

7 commenters noted, credit scores and credit histories were not intended to be used

8 in the immigration context; do not assess an immigrant’s likelihood of being

9 self-sufficient; have no correlation with the evaluation factor; are often highly

10 inaccurate; and may be affected by factors outside the immigrant’s control but

11 from which they may recover. Further, commenters noted that credit reports

12 contain irrelevant data, such as medical debts that do not measure an individual’s

13 financial status, while at the same time omitting potentially more relevant data,

14 such as consistency of rent payments. Other commenters noted that considering

15 credit scores would essentially “double count” evidence already factoring into

16 the public charge determination.

17

151. The Department largely disregarded these concerns, however,

18 instead stating in conclusory fashion that it believes such information is useful

19 “in determining whether aliens are able to support themselves.” According to the

20 Department, credit reports “generally assist creditors to determine the credit

21 worthiness or risk of a person,” and the Department proposes its use of credit

22

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74

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 reports “focuses on the assessment of these debts, liabilities, and related

2 indicators, as one indicator of an alien’s strong or weak financial status.” The

3 Department’s decision is arbitrary and capricious, however, as it elevates private

4 credit reports into a realm they were never intended to occupy—a lawful

5 immigrant’s status and admissibility—arbitrarily introducing error, irrelevant

6 factors, and double counting into the analysis.177

7

i. Immigration fee waiver

8

152. Many commentators criticized the Proposed Rule for taking into

9 consideration whether an immigrant had ever received an immigration fee waiver

10 as a negative factor weighing in favor of a public charge finding. As these

11 commentators noted, there is no evidence to suggest the one-time receipt of an

12 immigration fee waiver correlates to whether an immigrant is likely to become a

13 public charge. For example, commenters noted that an immigrant’s financial

14 condition often improves after receiving the immigration benefits for which they

15 received the fee waiver. Further, commenters noted that considering the one-time

16 receipt of a fee waiver leads to double counting income, which unduly punishes

17 immigrants who received fee waivers based on temporarily adverse economic

18 circumstances. Finally, other commentators noted that punishing immigrants for

19 seeking fee waivers is counter-productive, as immigrants often seek such waivers

20 for work authorization (as they have no income at the time they apply) or to

21

22

177 84 Fed. Reg. at 41,426.

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75

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 ensure their immigration documents are timely filed when they have not had

2 sufficient time to save enough money for the application fee (perhaps because

3 they are using the money for other household expenses, thus promoting

4 self-sufficiency).

5

153. The Department largely brushed these concerns aside, however,

6 essentially arguing that any problems resulting from consideration of fee waivers

7 would be minimal, as they constitute “only one evidentiary consideration in the

8 totality of the circumstances and [are] not heavily weighted.”178 But, injecting an

9 arbitrary and unreliable factor into a totality-of-the-circumstances analysis does

10 not make consideration of the factor any less arbitrary. Here, the Department has

11 failed to proffer any non-arbitrary or capricious basis for considering the

12 one-time receipt of a fee-waiver as a factor.

13

j. High school diploma

14

154. Many commenters stated that considering whether an immigrant has

15 a high school diploma or comparable educational background will arbitrarily

16 discriminate against large categories of immigrants, including farm workers and

17 other trade workers who may have been lawfully present and working for many

18 years without obtaining such a degree. Several commenters also noted the factor

19 discriminates in particular against immigrant women, many of whom come from

20 countries where women are discouraged or prevented from attending school.

21

22

178 84 Fed. Reg. at 41,424.

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76

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 Other commenters expressed concerns over the arbitrary and undue burden such

2 a factor would place on disabled immigrants, many of whom often face

3 significant educational and employment-related obstacles and benefit from

4 public assistance programs in their pursuit of these goals. In response, the

5 Department noted merely that it was required to consider an immigrant’s

6 educational background in the totality of circumstances review. The Department

7 conceded that “lack of formal education such as the lack of a high school diploma

8 or other education are generally a negative consideration,” but noted that

9 employment history and “occupational skills, certifications or licenses” may also

10 be considered.179 The Department’s undue emphasis on a formal diploma—even

11 despite overwhelming evidence and commentary noting that immigrants

12 frequently work and contribute without any such educational

13 background—renders the factor arbitrary and capricious.

14

k. English proficiency

15

155. Many commenters objected to including an immigrant’s proficiency

16 in English as a factor in the public charge determination, noting that “requiring

17 English proficiency would mark a fundamental change from the nation’s historic

18 commitment to welcoming and integrating immigrants.”180 Other commenters

19 noted that English language learners often benefit from receipt of Medicaid or

20

21

179 84 Fed. Reg. at 41,430.

22

180 84 Fed. Reg. at 41,432.

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77

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 other non-cash public benefits in their pursuit of attending language classes and

2 becoming fluent. As numerous commenters noted, the Rule will deter these

3 immigrants from accepting the very benefits that would better enable them to

4 improve their employability. Other commenters argued that evaluating English

5 proficiency will unduly burden immigrant women and deaf immigrants;

6 constitutes discrimination on the basis of national origin; and has no relation to

7 the rule’s purported goal, as skilled immigrants may readily obtain employment

8 in fields that do not require English proficiency. According to these commenters,

9 the Rule would “improperly reject many people with practical job skills doing

10 essential work in our economy that have limited formal education and English

11 proficiency highlighted farmworkers as an example.”181 The Department largely

12 shrugged off these concerns, however, noting repeatedly that it was not

13 “mandating English proficiency for admissibility.”182 And, although the

14 Department conceded that individuals who lack English proficiency might

15 already be working or able to obtain employment, it nevertheless argued that

16 “people with the lowest English speaking ability tend to have the lowest

17 employment rate, lowest rate of full-time employment, and lowest median

18 earnings.”183 The Department’s willful disregard of these comments

19

20

181 84 Fed. Reg. at 41,434.

21

182 84 Fed. Reg. at 41,432.

22

183 84 Fed. Reg. at 41,432.

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78

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 demonstrates that the English proficiency factor is entirely arbitrary and

2 capricious, and its inclusion as only one factor in a totality of circumstances does

3 not make it any less so.

4

l. Federalism summary impact statement

5

156. Although Executive Order 13,132 requires the Department to

6 produce a federalism summary impact statement, the Department summarily

7 asserted that the Rule “does not have substantial direct effects on the States” and

8 the Rule “requires no further agency action or analysis.”184

9

157. The Department’s analysis of its obligations under Executive Order

10 13,132 was insufficient because the Department did not identify the myriad costs

11 and effects of the Rule on the Plaintiff States. As discussed throughout this

12 complaint, the Rule has profound direct effects on state and local governments

13 and will impose substantial costs on state and local governments.

14

158. The Plaintiff States raised the concern about the Proposed Rule’s

15 lack of federalism summary impact statement in their comment letter—as did

16 various other commentators. Had OIRA granted the Plaintiff States an

17 E.O. 12,866 meeting, the Plaintiff States could have discussed this issue with

18 OIRA.

19

20

21

22

184 84 Fed. Reg. at 41,481.

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79

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

m. Cost-benefit analysis

2

159. DHS generally failed to conduct a true or adequate cost-benefit

3 analysis, instead only aiming to quantify the direct reduction in transfer payments

4 resulting from the Rule. For example, DHS failed to estimate the chilling effects

5 of the Rule because it was “difficult to predict the rule’s disenrollment impacts

6 with respect to people who are not regulated by this rule, such as people who

7 erroneously believe themselves to be affected.”185 The preamble also repeatedly

8 diminishes the significance of impacts to those people, businesses, and state

9 governments that are not “directly” regulated by the Rule. In neglecting to

10 conduct deeper quantitative analysis of the costs to states or their economies, the

11 preamble cites, for example, “great uncertainty” to “the broader economy” as a

12 result of diminished transfer payments.186

13

160. With respect to chilling effects, the preamble makes broad,

14 unsupported assumptions. DHS dismisses widespread confusion that currently

15 exists and that will be exacerbated by the Rule, saying only that it would be

16 “unwarranted” for people to disenroll from a benefit if they were not subject to

17 the Rule and that DHS “will not alter the rule to account for such unwarranted

18 choices.”187 This significantly understates the impacts of a drastic change in

19

20

185 84 Fed. Reg. at 41,313.

21

186 84 Fed. Reg. at 41,472 & 41,478 & 41,480.

22

187 84 Fed. Reg. at 41,313.

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80

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 agency position, particularly when combined with other proposed and final

2 regulatory actions publicized by federal officials.

3

161. In purporting to analyze the number of noncitizens who would

4 choose to forego benefits to which they are legally entitled, DHS arbitrarily used

5 a figure of 2.5% of the estimated number of foreign-born noncitizens

6 participating in any particular program. Instead of actually attempting to

7 determine the number of people who were expected to disenroll, DHS apparently

8 selected this figure by using the number of individuals seeking to adjust status

9 within a given time period.188

10

162. DHS downplays the number of impacted individuals by the Rule in

11 numerous ways. For example, the preamble states that most applicants are

12 “unlikely to suffer negative consequences from past receipt of public benefits

13 because they will have been residing outside the United States. . . .”189 The

14 preamble then cites statistics showing that only about 33% of the relevant group

15 of immigrants between fiscal years 2015 and 2017 adjusted their status while in

16 the United States. However, because the United States admitted over 541 million

17

18

188 Department of Homeland Security, [CIS No. 2499-10; DHS Docket No.

19 USCIS-2010-0012]; RIN 1615-AA22, Proposed Rule: Inadmissibility on Public

20 Charge Grounds, Economic Analysis Supplemental Information for Analysis of

21 Public Benefits Program, Table 4, n. 1.

22

189 84 Fed. Reg. at 41,313.

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81

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 nonimmigrants during this time period, this still leaves over 178 million people

2 residing in the United States during the cited time period who could have been

3 affected by the Rule, had it been in place at the time. This is but one example of

4 arbitrary qualitative analysis minimizing the reach of the Rule.

5

163. DHS does not adequately assess the costs to states. While

6 acknowledging that state and local governments would “incur costs,” DHS goes

7 on to dismiss these costs as “unclear” and “indirect,” with no substantive

8 analysis.190

9

164. DHS repeatedly cites the Office of Management and Budget’s

10 Circular A-4 as excusing quantitative or even qualitative analysis of various

11 impacts. OMB’s Circular A-4 assists agencies in conducting a regulatory analysis

12 of economically significant actions consistent with Executive Order 12866. Far

13 from excusing analysis of “chilling effects” on immigrants, costs to state

14 governments, private businesses such as hospitals, or the economy, Circular A-4

15 expressly states that agencies should include the monetary values of

16 “Private-sector compliance costs and savings” and “Government administrative

17 costs and savings.” Circular A-4 also does not excuse analysis where there is

18 uncertainty. Rather, it states that while the precise benefits and costs of regulatory

19 options are not always known, “the probability of their occurrence can often be

20 developed.”

21

22

190 84 Fed. Reg. at 41,469-70.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

82

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

165. By focusing only on the reduction in direct transfer payments, DHS

2 greatly overstates the benefits of the Rule. In many instances, these “savings”

3 will be offset by even greater costs that are simply shifted to others, including

4 other federal or state programs, or private parties. DHS’s treatment of the impacts

5 to the Medicaid program provides a clear example of this deficiency in analysis.

6 DHS estimates a reduction in transfer payments related to Medicaid of over

7 $1 billion.191 But this estimate fails to take into account increased costs from

8 emergency services that will result from delaying health care until conditions

9 become emergent and they are much more costly to treat. At that time, costs are

10 borne by other federal programs, states, private hospitals and health providers,

11 and individuals receiving care. For example, in Washington, the Alien

12 Emergency Medical Program covers certain emergency care for noncitizens. The

13 program is funded through both state and federal sources. Private medical

14 providers will also suffer costs by providing uncompensated care. By making no

15 effort to analyze these resulting costs, DHS has overstated the actual benefits of

16 the Rule in its cost-benefit analysis.

17

18

19

191 Department of Homeland Security, [CIS No. 2499-10; DHS Docket No.

20 USCIS-2010-0012]; RIN 1615-AA22, Proposed Rule: Inadmissibility on Public

21 Charge Grounds, Economic Analysis Supplemental Information for Analysis of

22 Public Benefits Program, Table 5.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

83

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

VI. THE RULE’S CHILLING EFFECTS ON PARTICIPATION IN

FEDERAL AND STATE PUBLIC BENEFITS PROGRAMS

2 166. As the Department itself recognizes, the Rule will cause lawfully

3 present noncitizens whom Congress specifically made eligible to participate in

4 federal benefit programs—and U.S. citizens with participating or eligible family

5 members—to disenroll or forbear enrollment. The Rule does so by making the

6 receipt of benefits (including five non-cash federal benefits—SNAP, Medicaid,

7 Section 8 vouchers, Section 8 rental assistance, and public housing subsidies) a

8 ground for designating a person a public charge. Even harsher, the Rule makes

9 an immigrant beneficiary’s exclusion virtually inevitable by making receipt of

10 such benefits a “heavily weighed negative factor” in the determination.

11 167. The chilling effects of the Rule began to materialize long before its

12 publication, and were observed quickly following the leaks in January 2017 of

13 the draft Executive Order and in March 2018 of the draft Rule. Due to the

14 ambiguity and complexity of the Rule, many noncitizens and their families have

15 foregone and will forego participation in a wide swath of federal, state, and local

16 benefits. Widespread confusion over which forms of “public benefits” will

17 trigger a public charge determination will exacerbate the Rule’s harms to the

18 Plaintiff States and their residents.

19 168. As eligible noncitizens and their families disenroll or refrain from

20 seeking federal benefits for fear of jeopardizing their ability to immigrate, many

21 will turn to the Plaintiff States’ programs to fill the gap. Others will refrain from

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

84

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 seeking any government assistance at all—including state-funded non-cash

2 benefits that would not even be subject to the Rule—leading to increased poverty,

3 homelessness, hunger, poor health, and other social costs. These harms to

4 individuals and families will place increased downstream financial strain on the

5 Plaintiff States, including their housing, public health, and education systems.

6

169. The Department admits that the Rule will deter immigrant

7 participation in public benefits programs, despite Congress’s express

8 determination allowing immigrant participation.192 Indeed, in the Department’s

9 view, the chilling effects are not a vice of the Rule but a virtue—regardless of the

10 acknowledged decline in health, income, educational opportunities, housing, and

11 overall quality of life they will cause among millions in our communities.193 The

12 Department even suggests that state agencies “advise potential beneficiaries of

13 the potential immigration consequences of receiving certain public benefits.”194

14 The manifest intent of the Rule is to exclude immigrants this Administration

15 deems “undesirable” from the United States and, barring that, to exclude them

16 and their families from the U.S. social safety net, contrary to congressional and

17 state determinations regarding eligibility.

18

19

20

192 83 Fed. Reg. at 51,267.

21

193 83 Fed. Reg. at 51,270.

22

194 83 Fed. Reg. at 51,174.

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85

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

170. As a result of those chilling effects, implementation of the Rule will

2 also cause severe and irreparable harm to the Plaintiff States. First, States will

3 lose federal dollars from benefits programs that they administer to the benefit of

4 their residents. Additional direct costs to states will result from immigrants who

5 shift from federal programs to state programs that do not qualify as “public

6 benefits” under the Rule. At the same time, disenrollment and non-enrollment in

7 nutrition, health, and other federal and state assistance programs will make many

8 working class immigrant families less healthy, less productive, more reliant on

9 state-covered emergency medical care, more likely to experience economic

10 dislocation and homelessness—all of which will redound to greater strains on

11 state agencies and programs. Further, the broader chilling effects among all state-

12 run assistance programs will undermine those programs’ administration and

13 effectiveness. Those affected programs include, but are not limited to, medical

14 and healthcare services, food assistance programs, housing benefits, financial and

15 cash assistance programs, long-term support services for elderly and disabled

16 residents, education systems, job and employment training programs, and

17 programs supporting crime victims.

18

171. For any immigrants reviewing this Complaint for guidance on the

19 types of programs that are deemed a “public benefit” for purposes of the Rule,

20 the Plaintiff States strongly urge the immigrant to contact the relevant State

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

86

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 agency. As mentioned throughout, many state programs do not qualify as “public

2 benefits” under the Rule.

3 A. Health Care Programs

4

172. The Plaintiff States manage and administer medical services and

5 benefits programs such as Medicaid. Some of these programs are jointly funded

6 by federal and state funds and others by only state funds. As set forth below, the

7 Rule would imperil the effectiveness of these programs by reducing enrollment,

8 jeopardizing public health, and dramatically increasing costs to the Plaintiff

9 States.

10

1. Federal health care benefits

11

173. Congress created Medicaid in 1965 to assist states in furnishing

12 medical assistance to individuals and families.195

13

174. Medicaid is jointly funded by the states and the federal government.

14 A state’s participation in Medicaid is voluntary, but once a state chooses to

15 participate it must comply with federal statutory and regulatory requirements to

16 receive federal matching funds.196

17

175. Anyone who qualifies under program rules can receive Medicaid.

18

19

20

195 See Pub. L. 89-97, 79 Stat. 286, codified as amended at 42 U.S.C.

21 § 1396-1.

22

196 42 U.S.C. §§ 1396–1, 1396a, 1396b, 1396c.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

87

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

176. States administer Medicaid and generally determine financial

2 eligibility criteria for participants.

3

177. Federal law requires coverage for certain groups of individuals,

4 including some low-income families, qualified pregnant women and children,

5 and individuals receiving Supplemental Security Income. States may offer

6 coverage for additional groups, such as people receiving home and

7 community-based services and children in foster care who are not otherwise

8 eligible. States may extend Medicaid coverage to all children and pregnant

9 women, including any immigrants lawfully residing in the United States.197

10

178. The Affordable Care Act established a new methodology for

11 determining Medicaid income eligibility. Some individuals are eligible for

12 Medicaid based on methodology other than income, such as disability. These

13 changes resulted in greater participation in the Medicaid Program. Thirty-six

14 states, and the District of Columbia, participated in the Medicaid expansion.

15

179. Over half of all non-elderly adults receiving Medicaid—about

16 60%—are working. An even greater number of Medicaid recipients—about

17 79%—are from a home where at least one household member works. Among

18 adult Medicaid enrollees who work, over half (about 51%) work full-time for the

19 entire year.

20

21

22

197 42 U.S.C.§ 1396b(v)(4)(A).

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88

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

180. Under the Welfare Reform Act, states may extend Medicaid

2 eligibility to lawful permanent residents and all other “qualified” immigrants

3 after a five year waiting period.198 States may also elect to use state-only funds

4 to cover qualified immigrants during the five-year ban.199 Many of the Plaintiff

5 States have done so.200 Although such state-only health benefits do not constitute

6 “public benefits” under the Rule’s public charge test, many noncitizens will fear

7 that enrollment in state-funded programs (which often have the same name as the

8 state’s Medicaid program) will carry adverse immigration consequences.

9

2. State health care benefits

10

181. The Plaintiff States manage and administer numerous health care

11 services programs, including Medicaid.

12

182. Certain classes of citizens and noncitizens are eligible to participate

13 in these state-run medical services programs. If implemented, the Rule would

14 result in many otherwise eligible individuals—including citizens—disenrolling

15

16

198 See 8 U.S.C. § 1613(a).

17

199 8 U.S.C. § 1622(a).

18

200 See ASPE Issue Brief: Overview of Immigrants’ Eligibility for SNAP,

19 TANF, Medicaid, and CHIP, Office of the Ass’t Sec’y for Planning & Eval., U.S.

20 Dep’t of Health & Human Servs. (Mar. 2012), https://aspe.hhs.gov/basic-report/

21 overview-immigrants-eligibility-snap-tanf-medicaid-and-chip

22 (HHS Issue Brief).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

89

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 or forbearing enrollment for fear of jeopardizing their own or their family

2 members’ immigration status.

3

183. Individuals who are eligible to enroll in these programs but elect not

4 to participate because of the Rule will likely delay seeking both routine and

5 necessary medical treatment (including vital preventative services such as

6 vaccinations) until they require emergency care. Indeed, the Department

7 essentially concedes this fact, noting that “DHS acknowledges that increased use

8 of emergency rooms and emergent care as a method of primary healthcare due to

9 delayed treatment is possible and there is a potential for increases in

10 uncompensated care in which a treatment or service is not paid for by an insurer

11 or patient.”201 Individuals who resort to emergency care as a method of primary

12 healthcare are more likely to experience severe medical conditions, creating

13 public health concerns and requiring unnecessarily expensive emergency medical

14 treatment, the overwhelming cost of which will be borne by the Plaintiff States

15 and their private hospitals.

16

184. As set forth below, implementing the Rule will cause irreparable

17 harm to the Plaintiff States by undermining the functions and effectiveness of

18 these health care services programs.

19

20

21

22

201 84 Fed. Reg. at 41,384.

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90

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

a. The Plaintiff States’ medical assistance programs

2

185. Each of the Plaintiff States manages and administers a Medicaid

3 program for its residents. In addition, the Plaintiff States administer numerous

4 other health care programs, some with combined federal and state funds and some

5 with state-only funds. With community, state, and national partners, the Plaintiff

6 States provide evidence-based, cost-effective services that support the health and

7 well-being of individuals, families, and communities in their States.

8

186. Many of the Plaintiff States’ Medicaid programs include coverage

9 groups encompassing citizens and noncitizens, including adults between the ages

10 of 19 and 65; certain parents and caretakers; the elderly; the blind and disabled;

11 those using long-term support services or hospice; and Medicare Savings

12 Program enrollees.

13

187. The Washington Health Care Authority (HCA) administers

14 Washington’s Medicaid program, as well as other federal and state-funded

15 medical assistance programs. HCA has over 1,300 employees and a biennial

16 budget of over $20 billion.

17

188. Washington Apple Health is the name for Washington’s medical

18 assistance programs, which include not only the state Medicaid program, which

19 is covered under the Rule, but also other programs that are not expressly covered

20 but are likely to be affected, including because of the Rule’s chilling effect on

21 eligible individuals. This chilling effect on programs not expressly covered under

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

91

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 the Rule will extend to CHIP and various health-assistance programs funded

2 solely by the state.

3

189. Through the Apple Health program, Washington purchases health

4 care for approximately 1.9 million people. In state fiscal year 2019, Washington’s

5 HCA is expected to spend $10.1 billion to support Apple Health and its

6 Community Behavioral Health Services program. Of this amount, $6.8 billion

7 will come from federal contributions.

8

190. Washington’s Apple Health currently covers adults with incomes up

9 to 138 percent of the federal poverty level under the Adult Medical Program and

10 provides these individuals with essential health coverage, including preventative

11 care, inpatient hospitalization, prescription drugs, and many other health services.

12

191. The Massachusetts Executive Office of Health and Human Services

13 (EOHHS) manages Massachusetts’s Medicaid program, which is covered by the

14 Rule, as well as other health assistance programs that are not expressly covered

15 but are likely to be affected by the Rule’s chilling effect on eligible individuals.

16 EOHHS comprises 12 agencies, has over 22,000 employees, and oversees an

17 annual budget of over $22 billion.

18

192. Massachusetts’s Medicaid program and CHIP are combined into

19 one program, MassHealth, through which Massachusetts provides healthcare

20 benefits to almost 1.8 million adults, children, and people with disabilities. In

21 state fiscal year 2019, Massachusetts’s MassHealth spent $16.5 billion to support

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

92

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 MassHealth medical and behavioral programs and services to covered

2 populations. Of this amount, $4.3 billion came from state contributions.

3 Massachusetts’s MassHealth provides essential health coverage to adults and

4 children, including inpatient and outpatient services, preventive care, mental

5 health and addiction services, and various other services and benefits.

6

193. The Virginia Department of Medical Assistance Services (DMAS)

7 administers Virginia’s Medicaid program, which is subject to the Rule, as well

8 as various other programs that the Rule does not expressly cover. Virginia’s

9 Medicaid program currently covers adults with incomes up to 138% of the federal

10 poverty level and provides a full range of inpatient and outpatient services,

11 pharmacy, mental health and addiction treatment, long term services and

12 supports. In 2018, 983,000 Virginians received Medicaid benefits. That number

13 is projected to rise to as many as 1,406,000 people in 2019.

14

194. The Maryland Department of Health runs the state Medicaid

15 program. Through Maryland’s medical assistance programs, the state provides

16 assistance to 1,160,067 enrollees.

17

195. In New Mexico, 840,860 people were enrolled in the state Medicaid

18 program in 2018. The program, which is covered by the Rule, is administered by

19 the State’s Human Services Department.

20

196. In New Jersey, the State’s Medicaid and CHIP programs together

21 serve approximately 1.8 million low- and moderate-income residents—or about

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

93

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.101 Page 101 of 176

1 20% of the State’s population. Notably, New Jersey is one of the most diverse

2 states in the country, with 22% of its residents having been born in a foreign

3 country.

4

197. The Rhode Island Executive Office of Health and Human Services

5 and the Department of Human Services administer the State’s Medicaid program,

6 as well as other federal- and State- funded medical assistance programs. Under

7 the State’s Medicaid expansion, eligible Rhode Island residents between the ages

8 of 19 and 64 with incomes up to 133% of the federal poverty level are eligible

9 for Medicaid coverage. Rhode Island’s health care services cover approximately

10 300,000 Rhode Island residents, including citizens and noncitizens.

11

198. The Minnesota Department of Human Services administers

12 Minnesota’s Medicaid program, known as Medical Assistance, as well as other

13 related federal and state-funded health care assistance programs, collectively

14 known as Minnesota Health Care Programs. Through the State’s Medical

15 Assistance program, Minnesota purchases health care for approximately

16 1,031,888 people.

17

199. The Plaintiff States also provide supplemental health care programs

18 specifically targeted to children. Although the Rule exempts from its public

19 charge test Medicaid benefits received by immigrants under age 21 and pregnant

20 women,202 it nevertheless will likely undermine these supplemental children’s

21

22

202 84 Fed. Reg. at 41,297.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

94

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 health care programs because of (1) the chilling effect the Rule will have on

2 eligible participants; and (2) the programs’ close and intertwined relationship to

3 Medicaid benefits (which are generally considered “public benefits”). For

4 example, Virginia’s CHIP program, called Family Access to Medical Insurance

5 Security (FAMIS), provides free health coverage to children in households at or

6 below 205% of the poverty level. In fiscal year 2018, Virginia’s CHIP program

7 alone provided medical care services to more than 200,000 children and pregnant

8 women. Virginia relies on the CHIP Program to assist in providing low-income

9 children with health insurance coverage and keeping all children in Virginia

10 healthy. In fiscal year 2017, Virginia received approximately $291.1 million

11 federal allotment under the CHIP program.

12

200. Washington Apple Health for Kids similarly provides free coverage

13 to children in households at or below 210% of the federal poverty level. For a

14 monthly premium, the program also provides coverage to households at or below

15 312% of the federal poverty level. Washington Apple Health for Kids is partially

16 funded through CHIP, which receives matching federal funds under the Social

17 Security Act203 and provides low-income children with essential health coverage,

18 including preventive care, inpatient hospitalization, prescription drugs, and many

19 other health services.

20

21

22

203 See 42 U.S.C. § 1397dd.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

95

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

201. As part of the Washington Apple Health for Kids program,

2 Washington uses federal funds related to CHIP to provide services for

3 low-income children whose families are slightly above the income cutoff for free

4 child health coverage. CHIP dollars also fund other Washington programs and

5 services, such as medical coverage for lawfully present noncitizen children, and

6 prenatal coverage for pregnant women ineligible for Medicaid because of their

7 citizenship status.

8

202. The Plaintiff States also manage and administer several related

9 health care programs, which are not considered “public benefits” under the Rule

10 but which will likely be affected by its chilling effect on eligible participants. For

11 example, the Washington Family Medical Program provides coverage to adults

12 with countable income at or below the applicable Medicaid standard who have

13 dependent children living in their home under age 18. Similarly, Washington’s

14 Pregnancy and Family Planning Program provides coverage to pregnant women

15 at or below 193% of the federal poverty level without regard to citizenship or

16 immigration status.

17

203. Washington provides a host of other medical services programs that

18 likewise are not directly covered by the Rule but are likely to be harmed by it,

19 including the Community and Behavioral Health Services Program; the Breast

20 and Cervical Cancer Treatment Program for Women; the Refugee Medical

21 Assistance Program; the Alien Emergency Medical Program; the Supplemental

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

96

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 Security Income Program; Healthcare for Workers with Disabilities; the

2 Medically Needy Program; the Medicare Savings Program; and Long-Term

3 Services and Supports and Hospice.

4

204. Similarly, Virginia state agencies administer a host of additional

5 medical services that are not covered by the Rule but are likely to be affected by

6 it, including community mental health services through Community Service

7 Boards; newcomer refugee health program; breast and cervical cancer prevention

8 and treatment; labor and delivery services, and dialysis services.

9

205. Massachusetts similarly administers various other medical services

10 programs that, while not covered by the Rule, are likely to be harmed by it. These

11 include programs targeted towards infectious and chronic disease prevention,

12 substance abuse treatment and prevention, cancer screening and diagnosis, and

13 sexual and domestic violence prevention.

14

206. Many of the Plaintiff States also provide state-only-funded health

15 coverage to qualified immigrants prior to the five-year ban. Those states include

16 Illinois, Massachusetts, Minnesota, New Mexico, Virginia, and Washington.204

17

b. Irreparable harm to medical assistance programs

18

207. The Rule will cause irreparable harm to the Plaintiff States’ medical

19 assistance programs. For example, the Rule will result in (1) a loss of medical

20 care and healthcare insurance for the Plaintiff States’ residents; (2) higher and

21

22

204 HHS Issue Brief at 5–6.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

97

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1 more frequent emergency services costs and uncompensated care for the Plaintiff

2 States; (3) severe public health concerns, including by deterring eligible

3 individuals from accessing routine preventative medical care such as

4 vaccinations; and (4) significant harm to the Plaintiff States’ sovereign interests

5 in the effective administration of their health services programs.

6

208. The Rule will cause a devastating loss of health coverage under

7 government-sponsored health programs in the Plaintiff States. If the Rule is

8 implemented, the Plaintiff States will experience disenrollment rates for

9 noncitizens ranging from 15 to 35%, based on metrics and data analysis from the

10 Kaiser Family Foundation, a non-profit foundation focused on providing the

11 United States public with unbiased research and journalism on major health care

12 issues.205

13

209. Below are specific examples of the types of harms the Plaintiff

14 States and their residents will experience.

15

16

17

18

205 See S. Artiga, R. Garfield, A. Damico, Estimated Impacts of the

19 Proposed Public Charge Rule of Immigrants and Medicaid (Henry J. Kaiser

20 Family Foundation Oct. 11, 2018), https://www.kff.org/disparities-policy/issue-

21 brief/estimated-impacts-of-the-proposed-public-charge-rule-on-immigrants-

22 and-medicaid/.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

98

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

(1) Plaintiff States’ residents will lose medical care and

become uninsured

2 210. In Washington, as of October 31, 2017, there were 107,244

3 noncitizens insured for health coverage under Apple Health. These enrollees will

4 be deterred from using government health insurance and government-funded

5 health services by the Rule.

6 211. An additional 140,612 Washington families had a member of a

7 household who might be subject to a public charge determination while another

8 household member is receiving Apple Health coverage. Although the Rule does

9 not expressly consider public benefits accessed by another member of the

10 immigrant’s household,206 members of mixed-status households will fear

11 accessing Apple Health-covered services to which they are legally entitled,

12 resulting in public health concerns and increased costs due to delays in accessing

13 preventative care, vaccinations, prenatal care, and wellness checks.

14 212. Based on projected disenrollment rates in Washington the Rule will

15 result in an annual reduction in medical and behavioral care in Washington of

16 between $42.6 million and $99.4 million.

17 213. Based on projected disenrollment rates in Washington the Rule will

18 cause approximately 10,000 to 24,000 lawfully present adults to lose medical

19 care annually and become uninsured.

20

21

22

206 84 Fed. Reg. at 41,370.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

99

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A

Kennewick, WA 99336

(509) 734-7285

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1

214. Based on projected disenrollment rates in Washington the Rule will

2 cause approximately 2,600 to 6,000 undocumented adults and children to lose

3 Medicaid annually and become uninsured.

4

215. The severe effects of such a loss of coverage could also result in a

5 reduction of health care jobs and supporting services, particularly in rural regions

6 of Washington.

7

216. In Massachusetts, as of December 2018, approximately 264,000

8 MassHealth members were noncitizens, including 52,000 children. Six thousand

9 of these children were enrolled in CHIP.

10

217. Based on projected disenrollment rates in Massachusetts the Rule

11 will cause approximately 39,600 to 92,400 lawfully present MassHealth

12 members to lose medical care annually and become uninsured.

13

218. Based on projected disenrollment rates in Massachusetts the Rule

14 will cause approximately 7,800 to 18,200 citizen or lawfully present noncitizen

15 children to lose MassHealth medical coverage annually and become uninsured.

16

219. The effects of the Rule, however, are not merely limited to deterring

17 individuals who may be subject to a public charge determination from

18 participating in assistance programs specifically defined as “public benefits.” The

19 Rule will also likely have a chilling effect on individuals who are not subject to

20 it and on assistance programs that are not considered “public benefits” under the

21 analysis.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

100

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

220. For example, for many families in Massachusetts, some household

2 members will be subject to a public charge determination while others will not,

3 and some family members may receive benefits that are part of the public charge

4 analysis while others receive benefits not subject to the rule. The Massachusetts

5 Health Connector estimates that as of December 2018, up to 60,000 enrollees live

6 in households where participation in Massachusetts’s health care benefits

7 programs could result in negative immigration consequences under the Final

8 Rule for at least one family member. Because of the complexity of determining

9 these impacts and disenrolling only those family members from only those

10 benefits that could have negative impacts, however, whole families may opt to

11 simply withdraw their participation from the Massachusetts health insurance

12 exchange.

13

(2) Shift of healthcare costs to the Plaintiff States

14

221. The harms to the Plaintiff States will include an increase in

15 emergency and uncompensated care, which refers to unreimbursed medical

16 services provided by hospitals to patients resulting in charity care or bad debts.

17

222. Individuals who lose their health insurance coverage will likely

18 delay seeking medical care until their conditions require emergency treatment.

19 When these individuals present at a hospital emergency room for such treatment,

20 the Plaintiff States will ultimately bear the more expensive cost of their care.

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

101

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 Further, because their conditions are more serious, they will require greater

2 resources to treat.

3

223. Many of the Plaintiff States have made significant gains in reducing

4 their uninsured populations, all of which will be undermined by implementation

5 of the Rule. Between 2013 and 2016, for example, Washington significantly

6 reduced its rate of uninsured residents, from 14% in 2013 to 5.4% in 2016. The

7 State’s reduction in its number of uninsured residents is associated with a parallel

8 reduction in uncompensated care for medical services, which dropped from

9 $2.638 billion in 2013 to $932 million in 2016.

10

224. Similarly, Virginia has reduced its number of uninsured residents

11 with the state’s January 1, 2019 expansion of its Medicaid program. As of

12 July 2019, over 300,000 adults in the state have newly enrolled in the program.

13

225. In Maryland, the uninsured rate likewise fell by more than 64%

14 between 2013 and 2017. The drop in uninsured rates closely aligns with a

15 reduction in uncompensated care: From fiscal year 2013 to 2015, hospital

16 uncompensated care costs in Maryland declined by approximately $311 million.

17

226. Because of the Public Charge Rule, however, the Plaintiff States

18 stand to lose all these gains. For example, Massachusetts foresees a substantial

19 increase in the provision of uncompensated care across the Commonwealth due

20 to loss of health coverage resulting from the Rule. Safety net providers such as

21 hospitals and community health centers will disproportionately bear the financial

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

102

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.110 Page 110 of 176

1 burden of providing uncompensated care, and in turn, the demand on state

2 programs that compensate providers for such care will increase. The state’s

3 EOHHS estimates that Massachusetts hospitals are in danger of losing almost

4 $457 million in Medicaid and CHIP funding because of the chilling effect of the

5 Rule on otherwise-eligible individuals.

6

227. Because the Rule will reduce the number of insured residents and

7 increase the amount of individuals who rely on emergency treatment for their

8 primary source of medical care, uncompensated care in the Plaintiff States will

9 rise. This increase will result in higher medical bills and health care costs charged

10 by hospitals, undermining the Plaintiff States’ efforts to reduce their uninsured

11 populations and harming their economies.

12

(3) Significant public health concerns prompted by

reduced preventive care 13

228. By deterring individuals from accessing the government-sponsored

14

healthcare coverage to which they are legally entitled, the Final Rule discourage

15

these individuals from engaging in routine medical care such as wellness exams

16

and vaccinations.

17

229. A general decline in engagement with such routine medical

18

preventive services, including vaccinations, risks increasing the spread of viruses

19

and communicable diseases in the Plaintiff States. As a result, the Rule threatens

20

to cause dangerous public health hazards for the Plaintiff States and their

21

residents.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

103

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

230. DOJ has previously recognized that discouraging eligible

2 immigrants from accessing these health care benefits may lead to the very same

3 public health concerns cited by the Plaintiff States. As noted above, in 1999 DOJ

4 proposed a rule, 64 Fed. Reg. 28,676, stating: “Immigrants’ fears of obtaining

5 these necessary medical and other benefits are not only causing them

6 considerable harm, but are also jeopardizing the general public. For example,

7 infectious diseases may spread as the numbers of immigrants who decline

8 immunization services increase.”

9

(4) Harm to the Plaintiff States’ sovereign interests in

the successful operation of their health care

10

systems

11

231. In addition to the above costs, implementation of the Rule will also

12 harm the Plaintiff States’ sovereign interests in administering their health benefits

13 systems.

14

232. The Plaintiff States have carefully developed state-funded health

15 care programs to fill gaps in Medicaid and to provide coverage to financially or

16 medically vulnerable individuals, including noncitizens. Although the Rule

17 expressly applies only to Medicaid-related health benefits, the Plaintiff States’

18 own programs are often closely intertwined with their Medicaid programs, and

19 the Rule will cause noncitizens and mixed-status families to forgo health

20 coverage to which they are legally entitled—even when such coverage would not

21 be considered a negative factor under the Department’s public charge test. This

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

104

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.112 Page 112 of 176

1 chilling effect will undermine the comprehensive network of services the Plaintiff

2 States have developed to address their unique public health needs.

3

233. The Rule would, for example, undermine Massachusetts’s ability to

4 achieve its policy of universal health coverage among its residents. As of 2017,

5 97.2% of Massachusetts residents are covered by health insurance, the highest

6 insurance coverage rate in the nation. This is largely due to watershed health

7 reform legislation enacted by the state in 2006, including state subsidy programs

8 for low- and moderate-income individuals and a state-level individual mandate

9 to have health insurance.

10

234. The Department’s highly restrictive, complex, and vague treatment

11 of public benefits, however, threatens to upend the system of incentives and

12 disincentives that informs the choices of individuals and families enrolling in

13 health insurance through Massachusetts’s health insurance marketplace.

14

235. Since 2006, Massachusetts has required that most adult

15 Massachusetts residents have health coverage or pay a penalty through their tax

16 returns. The Rule, however, will interfere with Massachusetts’s ability to

17 maintain this requirement, particularly for any residents who would face adverse

18 immigration consequences by virtue of accessing health coverage.

19

236. About 260,000 Massachusetts residents individually purchase

20 health coverage through the Health Connector, which procures high-quality plans

21 at competitive prices that residents can access. Any disenrollment that will follow

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

105

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.113 Page 113 of 176

1 from the Rule will diminish the collective impact of individuals purchasing health

2 coverage and make Massachusetts’s health insurance marketplace less

3 competitive. A less competitive health insurance marketplace will put at risk the

4 progress Massachusetts has made towards universal health coverage for all its

5 residents.

6

237. In Massachusetts, individuals and small businesses share the same

7 risk pool, insurance products, and premiums. The Massachusetts Health

8 Connector’s data shows that on average, noncitizen enrollees have 25% lower

9 medical claims than their citizen counterparts, which is attributable to the overall

10 lower age of noncitizens and their lower utilization of medical services. A decline

11 in enrollment or retention of coverage for noncitizens as a result of the Rule could

12 impact the overall risk pool in Massachusetts, which could in turn lead to monthly

13 premium increases for citizens and noncitizens alike. Based on the merged

14 structure of the insurance risk pool in Massachusetts, such impacts can flow

15 beyond the Health Connector and cause premiums to increase for not only the

16 small business community but potentially throughout the health insurance

17 market.

18

238. Federal regulation requires that state health exchanges use a single

19 streamlined application that collects the information needed to determine an

20 applicant’s eligibility for a qualified health plan, health coverage subsidies,

21 Medicaid, CHIP, or a basic health plan.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

106

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

239. In Massachusetts, all applicants for federally funded and state

2 funded health insurance—including Medicaid, CHIP, and ConnectorCare—use

3 a uniform application portal, and after applying are matched with the appropriate

4 program for which they are determined eligible. The chilling effect of the Rule

5 will likely require Massachusetts to create new forms, policies, and procedures

6 for its various health care programs and services to ensure that benefits applicants

7 are aware of the potential public charge consequences of their application and

8 can choose to apply only for those programs which are not considered as part of

9 the public charge analysis.

10

240. Additionally, MassHealth and Health Connector may have to

11 expand its customer service support to answer questions about public charge

12 consequences from potentially affected individuals. MassHealth and the Health

13 Connector would have to absorb the costs and administrative burden for these

14 modifications.

15

241. Further, the Plaintiff States will be required to cover expenses

16 associated with adopting new laws, regulations, and administrative practices,

17 policies, and procedures as a result of the Public Charge Rule. Those changes

18 will be necessary to adapt to and mitigate the effects of enrollment decisions by

19 noncitizens and mixed-status families, as well as the public health consequences

20 for their reduced access to health care services.

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

107

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 B. Food Assistance Programs

2

242. The Plaintiff States manage and administer various state and

3 federally funded food assistance programs for eligible individuals and families,

4 including noncitizens. Implementation of the Public Charge Rule, however, will

5 irreparably harm the Plaintiff States by undermining the effectiveness of these

6 programs, as eligible individuals—including working families and their

7 children—will opt not to participate for fear of jeopardizing their immigration

8 status. This reduction in participation will lead to significant public health

9 concerns, including child hunger and malnourishment.

10

1. Federal Food Assistance Benefits

11

243. In 1977, Congress created the federal Food Stamp Program, known

12 since 2008 as the Supplemental Nutrition Assistance Program (SNAP), which

13 provides food purchasing assistance to low-income individuals and families.207

14

244. SNAP benefits are provided on a “household” basis. For purposes

15 of SNAP eligibility, a “household” is defined as “an individual who lives alone

16 or who, while living with others, customarily purchases food and prepares meals

17 for home consumption separate and apart from others; or a group of individuals

18 who live together and customarily purchase food and prepare meals together for

19 home consumption.”208

20

21

207 See 7 U.S.C. § 2013 (2018).

22

208 7 U.S.C. § 2012(m).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

108

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

245. Under federal law, SNAP is available to households with income at

2 or below 130% of the federal poverty level; a net monthly income after

3 deductions for housing, child care and other expenses at less than or equal to

4 100% of the federal poverty level; and with assets under the amount set in the

5 applicable federal regulations.

6

246. The average monthly SNAP benefit per household is

7 $253—or $8.40 per day, per household. SNAP households may purchase food

8 by using the benefit at one of the quarter million retailers authorized by the

9 federal Food and Nutrition Service to participate in the program.

10

247. SNAP imposes work requirements on program participants. Federal

11 law requires that able-bodied adult SNAP recipients who are not exempt register

12 to work, accept a job if offered, and not quit a job without good cause. The

13 Welfare Reform Act limits SNAP benefits for able-bodied adults without

14 dependents to 3 months of assistance within a 36 month period unless they are

15 participating in work activities for at least 20 hours per week. States also operate

16 SNAP Employment and Training (E&T) programs, which help participants build

17 job skills, receive training, find work, and increase work experience.

18

248. About 14.9 million workers—or about 10% of workers

19 nationwide—are from households that received SNAP benefits over the past

20 year.

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

109

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

249. Under the Welfare Reform Act, adult immigrants with lawful

2 permanent residency status, and other “qualified” immigrants, are eligible for

3 SNAP after five years.209 The five-year ban does not apply to children,

4 immigrants with 40 qualifying quarters of work, or to members of the military

5 and veterans (or their spouses), all of whom are immediately eligible for SNAP

6 benefits upon adjustment to lawful permanent resident status.210

7

250. States have the authority to use state-only funds to provide nutrition

8 assistance benefits to non-qualified immigrants and qualified immigrants before

9 the five-year SNAP ban. Plaintiff States Minnesota and Washington have done

10 so. Although such state-only nutrition benefits do not constitute “public benefits”

11 under the Department’s public charge test, many noncitizens will fear that

12 enrollment in state-funded programs will carry adverse immigration

13 consequences, and therefore disenroll or forbear enrollment.

14

251. As set forth below, implementing the Rule will cause irreparable

15 harm to the Plaintiff States by undermining the functions and effectiveness of

16 these food assistance programs.

17

2. State food assistance programs

18

252. The Plaintiff States manage and administer various food assistance

19 programs, including SNAP. These programs are intended to reduce food

20

21

209 8 U.S.C. § 1612(a)(2)(L).

22

210 8 U.S.C. § 1612(a)(2)(B)–(C) & (J).

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1 insecurity and assist in fulfilling the food and nutritional needs of some of the

2 states’ most vulnerable populations.

3

253. Certain classes of citizens and noncitizens are eligible to participate

4 in these state-run food assistance programs. If implemented, the Rule would

5 result in many otherwise eligible individuals—including citizens—disenrolling

6 or refraining from participating for fear of jeopardizing their or their family

7 members’ immigration status.

8

254. As set forth below, implementing the Rule will cause irreparable

9 harm to the Plaintiff States by undermining the functions and effectiveness of

10 their food assistance programs.

11

a. The Plaintiff States’ food assistance programs

12

255. All Plaintiff States manage and administer a SNAP program for their

13 residents. In addition, the Plaintiff States administer numerous other food

14 assistance programs, some using combined federal and state funds and some

15 using state-only funds. While the Rule considers only SNAP-related benefits as

16 “public benefits” under the public charge test, other state-only food assistance

17 programs are likely to be harmed because of the broad chilling effects on eligible

18 individuals.

19

256. Washington’s Basic Food program assists eligible children and

20 adults in purchasing food. The Basic Food program combines federally funded

21 SNAP benefits with the state-funded Food Assistance Program for legal

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 immigrants (FAP). FAP is available to individuals who are lawfully present and

2 meet all eligibility requirements for SNAP except for their citizenship or

3 immigration status.

4

257. Virginia’s food assistance program includes SNAP (including debit

5 card technology for accessing SNAP benefits); nutrition education; supplemental

6 nutrition program for women, infants, and children; nutrition program for seniors

7 (Fresh Market Fresh for Seniors), national school lunch program, food banks, and

8 meals on wheels.

9

258. Massachusetts’s Department of Transitional Assistance (MA-DTA)

10 assists and empowers low-income individuals and families to meet their basic

11 needs, improve their quality of life, and achieve long-term economic

12 self-sufficiency through training programs, and cash and food benefits, such as

13 SNAP. Massachusetts also funds a supplement to SNAP through the state budget.

14 In state fiscal year 2019, the SNAP state supplement was $300,000. Another

15 $300,000 for the state supplement has been appropriated for state fiscal year

16 2020.

17

259. Maryland’s Food Supplement Program reached 684,000 Maryland

18 residents in fiscal year 2017, or 11% of the state population. The state

19 supplemented the program with approximately $3.3 million in state funds during

20 state fiscal year 2019, and over $4.1 million in fiscal year 2020.

21

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

260. In New Mexico, approximately 25% of the State’s residents receive

2 SNAP benefits, with enrollment capped for a family of four at the federal poverty

3 limit of $25,100. In March 2018, for example, there were 456,190 people enrolled

4 in the state’s program.

5

261. New Jersey administers a SNAP program that helps provide food

6 assistance to residents suffering from food insecurity. An estimated 1 in 10 New

7 Jersey residents are food insecure—which translates to more than 900,000

8 residents, including nearly 270,000 children.

9

262. In Rhode Island, the Department of Human Services administers the

10 SNAP program to low-income families and individuals with income less than

11 185% of the federal poverty level. Rhode Island residents who meet eligibility

12 requirements may receive up to $642 per month in food-assistance based on their

13 family size and income level.

14

b. Irreparable harm to food assistance programs

15

263. The Plaintiff States’ food assistance programs will be irreparably

16 harmed by the Rule, which will result in, among other things, (1) more vulnerable

17 families and individuals in the Plaintiff States experiencing food insecurity; and

18 (2) severe public health concerns, including child hunger and malnutrition.

19

264. The Rule will cause a devastating loss of food assistance for working

20 families and individuals in the Plaintiff States. This will occur in SNAP-related

21

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 programs that are “public benefits” under the Rule as well as other state-only

2 food assistance programs that are not “public benefits” under the Rule.

3

265. For example, using metrics and data analysis from the above-noted

4 Kaiser Family Foundation study, the Washington State Department of Social and

5 Health Services (DSHS) has estimated the effects the Rule will have on food

6 assistance participation in the state.211 Specifically, DSHS estimates the Rule will

7 lead to disenrollment rates ranging from 15 to 35% among food assistance

8 enrollees in cases involving a noncitizen. DSHS further estimates that full

9 implementation of the Rule will reduce combined food and cash assistance to

10 Washington families by up to $55.3 million.

11

266. In Massachusetts, each year between 2009 and 2012, SNAP benefits

12 kept 141,000 residents out of poverty, including 57,000 children. It is estimated

13 the Rule will jeopardize approximately $122 million in SNAP benefits, or almost

14 10 percent of Massachusetts’s SNAP program.

15

267. In New Jersey, it is estimated that as many as 50,000 residents who

16 are eligible for and receiving SNAP benefits might be affected by the chilling

17 effect of the Rule.

18

268. Below are examples of the specific types of harms the Plaintiff

19 States and their residents will experience.

20

21

22

211 See S. Artiga, R. Garfield, A. Damico, supra.

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1

(1) Increased Hunger and Food Insecurity in the

Plaintiff States’ Residents

2 269. The Plaintiff States’ food assistance programs are specifically

3 tailored to provide food assistance to low-income individuals who otherwise

4 likely could not afford to purchase sufficient food for themselves and their

5 families.

6 270. Individuals who are eligible to participate in the Plaintiff States’

7 food assistance programs but who forgo participation because of the Rule are

8 likely to experience greater food insecurity and will struggle to provide food for

9 themselves and their families.

10 271. In Massachusetts, speculation about the impact of the Rule has

11 already spurred a decline in numbers of participants in public nutrition programs

12 such as the Special Supplemental Nutrition Program for Women, Infants, and

13 Children (WIC), even though the program is not a “public benefit” under the

14 Rule. Since February 2018, when Reuters released a draft of the Proposed Rule,

15 which included WIC as a public benefit, there has been a 2,000 person decrease

16 from 2017 levels in WIC participation in Massachusetts.

17 272. The number of individuals and households disenrolling from or

18 forgoing participation in the Plaintiff States’ SNAP programs, which are

19 considered “public benefits” under the Rule, is likely to be even greater.

20 273. This increase in food insecurity and hunger directly undermines the

21 purposes and effectiveness of the Plaintiff States’ food assistance programs,

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 which are intended to alleviate hunger and improve nutrition for the States’ most

2 vulnerable residents.

3

(2) Significant public health concerns

4

274. The Plaintiff States’ food assistance programs are specifically

5 tailored to assist working families who might not otherwise be able to afford

6 sufficient food for their children.

7

275. The projected reduction in the number of immigrants and

8 mixed-status families participating in these programs because of fears associated

9 with the Rule will undermine the programs and lead to significant public health

10 concerns, including increases in child hunger and malnutrition.

11

276. Children who experience hunger, food insecurity, and

12 malnourishment are more likely to suffer deficits in cognitive development,

13 behavioral problems, and poor health, along with reduced learning and academic

14 achievement, all of which tends to diminish future earning potential. Children

15 who are hungry will experience more difficulty in school and will require greater

16 resources from the Plaintiff States’ educational systems.

17

277. Further, eligibility for many federal school breakfast and lunch

18 programs—which provide free or reduced price meals to eligible students—are

19 based at least in part on enrollment in SNAP. Thus, although the Rule does not

20 expressly consider receipt of free or reduced price school meals as a “public

21 benefit” under the public charge test, the Rule will undoubtedly have a negative

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 effect on these programs by limiting enrollment in the underlying programs. In

2 this way, the Rule will negatively affect far more assistance programs than only

3 the limited programs it expressly identifies as public benefits.

4

278. The Plaintiff States will ultimately bear the higher healthcare and

5 other costs associated with treating the medical conditions resulting from this

6 unnecessary child malnourishment.

7

279. For this reason, the increase in food insecurity resulting from the

8 Rule would undermine not only the Plaintiff States’ interests in healthy, stable,

9 productive residents and workforces, but also a purported goal of the Rule

10 itself—to “better ensure” that immigrants “are self-sufficient, i.e., do not depend

11 on public resources to meet their needs.”

12 C. Housing Assistance Programs

13

280. The Plaintiff States manage and administer various state and

14 federally funded housing assistance programs for eligible individuals and

15 families, including noncitizens. The Rule, however, will irreparably harm the

16 Plaintiff States by undermining the effectiveness of these programs, as eligible

17 individuals and their families will disenroll or refrain from seeking housing

18 assistance for fear of jeopardizing their ability to immigrate.

19

1. Federal housing assistance benefits

20

281. In general, individuals and families with incomes at or below 50 to

21 80% of their area median income are eligible for federal housing assistance.

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 Federal housing assistance is not an entitlement program, and for families that

2 make it on the waiting list, the average wait time to receive a housing voucher is

3 2.5 years. Thus, federal housing assistance serves only about 25% of eligible

4 households.

5

282. The Housing Act of 1937212 provides for subsidies to be paid from

6 the U.S. government to local public housing agencies to improve living

7 conditions for low-income families (Subsidized Housing Program). There are

8 currently approximately 1 million units in the federal public housing subsidies

9 program. Nearly two-thirds of public housing subsidies households are

10 considered “extremely low income,” with incomes below 30% of the Area

11 Median Income and an average annual income of $14,605. Approximately 3.3

12 million children live in such subsidized public housing.213

13

283. The Section 8 Housing Choice Voucher Program (Housing Voucher

14 Program) is the federal government’s major program for assisting low-income

15 families, the elderly, and the disabled to afford decent, safe, and sanitary housing

16 in the private market.214 Housing choice vouchers are administered locally by

17

18

19

212 Pub. L. 75-412, 50 Stat. 888.

20

213 Public Housing, National Housing Law Project, www.nhlp.org/

21 resource-center/public-housing/ (last visited Aug. 14, 2019).

22

214 42 U.S.C. §§ 1437f, 1437u.

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 public housing agencies, which receive federal funds from the U.S. Department

2 of Housing and Urban Development (HUD).

3

284. The Section 8 Project-Based Rental Assistance (PBRA) program

4 also provides housing assistance to low-income families.215 This HUD program

5 provides critical affordable housing stock to more than 2 million people—in 1.2

6 million households—across the country. HUD contracts with private owners to

7 rent units in their housing developments, paying a subsidy that helps pay tenants’

8 rent.

9

285. The Housing Voucher and PBRA programs (together, Section 8

10 programs) and the Subsidized Housing Program help prevent homelessness and

11 other kinds of housing instabilities. To participate in the Section 8 programs,

12 families must demonstrate incomes at or below certain threshold levels; an

13 absence of criminal- or drug-related records and evictions; and proof of

14 citizenship or eligible immigrant status.

15

286. Under the Welfare Reform Act and the Housing and Community

16 Development Act of 1980, lawful permanent residents and certain other qualified

17 immigrants are eligible for Section 8 programs.216 The Welfare Reform Act’s five

18

19

20

215 42 U.S.C. 1437f; 24 CFR parts 5, 402, 880–81, 883–84, and 886.

21

216 Pub. L. 96-399, 94 Stat. 1614, Sec. 214, codified as amended at

22 42 U.S.C. § 1436a(a); 8 U.S.C. § 1611(a) & (c).

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 year ban applicable to Medicaid, SNAP, and other “federal means-tested public

2 benefits” does not apply to Section 8 programs.217

3

287. The Rule treats as “public benefits” (1) Section 8 Housing

4 Assistance under the Housing Choice Voucher program; (2) Section 8

5 Project-Based Rental Assistance; and (3) Public Housing under Section 9 of the

6 Housing Act of 1937. Under the Rule, an immigrant’s participation in any of

7 these programs could constitute a heavily weighed negative factor favoring a

8 public charge determination, even though Congress has explicitly authorized

9 eligible noncitizens to participate in those programs.218

10

2. State housing assistance programs

11

288. The Plaintiff States manage and administer a variety of housing

12 assistance programs, including by using a combination of state, federal, and

13 private funding to provide safe and stable shelter options for eligible individuals

14 and their families. Certain classes of citizens and noncitizens are eligible to

15 participate in these housing assistance programs.

16

17

217 8 U.S.C. § 1613(a); 8 C.F.R. § 213a.1; Eligibility Restrictions on

18 Noncitizens: Inapplicability of Welfare Reform Act Restrictions on Federal

19 Means-Tested Public Benefits, Dep’t of Housing and Urban Devel., 65 Fed. Reg.

20 49994-01, Aug. 16, 2000.

21

218 83 Fed. Reg. at 51,289–90 (to be codified at 8 C.F.R.

22 § 212.21(b)(1)(ii)(B) & (b)(2)(iv)).

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

289. The chilling effect of the Rule, however, will deprive vulnerable

2 individuals of opportunities to obtain such housing assistance, and irreparably

3 harm the functioning of the Plaintiff States’ programs.

4

a. The Plaintiff States’ housing assistance programs

5

290. All Plaintiff States manage and administer housing assistance

6 programs. Working together with community, state, and national partners, the

7 Plaintiff States provide effective programs seeking to prevent and alleviate

8 homelessness and housing instability for their most vulnerable residents.

9 Although the Department does not consider receipt of state-only housing

10 assistance as a “public benefit”—unlike the federal programs described

11 above— these state programs are likely to be harmed by the Rule’s broad chilling

12 effects on eligible individuals and families who forgo participation for fear of

13 jeopardizing their ability to immigrate.

14

291. For example, the Washington Department of Commerce administers

15 Washington’s state and federal housing assistance funding. The Department of

16 Commerce manages the Washington State Housing Trust Fund, a 33-year-old

17 source of capital to develop and preserve affordable housing for low-income and

18 vulnerable Washingtonians. County governments act as lead grantees and are

19 responsible for directing and managing the local homeless response system.

20 These local homeless response systems assist homeless families and individuals

21 who need help obtaining or maintaining permanent housing.

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

292. Washington’s housing assistance programs receive approximately

2 $196 million per year in funding from a variety of sources, including private

3 funders as well as federal, state, and local governments. Using these funds, the

4 programs seek to both (1) stabilize households that are currently in permanent

5 housing but are at risk of homelessness; and (2) provide homeless individuals and

6 families with emergency shelter, temporary housing, or placement into

7 permanent housing.

8

293. DSHS administers the Washington Housing and Essential Needs

9 (HEN) Referral Program, which provides access to essential needs items and

10 potential rental assistance for low income individuals and families who are

11 unable to work for at least 90 days due to a physical and/or mental incapacity.

12 DSHS provides this assistance even if the individuals are ineligible to receive

13 federal funds.

14

294. The Massachusetts Department of Housing and Community

15 Development (MA-DHCD) similarly administers numerous federal and state

16 housing programs and services to promote safe and affordable housing for

17 residents. In particular, MA-DHCD oversees the operations of approximately 240

18 local housing authorities as well as programs that provide federal- and

19 state-funded rental vouchers to low-income families; assist families in moving

20 from shelter into housing or in avoiding homelessness altogether; and provide

21

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 shelter access for all low-income families that become homeless if they meet

2 certain eligibility criteria.

3

295. Massachusetts’s state budget allocated over $500 million for

4 homelessness and housing safety net programs and services in fiscal year 2019.

5 The Massachusetts Rental Voucher Program (MRVP), which provides both

6 mobile and project-based vouchers, alone received $100 million in state funding,

7 and Massachusetts’s Emergency Assistance (MA-EA) program, through which

8 MA-DHCD funds family shelters, received over $175 million.

9

296. The Virginia Department of Housing and Community Development

10 (VDHCD) and Virginia Housing Development Authority (VHDA), under the

11 oversight of Virginia’s Secretary of Commerce and Trade, administer Virginia’s

12 housing assistance programs. VDHCD creates safe and affordable housing by

13 regulating building and fire codes while investing more than $100 million each

14 year into affordable housing and community development projects throughout

15 Virginia. VHDA promotes access to home loans, homeowner and homebuyer

16 education to ensure quality, affordable housing for all in Virginia.

17

297. VDHA also administers the federal Housing Choice Voucher and

18 Housing Credit programs in Virginia, and administers multiple programs that

19 offer state and federal funding to address homelessness. For example, the

20 Virginia Homeless Solutions Programs is a homeless and special needs housing

21 funding source that supports the development and implementation of localized

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 emergency crisis response systems with housing-focused, coordinated

2 community-based activities. VDHCD also administers the housing opportunities

3 for persons with AIDS program, HUD funding dedicated to the housing needs of

4 low income people living with HIV/AIDS.

5

b. Irreparable harms to the Plaintiff States’ housing

assistance programs 6

298. The Rule will lead to reduced immigrant participation in federal

7

housing assistance programs for eligible residents of the Plaintiff States.

8

299. Further, while the Rule does not treat the above state housing

9

assistance programs as “public benefits,” because of the complexity of the

10

regulatory regime and widespread public confusion and fear, it will nevertheless

11

deter many immigrants and mixed-status families from participating in state-

12

funded housing assistance programs for which they are eligible.

13

300. For these reasons, the Rule will cause irreparable harm to the

14

Plaintiff States. Among other harms, the Rule will (1) lead to increased numbers

15

of homeless individuals and families in the Plaintiff States; and (2) result in

16

poorer health, educational, and other outcomes for vulnerable children who reside

17

in the Plaintiff States and who, because of their or their family member’s

18

immigration status, will be deprived of opportunities for emergency shelter or

19

placement into permanent housing.

20

301. Below are examples of the specific types of harms the Plaintiff

21

States and their residents will experience.

22

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1

(1) Homelessness and other public health consequences

2

302. If the Rule is implemented, it will cause increased numbers of

3 individuals and families to experience homelessness in the Plaintiff States, as

4 individuals who are otherwise eligible for such assistance will forgo seeking it

5 for fear of jeopardizing their or their family member’s ability to immigrate.

6

303. The Rule provides that officials will consider Public Housing and

7 Section 8 participation in making a determination regarding whether someone is

8 likely to become a public charge. This will deter many eligible households from

9 seeking benefits and will delay placement of homeless families into permanent

10 housing.

11

304. For example, in Washington, over 78,000 low-income households

12 use Public Housing and Section 8 assistance to afford modest rents and make

13 ends meet. Most of these individuals are either working themselves or come from

14 working families that cannot afford fair market rents.

15

305. In Massachusetts, approximately 175,000 households receive

16 Section 8 or Public Housing assistance. Massachusetts’s MRVP supported 5,100

17 households as of January 2013.

18

306. In Maryland, approximately 84,000 households receive Section 8 or

19 Public Housing assistance. Approximately 48,000 Maryland households receive

20 federal rental assistance through the Section 8 Housing Choice Voucher Program.

21

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

307. Further, many immigrant workers are employed in typically

2 low-wage fields such as agriculture, construction, building and grounds cleaning

3 and maintenance, and food service, which make it difficult for them to afford

4 current market-based rents.

5

308. In Massachusetts, large numbers of low-wage immigrant workers

6 are employed in the health care system, serving in positions such as home health

7 aides and nursing assistants. A minimum wage worker in Massachusetts would

8 need to work, on average, at least 104 hours per week to afford a two-bedroom

9 apartment.

10

309. Washington currently provides 50,000 families per year with rental

11 assistance, and about 15,000 of these families have children. About 14% of these

12 families who receive rental assistance and have children are immigrant families.

13

310. Washington has recently faced increased homelessness, with an

14 estimated 3,285 homeless families with children. About 14% of the State’s

15 homeless families with children are immigrant families. Available data suggests

16 the Rule is likely to compel over 10,000 immigrants and their families in

17 Washington to give up the lifeline assistance that prevents them from suffering

18 homelessness. For other eligible families, implementation of the Rule will

19 significantly delay their placement into permanent housing.

20

311. The homeless population in Massachusetts increased by 2,500

21 people, or 14%, in 2018. Massachusetts estimates that about 3,600 families with

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 children and pregnant individuals are in the MA-EA shelter system on any given

2 night. This number does not include families who are doubled up, living in unsafe

3 conditions, or sleeping in their cars.

4

312. Further, because many of the placements into permanent housing

5 are related to Public Housing or Section 8 programs (17% of placements in

6 Washington last year), the Rule will hinder the Plaintiff States’ ability to

7 successfully transition homeless individuals and their families into permanent

8 housing, significantly harming their residents who are otherwise unable to obtain

9 permanent housing.

10

(2) Poorer health, educational, and other outcomes

11

313. The Rule will also lead to other harmful related costs for the Plaintiff

12 States and their homeless and housing-insecure populations.

13

314. Access to good housing is well-recognized as a social determinant

14 of public health, as families and individuals without stable housing are more

15 likely to use emergency services and require hospitalizations.

16

315. Data shows that children who suffer homelessness and housing

17 insecurity experience dramatically poorer health outcomes, including having

18 twice as many respiratory infections and being three times more likely to be

19 hospitalized for asthma. This creates significant public health concerns for the

20 Plaintiff States.

21

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

316. Further, children who experience homelessness and housing

2 insecurity also tend to suffer worse educational outcomes and generally have

3 access to fewer and less profitable work opportunities. This results in harm to the

4 Plaintiff States’ economies and job markets.

5

317. Directly contrary to the supposed purpose of the Rule, needlessly

6 depriving children of access to housing assistance only makes it more likely these

7 children will require additional assistance as they grow older and will carry with

8 them the adverse effects of their childhood homelessness.

9

318. The many negative effects of increased homelessness in families

10 with children will irreparably harm the families, their children, and the Plaintiff

11 States, which will ultimately bear responsibility for the many increased costs and

12 other consequences associated with childhood homelessness.

13 D. Cash Assistance Programs

14

319. The Plaintiff States manage and administer various state and

15 federally funded cash assistance programs for eligible individuals and families,

16 including noncitizens. Under the Rule, however, eligible individuals and their

17 families will opt not to seek critical financial assistance for fear of jeopardizing

18 their immigration status.

19

1. Federal cash assistance benefits

20

320. Congress created the Temporary Assistance to Needy Families

21 (TANF) program in 1996 as part of the Welfare Reform Act.

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

321. TANF provides grant funds to states to provide families with

2 financial assistance and related support services including childcare assistance,

3 job preparation, and work assistance.

4

322. To qualify for TANF, individuals must either be pregnant or

5 responsible for a child under 19, have a low or very low income, and be

6 unemployed, under-employed, or about to be unemployed.

7

323. As the first word in the program name suggests, TANF was designed

8 as a temporary benefit to help otherwise self-sufficient, working families get back

9 on their feet while experiencing joblessness, unanticipated adverse life events, or

10 other hard times.

11

324. Federal law imposes work requirements applicable to TANF

12 participants. It requires states administering TANF to (1) ensure that cash

13 assistance recipients are working within 24 months of receiving assistance, or

14 sooner if the state deems them ready for work, and (2) achieve annual work

15 participation rates. Fifty percent of all TANF families with one work-eligible

16 adult and 90 percent of families with two work-eligible adults must engage in

17 specified work or work-related activities for a minimum number of weekly hours.

18

325. The Welfare Reform Act allows qualified immigrants, including

19 lawful permanent residents, to participate in TANF after five years in qualified

20 immigrant status. Certain qualified immigrants are exempt from the five year ban,

21 including members of the military and veterans (and their spouses and children).

22

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1

326. States are permitted under the Welfare Reform Act to provide

2 state-funded cash assistance benefits to nonexempt qualified immigrants during

3 the five year TANF ban to replace the loss of federal benefits, as well as to

4 provide state-only-funded assistance to nonqualified immigrants.

5

327. The Rule treats TANF as a “public benefit” program in which an

6 immigrant’s participation could constitute a heavily weighed negative factor

7 favoring a public charge determination.

8

328. The Rule also treats some state-only-funded cash assistance as

9 “public benefits” in which an immigrant’s participation could constitute a heavily

10 weighed negative factor favoring a public charge determination. The Rule’s

11 definition of public benefit includes “[s]tate or local cash benefit programs for

12 income maintenance (often called ‘General Assistance in the State context, but

13 which may exist under other names).”219 That ambiguous definition does not

14 provide clear notice of the state cash assistance programs in which an

15 immigrant’s participation may “heavily” weigh in favor of a public charge

16 determination.

17

329. As set forth below, implementing the Rule will cause irreparable

18 harm to the Plaintiff States by undermining the functioning and effectiveness of

19 their cash assistance programs.

20

21

22

219 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(b)(1)(iii)).

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1

2. State cash assistance programs

2

330. All Plaintiff States manage and administer various financial

3 assistance programs intended to provide modest monetary assistance to eligible

4 residents and their families for maintaining financial stability in certain

5 circumstances. Certain classes of citizens and noncitizens are eligible to

6 participate in these programs.

7

331. The Rule, however, considers as “public benefits” not only federal

8 cash assistance programs such as TANF but also state and local cash benefit

9 programs for income maintenance. As a result, the Rule will deprive vulnerable

10 individuals and their families of opportunities to access these programs and

11 achieve financial stability.

12

a. The Plaintiff States’ cash assistance programs

13

332. All Plaintiff States manage and administer cash assistance programs

14 to assist eligible individuals and their families in dealing with financial hardship.

15

333. For example, the Washington Department of Social and Health

16 Services administers Washington’s TANF program as well as several other cash

17 assistance programs for eligible individuals.

18

334. Washington’s TANF program provides cash assistance to certain

19 parents or caregivers and pregnant individuals to bolster their ability to support

20 their families’ foundational needs, including a safe home, healthy food, reliable

21 transportation, and school supplies.

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

335. During the 2017 to 2019 biennium, the Washington TANF program

2 cost over $300 million in combined federal and state service and administrative

3 costs, including over $90 million in total state funding.

4

336. Washington complements TANF with a state-funded program

5 called State Family Assistance (SFA). SFA is available to individuals who meet

6 TANF’s income requirements but are ineligible for TANF for other reasons,

7 including certain noncitizens. Washington extends SFA cash assistance to

8 qualified immigrants during the five year TANF ban, as well as to non-qualified

9 immigrants who are residents of Washington and legally present in the United

10 States.220 Some families receive a mix of TANF and SFA based on the eligibility

11 or immigrant status of each family member. Under the Rule, SFA constitutes a

12 state cash benefit program for income maintenance in which an immigrant’s

13 participation could constitute a “heavily weighed negative factor” favoring a

14 public charge determination.

15

337. The Virginia Department of Social Services administers Virginia’s

16 TANF program. Virginia’s TANF program provides eligible families with a

17 monthly cash payment to meet their basic needs. Virginia’s TANF program

18 emphasizes personal responsibility. Participants may be provided with services

19 such as job skills training, work experience, job readiness training, child care

20 assistance, transportation and other work related expenses. The Virginia TANF

21

22

220 WAC 388-400-0010, 388-424-0001, 388-468-0005.

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1 program also includes an employment advancement program that is designed to

2 provide proven service approaches and strategies to help current and former

3 TANF clients to prepare to enter, succeed, and advance in the workplace. The

4 expected outcome of this program are improved job placement, improved job

5 retention, higher employment wages upon entry, and increased wage gains from

6 job advancement.

7

338. In Massachusetts, MA-DTA manages aid programs designed to help

8 low-income individuals and families escape poverty, including the Transitional

9 Aid to Families with Dependent Children (TAFDC), Massachusetts’s TANF cash

10 assistance program.

11

339. Massachusetts’s TAFDC program provides cash assistance, child

12 care, and transportation support for job assistance to families with children and

13 pregnant women with little or no assets or income, to meet their emergency and

14 transitional needs.

15

340. In state fiscal year 2019, Massachusetts’s TAFDC program spent

16 $841 million, including $382 million in state funds.

17

341. The Plaintiff States administer other programs that, due to the Rule’s

18 ambiguity, may or may not be considered “public benefits” in which an

19 immigrant’s participation would weigh in favor of a public charge determination.

20

342. For example, Washington’s Aged, Blind, or Disabled Cash

21 Assistance Program is a state-funded program that provides financial assistance

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 to certain eligible, low-income individuals who are age 65 or older, blind, or are

2 determined likely to meet specific Supplemental Security Income disability

3 criteria expected to last at least 12 consecutive months. Washington also

4 administers the state-funded Pregnant Women Assistance Program, which

5 provides financial assistance to certain pregnant noncitizens ineligible for TANF;

6 the Consolidated Emergency Assistance Program, which provides emergency

7 assistance to families and pregnant women; the Diversion Cash Assistance

8 Program, which provides alternative assistance to TANF for families with

9 short-term financial needs; the State Supplemental Program, which assists certain

10 individuals while the Social Security Administration determines their eligibility

11 for Supplemental Security Income; and the Additional Requirements for

12 Emergent Needs Program, which assists individuals in keeping housing or

13 utilities.

14

343. In Massachusetts, MA-DTA similarly administers Emergency Aid

15 for Elderly, Disabled, and Children (EAEDC), a wholly state-funded cash

16 assistance program for persons who are age 65 or older, disabled adults,

17 caretakers, and children who are not able to get TAFDC.

18

344. Due to the Rule’s ambiguity, it is uncertain whether the Department

19 would treat an immigrant’s participation in these state-only cash assistance

20 programs as a “heavily weighed negative factor” favoring a public charge

21 determination. Regardless, the chilling effect of such ambiguity will be

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 substantial, resulting in many individuals opting not to seek state-funded cash-

2 assistance benefits for which they may be eligible.

3

b. Irreparable harm to the Plaintiff States’ cash assistance

programs 4

345. The Rule will cause irreparable harm to the Plaintiff States and their

5

cash assistance programs, as eligible individuals and families facing financial

6

hardship will elect not to access the program benefits for fear of jeopardizing

7

their own or a family member’s immigration status. Due to the Rule’s ambiguity,

8

as well as widespread fear and confusion among immigrant communities, those

9

chilling effects will reduce enrollment both in cash assistance programs in which

10

a noncitizen’s participation could trigger a public charge determination and in

11

programs the Department would not consider a state or local cash benefit program

12

for income maintenance.

13

346. The Rule will thus irreparably harm the Plaintiff States by increasing

14

the number of their residents whose financial hardships lead to loss of medical

15

coverage or housing.

16

347. For example, Washington’s DSHS estimates that full

17

implementation of the Rule will reduce combined food and cash assistance to

18

Washington families by approximately $23.7 to $55.3 million as eligible

19

individuals either terminate their benefits or decline to seek assistance.

20

348. The Rule will irreparably harm the Plaintiff States by deterring

21

individuals from seeking temporary, hardship-based cash assistance they are

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 otherwise eligible to receive. Without access to temporary financial assistance,

2 these individuals and their families are less likely to be able to weather

3 unexpected financial hardships, increasing the likelihood they will lose valuable

4 stability in the form of housing, transportation, or medical coverage or care.

5

349. The resulting economic dislocations will cause significant harm to

6 the Plaintiff States, which will ultimately bear the greater costs associated with

7 noncitizens’ or mixed-status families’ loss of financial stability, medical

8 coverage, or housing.

9 E. Other State Benefits Programs

10

350. In addition to irreparably harming the Plaintiff States by

11 undermining the proper functioning and effectiveness of their medical, housing,

12 food, and cash assistance programs, implementation of the Rule will also imperil

13 a host of other critical, state-managed assistance programs.

14

351. These various state-administered programs include but are not

15 limited to long-term care for elderly and disabled residents, job and employment

16 training programs, support and advocacy services for crime victims and energy

17 assistance.

18

352. Although the Rule does not expressly consider participation in these

19 programs as a “public benefit” under the public charge test, the programs will

20 nevertheless be harmed by the chilling effect the Rule has on eligible individuals.

21 As set forth below, implementing the Rule will cause irreparable harm to the

22

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136

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 Plaintiff States and their residents by undermining the functions and effectiveness

2 of these and similar assistance programs.

3

1. Long term services and supports for elderly and disabled

residents 4

353. The Plaintiff States manage and administer various programs to

5

provide care for elderly and disabled residents.

6

354. Long Term Services and Supports (LTSS) is a specific category of

7

care that includes both paid and unpaid medical and personal care services, which

8

may be provided in a person’s home, a community residential setting, or an

9

institution such as a nursing home.

10

355. For example, in Washington, the Aging and Long-Term Support

11

Administration (ALTSA) is an agency within DSHS that administers LTSS

12

services to the State’s low-income elderly and disabled individuals.

13

356. In Virginia, DMAS and the Department of Aging and Rehabilitative

14

Services (DARS) are agencies with the Secretary of Health and Human

15

Resources (HSS) that administer long terms services and supports for

16

low-income elderly people and people with disabilities.

17

357. There is rapidly growing demand for workers who provide LTSS

18

(called Direct Care Workers) because of the increasing population of individuals

19

over the age of 65.

20

358. According to the U.S. Department of Health and Human Services,

21

demand for Direct Care Workers nationally will grow from 2.3 million in 2015

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 to 3.4 million in 2030. Without a ready supply of workers, Plaintiff States’

2 programs and elderly and disabled residents will struggle to recruit sufficient

3 staff.

4

359. According to the U.S. Government Accountability Office,

5 approximately 23% of Direct Care Workers are immigrants.

6

360. The average annual earnings for these jobs are at or below the

7 federal poverty level. Accordingly, many of these workers rely on public

8 assistance for health care, food, and housing. For example, in Massachusetts over

9 40 percent of direct care workers depend on Medicaid, SNAP, or other benefits.

10 Under the Rule, however, these workers will be discouraged from seeking such

11 benefits, as doing so might jeopardize their immigration status.

12

361. Other factors for consideration under the Rule, including credit

13 history, education, and language, are all likely to increase the chances many

14 Direct Care Workers will be considered a “public charge.”

15

362. Under the Rule, many immigrants who are currently Direct Care

16 Workers or would become employed in such positions would likely be

17 considered a public charge. A decrease in LTSS labor will increase the risk of

18 injury, institutionalization, and death for the Plaintiff States’ many vulnerable

19 elderly and disabled residents, including citizens and noncitizens.

20

21

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

363. This will also increase costs for states like Washington to ensure that

2 their elderly and disabled residents are properly cared for, including by increasing

3 costs to Medicaid in the Apple Health program.

4

364. The resulting labor shortage will also force more citizens into

5 nursing homes, destroying decades of federal and state efforts to keep aging

6 individuals in their own homes. The Plaintiff States will therefore suffer a

7 diminished ability to administer elderly and disabled support services in a manner

8 approved by the States’ residents, legislatures, and governors.

9

2. Job and employment training programs

10

365. The Plaintiff States manage and administer various job and

11 employment training programs. Although these programs are not identified as

12 “public benefits” under the Rule, they are likely to be affected by the chilling

13 effect the rule will have on eligible populations.

14

366. For example, in Washington, DSHS administers employment and

15 training programs designed to provide recipients of cash and food benefits with

16 opportunities to gain skills, secure employment, and escape poverty.

17

367. In combination with other state agencies and community partners,

18 DSHS develops custom plans to support people in building skills through

19 employment and education training. DSHS tailors these programs to serve

20 particular populations, including programs specifically designed to assist

21 noncitizen families.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

368. Washington also has a WorkFirst program for families receiving

2 TANF or SFA benefits. The WorkFirst program provides families with

3 opportunities to engage in work activities that support financial stability and

4 resilience, including a Limited English Proficiency Pathway Program offering

5 employment services, job skills training, and English-as-a-Second-Language

6 services to nearly 5,000 people every year. DSHS infuses state funding into this

7 program to serve noncitizens who are ineligible for federally-funded services.

8

369. Further, the Washington State Basic Food Employment and

9 Training program (BFET) provides job search training, self-directed job search,

10 educational services, skills training, and other employment opportunities to Basic

11 Food (SNAP) recipients. This is an example of a program that, although not

12 directly identified as a “public benefit” itself under the Rule, is likely to be

13 severely affected because of its close relation to programs that are considered

14 public benefits, such as SNAP.

15

370. BFET is an important part of the State’s comprehensive workforce

16 development system, as the program serves the needs of low-income individuals,

17 displaced workers, and employers by encouraging financial independence from

18 public assistance through skill acquisition, personal responsibility, and gainful

19 employment.

20

371. Washington dedicates state funding to support a BFET program

21 designed specifically to provide culturally and linguistically appropriate services

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 to more than 1,000 noncitizens in Washington. This program is available only to

2 those individuals eligible to receive other federal benefits.

3

372. In Virginia, the Department of Social Services (DSS) administers

4 employment and training programs designed to provide recipients of cash and

5 food benefits with opportunities to gain skills, secure employment, and get out of

6 poverty. The Department for Aging and Rehabilitative Services provides

7 employment and vocational rehabilitation services for low-income elderly people

8 and individuals with disabilities and their families. The Virginia Department for

9 the Blind and Vision Impaired provides employment services for low-income

10 blind and visually impaired individuals and their families. In combination with

11 other state agencies and community partners, DSS supports people in building

12 skills through employment and education training. DSS has specific programs

13 that service particular populations, including programs specifically designed to

14 assist noncitizen families.

15

373. Virginia provides job skills, work experience, job readiness training,

16 child care assistance, transportation, and other work related expenses to families

17 receiving TANF. Virginia also provides former TANF clients opportunities to

18 prepare to enter, succeed, and advance in the workplace.

19

374. In Massachusetts, the Commonwealth’s Department of Transitional

20 Assistance administers and funds, in cooperation with the federal government, a

21 skills and employment program, Path to Work, for SNAP recipients who need

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 help finding work. The program reflects the agency’s statutory mandate to

2 connect participating SNAP recipients with “education, employment and training

3 activities.” Because of the program’s close relationship to SNAP, however, it is

4 likely to be severely affected by implementation of the Rule. Even though the

5 program is not itself identified as a “public benefit” under the Rule, SNAP

6 benefits are considered to be “public benefits” that may result in a public charge

7 determination. Thus, eligible immigrants are likely to forgo participating in either

8 program, particularly where participation in one is contingent on participation in

9 the other.

10

375. Due to the Rule’s ambiguity and because it considers SNAP

11 enrollment in making public charge determinations, eligible immigrants are

12 likely to be uncertain of whether their participation in one of the above

13 employment training programs would be a negative factor weighing in favor of a

14 public charge determination. Immigrants will therefore be strongly discouraged

15 from accessing the above programs, many of which are based on SNAP

16 enrollment. In this way, the Rule affects far more benefits programs than are

17 identified in the text of the rule.

18

376. Reduced participation in the above training programs will

19 negatively impact the Plaintiff States’ residents, employers, economy, and

20 pursuit of their policy priorities.

21

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

377. Residents who might otherwise have participated in the programs

2 will be deprived of the opportunity to develop their skills, increase their earning

3 potential, and improve their quality of life. Ironically, the change will leave these

4 residents more vulnerable and more likely, in the long term, to rely on emergency

5 public assistance. Employers will lose access to a more highly trained pool of

6 potential employees. The Plaintiff States’ economies will lose the benefits of

7 would-be participants’ increased productivity. The Plaintiff States will be unable

8 to achieve their policy goals of providing the greatest possible access to

9 workforce development in order to maximize the public welfare.

10

378. Lower participation in job and employment training programs will

11 also have the self-defeating result of making fewer people capable of becoming

12 independent from public benefits, directly contradicting the supposed purpose of

13 the Rule.

14

379. In sum, the Rule will harm the Plaintiff States’ sovereign interests

15 in administering comprehensive work training programs critical to their

16 continued economic growth and success.

17

3. Irreparable harm to the Plaintiff States’ support services for

crime victims 18

380. The Plaintiff States manage and administer various services to

19

advocate on behalf of and provide support for crime victims. Although these and

20

similar programs are not considered “public benefits” under the Rule, they are

21

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 nevertheless likely to be negatively affected by the chilling effect the Rule will

2 have on individuals who are eligible to access these programs.

3

381. For example, Washington State has established the Office of Crime

4 Victims Advocacy (OCVA) to serve as an advocate for crime victims in

5 Washington. OCVA’s mission is to support, heal, and assist crime victims in

6 reaching their full potential.

7

382. OCVA supports crime victims in obtaining services and resources,

8 assists communities with planning and implementing the provision of services to

9 crime victims, advises local and state government agencies that assist crime

10 victims, and administers grant funds for community programs that support crime

11 victims.

12

383. The Virginia General Assembly promulgated the Virginia Victim

13 and Witness of Crime Act to service crime victims, including providing support

14 related to financial assistance and social services in Virginia. The Virginia

15 Victims Fund (VVF) is a state program created to help victims of violent crimes

16 with out of pocket expenses, including medical bills, prescriptions, funeral

17 expenses, lost wages, temporary housing, counseling services, and many other

18 expenses. The Victims Services Team within the Virginia’s Department of

19 Criminal Justice Services (DCJS) provides grant funding, training, technical

20 assistance, and written resources to programs and individuals serving crime

21 victims. The DCJS and the VVF are the lead coordinating agencies in Virginia

22

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ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 for crime victims during critical events and emergencies under emergency

2 management plans.

3

384. The Rule will deter immigrant crime victims from accessing vital

4 benefits for themselves or their families, including children and elderly relatives

5 trying to escape from or address the trauma of domestic violence, sexual assault,

6 unlawful labor or sex trafficking, and other crimes.

7

385. The Rule will significantly harm the Plaintiff States’ efforts to assist

8 crime victims, as many victims and their families will sacrifice basic needs,

9 safety, and health in the form of food assistance, housing assistance, and medical

10 insurance, all to avoid potentially adverse immigration consequences.

11

VII. THE RULE’S OTHER ADVERSE IMPACTS

12

386. As set forth in detail above, the Rule’s chilling effects will cause

13 far-reaching harms to the Plaintiff States and their residents due to the loss of

14 public benefits and services to which they are legally entitled. In addition to those

15 harms, the Rule will have a vast array of other adverse impacts, including

16 (1) wrongfully denying marriage-based green cards to half of applicants due to

17 the irrationally high income threshold; (2) destabilizing the Plaintiff States’

18 workforces by erecting arbitrary new barriers to immigration and adjustment or

19 change of status; (3) reducing overall economic output and tax revenues in the

20 Plaintiff States; (4) imposing a disparate burden on communities of color,

21

22

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1 particularly Latinos; and imposing a disparate burden on individuals with

2 physical or mental disabilities.

3 A. Family Reunification Impacts

4

387. The INA requires most green card applicants to have a

5 sponsor—typically a U.S. citizen-spouse or other family member—with a high

6 enough income to ensure the immigrant would not become a public charge.221 By

7 statute, the sponsor must “agree[] to provide support to maintain the sponsored

8 alien at an annual income that is not less than 125 percent of the Federal poverty

9 [guide]line” (FPG) based on household size.222 When the sponsor is the green

10 card applicant’s spouse, the applicant’s income may be included “to meet the

11 income requirement” of 125%of FPG.223 The affidavit of support provision thus

12 reflects a Congressional determination that an income of at least 125% of FPG is

13 sufficient to ensure a lawful permanent resident will not become a public charge.

14

388. The Rule eviscerates Congress’s intent in establishing the 125% of

15 FPG threshold for an affidavit of support. It does so by doubling the income

16

17

221 8 U.S.C. §§ 1182(a)(4)(C), 1183a.

18

222 8 U.S.C. § 1183a(a)(1)(A); see also 8 C.F.R. § 213a.2 (“In order for the

19 intending immigrant to overcome the public charge ground of inadmissibility, the

20 sponsor must demonstrate the means to maintain the intending immigrant at an

21 annual income of at least 125 percent of the Federal poverty line.”).

22

223 8 C.F.R. § 213a.2(i)(3).

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1 threshold to 250% of FPG at which an immigrant’s household income would

2 constitute a “heavily weighed positive factor” in the public charge test.224 Even

3 with a household income exceeding 250% of FPG, the Department would

4 apparently retain the discretion to deny the sponsored immigrant’s green card

5 application based on its other public charge factors.225 The Department provides

6 no rational reason for disregarding the statutory 125% FPG threshold and

7 adopting the significantly higher 250% threshold instead. In doing so, the

8 Department is attempting to rewrite the INA by regulation.

9

389. The Department’s new 250% FPG threshold would significantly

10 inhibit the goal of family reunification that has long been a cornerstone of U.S.

11 immigration policy. According to the analysis of one public commenter, 54%of

12 the foreign-born spouses who are currently eligible for green cards would become

13 ineligible under the Rule’s higher income threshold.226 The Rule will force

14 200,000 U.S. citizens to choose whether to leave the United States or live apart

15 from their spouse, disrupting family cohesion and stability in the Plaintiff States.

16

17

18

19

224 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212.22(2)(c)(2)(i)).

20

225 See generally, 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R.

21 § 212.22).

22

226 Boundless Cmt. at 48.

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147

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 B. Workforce Impacts

2

390. Non-cash public assistance benefits are essential for workers to

3 remain employed, employable, and productive. For example, access to affordable

4 health insurance helps workers to enter and remain in the workforce.227 Workers

5 with health insurance miss approximately 75% fewer work days and are more

6 productive at work than their uninsured peers.228 The Rule will therefore make

7 the workforces in the Plaintiff States less healthy and less productive, reducing

8 overall economic output.

9

391. As explained above, the Rule will significantly reduce the labor

10 supply of direct care workers, who provide LTSS to low-income elderly and

11 disabled individuals. The resulting shortage in the direct care worker labor market

12 will increase costs for Plaintiff States to administer LTSS programs, endangering

13 the safety of their elderly and disabled residents.

14

15

16

17

227 Larisa Antonisse and Rachel Garfield, The Relationship Between Work

18 and Health: Findings from a Literature Review, Kaiser Fam. Found.

19 (Aug. 7, 2018), https://tinyurl.com/KKFRelationship-work-health.

20

228 Allan Dizioli and Roberto Pinheiro, Health Insurance as a Productive

21 Factor, 40 Labour Econ. 1-24, (June 2016), https://www.sciencedirect.com

22 /science/article/abs/pii/S0927537116300021.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

148

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 C. Other Macroeconomic Impacts

2

392. The mass disenrollment from and forgone participation in public

3 assistance programs by immigrants and their families will have significant

4 adverse impacts on the Plaintiff States’ economies. The loss of medical, food,

5 cash, and other benefits will reduce revenue to numerous health care providers,

6 grocers, farmers’ markets, and other market participants providing basic goods

7 and services—constraining overall economic output in the Plaintiff States both

8 directly and indirectly.

9

393. For example, Washington State estimates that the Rule will directly

10 reduce total economic output by as much as nearly $100 million. Economists with

11 Washington’s DSHS used an input-output model to calculate indirect economic

12 impacts from multiplier effects flowing from the reduced assistance to eligible

13 families. Under this model, implementation of the Rule will reduce total

14 economic output in Washington from between $41.8 million and $97.5 million.

15 Under Washington’s projections, this will also result in an annual reduction in

16 wages, salaries, and benefits for workers in the amount of $15.7 million to $36.7

17 million, as well as a loss of approximately 334 to 782 Washington jobs.

18

394. State and local governments benefit from the significant tax

19 revenues from immigrant taxpayers. Between 2011 and 2013, tax revenues

20 received from immigrants were $130 billion higher than public money spent on

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

149

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.157 Page 157 of 176

1 that same population.229 On average, an immigrant in the United States pays $900

2 more per individual in tax revenue than she collects in public expenditures.230

3

395. Those state and local tax revenues are likely to decrease

4 substantially as a result of the Rule, which will cause eligible immigrants to

5 disenroll from public benefits programs, limit their participation in the

6 workforce, and not fully participate in the economy.

7 D. Disparate Impacts

8

396. The effects of the Rule will have a disparate impact on communities

9 of color, most severely on Latinos. It is well established that income and wealth

10 disparities across racial and ethnic groups are substantial. The Rule, by selecting

11 for wealthy immigrants and punishing the working class—including participation

12 in common social safety net programs—would severely disadvantage non-white

13

14

15

16

17

229 Nat’l Academies. Sci., Engineering, Med., The Economic and Fiscal

18 Consequences of Immigration, 522 (2017), https://doi.org/10.17226/23550; Sang

19 V. Nguyen and Alice Zawacki, Health Insurance and Productivity: Evidence

20 from the Manufacturing Sector, Ctr. for Econ. Studies, U.S. Census Bureau,

21 Working Papers (Jan. 2009), https://tinyurl.com/Health-Insur-Productivity.

22

230 Id. at 524.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

150

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 immigrants.231 In other words, the Rule would effectively implement the

2 President’s policy of preferring white immigrants like those from “Norway.”

3

397. By one estimate, the chilling effects of the Rule would

4 disproportionately fall on people of color, prompting as many as 18.3 million

5 Latino noncitizens or their family members to disenroll or forgo enrollment in

6 public benefit programs—roughly 70% of the total noncitizen families at risk.232

7 The Department’s arbitrarily high 250% FPG income threshold would have

8 disproportionate effects based on national origin and ethnicity, blocking 71% of

9 applicants from Mexico and Central America, 69% from Africa, and 52% from

10 Asia—compared to only 36% from Europe, Canada, and Oceania.233

11

398. Other factors in the Public Charge Rule will cause a disparate impact

12 on the basis of race, ethnicity, or national origin. Credit scores are lower among

13 blacks and Hispanics than among non-Hispanic whites and Asians.234

14

15

231 That is, the Rule would effectively enact the President’s policy of

16 preferring white immigrants like those from “Norway.” See supra ¶ X.

17

232 Boundless Cmt. at 65; Public Charge Proposed Rule: Potentially

18 Chilled Population Data, Manatt, Phelps & Phillips, LLP (Oct. 11, 2018),

19 goo.gl/nWawDr.

20

233 Boundless Cmt. at 65–66.

21

234 Bd. of Governors of the Fed. Reserve Sys., Report to the Congress on

22 Credit Scoring and Its Effects on the Availability and Affordability of Credit,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

151

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

399. The high school degree factor will also have a disparate impact,

2 since 54% of immigrants from Mexico and 46% of immigrants from Central

3 America have not obtained a high school degree, while only 10% of immigrants

4 from Europe or Canada have not obtained one.235

5

400. Finally, the English proficiency factor will also exacerbate the

6 Rule’s disparate impact on the basis of race, ethnicity, and national origin. Of the

7 seven countries with the highest rates of English proficiency, six are in Europe

8 and none is in Latin America or Africa. Conversely, none of the 24 countries with

9 the lowest rates of English proficiency is in Europe, while all but one are in Latin

10 America, Africa, or the Middle East.236

11

401. The racial and ethnic animus evident in the President’s own

12 statements indicates that the Rule was adopted because of, and not in spite of, its

13 disparate impact.

14

15 at O-25 (Aug. 2007), https://www.federalreserve.gov/boarddocs/rptcongress/

16 creditscore/creditscore.pdf.

17

235 Jynnah Radford, Key Findings About U.S. Immigrants, Pew Research

18 Ctr. (June 17, 2019), https://www.pewresearch.org/fact-tank/2019/06/17/key-

19 findings-about-u-s-immigrants/.

20

236 Education First, EF English Proficiency Index at 6–7 (2018),

21 https://www.ef.edu/__/~/media/centralefcom/epi/downloads/full-reports/v8/ef-

22 epi-2018-english.pdf.

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152

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

402. Through Section 504 of the Rehabilitation Act of 1973, Congress

2 statutorily barred discrimination based on disability in any program or activity of

3 any federal executive branch agencies.237

4

403. Despite Section 504’s prohibition on disability discrimination, the

5 Public Charge Rule subjects individuals with disabilities to an increased

6 likelihood of a public charge determination. It does so by, for example, requiring

7 immigration officers to consider in the negative any medical condition that may

8 interfere with self-care or restricts the individual’s ability to attend school or

9 work, and by targeting non-monetary public benefits, such as Medicaid, which

10 such individuals are likelier to receive to pay for medical costs related to their

11 conditions.

12

404. DHS knowingly maintained these elements in the Rule despite the

13 disproportionate impact it will have on individuals with disabilities.

14

VIII. CAUSES OF ACTION

Count I: 15 Violation of the Administrative Procedure Act—Action Not in Accordance

with Law 16

405. All the foregoing allegations are repeated and realleged as though

17

fully set forth herein.

18

19

20

21

22

237 29 U.S.C. § 794.

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153

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

406. The APA requires a reviewing court to “hold unlawful and set aside

2 agency action, findings, and conclusions found to be . . . not in accordance with

3 law.”238

4

407. Congress used the term “public charge” in the INA consistent with

5 its original public meaning which includes determining whether an immigrant is

6 likely to become “primarily dependent” on the government for subsistence.239 By

7 redefining “public charge” as “an alien who receives one or more public

8 benefit[s],”240 in even modest amounts, the Rule unmoors the term from its

9 original public meaning and departs from the unambiguously expressed intent of

10 Congress in numerous statutes. The Rule’s redefinition of public charge and new

11 standards governing public charge determinations are not in accordance with the

12 following statutes:

13

a. INA Section 212(a)(4);241

14

b. INA Section 202(a)(1);242

15

16

17

238 5 U.S.C. § 706(2)(C).

18

239 64 Fed. Reg. at 28,689.

19

240 83 Fed. Reg. at 51,157 & 51,289 (to be codified at 8 C.F.R.

20 § 212.21(a)).

21

241 8 U.S.C. § 1182(a)(4).

22

242 8 U.S.C. § 1152

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154

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

c. Personal Responsibility and Work Opportunity

2

Reconciliation Act of 1996 (Welfare Reform Act),243 including Sections

3

401–03,244 411–12,245 and 431;246

4

d. Illegal Immigration Reform and Immigrant Responsibility

5

Act of 1996 (Immigration Reform Act),247 including Sections 531248 and

6

551;249

7

e. Section 504 of the Rehabilitation Act of 1973, which provides

8

that “[n]o otherwise qualified individual with a disability in the United

9

States . . . shall, solely by reason of her or his disability, be excluded from

10

the participation in, be denied the benefits of, or be subjected to

11

discrimination . . . under any program or activity conducted by any

12

Executive agency.”250

13

14

15

243 Pub. L. 104-193, 110 Stat. 2105.

16

244 8 U.S.C. §§ 1611–13.

17

245 8 U.S.C. §§ 1621–22.

18

246 8 U.S.C. § 1641.

19

247 Pub. L. 104-208, 110 Stat. 3009.

20

248 8 U.S.C. § 1182.

21

249 8 U.S.C. § 1183a.

22

250 29 U.S.C. § 794(a).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

155

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

408. The Final Rule’s inclusion of SNAP as a negatively weighted

2 consideration for public charge is contrary to federal statutes governing those

3 programs. Specifically, the Final Rule’s allowance of consideration of a

4 noncitizen’s receipt of SNAP benefits is contrary to the express statutory

5 provision prohibiting consideration of those benefits “[as] income or resources

6 for any purpose under any Federal, State, or local laws.” 7 U.S.C. § 2017(b).

7

Count II:

Violation of the Administrative Procedure Act—Ultra Vires Conduct 8
409. All the foregoing allegations are repeated and realleged as though

9 fully set forth herein.

10 410. The APA requires a reviewing court to “hold unlawful and set aside

11 agency action, findings, and conclusions found to be . . . in excess of statutory

12 jurisdiction [or] authority.”251

13 411. The Rule expands the public charge exclusion to reach applicants

14 for extension of stay and change of status. The INA does not permit—either

15 expressly or impliedly—the Department to expand its authority in this regard. As

16 the Department itself acknowledges, the public charge exclusion statute “by its

17 terms only applies to applicants for visas, admission, and adjustment of status,

18

19

20

21

22

251 5 U.S.C. § 706(2)(C).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

156

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.164 Page 164 of 176

1 and thus does not, by its terms, render aliens who are likely to become a public

2 charge ineligible for the extension of stay or change of status.”252

3

412. Congress has specifically confined the categories of immigration

4 applications to which the “public charge” designation applies. DHS may not

5 expand those statutory limitations by regulation. Its attempt to do so is ultra vires

6 and unlawful.253

7

Count III

Violation of the Administrative Procedure Act—Arbitrary or Capricious

8

Agency Action

9

413. All the foregoing allegations are repeated and realleged as though

10 fully set forth herein.

11

414. The APA requires a reviewing court to “hold unlawful and set aside

12 agency action, findings, and conclusions found to be . . . arbitrary, capricious,

13 [or] an abuse of discretion.”254

14

415. In general, a rule is arbitrary and capricious where the agency “relied

15 on factors which Congress has not intended it to consider, entirely failed to

16 consider an important aspect of the problem, offered an explanation for its

17 decision that runs counter to the evidence before the agency, or is so implausible

18

19

252 83 Fed. Reg. at 51,135.

20

253 MCI Telecommunications Corp. v. American Telephone & Telegraph

21 Co., 512 U.S. 218, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994).

22

254 5 U.S.C. § 706(2)(C).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

157

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.165 Page 165 of 176

1 that it could not be ascribed to a difference in view or the product of agency

2 expertise.”255 The agency must consider “the advantages and the disadvantages”

3 of the proposal before taking action.256

4

416. When an agency reverses position, it must “supply a reasoned

5 analysis for the change,”257 and may not “depart from a prior policy sub silentio

6 or simply disregard rules that are still on the books.”258 Further, any “serious

7 reliance interests must be taken into account,”259 particularly where “decades

8 of . . . reliance on the Department’s prior policy” demand a fulsome explanation

9 for the reversal.260

10

417. Under the standards set forth above, the Rule is arbitrary or

11 capricious in its entirety, including in the following particular respects:

12

a. the redefinition of public charge to mean “an alien who

13

receives one or more public benefits”;261

14

15

255 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. (State

16 Farm), 463 U.S. 29, 43 (1983) (citation and internal quotation marks omitted).

17

256 Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015).

18

257 State Farm at 42.

19

258 FCC v. Fox TV Stations, Inc., 556 U.S. 502, 515 (2009).

20

259 Id.

21

260 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016).

22

261 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a)).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

158

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

b. the inclusion of non-cash public assistance programs in the

2

definition of “public benefit,” reversing a consistent, decades-old policy;

3

c. the arbitrary selection of 12 months within a 36 month period

4

as the duration of time at which receipt of public benefits constitutes a

5

heavily weighted negative in public charge determinations;

6

d. the creation of “heavily weighed negative factors” in public

7

charge determinations that are not among the enumerated factors Congress

8

directed the Department to consider;

9

e. the decision to consider whether a noncitizen is more likely

10

than not to become a public charge “at any time in the future”;

11

f. the decision to weigh in favor of a public charge

12

determination a noncitizen’s unfavorable credit history or financial

13

liabilities;

14

g. the selection of 250% of FPG as the minimum income level

15

disfavoring a public charge determination as a “heavily weighed positive

16

factor”;

17

h. the selection of 125% of FPG as the income level below

18

which a noncitizen’s income will weigh in favor of a public charge

19

determination;

20

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

159

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

i. the decision to weigh in favor of a public charge

2

determination a noncitizen’s having applied for or received a fee waiver

3

for an immigration benefit;

4

j. the decision to weigh in favor of a public charge

5

determination a noncitizen’s lack of private health insurance;

6

k. the decision to weigh in favor of a public charge

7

determination a noncitizen’s lack of a high school diploma or equivalent;

8

l. the decision to weigh in favor of a public charge

9

determination a noncitizen’s lack of proficiency in English;

10

m. the discriminatory animus on the basis of race, ethnicity, or

11

national origin that was a motivating factor in the Rule’s adoption;

12

n. the pretextual nature of the explanations given for the Rule,

13

which do not match the evidence as a whole;

14

o. the vague and irrational factor-weighing framework;

15

p. the decision to weigh in favor of a public charge

16

determination a noncitizen’s mere application for public benefits;

17

q. the failure to consider, account for, or respond to the

18

significant public comments regarding the Rule;

19

20

21

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

160

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

r. the failure to consider the impact of the new public charge test

2

on lawful permanent residents returning from a trip abroad of 180 days or

3

more;262

4

s. the failure to accurately assess or acknowledging the

5

substantial costs of the Rule;

6

t. the failure to engage in proper analysis of the Department’s

7

obligations under Executive Order 13,132 and subsequent failure to

8

provide meaningful analysis of the federalism impacts as required by

9

Executive Order 13,132; and

10

u. the overestimation of the purported benefits of the Rule.

11

Count IV:

Denial of the Constitutional Right to Equal Protection of the Laws 12

418. All the foregoing allegations are repeated and realleged as though

13

fully set forth herein.

14

419. The Due Process Clause of the Fifth Amendment to the U.S.

15

Constitution forbids the federal government from denying equal protection of

16

the laws.263 It is an equal protection violation where a “discriminatory purpose”

17

18

19

20

262 84 Fed. Reg. at 41,327.

21

263 See, e.g., Davis v. Passman, 442 U.S. 228, 234 (1979); Bolling v.

22 Sharpe, 347 U.S. 497, 500 (1954).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

161

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.169 Page 169 of 176

1 was a “motivating factor” in a government decision.264

2

420. The Rule was motivated by Administration officials’ intent to

3 discriminate on the basis of race, ethnicity, or national origin.

4

421. That discriminatory intent is evidenced by the Rule’s

5 disproportionate adverse impacts on communities of color, including affecting

6 as many as 18.3 million Latinos in the United States.265 While people of color

7 account for approximately 36% of the total U.S. population, approximately 90%

8 of those chilled from seeking public services would be people of color (70% of

9 whom are Latino). In other words, the Rule will cause Latinos and other people

10 of color to be disproportionately excluded from the United States under the

11 INA’s public charge provision.

12

422. In addition to that anticipated disparate racial and ethnic impact,

13 other circumstantial evidence indicates that discrimination against people of

14 color was a motivating factor behind the Rule. That evidence includes the

15 historical background of the Rule, the specific sequence of events leading up to

16 the Rule, departures from normal rulemaking procedures, the rulemaking

17

18

264 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

19 265–66 (1977).

20

265 See Public Charge Proposed Rule: Potentially Chilled Population

21 Data, Manatt, Phelps & Phillips, LLP (Oct. 11, 2018), https://www.manatt.com

22 /Insights/Articles/2018/Public-Charge-Rule-Potentially-Chilled-Population. Id.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

162

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 history, and remarks by administration officials—including President Trump

2 and Kenneth Cuccinelli—reflecting animus towards non-European immigrants.

3

423. Because discrimination on the basis of race, ethnicity, or national

4 origin is a motivating factor in the Rule’s adoption, it violates the Fifth

5 Amendment’s equal protection guarantee.

6

IX. PRAYER FOR RELIEF

7

WHEREFORE, the Plaintiff States request that the Court enter a judgment

8 against Defendants and award the following relief:

9

a. Declare that the Rule shall be vacated for violation of the

10

APA on any or each of the following grounds:

11

• the Rule is contrary to enacted legislation and

12

Congressional intent;

13

• the Rule is arbitrary and capricious, and issued in

14

excess of the Department’s authority; and

15

• the Department failed to undertake legally required

16

analyses.

17

b. Declare the Rule unconstitutional as violative of the Equal

18

Protection Clause;

19

c. Preliminarily and permanently enjoin the Rule; and

20

d. Award Plaintiff States’ reasonable costs and attorney fees and

21

such additional relief as the interests of justice may require.

22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

163

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.171 Page 171 of 176

1

RESPECTFULLY SUBMITTED this 14th day of August, 2019.

2 ROBERT W. FERGUSON Attorney General of Washington
3

- ' ;_:5 _ ~1~ ~ RENE D. TOMISSER, WSBA #17509 5 Senior Counsel JEFFREY T. SPRUNG, WSBA #23607 6 ZACHARY P. JONES, WSBA #44557 JOSHUA WEISSMAN, WSBA #42648 7 PAUL M. CRISALLI, WSBA #40681 NATHAN K. BAYS, WSBA #43025 8 BRYAN M.S. OVENS, WSBA #32901 (admission pending) Assistant Attorneys General 9 8127 W. Klamath Court, Suite A Kennewick, WA 99336
10 (509) 734-7285 Rene.Tomisser@atg.wa.gov
11 Jeff. Sprung@atg.wa.gov Zach.Jones@atg.wa.gov
12 Joshua.Weissman@atg.wa.gov Paul.Crisalli@atg.wa.gov
13 Nathan.Bays@atg.wa.gov Bryan.Ovens@atg.wa.gov
14 Attorneys for Plaintiff State of Washington

15
To Appear Pro Hac Vice:
16
MARK R. HERRING 17 Attorney General of Virginia

18 /s/ Michelle S. Kallen MICHELLE S. KALLEN (VSB # 93286)
19 Deputy Solicitor General Office of the Attorney General
20 202 North Ninth Street Richmond, Virginia 23219
21 (804) 786-7240 SolicitorGeneral@oag.state.va.us
22 Attorneys for Plaintiff Commonwealth of Virginia

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

164

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.172 Page 172 of 176

1 PHIL WEISER Attorney General of Colorado
2 /s/ Eric R. Olson
3 ERIC R. OLSON Solicitor General
4 Office of the Attorney General Colorado Department of Law
5 1300 Broadway, 10th Floor Denver, CO 80203
6 (720) 508 6548 Eric.Olson@coag.gov
7 Attorneys for Plaintiff the State of Colorado
8 KATHLEEN JENNINGS
9 Attorney General of Delaware AARON R. GOLDSTEIN
10 State Solicitor ILONA KIRSHON
11 Deputy State Solicitor
12 /s/ Monica Horton MONICA HORTON
13 Deputy Attorney General Attorneys for Plaintiff the State of Delaware
14
15 KWAME RAOUL Attorney General State of Illinois
16 /s/ Liza Roberson-Young
17 LIZA ROBERSON-YOUNG Public Interest Counsel
18 Office of the Illinois Attorney General 100 West Randolph Street, 11th Floor
19 Chicago, IL 60601 (312) 814-5028
20 ERobersonYoung@atg.state.il.us Attorney for Plaintiff State of Illinois
21
22

COMPLAINT FOR

165

DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.173 Page 173 of 176

1 BRIAN E. FROSH Attorney General of Maryland
2 /s/ Steven M. Sullivan
3 STEVEN M. SULLIVAN Solicitor General
4 JEFFREY P. DUNLAP Assistant Attorney General
5 200 St. Paul Place Baltimore, MD 21202
6 T: (410) 576-6325 F: (410) 576-6955
7 Attorneys for Plaintiff State of Maryland
8 MAURA HEALEY
9 Attorney General of Commonwealth of Massachusetts
10 /s/ Abigail B. Taylor ABIGAIL B. TAYLOR
11 Chief, Civil Rights Division DAVID UREÑA
12 Special Assistant Attorney General ANGELA BROOKS
13 Assistant Attorney General Office of the Massachusetts Attorney General
14 One Ashburton Place Boston, MA 02108
15 (617) 963-2232 abigail.taylor@mass.gov
16 Attorneys for Plaintiff Commonwealth of Massachusetts
17
18
19
20
21
22

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

166

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.174 Page 174 of 176

1 DANA NESSEL Attorney General of Michigan
2 /s/Toni L. Harris
3 FADWA A. HAMMOUD Solicitor General
4 TONI L. HARRIS First Assistant Attorney General
5 Michigan Department of Attorney General P.O. Box 30758
6 Lansing, MI 48909 (517) 335-7603 (main)
7 HarrisT19@michigan.gov Attorneys for the People of Michigan
8
9 KEITH ELLISON Attorney General of Minnesota
10 /s/ R.J. Detrick
11 R.J. DETRICK Assistant Attorney General
12 Minnesota Attorney General’s Office Bremer Tower, Suite 100
13 445 Minnesota Street St. Paul, MN 55101-2128
14 (651) 757-1489 (651) 297-7206
15 Rj.detrick@ag.state.mn.us Attorneys for Plaintiff State of Minnesota
16
17
18
19
20
21
22

COMPLAINT FOR

167

DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.175 Page 175 of 176

1 AARON D. FORD Attorney General of Nevada
2 /s/ Heidi Parry Stern
3 HEIDI PARRY STERN (Bar. No. 8873) Solicitor General
4 Office of the Nevada Attorney General 555 E. Washington Ave., Ste. 3900
5 Las Vegas, NV 89101 HStern@ag.nv.gov
6 Attorneys for Plaintiff State of Nevada
7 GURBIR SINGH GREWAL
8 Attorney General of New Jersey
9 /s/ Glenn J. Moramarco GLENN J. MORAMARCO
10 Assistant Attorney General Office of the Attorney General
11 Richard J. Hughes Justice Complex 25 Market Street, 1st Floor, West Wing
12 Trenton, NJ 08625-0080 (609) 376-3232
13 E-mail: Glenn.Moramarco@law.njoag.gov Attorneys for Plaintiff State of New Jersey
14
15 HECTOR BALDERAS Attorney General of New Mexico
16 /s/ Tania Maestas
17 TANIA MAESTAS Chief Deputy Attorney General
18 PO Drawer 1508 Santa Fe, New Mexico 87504-1508
19 E-mail: tmaestas@nmag.gov Attorneys for Plaintiff State of New Mexico
20
21
22

COMPLAINT FOR

168

DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 1 filed 08/14/19 PageID.176 Page 176 of 176

1 PETER F. NERONHA Attorney General of Rhode Island
2 /s/ Lauren Hill
3 LAUREN HILL Special Assistant Attorney General
4 Office of the Attorney General 150 South Main Street
5 Providence, Rhode Island 02903 (401) 274-4400 x 2038
6 E-mail: lhill@riag.ri.gov Attorneys for Plaintiff State of Rhode Island
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

COMPLAINT FOR

169

DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

 
 Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.523 Page 1 of 185

1 ROBERT W. FERGUSON Attorney General
2 RENE D. TOMISSER, WSBA #17509
3 Senior Counsel JEFFREY T. SPRUNG, WSBA #23607
4 ZACHARY P. JONES, WSBA #44557 JOSHUA WEISSMAN, WSBA #42648
5 PAUL M. CRISALLI, WSBA #40681 NATHAN K. BAYS, WSBA #43025
6 BRYAN M.S. OVENS, WSBA #32901 Assistant Attorneys General
7 8127 W. Klamath Court, Suite A Kennewick, WA 99336
8 (509) 734-7285

9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

10

AT RICHLAND

11 STATE OF WASHINGTON;

NO. 4:19-cv-05210-RMP

COMMONWEALTH OF VIRGINIA;

12 STATE OF COLORADO; STATE OF FIRST AMENDED COMPLAINT

DELAWARE; STATE OF HAWAI’I; FOR DECLARATORY AND

13 STATE OF ILLINOIS; STATE OF

INJUNCTIVE RELIEF

MARYLAND; COMMONWEALTH

14 OF MASSACHUSETTS;

ATTORNEY GENERAL DANA

15 NESSEL ON BEHALF OF THE

PEOPLE OF MICHIGAN; STATE OF

16 MINNESOTA; STATE OF

NEVADA; STATE OF NEW

17 JERSEY; STATE OF NEW MEXICO;

and STATE OF RHODE ISLAND,

18

Plaintiffs,

19

v.

20

UNITED STATES DEPARTMENT

21 OF HOMELAND SECURITY, a

federal agency; KEVIN K.

22 McALEENAN, in his official capacity

FIRST AMENDED COMPLAINT

i

FOR DECLARATORY AND

INJUNCTIVE RELIEF

NO. 4:19-cv-05210-RMP

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.524 Page 2 of 185

1 as Acting Secretary of the United States Department of Homeland
2 Security; UNITED STATES CITIZENSHIP AND IMMIGRATION
3 SERVICES, a federal agency; KENNETH T. CUCCINELLI II, in his
4 official capacity as Acting Director of United States Citizenship and
5 Immigration Services,

6

Defendants.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

FIRST AMENDED COMPLAINT

ii

FOR DECLARATORY AND

INJUNCTIVE RELIEF

NO. 4:19-cv-05210-RMP

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.525 Page 3 of 185

1

TABLE OF CONTENTS

2 I. INTRODUCTION ............................................................................... 1

3 II. JURISDICTION AND VENUE.......................................................... 8

4 III. PARTIES ............................................................................................. 9

5 IV. HISTORY OF THE PUBLIC CHARGE EXCLUSION .................. 14

6

A. Origins of Public Charge Exclusion in Colonial, State, and

Federal Statutes ........................................................................... 14

7

B. Early Administrative and Judicial Precedent on Public Charge . 18 8

C. Modern Regulatory Framework.................................................. 21 9

1. Immigration and Nationality Act of 1952 ............................ 22 10

2. Family unity and the Immigration Act of 1965.................... 25 11

3. Current public charge legal framework ................................ 26 12

4. Illegal Immigration Reform and Immigrant Responsibility

13

Act of 1996 ........................................................................... 29

14

5. Personal Responsibility and Work Opportunity Act of

1996....................................................................................... 31

15

6. Agency guidance................................................................... 34 16

V. THE DEPARTMENT’S PUBLIC CHARGE RULE........................ 40 17

A. The Trump Administration’s Anti-Immigration Agenda ........... 41 18

B. Rulemaking History .................................................................... 46 19

C. The Department’s Proposed Public Charge Rule ....................... 51 20

D. Plaintiff States’ Opposition to Proposed Rule ............................ 54 21

1. Comments to proposed rule .................................................. 54 22

FIRST AMENDED COMPLAINT

iii

FOR DECLARATORY AND

INJUNCTIVE RELIEF

NO. 4:19-cv-05210-RMP

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.526 Page 4 of 185

1

2. White House involvement and review.................................. 57

2

E. The Final Rule.............................................................................60

3

1. Summary of the Final Rule................................................... 61

4

a. Applicability of the Rule ................................................ 61

5

b. Definitions of “public charge” and “public benefit”...... 62

6

c. Heavily weighted negative factors ................................. 64

7

d. Heavily weighted positive factors .................................. 65

8

e. Other criteria...................................................................66

9

f. Other provisions ............................................................. 68

10

2. The Department’s failure to provide reasoned analysis,

examine relevant data, or address public comments’

11

significant concerns .............................................................. 69

12

a. Definition of public charge ............................................ 70

13

b. The 12-month public benefit threshold .......................... 70

14

c. Heavily weighted negative factors ................................. 72

15

d. Private health insurance ................................................. 75

16

e. Nonimmigrant applications for change of status or

extension of stay ............................................................. 77

17

f. Application to lawful permanent residents returning from

18

180-day trips abroad....................................................... 78

19

g. Disparate impact............................................................. 78

20

h. Credit history and financial liabilities ............................ 80

21

i. Immigration fee waiver .................................................. 81

22

j. High school diploma ...................................................... 82

FIRST AMENDED COMPLAINT

iv

FOR DECLARATORY AND

INJUNCTIVE RELIEF

NO. 4:19-cv-05210-RMP

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.527 Page 5 of 185

1

k. English proficiency......................................................... 83

2

l. Federalism summary impact statement .......................... 85

3

m. Cost-benefit analysis ...................................................... 85

4 VI. THE RULE’S CHILLING EFFECTS ON PARTICIPATION IN

FEDERAL AND STATE PUBLIC BENEFITS PROGRAMS........ 90

5

A. Health Care Programs ................................................................. 93

6

1. Federal health care benefits .................................................. 93

7

2. State health care benefits ...................................................... 95

8

a. The Plaintiff States’ medical assistance programs......... 97

9

b. Irreparable harm to medical assistance programs ........ 104

10

(1) Plaintiff States’ residents will lose medical care and

11

become uninsured ............................................... 105

12

(2) Shift of healthcare costs to the Plaintiff States ... 108

13

(3) Significant public health concerns prompted by

reduced preventive care ...................................... 110

14

(4) Harm to the Plaintiff States’ sovereign interests in

15

the successful operation of their health care

systems ................................................................ 111

16

B. Food Assistance Programs ........................................................ 114

17

1. Federal Food Assistance Benefits....................................... 115

18

2. State food assistance programs ........................................... 117

19

a. The Plaintiff States’ food assistance programs ............ 118

20

b. Irreparable harm to food assistance programs ............. 120

21

(1) Increased Hunger and Food Insecurity in the

22

Plaintiff States’ Residents ................................... 122

FIRST AMENDED COMPLAINT

v

FOR DECLARATORY AND

INJUNCTIVE RELIEF

NO. 4:19-cv-05210-RMP

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.528 Page 6 of 185

1

(2) Significant public health concerns ...................... 123

2

C. Housing Assistance Programs................................................... 124

3

1. Federal housing assistance benefits .................................... 124

4

2. State housing assistance programs ..................................... 127

5

a. The Plaintiff States’ housing assistance programs....... 128

6

b. Irreparable harms to the Plaintiff States’ housing

assistance programs ...................................................... 131

7

(1) Homelessness and other public health

8

consequences....................................................... 132

9

(2) Poorer health, educational, and other outcomes . 134

10

D. Cash Assistance Programs ........................................................ 135

11

1. Federal cash assistance benefits.......................................... 135

12

2. State cash assistance programs ........................................... 138

13

a. The Plaintiff States’ cash assistance programs ............ 138

14

b. Irreparable harm to the Plaintiff States’ cash assistance

programs ....................................................................... 143

15

E. Other State Benefits Programs .................................................. 144

16

1. Long term services and supports for elderly and disabled

17

residents .............................................................................. 145

18

2. Job and employment training programs ............................. 147

19

3. Irreparable harm to the Plaintiff States’ support services for

crime victims.......................................................................152

20

VII. THE RULE’S OTHER ADVERSE IMPACTS .............................. 153

21

A. Family Reunification Impacts ................................................... 154

22

FIRST AMENDED COMPLAINT

vi

FOR DECLARATORY AND

INJUNCTIVE RELIEF

NO. 4:19-cv-05210-RMP

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.529 Page 7 of 185

1

B. Workforce Impacts....................................................................156

2

C. Other Macroeconomic Impacts ................................................. 157

3

D. Disparate Impacts......................................................................158

4 VIII. CAUSES OF ACTION....................................................................161

5 IX. PRAYER FOR RELIEF .................................................................. 171

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

FIRST AMENDED COMPLAINT

vii

FOR DECLARATORY AND

INJUNCTIVE RELIEF

NO. 4:19-cv-05210-RMP

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.530 Page 8 of 185

1

Plaintiffs State of Washington, Commonwealth of Virginia, State of

2 Colorado, State of Delaware, State of Hawai’i, State of Illinois, State of

3 Maryland, Commonwealth of Massachusetts, Attorney General Dana Nessel on

4 behalf of the People of Michigan, State of Minnesota, State of Nevada, State of

5 New Jersey, State of New Mexico, and State of Rhode Island (together, the

6 Plaintiff States) bring this lawsuit against the United States Department of

7 Homeland Security (the Department or DHS); its Acting Secretary Kevin K.

8 McAleenan, in his official capacity; its sub-agency United States Citizenship and

9 Immigration Services (USCIS); and USCIS’s Acting Director Kenneth T.

10 Cuccinelli, in his official capacity.

11

I. INTRODUCTION

12

1. The Department’s Final Rule, Inadmissibility on Public Charge

13 Grounds, 84 Fed. Reg. 41,2921 (August 14, 2019) (the Public Charge Rule or the

14 Rule), effects a radical overhaul of federal immigration law transforming a

15 system that promotes economic mobility among immigrants into one that

16 advantages immigrants with wealth. It does so by penalizing legally present

17 immigrant families who access federally-funded health, nutrition, and housing

18 programs, even briefly. The Rule achieves this sweeping change unlawfully: it

19 expansively redefines the term “public charge”—a previously rare designation

20

21

1 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292

22 (Aug. 14, 2019) (to be codified at 8 C.F.R. § 212.20).

FIRST AMENDED COMPLAINT

1

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.531 Page 9 of 185

1 that triggers exclusion from the United States—in a manner that is contrary to

2 congressional intent and agency interpretation that has prevailed for nearly 70

3 years, and contrary to two 1996 federal statutes.

4

2. Since the late 19th century, federal immigration law has permitted

5 the government to deny entry to any noncitizen “likely to become a public

6 charge.” From colonial times to the present day, “public charge” was used

7 consistently in American law to mean a pauper—that is, someone permanently

8 and primarily dependent on the government for subsistence. Until the current

9 Administration, the Department itself, its predecessor agency the Immigration

10 and Naturalization Service, the U.S. Department of Justice, and the U.S. State

11 Department have all adhered to the established definition of public charge.

12

3. The Rule departs from this original meaning by redefining a public

13 charge as a noncitizen who receives common forms of federal and state public

14 assistance, even in small amounts and for a short period of time. Never before

15 has the Department considered in a public charge determination an immigrant’s

16 receipt of non-cash public benefits for which they are legally eligible such as

17 Medicaid, Supplemental Nutrition Assistance Program benefits, public housing

18 subsidies under the 1937 U.S. Housing Act, or Section 8 housing assistance.

19 Under the Rule, however, participation in those benefits—which are commonly

20 used by working families—would constitute a negative “heavily weighted factor”

21 triggering a public charge determination.

22

FIRST AMENDED COMPLAINT

2

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.532 Page 10 of 185

1

4. People who receive those benefits are neither paupers nor primarily

2 dependent on the government for subsistence. Over half of all non-elderly adults

3 receiving Medicaid are employed, and almost 80% are from a home where at

4 least one household member works. Indeed, more than 20% of the U.S.

5 population participates in such benefits programs on average each month. Yet,

6 under the Rule, legally present immigrants’ participation in those programs

7 would block their path to citizenship under the public charge exclusion.

8

5. The Public Charge Rule is contrary to law and arbitrary and

9 capricious in violation of the Administrative Procedure Act for numerous reasons

10 including:

11

6. First, the Department’s new definition of “public charge” is

12 contrary to its longstanding meaning in the Immigration and Nationality Act.

13 Since its origin in colonial residency requirements and through its reception into

14 state and then federal immigration laws, a “public charge” has been applied to

15 mean a person primarily dependent on the government for subsistence. The

16 Department’s Rule is not a clarification of a well-established rule, but marks the

17 rejection of the core principle underlying the long established unambiguous

18 definition.

19

7. Second, the Personal Responsibility and Work Opportunity

20 Reconciliation Act of 1996 allows many lawful immigrants to apply for public

21 benefits if they have been in the country for at least five years. The Rule

22

FIRST AMENDED COMPLAINT

3

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.533 Page 11 of 185

1 eviscerates Congress’s intent by imposing an effective “bait and

2 switch”—punishing immigrants for using public benefits for which Congress

3 itself made them eligible. The Rule is contrary to this statute, as well as several

4 others.

5

8. Third, the Rule is arbitrary, capricious, and an abuse of discretion

6 because—among other reasons—it reverses a decades-old, consistent policy

7 without reasoned analysis, offers an explanation for the Rule that runs counter to

8 the overwhelming weight of evidence before the Department, and disingenuously

9 promotes as its purpose self-sufficiency in the immigrant population when, as

10 abundantly shown by the administrative record, its effect is precisely the

11 opposite.

12

9. The radical expansion of the public charge standard will cause

13 irreparable harm to the working families and children who live in the Plaintiffs

14 States, as well as the states themselves. The Rule will deter hundreds of thousands

15 of noncitizens from utilizing essential public assistance programs for which they

16 are legally eligible, so as not to jeopardize their hopes of becoming Americans.

17 Those “chilling effects” are of two types.

18

10. First, the Rule will deter lawfully present, legally eligible

19 immigrants or their family members from participating in the enumerated “public

20 benefit” programs. Many of these individuals will be forced into state emergency

21

22

FIRST AMENDED COMPLAINT

4

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.534 Page 12 of 185

1 programs—for example, many will be forced to obtain routine medical care in

2 the far more expensive setting of state-funded emergency rooms.

3

11. Second, the Rule’s true impact sweeps more broadly by chilling

4 immigrant families’ participation in state and local assistance programs that the

5 Rule does not classify as public benefits in the public charge test. Out of both fear

6 of the Trump Administration’s anti-immigrant agenda and confusion over the

7 byzantine regulatory scheme that the Rule would create, many immigrant

8 families will disenroll or forbear enrollment in all public benefit programs to

9 avoid triggering the Department’s expansive and punitive public charge test.

10

12. Those chilling effects will lead to individuals and families forfeiting

11 health insurance, medical care, nutrition assistance, and shelter not only for

12 themselves but also for their entire households—including U.S. citizen adults and

13 children. In Washington State alone, the state Medicaid agency projects that up

14 to 140,000 families will lose health insurance, and State residents will forgo up

15 to $198 million annually in medical care and up to $55 million annually in food

16 and cash assistance. State and private hospitals will be forced to absorb the vastly

17 more expensive uncompensated care, to the detriment of the State treasury.

18

13. The resulting loss of economic activity will impose uncompensable

19 social and economic costs on the Plaintiff States that the Department entirely fails

20 to confront. Disenrollment and non-enrollment in health, nutrition, and other

21 state-run assistance programs will make many working class immigrant families

22

FIRST AMENDED COMPLAINT

5

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.535 Page 13 of 185

1 less healthy, less productive, more reliant on state-covered emergency medical

2 care, and more likely to experience economic dislocation and homelessness,

3 which will result in increased strain on state agencies and programs. The broader

4 chilling effects among all state-run assistance programs will undermine those

5 programs’ administration and effectiveness. And direct costs to the States will

6 result from immigrants who shift from federal programs to state programs that

7 do not qualify as “public benefits” under the Rule.

8

14. In Washington State, for example, economic analysis points to the

9 Rule reducing total economic output by up to $97.5 million annually, cutting

10 wages by up to $36.7 million annually, and eliminating up to 782 jobs. Franklin

11 County, less than five miles from where this Court sits and where, according to

12 Census Bureau data, over half the population is Hispanic and over 15% legal

13 noncitizen, will face particularly harsh increases in public costs and decreases in

14 economic output as a result of the Rule. These consequences will be replicated

15 across the Plaintiff States.

16

15. The Department’s expansive new public charge test applies to two

17 groups of lawfully present non-citizens: immigrants such as visa-holders seeking

18 to adjust to permanent resident status, and nonimmigrant visitors seeking to

19 extend their visa or change their visa category. It would apply, for example, to:

20

• An immigrant mother with a U.S. citizen spouse and U.S.

21

citizen children who applies for lawful permanent residency. Even if she

22

FIRST AMENDED COMPLAINT

6

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.536 Page 14 of 185

1

and her spouse both work full-time, she could be classified as a public

2

charge simply for having received food stamps for one year in a three-year

3

period.

4

• A lawful permanent resident who travels abroad to care for

5

his ailing mother and, after her passing, to help with funeral preparations

6

and settle her estate. If previously he had received Section 8 housing

7

assistance vouchers for 12 months in any amount, upon his return to the

8

United States six months later, he could be denied admission under the new

9

public charge test, which applies to lawful permanent residents after a

10

foreign trip longer than 180 days. Although a federal statute entitles this

11

green card holder to receive federal, state, and local public benefits, the

12

Rule would exclude him from the United States for taking advantage of his

13

statutory right.

14

• And an immigrant granted entry for urgent humanitarian

15

reasons (a “humanitarian parolee”), who has two U.S. citizen children and

16

files for permanent residency. If for just four months in the past three years

17

she received Medicaid coverage, food stamps, and Section 8 housing

18

assistance in any amounts, it could trigger a public charge determination

19

and denial of her green card application because each separate benefit

20

would count as an extra month towards the Rule’s 12-month threshold.

21

22

FIRST AMENDED COMPLAINT

7

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.537 Page 15 of 185

1

16. The Administration, unable to implement its restrictive immigration

2 agenda through legislation, now attempts to implement its agenda through an

3 administrative overhaul of immigration policy that cannot be squared with the

4 terms of statutes duly enacted by Congress or with the United States Constitution.

5 To avert irreparable injury to the Plaintiff States and their residents, the Plaintiff

6 States bring this suit to vacate and set aside the Public Charge Rule.2

7

II. JURISDICTION AND VENUE

8

17. This Court has personal jurisdiction over the Defendants pursuant to

9 28 U.S.C. § 1391(e) because Defendants are agencies and officers of the United

10 States.

11

18. This Court has jurisdiction over the subject matter of this lawsuit

12 pursuant to 28 U.S.C. § 1331 because this action arises under federal law.

13

19. Defendants’ publication of the Final Rule in the Federal Register on

14 August 14, 2019, constitutes a final agency action and is therefore judicially

15 reviewable within the meaning of the APA, 5 U.S.C. §§ 704, 706.

16

20. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(a)

17 because this is a judicial district in which Plaintiff State of Washington resides,

18 the Rule will adversely affect the health and welfare of residents in this district,

19

20

2 This Complaint uses the terms “immigrant” and “noncitizen”

21 interchangeably to refer to a foreign national living in the United States, while

22 the Rule generally refers to these individuals as “aliens.”

FIRST AMENDED COMPLAINT

8

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.538 Page 16 of 185

1 and the finances of the State, and this action seeks relief against federal agencies

2 and officials acting in their official capacities.

3

III. PARTIES

4

21. The States of Washington, Colorado, Delaware, Hawai’i, Illinois,

5 Maryland, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, and

6 Attorney General Dana Nessel on behalf of the People of Michigan, and the

7 Commonwealths of Virginia and Massachusetts, represented by and through their

8 respective Attorneys General, are sovereign states of the United States of

9 America.

10

22. Bob Ferguson is the chief legal adviser to the State of Washington.

11 His powers and duties include acting in federal court on behalf of the State on

12 matters of public concern.

13

23. Mark Herring is the chief legal adviser to the Commonwealth of

14 Virginia. His powers and duties include acting in federal court on behalf of the

15 State on matters of public concern.

16

24. Phil Weiser is the chief legal adviser to the State of Colorado. His

17 powers and duties include acting in federal court on behalf of the State on matters

18 of public concern.

19

25. Kathleen Jennings is the chief legal adviser to the State of Delaware.

20 Her powers and duties include acting in federal court on behalf of the State on

21 matters of public concern.

22

FIRST AMENDED COMPLAINT

9

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.539 Page 17 of 185

1

26. Clare E. Connors is the chief legal adviser to the State of Hawai’i.

2 Her powers and duties include acting in federal court on behalf of the State on

3 matters of public concern.

4

27. Kwame Raoul is the chief legal adviser to the State of Illinois. His

5 powers and duties include acting in federal court on behalf of the State on matters

6 of public concern.

7

28. Plaintiff State of Maryland is a sovereign state of the United States

8 of America. Maryland is represented by and through its chief legal officer,

9 Attorney General Brian Frosh. Under the Constitution of Maryland, and as

10 directed by the Maryland General Assembly, the Attorney General has the

11 authority to file suit to challenge action by the federal government that threatens

12 the public interest and welfare of Maryland residents.

13

29. Maura Healey is the chief legal adviser to the Commonwealth of

14 Massachusetts. Her powers and duties include acting in federal court on behalf

15 of the State on matters of public concern.

16

30. Dana Nessel is Michigan’s chief law enforcement officer. Her

17 powers and duties include acting in federal court on behalf of the people of the

18 State of Michigan on matters of public concern.

19

31. Keith Ellison is the chief legal adviser to the State of Minnesota. His

20 powers and duties include acting in federal court on behalf of the State on matters

21 of public concern.

22

FIRST AMENDED COMPLAINT

10

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.540 Page 18 of 185

1

32. Aaron D. Ford is the chief legal adviser to the State of Nevada. His

2 powers and duties include acting in federal court on behalf of the State on matters

3 of public concern.

4

33. Gurbir Singh Grewal is the chief legal adviser to the State of New

5 Jersey. His powers and duties include acting in federal court on behalf of the State

6 on matters of public concern.

7

34. Hector Balderas is the chief legal adviser to the State of New

8 Mexico. His powers and duties include acting in federal court on behalf of the

9 State on matters of public concern.

10

35. Peter F. Neronha is the chief legal adviser to the State of Rhode

11 Island. His powers and duties include acting in federal court on behalf of the State

12 on matters of public concern.

13

36. The Plaintiff States bring this action to redress harms to their

14 sovereign, proprietary, and quasi-sovereign interests and their interests as parens

15 patriae in protecting the health and well-being of their residents. The Plaintiff

16 States are affected by the Public Charge Rule, are directly injured by it, and the

17 relief requested will redress their injuries.3

18

37. The power to create and enforce a legal code is a uniquely sovereign

19 interest. The Plaintiff States have adopted health care programs as parts of their

20 legal codes that operate to improve and protect the health of their residents. These

21

22

3 A copy of the Final Rule is attached as Exhibit A.

FIRST AMENDED COMPLAINT

11

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.541 Page 19 of 185

1 include cooperative federal-state programs such as Medicaid, which Congress

2 has given them substantial financial incentives to establish and administer. The

3 success and effectiveness of the Plaintiff States’ legislative health care programs

4 will be significantly undercut by the Rule. The Plaintiff States’ sovereign

5 interests in enforcing their statutory codes and achieving their purposes are

6 harmed by Defendants’ challenged action.

7

38. As a proprietor, a state is likely to have the same interests as other

8 similarly situated proprietors. The Plaintiff States have created and operate

9 programs and institutions to promote and ensure the health, housing stability,

10 nutrition and well-being of their residents. The success and effectiveness of these

11 facilities will be harmed by the Rule. The Plaintiff States’ proprietary and

12 financial interests in programs and institutions they paid for with state taxpayer

13 funds, and which are managed by their employees and subcontractors are injured

14 by the Rule.

15

39. A state has a quasi-sovereign interest in the health and

16 well-being—both physical and economic—of its residents in general. The

17 Plaintiff States’ have a quasi-sovereign interest in protecting the health, safety,

18 and well-being of their residents. The Final Rule dissuades state residents from

19 utilizing the benefits of the Plaintiff States’ benefits programs. It therefore

20 jeopardizes the health, housing, nutrition, and well-being of their residents,

21 citizen and noncitizen alike.

22

FIRST AMENDED COMPLAINT

12

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.542 Page 20 of 185

1

40. The Plaintiff States and their residents will suffer significant and

2 irreparable harm if the Final Rule goes into effect.

3

41. Defendant DHS is an executive agency with responsibility for

4 administering federal immigration laws.

5

42. Defendant Kevin K. McAleenan is the Acting Secretary of DHS. He

6 is sued in his official capacity.

7

43. Defendant USCIS is a component agency of DHS. Since

8 March 1, 2003, USCIS has had primary responsibility for the immigration

9 service functions of the federal government, including the administration of

10 applications by foreign nationals in the United States for adjustment of status to

11 lawful permanent residency, immigrant and nonimmigrant visas, change of status

12 to a different visa category, or extension of stay.

13

44. Kenneth T. Cuccinelli II is the Acting Director of USCIS. He is sued

14 in his official capacity.4

15

16

17

4 Challenges have been raised to the propriety of Cuccinelli’s appointment

18 to this position. Joel Rose, Trump Administration Taps Hard-Liner Cuccinelli

19 For Top Immigration Job, Nat’l Pub. Radio Jun. 10, 2019 (“Legal experts say

20 that [allowing] Cuccinelli to serve as acting director . . . would violate the spirit

21 of the [Federal Vacancies Reform Act], according to Anne Joseph O’Connell, an

22 expert on administrative law at Stanford Law School.”).

FIRST AMENDED COMPLAINT

13

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.543 Page 21 of 185

1

IV. HISTORY OF THE PUBLIC CHARGE EXCLUSION

2

45. The term “public charge” has an established meaning in American

3 law that dates back to the 17th century. Since its origin in colonial residency

4 requirements and through its reception into state and then federal immigration

5 laws, a “public charge” has consistently meant a person primarily dependent on

6 the government for subsistence. The Department’s Final Rule disregards that

7 unambiguous, centuries-old definition.

8 A. Origins of Public Charge Exclusion in Colonial, State, and Federal Statutes
9 46. As early as the 1650s, the American colonies adopted “poor” laws
10 requiring each town to recognize its permanent residents’ claims for relief if they
11 became destitute.5 Based on English models, colonial poor laws made the local
12 governments responsible for supporting its poor residents, for whom the towns
13 cared generously.6 At the same time, however, such laws permitted towns to
14

15

16

17

5 Historians’ Cmt. at 2, DHS Notice of Proposed Rule “Inadmissibility on

18 Public Charge Grounds,” FR 2018-21106 (Oct. 5, 2018) (Historians’ Cmt.);

19 Gerald L. Neuman, The Lost Century of American Immigration Law

20 (1776-1875), 93 Colum. L. Rev. 1833, 1846 (1993).

21

6 Minor Myers III, A Redistributive Role for Local Government, 36 Urb.

22 Law. 753, 773 (2004).

FIRST AMENDED COMPLAINT

14

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.544 Page 22 of 185

1 expel transient beggars or vagrants as “public charges.”7

2

47. After the American Revolution, state governments came to play a

3 greater role in administration of relief for the poor. When a person without a town

4 “settlement” (or recognized residency right) fell into extreme need, he became a

5 charge of the state or a “state pauper,” as distinguished from a “town pauper.”8

6 In each case, in its original public meaning, “public charge” was synonymous

7 with “pauper.”

8

48. State measures against immigration of “foreign paupers” developed

9 alongside the state poor laws of the early Republic. As European migration to the

10 United States grew in the early 19th century, states enacted or expanded laws to

11 “prevent the introduction of [p]aupers” at ports of entry as “liable to become

12 chargeable,” i.e., public charges.9 For example, a New York statute prohibited

13 landing of “any lunatic, idiot, deaf and dumb, blind or infirm persons . . . likely

14

15

7 Historians’ Cmt. at 2; Shapiro v. Thompson, 394 U.S. 618, 628

16 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651

17 (1974) (“Newcomers to a city, town, or county who might become public charges

18 were ‘warned out’ or ‘passed on’ to the next locality.”).

19

8 Kunal M. Parker, State, Citizenship, and Territory: The Legal

20 Construction of Immigrants in Antebellum Massachusetts, 19 L. & Hist. Rev.

21 583, 591 (2001).

22

9 Act of Feb. 25, 1820, ch. 290, 1820 Mass. Laws 428.

FIRST AMENDED COMPLAINT

15

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.545 Page 23 of 185

1 to become permanently a public charge.”10 Under that law and similar ones in

2 other states, vessel captains were required to post bond or pay a fee to indemnify

3 the state in the event foreign passengers were to become public charges.11 Again,

4 these state immigration statutes used the terms “paupers” and “public charges”

5 interchangeably and in the “legal, technical sense” as persons “unable to maintain

6 themselves,” and not “merely” those who temporarily had “no visible means of

7

8

9

10

10 Annual Reps. of the Comm’rs of Emigration of the State of New York,

11 May 5, 1847, to 1860, 1851 Ch. 105, at 339 (Boston: Dutton and Wentworth,

12 1951) (emphasis added); Act of Mar. 20, 1850, ch. 105, § 1, 1850 Mass. Acts &

13 Resolves 338, 339 (“a pauper, lunatic, or idiot, or maimed, aged, infirm or

14 destitute, or incompetent to take care of himself or herself without becoming

15 a public charge as a pauper”).

16

11 Historians’ Cmt. at 2; Gerald L. Neuman, The Lost Century of American

17 Immigration Law (1776-1875), 93 Colum. L. Rev. 1833, 1849–51, 1901 & n.151

18 (1993); State, Citizenship, and Territory: The Legal Construction of Immigrants

19 in Antebellum Massachusetts, 19 Law & Hist. Rev. 583, 624 (2001); Act of

20 June 1847, 1847 R.I. Acts 27; R.I. Rev. Stat. ch. 51, §§ 5-8 (1857); Act of

21 June 27, 1820, ch. 26, 1820 Me. Laws 35; Act of Mar. 22, 1838, ch. 339, 1838

22 Me. Pub. Acts 497.

FIRST AMENDED COMPLAINT

16

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.546 Page 24 of 185

1 support.”12 “Public charge” thus referred to people unlikely to ever become

2 self-sufficient.

3

49. Eventually, the U.S. Supreme Court struck down such state statutes

4 under the Commerce Clause, ushering in the end of the era of state immigration

5 laws.13 In their place, Congress enacted the Immigration Act of 1882, which

6 borrowed from state laws in erecting a public charge ground of inadmissibility.14

7 The Act prohibited the landing of “any convict, lunatic, idiot, or any other person

8 unable to take care of himself . . . without becoming a public charge.”15

9 Consistent with the plain text and historical context, the legislative history

10 confirms that “public charges” were those living in “poor-houses and

11 alms-houses.”16 Indeed, in 1891, Congress amended the exclusion to preclude

12 admission of “idiots, insane persons, paupers or persons likely to become a public

13 charge.”17

14

15

12 City of Boston v. Capen, 61 Mass. 116, 121–22 (1851).

16

13 See, e.g., Passenger Cases, 48 U.S. (7 How.) 283 (1849); Henderson v.

17 Mayor of New York, 92 U.S. 259, 274 (1875).

18

14 22 Stat. 214 (1882).

19

15 Id.

20

16 13 Cong. Rec. 5109 (statement of Sen. Voorhis).

21

17 1891 Immigration Act, § 1, 51st Cong. ch. 551, 26 Stat. 1084 (emphasis

22 added). Congress retained the operative public charge language in that statute to

FIRST AMENDED COMPLAINT

17

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.547 Page 25 of 185

1 B. Early Administrative and Judicial Precedent on Public Charge

2

50. Judicial and administrative decisions applying the federal public

3 charge ground of inadmissibility interpreted the statute consistently with the

4 original public meaning of the term “public charge,” namely, as a person

5 primarily and permanently dependent on the state for subsistence.

6

51. For example, in Gegiow v. Uhl, the U.S. Supreme Court read “public

7 charge” consistent with the surrounding statutory categories of exclusions,

8 including “paupers and professional beggars, . . . idiots,” and “persons

9 dangerously diseased [or suffering from] . . . a physical defect of a nature to affect

10 their ability to earn a living.”18 In a decision by Justice Holmes, the Court thus

11 held that a public charge is excludable only “on the ground of permanent personal

12

13

14 the present day. E.g., Immigration Act of 1903, § 2, 57th Cong. ch. 1012, 32 Stat.

15 1213, 1214 (excluding from the United States “persons likely to become a public

16 charge,” among others); Immigration Act of 1917, 64th Cong. Ch. 29, 39 Stat.

17 874, 876 (same); Immigration and Nationality Act of 1952, 82nd Cong. ch. 477,

18 66 Stat. 163, 183 (1952) (excluding noncitizens “who, in the opinion of the

19 consular officer at the time of application for a visa, or in the opinion of the

20 Attorney General at the time of application for admission, are likely at any time

21 to become public charges”).

22

18 239 U.S. 3, 9–10 (1915).

FIRST AMENDED COMPLAINT

18

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.548 Page 26 of 185

1 objections accompanying them.”19 Likewise, an early Second Circuit case held

2 that the public charge category only “exclude[s] persons who were likely to

3 become occupants of almshouses.”20 Following those precedents, federal courts

4 in the first half of the 20th century consistently interpreted “public charge” as

5 “generically similar to ‘paupers,’ . . . ‘professional beggars,’ [and] . . . ‘occupants

6 of almshouses.’ ”21 In the context of the public charge deportability provision,

7 one court defined “public charge” even more narrowly to mean “a person

8 committed to the custody of a department of the government by due course of

9 law.”22 These cases reaffirmed the understanding of “public charge” as a person

10 permanently and primarily dependent on government for survival.

11

52. Contemporaneous state court decisions are also consistent with that

12 original public understanding of public charge, and expressly distinguished the

13 mere receipt of “temporary relief” and a condition of permanent and primary

14 dependency on the state. See, e.g., Davies v. State ex rel. Boyles, 27 Ohio C.C.

15

16

19 Gegiow, 239 U.S. at 10 (emphasis added).

17

20 Howe v. United States ex rel. Savitsky, 247 F. 292, 294 (2d Cir. 1917).

18

21 Ex parte Mitchell, 256 F. 229, 233 (N.D.N.Y. 1919); see also United

19 States v. Williams, 175 F. 274, 275 (S.D.N.Y. 1910) (L. Hand, J.) (noting that

20 “the primary meaning of the words, [‘likely to become a public charge’]” was

21 probably “likelihood of . . . becoming a pauper”).

22

22 Ex parte Tsunetaro Machida, 277 F. 239, 241 (W.D. Wash. 1921).

FIRST AMENDED COMPLAINT

19

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.549 Page 27 of 185

1 593, 595–96, 1905 WL 629, at *2 (Ohio Cir. Ct. July 8, 1905) (“[P]ublic interests

2 are subserved by the aiding of persons who might become a public charge, if left

3 to their own resources, to such an extent that, by combining the small fund given

4 them by the state with what they may be able to earn . . . they might be able to

5 maintain themselves and avoid becoming a charge.”); Yeatman v. King, 51 N.W.

6 721, 723 (1892) (emphasizing the “obligation” on the public “to keep a portion

7 of the population destitute of means and credit from becoming a public charge by

8 affording them temporary relief”).

9

53. Federal agencies charged with enforcing immigration laws also

10 interpreted the public charge ground of inadmissibility in accordance with the

11 settled meaning of the term. For example, in 1917, the Bureau of Immigration

12 ruled that “moral perverts” were not “public charges” under the immigration

13 laws, absent tangible proof of pauper status.23

14

54. Consistent with this narrow understanding of public charge, early

15 20th century immigration officials excluded on public charge grounds only a tiny

16 fraction of arriving immigrants. According to DHS’s own data, of the

17

18

23 See Parthenios Colones, Bureau of Immigr., U.S. Dep’t of Labor, INS

19 File No. 54134/62, Accession 60A600, Box 869, Records of the INS, cited in

20 William N. Eskridge, Jr., Law and the Construction of the Closet: American

21 Regulation of Same-Sex Intimacy, 1880-1946, 82 Iowa L. Rev. 1007, 1134

22 (1997).

FIRST AMENDED COMPLAINT

20

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.550 Page 28 of 185

1 approximately 21.8 million immigrants admitted to the United States as lawful

2 permanent residents between 1892 and 1930, approximately 205,000—less than

3 one percent—were deemed inadmissible as likely to become public charges. The

4 same has been true in subsequent years: between 1931 and 1980 (the last year for

5 which DHS publishes such data), only 13,798 immigrants were excluded on

6 public charge grounds out of more than 11 million immigrants admitted as legal

7 permanent residents—an exclusion rate of approximately one-tenth of one

8 percent.24 During the Great Depression, the Immigration and Naturalization

9 Service (INS) did not consider immigrants who were “victims of the general

10 economic depression” deportable simply because they received public relief.25

11 C. Modern Regulatory Framework

12

55. It was against the foregoing legal backdrop that Congress enacted

13

14

24 Dep’t of Homeland Security, Table 1. Persons Obtaining Lawful

15 Permanent Resident Status: Fiscal Years 1820 to 2016, (Dec. 18, 2017),

16 https://www.dhs.gov/immigration-statistics/yearbook/2016/table1; Immigration

17 and Naturalization Service, 2001 Statistical Yearbook of the Immigration and

18 Naturalization

Service

258

(2003),

19 https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Sta

20 tistics_2001.pdf.

21

25 Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern

22 America 72 (2004)

FIRST AMENDED COMPLAINT

21

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.551 Page 29 of 185

1 the Immigration and Nationality Act of 1952 (INA),26 which codified the current

2 public charge ground of inadmissibility. In reenacting the federal public charge

3 exclusion—which itself borrowed from earlier state laws—Congress adopted the

4 settled understanding of public charge and ratified the judicial precedents

5 interpreting the term.27 In the 70 years since the INA’s enactment, numerous

6 statutes and administrative decisions have comported with and confirmed the

7 settled meaning of public charge as a person permanently and primarily

8 dependent on government for survival.

9

1. Immigration and Nationality Act of 1952

10

56. The INA overhauled federal immigration law, unifying previously

11 scattered sections and adding new provisions in a statutory framework that exists

12 to this day.28 Overriding President Truman’s veto, Congress declared its power

13 to “provide for the elimination of undesirable aliens” and set forth numerous new

14 categories of inadmissibility, including “anarchists,” “Communist[s],” or

15 “affiliated with . . . any . . . totalitarian party.”29

16

17

26 Pub L. 82–414, 66 Stat. 163.

18

27 Bragdon v. Abbott, 524 U.S. 624, 645 (1998); Lorillard v. Pons,

19 434 U.S. 575, 580 (1978).

20

28 Act of June 27, 1952, 66 Stat. 163 (codified as amended at Title 8 U.S.C.

21 § 1101, et seq.).

22

29 66 Stat. 184, § 212(a)(28).

FIRST AMENDED COMPLAINT

22

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.552 Page 30 of 185

1

57. The INA also reenacted the public charge exclusion that had been

2 part of federal immigration law since 1882. Section 212(a) excluded from

3 admission into the United States “[a]liens who, in the opinion of the consular

4 officer at the time of application for a visa, or in the opinion of the Attorney

5 General at the time of application for admission, are likely at any time to become

6 public charges.”30

7

58. In applying the modern public charge exclusion, federal

8 immigration authorities considered the “totality of the alien’s circumstances,”31

9 including “economic factors” and “the alien’s physical and mental condition, as

10 it affects ability to earn a living.”32 The Board of Immigration Appeals (BIA)

11 held specifically that “[t]he fact that an alien has been on welfare does not, by

12

13

14

30 66 Stat. 183, § 212(a)(15).

15

31 In re Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (citing Foreign Affairs

16 Manual, Part III, Vol. 9, Note 1 to 22 CFR 42.91(a)(15)).

17

32 In re Harutunian, 14 I. & N. Dec. 583, 588 (BIA 1974); see also

18 Adjustment of Status for Certain Aliens, 53 Fed. Reg. 43986-01, 43996 (1988)

19 (“In determining whether an alien is ‘likely to become a public charge’ financial

20 responsibility of the alien is to be established by examining the totality of the

21 alien’s circumstances at the time of his or her application for legalization.”),

22 codified at 8 C.F.R. § 245a.3(g)(4)(i).

FIRST AMENDED COMPLAINT

23

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.553 Page 31 of 185

1 itself, establish that he or she is likely to become a public charge.”33 And in the

2 government’s appeal from a BIA decision overturning a public charge

3 determination, Attorney General Robert F. Kennedy affirmed, noting that the

4 INA “requires more than a showing of a possibility that the alien will require

5 public support.”34

6

59. In 1989, DOJ issued a final rule establishing guidelines for public

7 charge determinations in various contexts, including adjustment to lawful

8 permanent resident status.35 In such determinations, the “financial responsibility

9 of the alien is to be established by examining the totality of the alien’s

10 circumstances at the time of his or her application,” and the “existence or absence

11 of a particular factor should never be the sole criteria for determining if an alien

12 is likely to become a public charge.”36 The determination “should be a

13 prospective evaluation based on the alien’s age, health, income, and vocation.”37

14 And even where an immigrant’s “income may be below the poverty level,” he is

15

16

33 In re Perez, 15 I. & N. Dec. at 137.

17

34 In re Martinez-Lopez, 10 I. & N. Dec. 409, 421 (BIA 1962; AG 1964).

18

35 U.S. Dep’t of Justice, Final Rule: Adjustment of Status for Certain

19 Aliens, 54 FR 29442-01 (July 12, 1989) (codified in relevant part at 8 C.F.R.

20 §§ 245a.2(k)(4), 245a.3(g)(4)(iii), 245a.4(b)(1)(iv)(C))

21

36 8 C.F.R. § 245a.3(g)(4)(i).

22

37 Id.

FIRST AMENDED COMPLAINT

24

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.554 Page 32 of 185

1 “not excludable” as a public charge if he “has a consistent employment history

2 which shows the ability to support himself.”38 Though a noncitizen’s past

3 acceptance of “public cash assistance” may “enter into this decision,” the 1989

4 DOJ rule does not provide for consideration of non-cash public benefits.39 This

5 rule reaffirmed the understanding of a public charge as a person permanently and

6 primarily dependent on government for survival: a person unlikely to ever

7 become self-sufficient.

8

2. Family unity and the Immigration Act of 1965

9

60. To further the “well-established policy of maintaining family unity,”

10 in 1921 Congress began expanding the categories of family members of citizens

11 or lawful permanent residents who were eligible to seek admission or a green

12 card through their relatives.40

13

61. Building on that policy, the Hart-Celler Immigration Act of 1965

14 adopted an immigration policy designed to “first reunite families,”41 giving

15

16

17

18

38 Id. § 245a.3(g)(4)(iii).

19

39 Id.

20

40 Revision of Immigration and Nationality Laws, S. Rep. No. 1137, at 16

21 (1952).

22

41 H.R. Rep. No. 89-745, at 12 (1965).

FIRST AMENDED COMPLAINT

25

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.555 Page 33 of 185

1 priority to relatives of U.S. citizens.42 The 1965 Act also eliminated racial quotas

2 from federal immigration laws, providing that “no person shall receive any

3 preference or priority or be discriminated against in the issuance of an immigrant

4 visa because of . . . race, sex, nationality, place of birth, or place of residence.”43

5

3. Current public charge legal framework

6

62. Congress amended the INA in 1990 to drop the “paupers,

7 professional beggars, or vagrants” exclusions, but retained the public-charge

8 inadmissibility ground.44 The ranking member of the House Judiciary

9 Committee, Representative Hamilton Fish IV (R-NY), explained that in

10 eliminating the “paupers, professional beggars, or vagrants” inadmissibility

11 ground, Congress was replacing an “antiquated” exclusion with “one generic

12 standard which exclude[s] aliens who are ‘likely to become a public charge.’ ”45

13 The legislative history to the 1990 Act indicates that Congress understood public

14 charge consistent with the term’s original public meaning—for example, like a

15

16

17

42 Pub. L. 89-236, §§ 201–03, 79 Stat. 911, 911–12 (codified as amended

18 at 18 U.S.C. §§ 1151–53).

19

43 Id. § 201, 79 Stat. at 911 (codified as amended at 18 U.S.C. § 1152).

20

44 See Immigration Act of 1990, Pub. L. No. 101-649, § 601(a)(4), 104

21 Stat. 4978, 5072 (codified as amended at 8 U.S.C. § 1182).

22

45 136 Cong. Rec. 36,844 (1990).

FIRST AMENDED COMPLAINT

26

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.556 Page 34 of 185

1 pauper, where “destitution” was “coupled with an inability to work.”46 In the

2 floor debate, one Congressman characterized someone who “would become a

3 public charge” as a person “who gets here who is helpless.”47

4

63. That provision, INA Section 212(a)(4), is one of two public charge

5 provisions in the INA. In its current form, Section 212(a)(4) provides that “[a]ny

6 alien who, . . . in the opinion of the [Secretary of DHS] at the time of application

7 for admission or adjustment of status, is likely at any time to become a public

8 charge is inadmissible.”48 Under the INA, an application for “adjustment of

9 status” means an application for lawful permanent residency (i.e., a green card).49

10 USCIS is the agency within DHS that processes applications from foreign

11

12

46 Staff of the H. Comm. on the Judiciary, 100th Cong., Grounds for

13 Exclusion of Aliens Under the Immigration and Nationality Act: Historical

14 Background and Analysis 121 (Comm. Print 1988).

15

47 135 Cong. Rec. S14,291 (July 12, 1989) (statement of Mr. Simpson).

16

48 Immigration and Nationality Act of 1952, Pub L. 82–414, 66 Stat. 163.,

17 § 212(a)(4), codified as amended at 8 U.S.C. §1182(a)(4). The text of Section

18 212(a)(4) refers to the “Attorney General,” but pursuant to Congress’s transfer of

19 adjudicatory functions of the former Immigration and Naturalization Service

20 (INS) to DHS, see 6 U.S.C. § 271(b)(5), the reference is “deemed to refer to the

21 Secretary” of Homeland Security.

22

49 See, e.g., 8 U.S.C. §§ 1255(a), 1101(a)(20).

FIRST AMENDED COMPLAINT

27

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.557 Page 35 of 185

1 nationals in the United States—including those with immigrant visas and those

2 with temporary nonimmigrant visas (such as for business or tourism)—for

3 adjustment of status to lawful permanent residency.50

4

64. The same INA provision also provides that “[a]ny alien who, in the

5 opinion of the consular officer at the time of application for a visa . . . is likely at

6 any time to become a public charge is inadmissible.”51 This public charge

7 exclusion is administered by U.S. embassies and consulates abroad, which

8 process visa applications by foreign nationals outside the Untied States.52

9 Although the Secretary of State may “direct a consular officer to refuse a visa,”53

10 the Homeland Security Act of 2002 vests the DHS Secretary “exclusively with

11 all authorities to issue regulations . . . relating to the functions of consular

12 officers . . . in connection with the granting or refusal of visas.”54

13

65. A separate section of the INA, Section 237(a)(5), provides that

14 “[a]ny alien who, within five years after the date of entry, has become a public

15

16

50 See 6 U.S.C.A. § 271 (establishing USCIS under former name).

17

51 Immigration and Nationality Act of 1952, § 212(a)(4), Pub L. 82–414,

18 66 Stat. 163 (codified as amended at 8 U.S.C. §1182(a)(4)).

19

52 See 8 U.S.C. § 1201(a) (authorizing consular officers to issue immigrant

20 and nonimmigrant visas); 9 FAM 302.8.

21

53 6 U.S.C. § 236(c)(1).

22

54 Id.

FIRST AMENDED COMPLAINT

28

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.558 Page 36 of 185

1 charge from causes not affirmatively shown to have arisen since entry is

2 deportable.”55 DOJ enforces this public charge provision under its authority to

3 adjudicate immigration cases, including removal proceedings.56 DOJ is currently

4 preparing a proposed public charge rule to “more closely conform [its]

5 regulations with the DHS public charge rule” challenged here.57 The Plaintiff

6 States do not now challenge DOJ’s forthcoming rule.

7

4. Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 8

66. Section 212(a)(4)’s public charge exclusion has remained largely

9

identical throughout Congress’s many reenactments of the INA. The single

10

material revision came in the Illegal Immigration Reform and Immigrant

11

Responsibility Act of 1996 (Immigration Reform Act), when Congress codified

12

the BIA’s long-applied totality of circumstances test.58 Amending the INA, the

13

14

15

55 8 U.S.C. § 1227(a)(5).

16

56 See 8 U.S.C. § 1103(g).

17

57 Inadmissibility on Public Charge Grounds, RIN 1125-AA84, Spring

18 2019 Spring Regulatory Agenda, Office of Information and Regulatory Affairs,

19 Office of Management and Budget, https://www.reginfo.gov/public/do/eAgenda

20 ViewRule?pubId=201904&RIN=1125-AA84 (last visited Aug. 2, 2019).

21

58 Pub. L. 104-208, Div. C, 110 Stat. 3009, Sec. 531(a)(4)(B), codified as

22 amended at 8 U.S.C. § 1182.

FIRST AMENDED COMPLAINT

29

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.559 Page 37 of 185

1 Immigration Reform Act set forth five factors that must be considered “at

2 minimum” to determine whether an alien is likely to become a public charge:

3 (1) age; (2) health; (3) family status; (4) assets, resources, and financial status;

4 and (5) education and skills.59 Congress also authorized consular and

5 immigration officers to consider any “affidavit of support” furnished on behalf

6 of an applicant and provide that certain family-sponsored and employment-based

7 immigrants are inadmissible without such affidavits.60 In practice, since the

8 enactment of the Immigration Reform Act, noncitizens have generally been able

9 to overcome a potential public charge determination by filing a binding affidavit

10 of support from a qualifying sponsor.

11

67. The Immigration Reform Act is also important for what Congress

12 did not do. The version of the law adopted by the House would have redefined

13 “public charge” for deportability purposes in a manner strikingly similar to the

14 Department’s new Rule. The unenacted bill defined “public charge” to “include[]

15 any alien who receives [means-tested public] benefits for an aggregate period of

16 at least 12 months.”61 Opponents of the new definition objected on the ground

17 that it was “too quick to label people as public charges for utilizing the same

18

19

20

59 8 U.S.C. § 1182(a)(4)(B)(i).

21

60 8 U.S.C. §§ 1182(a)(4)(B)(ii), 1183a.

22

61 H.R. Rep. No. 104-828, at 138 (1996) (Conf. Rep.).

FIRST AMENDED COMPLAINT

30

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.560 Page 38 of 185

1 public assistance that many Americans need to get on their feet.”62 That public

2 charge definition was stricken from the bill adopted by the full Congress and

3 signed by the President.63 The Senate floor manager confirmed that the

4 legislation could not be passed until the expansive redefinition of public charge

5 was removed.64

6

68. At no point did Congress ever indicate that it intended to alter the

7 long-settled meaning of the term, “public charge.” Other than the codification of

8 the totality of circumstances test, the INA has retained nearly identical language

9 throughout its many amendments (the most recent in 2013).

10

5. Personal Responsibility and Work Opportunity Act of 1996

11

69. The same year it enacted the Immigration Reform Act, Congress

12 enacted the Personal Responsibility and Work Opportunity Reconciliation Act of

13 1996 (Welfare Reform Act).65 Before 1996, lawfully present immigrants were

14 generally eligible for public benefits on similar terms as U.S. citizens, provided

15 they met the same means-tested eligibility criteria. The Welfare Reform Act

16

17

62 S. Rep. No. 104-249, at 63 (1996) (objections of Sen. Leahy).

18

63 Pub. L. 104-208, Div. C, 110 Stat. 3009.

19

64 142 Cong. Rec. S11872, S11882 (1996) (statement of Sen. Kyl that “in

20 order to ensure passage . . . important provisions of title 5 have been deleted,”

21 including one changing “the definition of ‘public charge’ ”).

22

65 Pub. L. 104-193, 110 Stat. 2105.

FIRST AMENDED COMPLAINT

31

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.561 Page 39 of 185

1 significantly altered that general rule, classifying immigrants into two general

2 categories: “qualified” and “non-qualified.”66 Qualified immigrants include

3 lawful permanent residents, refugees, asylees, humanitarian parolees, Cuban and

4 Haitian entrants, noncitizens granted withholding of deportation or conditional

5 entry, and certain victims of battery or extreme cruelty by a spouse or other family

6 member.67 All other immigrants, regardless of their legal status, are non-qualified

7 under the Welfare Reform Act. With certain exceptions, non-qualified

8 immigrants are ineligible for federal public benefits.68

9

70. Qualified immigrants, however, generally may be eligible for

10 “federal means-tested public benefits” after five years of entry to the United

11 States.69 Such benefits include Medicaid, TANF, and State Child Health

12 Insurance Program (CHIP), and, with further limitations, food stamp benefits

13 under the Supplemental Nutrition Assistance Program (SNAP) and Supplemental

14 Security Income (SSI).70 For certain “designated federal programs” (namely,

15 TANF, social services block grants, and Medicaid), a “State is authorized to

16

17

66 8 U.S.C. § 1641(b).

18

67 8 U.S.C. § 1641(b)–(c).

19

68 8 U.S.C. § 1611(a).

20

69 8 U.S.C. § 1613(a); Pimentel v. Dreyfus, 670 F.3d 1096, 1100 (9th Cir.

21 2012) (per curiam).

22

70 8 U.S.C. §§ 1611(c), 1612(b)(1).

FIRST AMENDED COMPLAINT

32

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.562 Page 40 of 185

1 determine the eligibility of” qualified immigrants.71

2

71. State and local public benefits are less restricted under the Welfare

3 Reform Act. Not only qualified immigrants, but also temporary, nonimmigrant

4 visitors, are eligible for state and local public benefits.72 The Welfare Reform Act

5 expressly authorizes each state to determine the eligibility for any state public

6 benefits of any qualified alien or nonimmigrant.73 In addition, a state may provide

7 by statute that “an alien who is not lawfully present in the United States is eligible

8 for any State or local public benefit.”74

9

72. In the wake of the Welfare Reform and Immigration Reform Acts,

10 “public confusion” emerged concerning the relationship between receipt of

11 federal, state, or local benefits and the public charge provisions of federal

12 immigration law.75 According to the U.S. Department of State, “such confusion

13 led many persons in the immigrant community to choose not to sign up for

14 important benefits, especially health-related benefits, which they were eligible to

15

16

17

71 8 U.S.C. § 1612(b)(1).

18

72 8 U.S.C. §§ 1621(a), 1622(a).

19

73 8 U.S.C. § 1622(a).

20

74 8 U.S.C. § 1621(d).

21

75 Field Guidance on Deportability and Inadmissibility on Public Charge

22 Grounds, 64 Fed. Reg. 28689-01, 28,689 (May 26, 1999) (Field Guidance).

FIRST AMENDED COMPLAINT

33

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.563 Page 41 of 185

1 receive” out of “concern[s] it would affect their or a family member’s

2 immigration status.”76

3

6. Agency guidance

4

73. To alleviate public confusion, INS (USCIS’s predecessor agency)

5 issued a memorandum (Field Guidance) providing “new guidance on public

6 charge determinations in light of the recent changes in law.”77 The Field

7 Guidance defined a “public charge” as an immigrant who is “primarily dependent

8

9

76 U.S. State Department Cable, INA 212(A)(4) Public Charge: Policy

10 Guidance, Ref: 9 FAM 40.41 (hereinafter State Department cable).

11

77 64 Fed. Reg. 28,690. On the same day it issued the Field Guidance, DOJ

12 also published a proposed rule adding further gloss to the public charge

13 definition. See Inadmissibility and Deportability on Public Charge Grounds,

14 64 Fed. Reg. 28,676 (May 26, 1999). That proposed rule observed that the

15 “primary dependence model of public assistance was the backdrop against which

16 the ‘public charge’ concept in immigration law developed in the late 1800s,” and

17 “[h]istorically, individuals who became dependent on the Government were

18 institutionalized in asylums or placed in ‘almshouses’ . . . long before the array

19 of limited-purpose public benefits now available existed.” Id. at 28,677.

20 Although DOJ never published a final public charge rule, the Field Guidance’s

21 public charge definition and policies were “adopt[ed] . . . immediately” and have

22 guided DOJ—and, later, DHS—policy ever since.

FIRST AMENDED COMPLAINT

34

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.564 Page 42 of 185

1 on the government for subsistence, as demonstrated by either (i) the receipt of

2 public cash assistance for income maintenance or (ii) institutionalization for

3 long-term care at government expense.”78

4

74. That definition was not a product of INS’s administrative discretion,

5 but rather a direct application of the traditional, established meaning of the term

6 “public charge.” As INS explained in a separate regulation it proposed alongside

7 the Field Guidance, it based its definition on “the plain meaning of the word

8 ‘charge’” and “the historical context of public dependency when the public

9 charge immigration provisions were first adopted more than a century ago.”79

10 The ordinary meaning of the word “charge,” as used in the INA, is “a person or

11 thing committed or entrusted to the care, custody, management, or support of

12 another”—in the case of a public charge, to the government.80 Because a person

13 who receives only supplemental public assistance is not “committed” to the

14 government’s “care” or “custody,” INS concluded that the term “public charge”

15 encompasses only instances of “complete, or nearly complete, dependence on the

16 Government rather than the mere receipt of some lesser level of financial

17

18

19

78 64 Fed. Reg. at 28,689.

20

79 Inadmissibility and Deportability on Public Charge Grounds, 64 Fed.

21 Reg. 28,676, 28,677 (May 26, 1999).

22

80 Id. (quoting Webster’s Third New International Dictionary 337 (1986)).

FIRST AMENDED COMPLAINT

35

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.565 Page 43 of 185

1 support.”81 Although INS never published a final public charge rule, the

2 Field Guidance’s public charge definition and policies were

3 “adopt[ed] . . . immediately” and have guided DOJ—and, later, DHS—policy

4 ever since.82

5

75. The Field Guidance instructed that consular and immigration

6 “officers should not place any weight on the receipt of non-cash public benefits”

7 other than long-term institutionalization.83 INS explained that because “non-cash

8 benefits . . . are by their nature supplemental and do not, alone or in combination,

9 provide sufficient resources to support an individual or family,” participation in

10 such programs “is not evidence of poverty or dependence.”84 Among the list of

11 benefits that should not be considered for public-charge purposes, the Field

12 Guidance expressly listed “Medicaid and other health insurance and health

13 services,” CHIP, “[n]utrition programs,” and [h]ousing benefits.”85 Finally, the

14 Field Guidance made clear that it was designed to address “adverse impact . . . on

15 public health and the general welfare” caused by confusion over the public charge

16 standard—namely, that it had “deterred eligible aliens and their families,

17

18

81 Id.

19

82 64 Fed. Reg. at 28,689.

20

83 64 Fed. Reg. at 28,689.

21

84 Id. at 26,692–93.

22

85 64 Fed. Reg. at 28,693.

FIRST AMENDED COMPLAINT

36

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.566 Page 44 of 185

1 including U.S. citizen children, from seeking important health and nutrition

2 benefits that they are legally entitled to receive.”86

3

76. In sum, the Field Guidance embraced the traditional understanding

4 of a public charge as a person permanently and primarily dependent on

5 government for subsistence. That definition has guided the government’s

6 application of federal immigration law’s public charge provisions for 20

7 years—since the end of the Clinton Administration, and through the entire

8 George W. Bush and Obama Administrations, and even through the

9 reorganization of the agencies responsible for enforcing the INA.

10

77. In 2009, DOJ issued a Public Charge Fact Sheet (DOJ Fact Sheet),

11 which confirmed the Field Guidance’s definition of “public charge” to mean “an

12 individual who is likely to become ‘primarily dependent on the government for

13 subsistence.’ ”87 The DOJ Fact sheet reiterated that “a number of factors must be

14 considered,” in the public charge determination, “including age, health, family

15 status, assets, resources, financial status, education, and skills.”88 It also made

16

17

18

86 64 Fed. Reg. at 28,692.

19

87 U.S. Dep’t of Justice, Public Charge Fact Sheet, 2009 WL 3453730

20 (Oct. 29, 2011) (quoting “Field Guidance on Deportability and Inadmissibility

21 on Public Charge Grounds,” 64 Fed. Reg. 28689 (May 26, 1999)).

22

88 Id.

FIRST AMENDED COMPLAINT

37

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.567 Page 45 of 185

1 clear that “[n]o single factor—other than the lack of an affidavit of support, if

2 required—will determine whether an individual is a public charge.”89

3

78. The DOJ Fact Sheet echoed the Field Guidance rule that a public

4 charge determination may not be based on “non-cash benefits and

5 special-purpose cash benefits that are not intended for income maintenance.”

6 Further reflecting the understanding of a public charge as someone permanently

7 and primarily dependent on government for survival, the DOJ Fact Sheet

8 specifically identified the following public benefit programs as irrelevant to a

9 public charge determination:

10

• Medicaid and other health insurance and health services other

11

than support for long-term institutional care;

12

• Nutrition programs, including SNAP, the Special

13

Supplemental Nutrition Program for Women, Infants and Children (WIC),

14

the National School Lunch and School Breakfast Program, and other

15

supplementary and emergency food assistance programs;

16

• Housing benefits;

17

• Child care services;

18

• Job training programs; and

19

• Non-cash benefits under TANF such as subsidized child care

20

or transit subsidies.

21

22

89 Id.

FIRST AMENDED COMPLAINT

38

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.568 Page 46 of 185

1

79. The DOJ Fact Sheet further provided that while acceptance of “cash

2 assistance for income maintenance”—including SSI, TANF, or local cash general

3 assistance programs—could be considered in the public charge determination,

4 “the mere receipt of these benefits does not automatically make an individual

5 inadmissible” or “ineligible to adjust status to lawful permanent resident.”

6 Rather, “each determination is made on a case-by-case basis in the context of the

7 totality of the circumstances.”

8

80. In 2011, USCIS issued its own Public Charge Fact Sheet (USCIS

9 Fact Sheet) which affirmed that many common public benefits are not considered

10 in making a public charge inadmissibility determination.90 Those benefits

11 included Medicaid and other health insurance and health services assistance

12 (other than support for long-term care); CHIP; nutrition programs, such as food

13 stamps; housing benefits; child care services; energy assistance; emergency

14 disaster relief; foster care and adoption assistance; educational assistance; job

15 training programs; non-cash benefits under TANF; community-based programs

16 or services; and unemployment compensation.

17

81. Although the USCIS Fact Sheet explained certain cash assistance

18 programs could be considered in a public charge determination, receiving such

19 benefits could not, in and of itself, render an immigrant inadmissible on public

20 charge grounds. Rather, every public charge determination, USCIS confirmed,

21

22

90 Public Charge Fact Sheet, USCIS., Apr. 29, 2011.

FIRST AMENDED COMPLAINT

39

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.569 Page 47 of 185

1 must be made on a case-by-case basis in light of all of the available evidence,

2 considering the totality of the immigrant’s circumstances.

3

82. In sum, from the colonial era through 115 Congresses and 44

4 presidential administrations, American law uniformly interpreted and applied the

5 term “public charge” to mean a “pauper” or a person permanently and “primarily

6 dependent on the government for subsistence.” Specifically, federal agencies

7 reached consensus that an immigrant’s past receipt of non-cash public

8 benefits—such as health, nutrition, or housing assistance, all of which bolster

9 overall public health and economic growth—should not be considered for

10 purposes of the public charge exclusion. The Department’s Public Charge Rule

11 rejects that consensus, defying the original meaning of public charge and

12 substituting its own definition and criteria that cannot be reconciled with statutory

13 text, history, or precedent.

14

V. THE DEPARTMENT’S PUBLIC CHARGE RULE

15

83. During the 2016 campaign, President Trump ran on a platform to

16 radically transform U.S. immigration policy.

17

84. Having failed to secure passage of any immigration legislation, the

18 Trump Administration promulgated the Public Charge Rule to circumvent

19 Congress and implement the President’s anti-immigration agenda through the

20 regulatory backdoor. In issuing the Rule, the Department ignored hundreds of

21 thousands of public comments warning of its significant costs to working

22

FIRST AMENDED COMPLAINT

40

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.570 Page 48 of 185

1 families, children, patients, health care providers, American businesses, state and

2 local governments, and others, while failing to identify any tangible benefit the

3 Rule may conceivably produce.

4 A. The Trump Administration’s Anti-Immigration Agenda

5

85. As a candidate and in office, President Trump endorsed significant

6 cuts to legal immigration and challenged the centrality of family reunification to

7 federal immigration policy. The official White House website states that “the

8 President supports ending chain migration, eliminating the Visa Lottery, and

9 moving the country to a merit-based entry system.”91 President Trump has

10 repeatedly expressed disapproval of family-based immigration preferences.92

11

12

91 White House, Immigration, https://www.whitehouse.gov/issues/

13 immigration/ (last visited July 27, 2019).

14

92 President Trump has referred to family-based immigration with the

15 derogatory term “chain migration,” calling it a “disaster” and falsely claiming

16 that it allows citizens to bring in relatives who are “15 times removed.” Meghan

17 Keneally, 8 Times Trump Slammed “Chain Migration” Before It Apparently

18 Helped His Wife’s Parents Become Citizens, ABC News (Aug. 10, 2018),

19 https://abcnews.go.com/US/times-trump-slammed-chain-migration-apparently-

20 helped-wifes/story?id=57132429. He has attempted to link family-based

21 immigration preferences with terrorism, using discrete events to attack what he

22 calls the “sick, demented” statutory scheme that has been in place for decades.

FIRST AMENDED COMPLAINT

41

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.571 Page 49 of 185

1 The primary beneficiaries of family-based immigration are from predominantly

2 nonwhite countries, including Mexico, China, Cuba, India, and the Dominican

3 Republic.93

4

86. Shortly after President Trump’s inauguration in January 2017, the

5 media obtained a draft of an “Executive Order on Protecting Taxpayer Resources

6 by Ensuring Our Immigration Laws Promote Accountability and Responsibility.”

7 The draft Executive Order instructed DHS to “rescind any field guidance” and

8 “propose for notice and comment a rule that provides standards for determining

9 which aliens are admissible or deportable on public charge grounds,” including

10

11

12

13 He has called immigrants who arrive pursuant to family preferences “the opposite

14 of [origin countries’] finest,” “truly EVIL,” and “not the people that we want.”

15 Jessica Kwong, Donald Trump Says ‘Chain Migration’ Immigrants ‘Are Not the

16 People That We Want’—That Includes Melania’s Parents, Newsweek (Jan. 14,

17 2019), https://www.newsweek.com/donald-trump-chain-migration-immigrants-

18 melania-1291210.

19

93 Jie Zong et al., Frequently Requested Statistics on Immigrants and

20 Immigration in the United States, Migration Policy Institute,

21 https://www.migrationpolicy.org/article/frequently-requested-statistics-

22 immigrants-and-immigration-united-states (last updated July 10, 2019).

FIRST AMENDED COMPLAINT

42

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.572 Page 50 of 185

1 if a noncitizen receives or is likely to receive non-cash public benefits.94 The draft

2 Executive Order was never issued.

3

87. In 2017, two U.S. senators introduced a bill designed to significantly

4 reduce legal immigration by, for example, curbing the government’s

5 long-established policy favoring family reunification. The Reforming American

6 Immigration for a Strong Economy (RAISE) Act would have given visa

7 preference only to immediate family and eliminated the diversity visa lottery,

8 which allots a limited number of visas to countries with historically low rates of

9 immigration to the United States.95 It also proposed a “merit-based immigration

10 system,” which gives preference to immigrants between the ages of 26 and 30,

11 with doctoral degrees, high English proficiency, and a job offer with a high

12 salary. The RAISE Act would have precluded parents of adult U.S. citizens from

13 applying for Legal Permanent Resident status and, if they entered as temporary

14

15

16

94 See Memorandum from Andrew Bremberg Regarding Executive Order

17 on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote

18 Accountability and Responsibility (Jan. 23, 2017), https://cdn3.vox-

19 cdn.com/uploads/chorus_asset/file/7872571/Protecting_Taxpayer_Resources_b

20 y_Ensuring_Our_Immigration_Laws_Promote_Accountability_and_Responsibi

21 lity.0.pdf.

22

95 S.B. 354, 115th Cong., 1st sess. (2017).

FIRST AMENDED COMPLAINT

43

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.573 Page 51 of 185

1 nonimmigrants, barred those parents from receiving federal, state, or local public

2 benefit.96

3

88. President Trump supported the RAISE Act.97 Explaining his

4 support, President Trump said “The RAISE Act prevents new migrants and new

5 immigrants from collecting welfare . . . . They’re not going to come in and just

6 immediately go and collect welfare.” The White House also asserted falsely that

7 “[m]ore than 50 percent of all immigrant households receive welfare benefits,

8 compared to only 30 percent of native households in the United States that

9 receive welfare benefits.”98 In fact, immigrants are less likely to consume public

10 assistance benefits than native-born Americans and, when they do, they generally

11 consume a lower dollar value of benefits. Overall, immigrants consume 27%

12 fewer benefits on average than native-born Americans with similar incomes and

13 ages.99

14

15

96 Id. § 4(d)(2)(B).

16

97 White House, Fact Sheets, President Donald J. Trump Backs RAISE

17 Act, Aug. 2, 2017, https://www.whitehouse.gov/briefings-statements/president-

18 donald-j-trump-backs-raise-act/

19

98 Id.

20

99 Alex Nowrasteh & Robert Orr, Immigration and the Welfare State at 1,

21 7, Cato Institute, May 10, 2018, https://object.cato.org/sites/cato.org/ files/pubs/

22 pdf/irpb6.pdf.

FIRST AMENDED COMPLAINT

44

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.574 Page 52 of 185

1

89. In June 2017, shortly before announcing his support for the RAISE

2 Act, President Trump received a briefing on immigration from White House

3 senior adviser Stephen Miller. (Miller, an ardent supporter of the Public Charge

4 Rule, had reportedly once told a former White House communications aide,

5 “I would be happy if not a single refugee foot ever touched American soil.”100)

6 At the briefing, after learning that 15,000 Haitians had received U.S. visas in

7 2017, President Trump replied that they “all have AIDS.” When President Trump

8 learned that 40,000 Nigerians had received visas, he said that they would never

9 “go back to their huts.”101

10

90. Defendant Cuccinelli has expressed similar sentiments. In a 2012

11 interview, Cuccinelli compared U.S. immigration policy to local laws governing

12 treatment of rats, stating that a District of Columbia law prohibiting killing of rats

13 or separating rat families is “worse than our immigration policy—you can’t break

14 up rat families. Or raccoons or all the rest and you can’t even kill them. It’s

15

16

17

100 Cliff Sims, Team of Vipers: My 500 Extraordinary Days in the Trump

18 White House 191 (2019).

19

101 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump

20 Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times,

21 Dec. 23, 2017, https://www.nytimes.com/2017/12/23/us/politics/trump-

22 immigration.html?module=inline.

FIRST AMENDED COMPLAINT

45

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.575 Page 53 of 185

1 unbelievable.”102 Since at least 2007, Cucinnelli (echoing the President’s

2 rhetoric) has repeatedly described the United States as being “invaded” by

3 immigrants along the Southern border.103 In 2008, when Cuccinelli was a state

4 senator in Virginia, he introduced legislation that would have allowed employers

5 to fire those who did not speak English in the workplace. Under his plan, those

6 fired would have subsequently been ineligible for unemployment benefits.104

7 B. Rulemaking History

8

91. In December 2017, DHS noted in the Unified Agenda of Federal

9 Regulatory and Deregulatory Actions its intent to publish a Notice for Public

10 Rulemaking regarding the public charge ground of inadmissibility. In early 2018,

11 it was widely reported that the new rule would dramatically expand the types of

12 public assistance programs that could be considered in the public charge test,

13

14

102 Latino Voices, Ken Cuccinelli Protested With Live Rats Over

15 Comments About Immigrants, Huff. Post. Nov. 5, 2013.

16

103 Andrew Kaczynski, Trump Official Has Talked About Undocumented

17 Immigrants as ‘Invaders’ Since at Least 2007, CNN (Aug. 17, 2019 9:00 AM),

18 https://www.cnn.com/2019/08/17/politics/kfile-ken-cuccinelli-immigration-

19 invasion-rhetoric/index.html.

20

104 Elaina Plott, The New Stephen Miller, The Atlantic (Aug. 14, 2019),

21 https://www.theatlantic.com/politics/archive/2019/08/who-is-ken-

22 cuccinelli/596083/?utm_source=feed.

FIRST AMENDED COMPLAINT

46

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.576 Page 54 of 185

1 including non-cash benefits like SNAP and Medicaid.105 In January 2018, the

2 State Department revised the Foreign Affairs Manual (FAM) to instruct consular

3 officers to consider a wider range of public benefits when determining whether

4 visa applicants who have received or are currently receiving benefits are

5 inadmissible on public charge grounds.106 As revised, the FAM also allowed

6 State Department officials to consider whether an applicant’s family member has

7 received public benefits as part of the public charge test.107

8

9

10

105 See, e.g., Nick Miroff, Trump proposal would penalize immigrants who

11 use tax credits and other benefits, Wash. Post. Mar. 28, 2018, https://

12 www.washingtonpost.com/world/national-security/trump-proposal-would-pen

13 alize-immigrants-who-use-tax-credits-and-other-benefits/2018/03/28/4c6392e0-

14 2924-11e8-bc72-077aa4dab9ef_story.html?noredirect=on&utm_term=.e291852

15 f1728; Yeganeh Torbati, Exclusive: Trump administration may target

16 immigrants who use food aid, other benefits, Reuters, Feb. 8, 2018,

17 https://www.reuters.com/article/us-usa-immigration-services-exclusive/

18 exclusive-trump-administration-may-target-immigrants-who-use-food-aid-other

19 -benefits-idUSKBN1FS2ZK.

20

106 U.S. Dep’t of State, “Public Charge” Update to 9 FAM 302.8

21 (Jan. 4, 2018), https://fam.state.gov/fam/09FAM/09FAM030208.html#M302_8.

22

107 Id. at 302.8-2(B)(2)(f)(2)(b)(i).

FIRST AMENDED COMPLAINT

47

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.577 Page 55 of 185

1

92. Also in January 2018, President Trump rejected a bipartisan

2 immigration proposal by members of Congress. In reference to the deal’s

3 protections for immigrants from Haiti and Africa, President Trump asked why he

4 should accept immigrants from “shithole countries” rather than from nations like

5 “Norway.”108

6

93. A detailed draft of DHS’s proposed public charge rule was leaked

7 in March 2018. Under the draft proposed rule, new criteria would be considered

8 as heavily weighted negative factors in public charge determinations, including

9 whether an immigrant has received non-cash benefits regardless of the

10 immigrant’s legal entitlement to participate in the benefit program.109

11

94. In spring 2018, shortly after the draft rule leaked, DHS informed the

12 Office of Management and Budget (OMB) that it “will propose regulatory

13 provisions guiding the inadmissibility determination on whether an alien is likely

14

15

108 Julie Hirschfeld Davis, Sheryl Gay Stolberg & Thomas Kaplan, Trump

16 Alarms Lawmakers With Disparaging Words for Haiti and Africa, N.Y. Times,

17 Jan. 11, 2018, https://www.nytimes.com/2018/01/11/us/politics/trump-shithole-

18 countries.html.

19

109 Read the Trump administration’s draft proposal penalizing immigrants

20 who accept almost any public benefit, Wash. Post., http://apps.

21 washingtonpost.com/g/documents/world/read-the-trump-administrations-draft-

22 proposal-penalizing-immigrants-who-accept-almost-any-public-benefit/2841/.

FIRST AMENDED COMPLAINT

48

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.578 Page 56 of 185

1 at any time to become a public charge.”110 As first provided to OMB, the

2 proposed rule was not classified as a “significant regulatory action”111 or a

3 “major” rule pursuant to the Congressional Review Act.112

4

95. The same month, President Trump said in a meeting at the White

5 House that the United States has “the dumbest laws on immigration in the world”

6 and exhorted his administration officials to “do much better” in keeping out

7 undesirable immigrants. “You wouldn’t believe how bad these people are,”

8 President Trump said. “These aren’t people, these are animals . . . .”113

9

96. In June 2018, Miller emailed then-USCIS Director L. Francis Cissna

10 regarding DHS’s public charge rule. Miller wrote, “Francis – The timeline on

11 public charge is unacceptable.” Miller continued, “I don’t care what you need to

12

13

14

110 Office of Management and Budget (OMB), Office of Information and

15 Regulatory Affairs (OIRA), Inadmissibility on Public Charge Grounds - Spring

16 2018, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&

17 RIN=1615-AA22.

18

111 Exec. Order 12,866, § 3(f).

19

112 5 U.S.C. § 804(2).

20

113 Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants

21 ‘Animals’ in Rant, N.Y. Times, May 16, 2018, https://www.nytimes.com/

22 2018/05/16/us/politics/trump-undocumented-immigrants-animals.html.

FIRST AMENDED COMPLAINT

49

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.579 Page 57 of 185

1 do to finish it on time.” Miller also wrote, “It’s an embarrassment that we’ve been

2 here for 18 months and USCIS hasn’t published a single major reg.”114

3

97. In the same month, President Trump tweeted that immigrants are

4 “invad[ing]” and “infest[ing]” the United States.115 Of other countries, President

5 Trump said at a rally that same month, “They’re not sending their finest. We’re

6 sending them the hell back.”116

7

98. At a political campaign event in Arizona in October 2018, President

8 Trump referred to Latin American immigrants as “bad hombres.”117

9

10

11

114 Ted Hesson, Emails show Miller pressed hard to limit green cards,

12 Politico, Aug. 2, 2019, available at https://subscriber.politicopro.com/

13 article/2019/08/emails-show-miller-pressed-hard-to-limit-green-cards-1630406.

14

115 Donald J. Trump (@realDonaldTrump), Twitter (June 24, 2018,

15 8:02 AM), https://twitter.com/realdonaldtrump/status/1010900865602019329;

16 Donald J. Trump (@realDonaldTrump), Twitter (June 19, 2018, 9:52 AM),

17 https://twitter.com/realDonaldTrump/status/1009071403918864385.

18

116 Katie Rogers & Jonathan Martin, ‘We’re Sending Them the Hell Back,’

19 Trump Says of Securing the Country’s Borders, N.Y. Times, June 20, 2018,

20 https://www.nytimes.com/2018/06/20/us/politics/trump-minnesota-rally.html.

21

117 Christopher Cadelago and Brent D. Griffiths, Still hopeful of keeping

22 House, Trump torches Democrats in the Desert, Politico (Oct. 20, 2018).

FIRST AMENDED COMPLAINT

50

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.580 Page 58 of 185

1 C. The Department’s Proposed Public Charge Rule

2

99. On October 10, 2018, DHS published a notice of proposed

3 rulemaking and proposed rule entitled Inadmissibility on Public Charge Grounds

4 (the Proposed Rule).118 The Proposed Rule sought to significantly expand the

5 authority of the USCIS to designate an immigrant as inadmissible on the ground

6 that he or she is likely to become a “public charge,” far beyond the long-settled

7 meaning of the term and its prior application in the history of U.S. immigration

8 law.

9

100. The Proposed Rule redefined the term “public charge” to mean “an

10 alien who receives one or more public benefit[s].”119 The Proposed Rule defined

11 “public benefit” to include not only a wide range of federal, state, local, or tribal

12 cash benefits but also, in a reversal of decades of past practice and precedent,

13 specific federally-funded non-cash benefits—namely SSI, SNAP, Section 8

14 housing assistance, and Medicaid.120

15

16

118 U.S. Citizenship and Immigration Servs., U.S. Dep’t of Homeland

17 Security, Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114-01,

18 51,198, to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245, and 248)

19 (Oct. 10, 2018).

20

119 83 Fed. Reg. at 51,157 & 51,289 (to be codified at 8 C.F.R.

21 § 212.21(a)).

22

120 83 Fed. Reg. at 51,289–90 (to be codified at 8 C.F.R. § 212.21(b)).

FIRST AMENDED COMPLAINT

51

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.581 Page 59 of 185

1

101. In fact, the Department’s Final Rule allowing consideration of

2 SNAP benefits is directly contrary to existing federal law governing those

3 programs.121

4

102. The Proposed Rule would have required DHS in making a public

5 charge determination to consider the immigrant’s “past receipt of public benefits”

6 above certain thresholds as a “heavily weighed negative factor” favoring

7 exclusion.122 The Proposed Rule’s thresholds differed based on whether the

8 benefit was “monetizable” or “non-monetizable.”

9

103. For “monetizable” benefits such as SNAP or TANF, the Proposed

10 Rule imposed a dollar-value and durational threshold: it would have weighed

11 heavily against an immigrant’s application if, within any one-year period, the

12 amount of public benefits received exceeds 15% of the Federal Poverty

13 Guidelines (FPG) for a household of one (the 15% threshold).123 For

14 non-monetizable benefits such as Medicaid and subsidized housing, the Proposed

15 Rule set a purely durational threshold: the heavily weighed negative factor would

16 apply whenever an immigrant received such benefits for 12 months total in any

17

18

19

20

121 7 U.S.C. § 2017(b).

21

122 83 Fed. Reg. at 51,289–90 (to be codified at 8 C.F.R. § 212.22(c)(1)(3)).

22

123 83 Fed. Reg. at 51,289–90 (to be codified at 8 C.F.R. § 211.21(b)(1)).

FIRST AMENDED COMPLAINT

52

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.582 Page 60 of 185

1 36-month period, regardless of the actual value of the benefits received (the

2 12-month threshold).124

3

104. Any amount of cash assistance for income maintenance could be

4 considered as a negative factor favoring exclusion (though not “heavily

5 weighed”) under the Proposed Rule.125 However, it would not have permitted the

6 Department to consider at all an immigrant’s receipt of non-cash public benefits

7 below the applicable durational or dollar-value thresholds.

8

105. The Proposed Rule also sought to extend the public charge test into

9 two areas not provided by statute—noncitizens’ applications for (1) extension of

10 stay, and (2) change of status. Under the Proposed Rule, as a mandatory

11 “condition of approval,” a noncitizen would have had to “demonstrate” that since

12 obtaining the nonimmigrant status she seeks to change or extend she has not

13 received, nor “is likely to receive,” a public benefit.126

14

106. The Department acknowledged that it had issued the Proposed Rule

15 despite “anticipat[ing] that a number of individuals would be likely to disenroll

16 or forego enrollment in a number of public benefits program as a result of the

17

18

124 83 Fed. Reg. at 51,290 (to be codified at 8 C.F.R. § 212.22(b)(2)).

19

125 83 Fed. Reg. at 51,292 (to be codified at 8. C.F.R. § 212.22(d)).

20

126 83 Fed. Reg. 51,295 (to be codified at 8 C.F.R. § 214.1(a)(3)(iv)

21 extension of stay); 83 Fed. Reg. at 51,296 (to be codified at 8 C.F.R. § 248.1(a)

22 (change of status).

FIRST AMENDED COMPLAINT

53

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.583 Page 61 of 185

1 proposed rule.”127 The Department acknowledged that it was “unable to

2 determine the exact percentage of individuals who would disenroll or forego

3 enrollment” in public benefit programs.128 The Department was also unable to

4 “determine whether immigrants are net contributors or net users of government-

5 supported public assistance programs.”129 Finally, the Department was “not able

6 to estimate potential lost productivity, health effects, additional medical expenses

7 due to delayed health care treatment, or increased disability insurance claims as

8 a result of this proposed rule.”130

9 D. Plaintiff States’ Opposition to Proposed Rule

10

1. Comments to proposed rule

11

107. During the 60-day comment period, the Department received over

12 260,000 comments on the Proposed Rule. The vast majority of those public

13 comments opposed the Proposed Rule. Many comments focused on the

14 significant hardships the Proposed Rule would cause by deterring individuals and

15 families—immigrants, nonimmigrant visitors, and U.S. citizens alike—from

16 accessing public benefits for which they are eligible. Commenters also described

17 the significant administrative and financial burden the Proposed Rule, if

18

19

127 83 Fed. Reg. at 51,264.

20

128 83 Fed. Reg. at 51,274.

21

129 83 Fed. Reg. at 51,235.

22

130 83 Fed. Reg. at 51,236.

FIRST AMENDED COMPLAINT

54

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.584 Page 62 of 185

1 finalized, would impose on state and local government agencies, U.S. businesses,

2 families, and individuals.

3

108. The Attorneys General of New Mexico, Virginia, California, the

4 District of Columbia, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maryland,

5 Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania,

6 Rhode Island, Vermont, and Washington submitted a joint comment letter

7 opposing the Proposed Rule (the Multistate Comment).131 The Multistate

8 Comment urged the Department to modify or withdraw the Proposed Rule

9 because it would “burden states with additional healthcare costs,” “harm

10 families,” “discriminate against people with disabilities,” and “improperly

11 disfavor non-English speakers.”132 Fear of the new public charge rule “will cause

12 many eligible immigrants—including some who are exempt from the Proposed

13 Rule altogether—to drop their benefits or decline to enroll.”133 The Multistate

14 Comment noted that, following leaks of the draft proposed rule, “individuals and

15 families dropped out in noticeable numbers from support programs that are not

16

17

18

131 Comment of Commonwealth of Virginia et al. on Proposed Rule:

19 Inadmissibility on Public Charge Grounds, DHS Dkt. No. USCIS-2010-0012

20 (Oct. 10, 2018), Dec. 10, 2018 (Multistate Cmt.).

21

132 Multistate Cmt. at 2.

22

133 Multistate Cmt. at 5.

FIRST AMENDED COMPLAINT

55

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.585 Page 63 of 185

1 included in the Proposed Rule.”134 By leading to a reduction in Medicaid program

2 enrollment, the Proposed Rule would, if finalized, “increase costs to the States

3 and their residents for state-funded public health clinics, school health programs,

4 and uncompensated emergency care.”135

5

109. In addition to joining the Multistate Comment, Plaintiff State of

6 Washington submitted its own comment letter opposing the Proposed Rule (the

7 Washington Comment). Signed by Washington’s Governor and Attorney

8 General, as well as the Mayor of Seattle, the Washington Comment urged the

9 Department to withdraw the Proposed Rule because, if adopted, it “will gravely

10 harm Washingtonians, causing children in our State—noncitizens and citizens

11 alike—to forfeit meals, health insurance and a roof over their heads.”136 The

12 Washington Comment projected that the Proposed Rule would (1) cause “[o]ver

13 140,000 Washington residents [to] lose health insurance”; (2) cause

14 Washingtonians to forgo up to $55.3 million in State food and cash benefits and

15 $198.7 million in medical care annually; (3) reduce total state economic output

16

17

134 Multistate Cmt. at 11.

18

135 Multistate Cmt. at 2.

19

136 Comment of Governor Jay Inslee, Attorney General Bob Ferguson, and

20 Mayor Jenny Durkan re DHS Dkt. No. USCIS-2010-0012, Proposed Rule:

21 Inadmissibility on Public Charge Grounds, RIN 1615–AA22 (Oct. 10, 2018),

22 Dec. 10, 2018, at 2 (Wash. Cmt.).

FIRST AMENDED COMPLAINT

56

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.586 Page 64 of 185

1 by up to $97.5 million annually; (4) cut wages up to $36.7 million per year; and

2 (5) eliminate up to 782 jobs.137

3

110. In addition to joining the Multistate Comment, Plaintiff

4 Commonwealth of Massachusetts and several of its agencies submitted

5 comments opposing the proposed rule and detailing harms to its health care,

6 public health, housing, and public welfare systems.

7

111. By law, the Department was required to review every public

8 comment received and describe and respond to each “significant” comment in

9 the preamble of any final regulation.138

10

2. White House involvement and review

11

112. By March 2019, the Department had not yet published a final rule.

12 At a meeting in the White House Situation Room that month, senior adviser

13 Stephen Miller expressed his frustration that the “transformative” public charge

14 rule had not yet been finalized. “You ought to be working on this regulation all

15

16

137 Wash. Cmt. at 1–2.

17

138 Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015); Office of

18 Information and Regulatory Affairs, Regulations and the Rulemaking Process,

19 https://www.reginfo.gov/public/jsp/Utilities/faq.myjsp

(last

visited

20 July 28, 2019). A “significant comment” is one that “raise[s] relevant points and

21 which, if adopted, would require a change in the agency’s proposed rule.” Am.

22 Mining Cong. v. EPA, 965 F.2d 759, 771 (9th Cir. 1992).

FIRST AMENDED COMPLAINT

57

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.587 Page 65 of 185

1 day every day,” Miller shouted. “It should be the first thought you have when

2 you wake up. And it should be the last thought you have before you go to bed.

3 And sometimes you shouldn’t go to bed.”139

4

113. Within weeks of the Situation Room meeting, President Trump

5 removed multiple DHS senior officials from their positions, including

6 then-Homeland Security Secretary Kirstjen Nielsen and then-USCIS Director L.

7 Francis Cissna.140 Miller reportedly exerted pressure to force the resignation of

8 USCIS Director Cissna because of the perceived lack of urgency in finalizing the

9 Rule, which Miller predicted would be “transformative.”141

10

11

139 Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting

12 His Way on Immigration: His Own Officials, N.Y. Times, Apr. 14, 2019, https://

13 www.nytimes.com/2019/04/14/us/politics/trump-immigration-stephen-

14 miller.html.

15

140 Id.; Geneva Sands & Priscilla Alvarez, Trump’s Citizenship and

16 Immigration Services director out, CNN, May 24, 2019, https://www.cnn.com

17 /2019/05/24/politics/l-francis-cissna-citizenship-and-immigration-

18 services/index.html.

19

141 Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting

20 His Way on Immigration: His Own Officials, N.Y. Times (Apr. 14, 2019), https://

21 www.nytimes.com/2019/04/14/us/politics/trump-immigration-stephen-

22 miller.html.

FIRST AMENDED COMPLAINT

58

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.588 Page 66 of 185

1

114. On July 12, 2019, the Department transmitted the Rule to the White

2 House Office of Management and Budget (OMB) for regulatory review pursuant

3 to Executive Order 12,866 (E.O. 12,866).142 As required by law, the OMB Office

4 of Information and Regulatory Affairs (OIRA) held E.O. 12,866 meetings with

5 interested parties in the two weeks following its receipt of the Rule. On

6 July 24, 2019, a coalition of 17 states, including the Plaintiff States, requested a

7 meeting with OIRA—both through the OIRA online E.O. 12866 meeting request

8 system and via letter transmitted by e-mail—to further express their “significant

9 concerns about the severe impact that [the public charge] rule would have on our

10 states’ residents.” Although OIRA held at least four E.O. 12,866 meetings on

11 July 25, 2019, for a full week the Plaintiff States’ July 24 meeting request

12 received no response from OIRA.143

13

115. OIRA completed its review of the Rule on July 31, 2019.144 That

14

15

142 See E.O. 12,866 of Sept. 30, 1993.

16

143 EO 12866 Meetings Search Results, Office of Information and

17 Regulatory Affairs, Office of Management and Budget, https://

18 www.reginfo.gov/public/do/eom12866SearchResults?pubId=201904&rin=1615

19 -AA22&viewRule=true (last visited July 28, 2019).

20

144 OIRA Conclusion of EO 12866 Regulatory Review, Office of

21 Information and Regulatory Affairs, Office of Management and Budget, https://

22 www.reginfo.gov/public/do/eoDetails?rrid=129323 (last visited Aug. 2, 2019).

FIRST AMENDED COMPLAINT

59

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.589 Page 67 of 185

1 day, OIRA responded to the Plaintiff States declining their E.O. 12,866 meeting

2 request.

3 E. The Final Rule

4

116. On August 12, 2019, the Department announced the issuance of the

5 Final Public Charge Rule and it was posted for public inspection. In a press

6 conference at the White House, Acting USCIS Director Kenneth T. Cuccinelli II

7 stated that in promulgating “President Trump’s public charge inadmissibility

8 rule,” the Department was “promoting our shared history” and

9 “implement[ing] . . . a law passed by Congress in 1996 that has not been given

10 meaningful effect.”145 Asked about the 1903 plaque on the Statue of Liberty that

11 invites “your tired, your poor, your huddled masses,” Cuccinelli said: “I’m

12 certainly not prepared to take anything down off the Statute of Liberty.”

13

117. In response to questions about the Rule, Cuccinelli publicly stated

14 that the famous Emma Lazarus Statue of Liberty sonnet inscribed on the Statue

15 of Liberty “was referring back to people coming from Europe where they had

16 class-based societies” not to people coming to the United States from outside

17 Europe. He also reinterpreted it to “[g]ive me your tired and your poor who can

18

19

20

145 Cuccinelli on “public charge” immigration rule, CBS News,

21 Aug. 12, 2019, https://www.cbsnews.com/video/immigration-official-ken-

22 cuccinelli-immigrants-public-charge-rule/.

FIRST AMENDED COMPLAINT

60

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.590 Page 68 of 185

1 stand on their own two feet . . . .”146 When asked if the Rule changes the

2 definition of the American dream, Cuccinelli said, “[n]o one has a right to

3 become an American who isn’t born here as an American” and that “it is a

4 privilege to become an American, not a right for anybody who is not already an

5 American citizen.”147 He also said the Rule was “part of President Trump keeping

6 his promises.”148

7

118. On August 14, 2019, the Department published the Final Rule in the

8 Federal Register.149

9

1. Summary of the Final Rule

10

a. Applicability of the Rule

11

119. The Public Charge Rule applies to any noncitizen subject to section

12 212(a)(4) of the INA who, after the October 15, 2019 effective date, applies to

13

14

146 Rebecca Morin, Immigration official Ken Cuccinelli: Statue of Liberty

15 poem refers to immigrants from Europe, USA Today Aug. 13, 2019.

16

147 Sasha Ingber and Rachel Martin, Immigration Chief: ‘Give Me Your

17 Tired, Your Poor Who Can Stand On Their Own 2 Feet’, Nat’l Pub. Radio,

18 Aug. 13, 2019.

19

148 Id.

20

149 U.S. Citizenship and Immigration Servs., U.S. Dep’t of Homeland

21 Security, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,292, to

22 be codified at 8 C.F.R. pts. 103, 212-214, 245, and 248) (August 14, 2019).

FIRST AMENDED COMPLAINT

61

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.591 Page 69 of 185

1 the Department for admission to the United States or for adjustment of status to

2 that of lawful permanent resident.150 The Rule catalogues a list of immigrant

3 groups that are exempted from its provisions, based on preexisting exemptions

4 created by Congress or DHS regulations. These include, for example, refugees

5 and asylees, certain Afghan or Iraqi nationals employed by or on behalf of the

6 U.S. government, and certain Cuban and Haitian entrants. See 84 Fed. Reg. at

7 41,504 (proposed 8 C.F.R. § 212.23).

8

120. The Rule also applies to requests for extension of stay and change

9 of status by nonimmigrant visitors to the United States. A nonimmigrant is

10 generally admitted into the United States for a limited period and for a particular

11 purpose. Section 212(a)(4) does not apply to an extension of stay or change of

12 status. Nevertheless, the Department asserts authority to apply its expanded

13 public charge provisions to a nonimmigrant’s application to extend his or her

14 status or change it from one classification to another.151

15

b. Definitions of “public charge” and “public benefit”

16

121. The Rule defines “public charge” to mean “an alien who receives

17 one or more public benefits . . . for more than 12 months in the aggregate within

18

19

20

21

150 84 Fed. Reg. at 41,501 (proposed 8 C.F.R. § 212.20).

22

151 See 84 Fed. Reg. at 41,507-08, (proposed 8 C.F.R. §§ 214.1, 248.1).

FIRST AMENDED COMPLAINT

62

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.592 Page 70 of 185

1 any 36-month period (such that, for instance, receipt of two benefits in one month

2 counts as two months).”

3

122. “Public benefit” means any of the following six forms of public

4 assistance: (1) “[a]ny Federal state, local or tribal cash assistance for income

5 maintenance,” including SSI, TANF, or state “General Assistance”; (2) SNAP;

6 (3) Section 8 housing assistance vouchers; (4) Section 8 project-based rental

7 assistance; (5) Medicaid (with exceptions for benefits or services (i) for an

8 emergency medical condition, (ii) under the Individuals with Disabilities

9 Education Act, (iii) that are school-based, (iv) to immigrants who are under 21

10 years of age or a woman during pregnancy); and (6) public housing under section

11 9 of the U.S. Housing Act of 1937.152

12

123. In several respects, those core definitions are even more draconian

13 than the corresponding provisions of the Proposed Rule. First, the Department

14 eliminated the Proposed Rule’s distinction between monetizable and

15 non-monetizable benefits. While the Proposed Rule would have considered

16 monetizable benefits received only if they exceeded 15% threshold, in the Final

17 Rule the Department applies the 12-month threshold to all public benefits. Thus,

18 any amount of benefits received for a total of 12 months in the aggregate in a

19 36-month period as a factor weighing “heavily” in favor of a public charge

20

21

22

152 84 Fed. Reg. at 41,501 (to be codified at 8. C.F.R.§ 212.21(b)).

FIRST AMENDED COMPLAINT

63

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.593 Page 71 of 185

1 determination.153 An additional benefit counts as an extra month, such that receipt

2 of two benefits triggers the threshold after six months; three benefits, after four

3 months; and four benefits, after just three months.

4

124. Second, the Final Rule permits the Department to consider as a

5 negative factor favoring a public charge determination any past receipt of

6 non-cash public benefits, even if below the 12-month threshold.154 The Proposed

7 Rule would have only permitted consideration of cash benefits below the

8 applicable thresholds.

9

c. Heavily weighted negative factors

10

125. The Rule establishes four factors that will “generally weigh heavily

11 in favor of a finding that an alien is likely to become a public charge.”

12

126. First, it is a “heavily weighted negative factor” if the immigrant “is

13 not a full-time student and is authorized to work, but is unable to demonstrate

14 current employment, recent employment history or no reasonable prospect of

15 future employment.”155

16

127. Second, it is a “heavily weighted negative factor” if the immigrant

17 “has received or has been certified or approved to receive one or more public

18 benefits, as defined in § 212.21(b), for more than 12 months in the aggregate

19

20

153 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R.§ 212.22(c)(1)(ii)).

21

154 84 Fed. Reg. at 41,503 (to be codified at 8 C.F.R. § 212.22(b)(4)(E)).

22

155 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(1)(i)).

FIRST AMENDED COMPLAINT

64

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.594 Page 72 of 185

1 within any 36 month period, beginning no earlier than 36 months immediately

2 preceding the alien’s application for admission or adjustment of status.156 The

3 lookback period can begin no earlier than 36 months before an immigrant’s

4 application for admission or adjustment of status on or after October 15, 2019.

5

128. Third, it is a “heavily weighted negative factor” if an immigrant both

6 (a) “has been diagnosed with a medical condition that is likely to require

7 extensive medical treatment or institutionalization or that will interfere with the

8 alien’s ability to provide for him- or herself, attend school, or work”; and (b) “is

9 uninsured and has neither the prospect of obtaining private health insurance, or

10 the financial resources to pay for reasonably foreseeable medical costs related to

11 a the medical condition.”157

12

129. Fourth, it is a “heavily weighted negative factor” if the “alien had

13 previously been found inadmissible or deportable on public charge grounds by

14 an Immigration Judge or the Board of Immigration Appeals.”158

15

d. Heavily weighted positive factors

16

130. The Rule establishes three factors that “will generally weigh heavily

17 in favor of a finding that an alien is not likely to become a public charge.” First,

18 it is a “heavily weighted positive factor” if the noncitizen’s “household has

19

20

156 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(1)(ii)).

21

157 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(1)(iii)).

22

158 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(1)(iv)).

FIRST AMENDED COMPLAINT

65

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.595 Page 73 of 185

1 income, assets, or resources, and support . . . of at least 250 percent of the Federal

2 Poverty Guidelines for the alien’s household size.”159

3

131. Second, it is a “heavily weighted positive factor” if the “alien is

4 authorized to work and is currently employed in a legal industry with an annual

5 income . . . of at least 250 percent of the Federal Poverty Guidelines for the

6 alien’s household size.”160

7

132. Third, it is a “heavily weighted positive factor” if the “alien has

8 private health insurance” that is “appropriate for the expected period of

9 admission,” except health insurance for which an immigrant receives premium

10 tax credits under the Patient Protection and Affordable Care Act (ACA).161

11

e. Other criteria

12

133. The Rule requires DHS to consider various other criteria in any

13 public charge determination. Those other criteria that will weigh in favor of a

14 public charge determination include whether the immigrant: (1) is under the age

15 of 18 or over the minimum early retirement age for Social Security (currently age

16 62); (2) has a “medical condition that is likely to require extensive medical

17 treatment or institutionalization” or “interfere with [his] ability to provide and

18 care for himself,” to “attend school,” or “to work”; (3) has an annual household

19

20

159 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(2)(i)).

21

160 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(2)(ii)).

22

161 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(c)(2)(iii)).

FIRST AMENDED COMPLAINT

66

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.596 Page 74 of 185

1 gross income under 125% of the Federal poverty guideline (FPG) (or 100% for

2 active duty service members); (4) has a household size that makes the immigrant

3 “more likely than not to become a public charge at any time in the future”;

4 (5) lacks “significant assets, such as savings accounts, stocks, bonds, certificates

5 of deposit, real estate or other assets”; (6) lacks “sufficient household assets and

6 resources to cover any reasonably foreseeable medical costs related to a medical

7 condition,” (7) has “any financial liabilities”; (8) has applied for, “been certified

8 to receive” or received “public benefits” since [October 15, 2019]; (9) has applied

9 for or has received a USCIS fee waiver for an immigration benefit request since

10 [October 15, 2019]; has a lower “credit history and credit score”; (10) lacks

11 private health insurance or other sufficient assets and resources to cover

12 “reasonably foreseeable medical costs”; (11) lacks a high school diploma (or

13 equivalent) or a “higher education degree”; or (12) is not proficient in English.162

14

134. Under the Rule, the Department must also consider any required

15 affidavit of support meeting the statutory sponsorship and income requirements.

16 But an affidavit of support would not be dispositive, and its weight would depend

17 on the “likelihood that the sponsor would actually provide the statutorily-required

18 amount of financial support” in the judgment of USCIS.163 Again, this is a major

19 departure from prior agency practice and precedent, which had long treated a

20

21

162 84 Fed. Reg. at 41,502-04 (to be codified at 8. C.F.R.§ 212.22(b)).

22

163 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212(b)(7)).

FIRST AMENDED COMPLAINT

67

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.597 Page 75 of 185

1 compliant affidavit of support as a significant, if not outcome-determinative

2 factor in favor of the applicant.164

3

f. Other provisions

4

135. The Rule would apply a more exacting standard to applications for

5 adjustment of status or immigrant visas than to applications for temporary

6 nonimmigrant visas. Specifically, USCIS would consider the “immigration status

7 that the alien seeks and the expected period of admission as it relates to the alien’s

8 ability to financially support for [sic] himself or herself during the duration of the

9 alien’s stay.”165

10

136. The Rule also authorizes the Department to allow a lawful

11 permanent resident applicant determined likely to become a public charge to

12 submit a “public charge bond” as a condition of his or her green card approval.

13 The decision to allow a public charge bond is discretionary, but the Department

14 “generally will not favorably exercise discretion” if at least one heavily weighed

15 negative factors applies. The amount of the bond must be at least $8,100, which

16 is breached in full if the applicant receives any public benefits for more than 12

17 months in the aggregate within any 36-month period after becoming a lawful

18 permanent resident.166

19

20

164 83 Fed. Reg. at 51,186.

21

165 84 Fed. Reg. at 41,504 (to be codified at 8. C.F.R.§ 212.22(b)(6)(i)).

22

166 84 Fed. Reg. at 41,505-07 (to be codified at 8 C.F.R. § 213.1).

FIRST AMENDED COMPLAINT

68

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.598 Page 76 of 185

1

137. Like the Proposed Rule, the Final Rule also imposes additional

2 requirements on nonimmigrants applying for a change of status or an extension

3 of stay, though the INA’s public charge exclusion applies in neither situation.

4 The Rule provides that such applications will be denied unless the applicant

5 demonstrates that he or she has not received public benefits since obtaining the

6 nonimmigrant status that he is seeking to extend or change for 12 months total

7 within a 36-month period.167 Unlike the Proposed Rule, the Final Rule does not

8 require or permit consideration of whether a nonimmigrant applicant for change

9 of status or extension of stay is “likely to receive public benefits” in the future.

10

2. The Department’s failure to provide reasoned analysis,

examine relevant data, or address public comments’ significant

11

concerns

12

138. As mentioned above, the Department received more than 260,000

13 public comments on the Proposed Rule, the “vast majority” in opposition.168 The

14 public comments raised significant concerns regarding the legality and impact of

15 the Department’s radical proposed transformation of the public charge exclusion.

16 In the preamble to the Final Rule, the Department failed to provide reasoned

17 analysis, examine the relevant data, or adequately address the significant

18 concerns raised in the public comments.

19

20

167 84 Fed. Reg. at 41,507 (amending 8 C.F.R. §§ 214.1(a) & (c) and

21 248.1(a) & (c).

22

168 84 Fed. Reg. at 41,297 & 41,304.

FIRST AMENDED COMPLAINT

69

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.599 Page 77 of 185

1

a. Definition of public charge

2

139. First and foremost, the Department failed to account for its decision

3 to redefine the term public charge in a manner inconsistent with the historical

4 understanding of public charge, Congressional intent, and more than a century of

5 judicial and administrative precedent. In response, the Department asserted that

6 the Rule interprets “ambiguous terms that Congress itself left undefined,”

7 offering the ipse dixit that it “believes that its definition with what it means to be

8 a public charge.”169

9

b. The 12-month public benefit threshold

10

140. Many commenters criticized the Proposed Rule’s thresholds for

11 consideration of public benefits as arbitrary. Under the Proposed Rule,

12 monetizable public benefits would weigh in favor of a public charge

13 determination if they exceeded 15% of FPG in a 12-month period, while

14 non-monetizable benefits would be a negative factor if received for 12 months

15 within a 36-month period. Commenters noted that the Department had provided

16 no data to support its 15% threshold, which would have considered the receipt of

17 just $150 per month (or $5 per day) in benefits as a heavily weighted factor

18 favoring a public charge finding. Commenters also criticized the 12-month

19 standard for non-monetizable benefits as arbitrary and irrational, particularly

20

21

22

169 84 Fed. Reg. at 41,317.

FIRST AMENDED COMPLAINT

70

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.600 Page 78 of 185

1 with respect to specific programs like Medicaid, which is designed for continuous

2 enrollment.

3

141. Implicitly acknowledging the arbitrariness of the 15% threshold, the

4 Department correctly abandoned it in the Final Rule—but only to adopt the

5 flawed 12-month threshold for monetizable benefits as well. Under the Rule’s

6 public charge test, the receipt of any public benefit—monetizable or not—for 12

7 or more months in a 36-month period would constitute a heavily weighted

8 negative factor. Each additional benefit received in the same period would count

9 as an additional month, such that just three months of Medicaid, housing

10 vouchers, food stamps, and income assistance could result in a public charge

11 finding—no matter how small the actual dollar value of the benefits. The

12 Department acknowledged that by ignoring the value of benefits received, its

13 12-month threshold could result in a public charge finding based on an

14 immigrant’s receipt of “only hundreds of dollars or less in public benefits.” The

15 Department did not provide a reasoned explanation to justify the 12-month

16 threshold’s “incongruities.”170

17

142. Indeed, the only justification the Department provided for adopting

18 this strict 12-month threshold for all public benefits is that it is “simpler and more

19 administrable” than its 15% of FPG threshold.171 But just because a regulation is

20

21

17084 Fed. Reg. at 41,360-61.

22

171 84 Fed. Reg. at 41,359.

FIRST AMENDED COMPLAINT

71

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.601 Page 79 of 185

1 administrable does not make it rational or non-arbitrary. The Department fails to

2 provide data, evidence, or reasoned analysis to explain why it believes an

3 immigrant’s past receipt of public assistance for as little as a few months is at all

4 predictive of whether she will become a public charge in the future. The

5 Department cited a Census Bureau study finding that 31.2% of participants in

6 “one or more means-tested assistance programs” ended their participation within

7 a year, ignoring that many of those participants may have received more than one

8 benefit program—rendering the study entirely irrelevant to the Rule’s 12-month

9 threshold.172 As the Department’s own analysis reveals, of individuals who

10 receive the enumerated public benefits, “at least nearly 35 percent received two

11 or more public benefits on average per month.”173 The Department’s decision to

12 aggregate multiple benefits in the 12-month threshold overlooks its own findings

13 on how beneficiaries utilize temporary public assistance in actual practice.

14

c. Heavily weighted negative factors

15

143. The Department received multiple comments criticizing the use of

16 “heavily weighted factors” (or “weighed,” in the Proposed Rule’s terminology),

17 separate from the enumerated considerations that Congress mandated the

18 Department to consider in the totality of circumstances test codified in the

19 Immigration Reform Act. Attempting to defend its decision to create

20

21

172 84 Fed. Reg. at 41,360.

22

173 84 Fed. Reg. at 41,361.

FIRST AMENDED COMPLAINT

72

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.602 Page 80 of 185

1 non-statutory heavily weighted factors, the Department asserts that it “does not

2 change that the public charge inadmissibility determination is one that is made

3 based on the totality of the alien’s individual facts and circumstances.”174 Yet the

4 Department fails to account for the fact that the Rule’s heavily weighted negative

5 factors—which overlap considerably to the point of double-counting—will often

6 be dispositive in operation, contrary to Congressional intent.

7

144. In particular, the public benefit factor is likely to be

8 outcome-determinative in most cases. That factor weighs heavily in a public

9 charge determination if an immigrant receives one or more public benefits for 12

10 months total within a 36-month period. The Department asserts that the factor

11 “will not necessarily be dispositive in the inadmissibility determination,”

12 overlooking that whenever it applies, at least one other enumerated negative

13 factor will always also apply. That is so because the Rule requires consideration

14 of evidence that the immigrant has “applied for,” “received,” or “been certified

15 or approved to receive” any public benefits.175 Furthermore, because the

16 enumerated public benefits are all means-tested, the vast majority of recipients

17 will also have an annual income below 125 percent of FPG, which would itself

18 also “generally be a heavily weighed negative factor.”176

19

20

174 84 Fed. Reg. at 41,442.

21

175 84 Fed. Reg. at 41,503.

22

176 84 Fed. Reg. at 41,323.

FIRST AMENDED COMPLAINT

73

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.603 Page 81 of 185

1

145. So too, is the medical condition negative factor likely to be

2 dispositive. That heavily weighted factor is triggered where an applicant (1) has

3 a medical condition “likely to require extensive medical treatment or

4 institutionalization” and is (2) both uninsured and has neither the prospect of

5 obtaining private health insurance nor the resources to pay for medical costs.177

6 That standard is literally duplicative with the ostensibly separate “health” factor,

7 which weighs in favor of a public charge determination when an “alien has been

8 diagnosed with a medical condition that is likely to require extensive medical

9 treatment or institutionalization.”178 And a person who meets that standard is also

10 likely to fail under the “assets, resources, and financial status factor,” which

11 considers whether he has “sufficient household assets and resources to cover any

12 reasonably foreseeable medical costs.”179 Here again, the Department stacks the

13

14

177 84 Fed. Reg. at 41,445.

15

178 84 Fed. Reg. at 41,502 (to be codified at 8 C.F.R. § 212.22(b)(2)). These

16 new health-related factors though go far beyond the narrow “health-related

17 grounds” that Congress has expressly set forth as basis of inadmissibility

18 separately in INA Section 212(a). 8 U.S.C. § 1182(a)(1)(A). Those discrete

19 statutory health-based grounds of inadmissibility strongly suggest that Congress

20 did not intend for the Department to engraft much broader health-based

21 exclusions through the public charge provisions.

22

179 84 Fed. Reg. at 41,502-03 (to be codified at 8 C.F.R. § 212(b)(4)).

FIRST AMENDED COMPLAINT

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FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 deck to convert the totality of circumstances inquiry into a bright-line test focused

2 myopically on non-statutory considerations (such as the receipt of public

3 assistance and private health insurance coverage) that the Department assigns

4 talismanic significance.

5

146. These factors thus do not merely “coincide or relate to each other,”

6 as the Department contends, but instead engender obvious double-counting.180

7 The Department does not provide a reasoned basis for creating duplicative—and

8 effectively dispositive—“heavily weighted factors” that outweigh the

9 considerations Congress has expressly set forth in the statutory totality of

10 circumstances test.

11

d. Private health insurance

12

147. Commenters expressed significant concern over the Proposed

13 Rule’s consideration of private health insurance as a factor in the public charge

14 test. As numerous commenters pointed out, many immigrants work in industries

15 that tend not to provide employer-based health insurance. Many commenters also

16 noted that considering health insurance and related factors, such as having

17 sufficient household assets and resources to cover “reasonably foreseeable

18 medical costs,” would disproportionately and negatively affect certain

19

20

21

22

180 84 Fed. Reg. at 41,406.

FIRST AMENDED COMPLAINT

75

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 populations, including people with disabilities; people with chronic health

2 conditions; the elderly; and immigrants of color.181

3

148. The Department entirely disregarded those concerns, instead

4 elevating private health insurance coverage to a heavily weighted positive factor

5 in the Final Rule. The Department stated that it will proceed to consider “whether

6 a person has health insurance or has the household assets and resources to pay

7 for reasonably foreseeable medical costs,” and that having private insurance will

8 generally be weighed as a heavily positive factor (provided the insurance is not

9 for example offset by tax credits under the ACA).182 Further, the Department

10 readily conceded that “certain individuals may choose to forego public health

11 insurance, such as Medicaid, because of the impact on public charge.”183 The

12 Department did not explain how such disenrollment from health coverage could

13 possibly advance its purported goal to promote immigrants’ self-sufficiency and

14 economic independence.

15

149. Although the Department notably stated it would not consider

16 programs other than Medicaid as public benefits, its response to these comments

17 clarifies that the “evaluation may in some cases require DHS to consider an

18 alien’s publicly funded or subsidized health insurance that is not defined as a

19

20

181 84 Fed. Reg. at 41,442.

21

182 84 Fed. Reg. at 41,428.

22

183 84 Fed. Reg. at 41,428.

FIRST AMENDED COMPLAINT

76

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.606 Page 84 of 185

1 public benefit under this rule.”184 Finally, regarding the potentially

2 disproportionate impact on certain populations such as the disabled, the

3 Department responded simply that it “does not intend to disproportionately affect

4 such groups.”185 Such a cursory explanation does not justify the arbitrary and

5 capricious nature of the factor, which double counts certain evidence to

6 disadvantage immigrants who use medical benefits they are entitled to receive.

7

e. Nonimmigrant applications for change of status or

extension of stay 8

150. Numerous commenters criticized the Proposed Rule for applying a

9

public charge-like test to nonimmigrant applicants for a change of status or

10

extension of stay, neither of which is subject to the INA’s public charge

11

exclusion. Under the Public Charge Rule, extension of stay and change of status

12

applicants must establish that they have not received public benefits in an

13

aggregate of 12 months in the prior 36-month period. The Department denies that

14

it is “intended to “apply the public charge ground of inadmissibility to extension

15

of stay or change of status applicants.” Rather, the Department claims that it is

16

simply “exercising its statutory authority to set a new condition for approval of

17

extension of stay and change of status applications.”186

18

19

20

184 84 Fed. Reg. at 41,428.

21

185 84 Fed. Reg. at 41,429.

22

186 84 Fed. Reg. at 41,329.

FIRST AMENDED COMPLAINT

77

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

151. The Department’s denial is implausible. Not only does this “new

2 condition of approval” appear in the very regulation called “Inadmissibility on

3 Public Charge Grounds,” but it bootstraps into change of status and extension of

4 stay applications the central criterion of the Department’s new public charge test

5 (i.e., the receipt of public benefits above the 12-month threshold). The

6 Department fails to explain how expanding that core criterion beyond the public

7 charge exclusion’s statutory bounds comports with its authority under the INA.

8

f. Application to lawful permanent residents returning

from 180-day trips abroad 9

152. Commenters also criticized the Department for failing to estimate

10

the consequences or costs of applying its expansive new public charge standard

11

to lawful permanent residents returning to the United States after 180 or more

12

days abroad. The Department’s only response is that it “does not believe such a

13

quantitative estimate is necessary.”187 That brusque response fails to give due

14

consideration to a significant concern about how the regulation will affect lawful

15

permanent residents on the path to U.S. citizenship.

16

g. Disparate impact

17

153. Numerous commenters pointed to the racially and ethnically

18

disparate impact the Department’s public charge test would have by

19

disproportionately affecting immigrants of color. For example, one analysis

20

21

22

187 84 Fed. Reg. at 41,327.

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78

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 predicted that the public charge test’s income thresholds would have

2 “disproportionate effects based on national origin and ethnicity, blocking 71

3 percent of applicants from Mexico and Central America, 69 percent from Africa,

4 and 52 percent from Asia—but only 36 percent from Europe, Canada and

5 Oceania.”188

6

154. The Department did not dispute that the Rule would have a disparate

7 impact on immigrants of color. Instead, the Department claimed it did not

8 intentionally “codify this final rule to discriminate”189 and that it “does not

9 understand commenters’ statements about the ‘unequal application’ of the public

10 charge inadmissibility rule.”190 Although it provided no evidence, the

11 Department “disagree[d] that the public charge inadmissibility rule would be

12 unequally applied to different groups of aliens along the lines of race.”191 That

13 bald denial fails to meaningfully address an important aspect of the

14 problem—the Rule’s discriminatory effects—and to consider the significant

15 disadvantages and injustice of its decision.

16

17

18

19

188 84 Fed. Reg. at 41,322.

20

189 84 Fed. Reg. at 41,309.

21

190 84 Fed. Reg. at 41,323.

22

191 84 Fed. Reg. at 41,323.

FIRST AMENDED COMPLAINT

79

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

h. Credit history and financial liabilities

2

155. Several commenters expressed concern that the Proposed Rule

3 sought to consider an immigrant’s credit history as a factor in the determination

4 of whether the immigrant is likely to become a public charge. As these

5 commenters noted, credit scores and credit histories were not intended to be used

6 in the immigration context; do not assess an immigrant’s likelihood of being

7 self-sufficient; have no correlation with the evaluation factor; are often highly

8 inaccurate; and may be affected by factors outside the immigrant’s control but

9 from which they may recover. Further, commenters noted that credit reports

10 contain irrelevant data, such as medical debts that do not measure an individual’s

11 financial status, while at the same time omitting potentially more relevant data,

12 such as consistency of rent payments. Other commenters noted that considering

13 credit scores would essentially “double count” evidence already factoring into

14 the public charge determination.

15

156. The Department largely disregarded these concerns, however,

16 instead stating in conclusory fashion that it believes such information is useful

17 “in determining whether aliens are able to support themselves.” According to the

18 Department, credit reports “generally assist creditors to determine the credit

19 worthiness or risk of a person,” and the Department proposes its use of credit

20 reports “focuses on the assessment of these debts, liabilities, and related

21 indicators, as one indicator of an alien’s strong or weak financial status.” The

22 Department’s decision is arbitrary and capricious, however, as it elevates private

FIRST AMENDED COMPLAINT

80

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.610 Page 88 of 185

1 credit reports into a realm they were never intended to occupy—a lawful

2 immigrant’s status and admissibility—arbitrarily introducing error, irrelevant

3 factors, and double counting into the analysis.192

4

i. Immigration fee waiver

5

157. Many commentators criticized the Proposed Rule for taking into

6 consideration whether an immigrant had ever received an immigration fee waiver

7 as a negative factor weighing in favor of a public charge finding. As these

8 commentators noted, there is no evidence to suggest the one-time receipt of an

9 immigration fee waiver correlates to whether an immigrant is likely to become a

10 public charge. For example, commenters noted that an immigrant’s financial

11 condition often improves after receiving the immigration benefits for which they

12 received the fee waiver. Further, commenters noted that considering the one-time

13 receipt of a fee waiver leads to double counting income, which unduly punishes

14 immigrants who received fee waivers based on temporarily adverse economic

15 circumstances. Finally, other commentators noted that punishing immigrants for

16 seeking fee waivers is counter-productive, as immigrants often seek such waivers

17 for work authorization (as they have no income at the time they apply) or to

18 ensure their immigration documents are timely filed when they have not had

19 sufficient time to save enough money for the application fee (perhaps because

20

21

22

192 84 Fed. Reg. at 41,426.

FIRST AMENDED COMPLAINT

81

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.611 Page 89 of 185

1 they are using the money for other household expenses, thus promoting

2 self-sufficiency).

3

158. The Department largely brushed these concerns aside, however,

4 essentially arguing that any problems resulting from consideration of fee waivers

5 would be minimal, as they constitute “only one evidentiary consideration in the

6 totality of the circumstances and [are] not heavily weighted.”193 But, injecting an

7 arbitrary and unreliable factor into a totality-of-the-circumstances analysis does

8 not make consideration of the factor any less arbitrary. Here, the Department has

9 failed to proffer any non-arbitrary or capricious basis for considering the

10 one-time receipt of a fee-waiver as a factor.

11

j. High school diploma

12

159. Many commenters stated that considering whether an immigrant has

13 a high school diploma or comparable educational background will arbitrarily

14 discriminate against large categories of immigrants, including farm workers and

15 other trade workers who may have been lawfully present and working for many

16 years without obtaining such a degree. Several commenters also noted the factor

17 discriminates in particular against immigrant women, many of whom come from

18 countries where women are discouraged or prevented from attending school.

19 Other commenters expressed concerns over the arbitrary and undue burden such

20 a factor would place on disabled immigrants, many of whom often face

21

22

193 84 Fed. Reg. at 41,424.

FIRST AMENDED COMPLAINT

82

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 significant educational and employment-related obstacles and benefit from

2 public assistance programs in their pursuit of these goals. In response, the

3 Department noted merely that it was required to consider an immigrant’s

4 educational background in the totality of circumstances review. The Department

5 conceded that “lack of formal education such as the lack of a high school diploma

6 or other education are generally a negative consideration,” but noted that

7 employment history and “occupational skills, certifications or licenses” may also

8 be considered.194 The Department’s undue emphasis on a formal diploma—even

9 despite overwhelming evidence and commentary noting that immigrants

10 frequently work and contribute without any such educational

11 background—renders the factor arbitrary and capricious.

12

k. English proficiency

13

160. Many commenters objected to including an immigrant’s proficiency

14 in English as a factor in the public charge determination, noting that “requiring

15 English proficiency would mark a fundamental change from the nation’s historic

16 commitment to welcoming and integrating immigrants.”195 Other commenters

17 noted that English language learners often benefit from receipt of Medicaid or

18 other non-cash public benefits in their pursuit of attending language classes and

19 becoming fluent. As numerous commenters noted, the Rule will deter these

20

21

194 84 Fed. Reg. at 41,430.

22

195 84 Fed. Reg. at 41,432.

FIRST AMENDED COMPLAINT

83

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.613 Page 91 of 185

1 immigrants from accepting the very benefits that would better enable them to

2 improve their employability. Other commenters argued that evaluating English

3 proficiency will unduly burden immigrant women and deaf immigrants;

4 constitutes discrimination on the basis of national origin; and has no relation to

5 the rule’s purported goal, as skilled immigrants may readily obtain employment

6 in fields that do not require English proficiency. According to these commenters,

7 the Rule would “improperly reject many people with practical job skills doing

8 essential work in our economy that have limited formal education and English

9 proficiency highlighted farmworkers as an example.”196 The Department largely

10 shrugged off these concerns, however, noting repeatedly that it was not

11 “mandating English proficiency for admissibility.”197 And, although the

12 Department conceded that individuals who lack English proficiency might

13 already be working or able to obtain employment, it nevertheless argued that

14 “people with the lowest English speaking ability tend to have the lowest

15 employment rate, lowest rate of full-time employment, and lowest median

16 earnings.”198 The Department’s willful disregard of these comments

17 demonstrates that the English proficiency factor is entirely arbitrary and

18

19

20

196 84 Fed. Reg. at 41,434.

21

197 84 Fed. Reg. at 41,432.

22

198 84 Fed. Reg. at 41,432.

FIRST AMENDED COMPLAINT

84

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 capricious, and its inclusion as only one factor in a totality of circumstances does

2 not make it any less so.

3

l. Federalism summary impact statement

4

161. Although Executive Order 13,132 requires the Department to

5 produce a federalism summary impact statement, the Department summarily

6 asserted that the Rule “does not have substantial direct effects on the States” and

7 the Rule “requires no further agency action or analysis.”199

8

162. The Department’s analysis of its obligations under Executive Order

9 13,132 was insufficient because the Department did not identify the myriad costs

10 and effects of the Rule on the Plaintiff States. As discussed throughout this

11 complaint, the Rule has profound direct effects on state and local governments

12 and will impose substantial costs on state and local governments.

13

163. The Plaintiff States raised the concern about the Proposed Rule’s

14 lack of federalism summary impact statement in their comment letter—as did

15 various other commentators. Had OIRA granted the Plaintiff States an

16 E.O. 12,866 meeting, the Plaintiff States could have discussed this issue with

17 OIRA.

18

m. Cost-benefit analysis

19

164. DHS generally failed to conduct a true or adequate cost-benefit

20 analysis, instead only aiming to quantify the direct reduction in transfer payments

21

22

199 84 Fed. Reg. at 41,481.

FIRST AMENDED COMPLAINT

85

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.615 Page 93 of 185

1 resulting from the Rule. For example, DHS failed to estimate the chilling effects

2 of the Rule because it was “difficult to predict the rule’s disenrollment impacts

3 with respect to people who are not regulated by this rule, such as people who

4 erroneously believe themselves to be affected.”200 The preamble also repeatedly

5 diminishes the significance of impacts to those people, businesses, and state

6 governments that are not “directly” regulated by the Rule. In neglecting to

7 conduct deeper quantitative analysis of the costs to states or their economies, the

8 preamble cites, for example, “great uncertainty” to “the broader economy” as a

9 result of diminished transfer payments.201

10

165. With respect to chilling effects, the preamble makes broad,

11 unsupported assumptions. DHS dismisses widespread confusion that currently

12 exists and that will be exacerbated by the Rule, saying only that it would be

13 “unwarranted” for people to disenroll from a benefit if they were not subject to

14 the Rule and that DHS “will not alter the rule to account for such unwarranted

15 choices.”202 This significantly understates the impacts of a drastic change in

16 agency position, particularly when combined with other proposed and final

17 regulatory actions publicized by federal officials.

18

19

20

200 84 Fed. Reg. at 41,313.

21

201 84 Fed. Reg. at 41,472 & 41,478 & 41,480.

22

202 84 Fed. Reg. at 41,313.

FIRST AMENDED COMPLAINT

86

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

166. In purporting to analyze the number of noncitizens who would

2 choose to forego benefits to which they are legally entitled, DHS arbitrarily used

3 a figure of 2.5% of the estimated number of foreign-born noncitizens

4 participating in any particular program. Instead of actually attempting to

5 determine the number of people who were expected to disenroll, DHS apparently

6 selected this figure by using the number of individuals seeking to adjust status

7 within a given time period.203

8

167. DHS downplays the number of impacted individuals by the Rule in

9 numerous ways. For example, the preamble states that most applicants are

10 “unlikely to suffer negative consequences from past receipt of public benefits

11 because they will have been residing outside the United States. . . .”204 The

12 preamble then cites statistics showing that only about 33% of the relevant group

13 of immigrants between fiscal years 2015 and 2017 adjusted their status while in

14 the United States. However, because the United States admitted over 541 million

15 nonimmigrants during this time period, this still leaves over 178 million people

16 residing in the United States during the cited time period who could have been

17

18

203 Department of Homeland Security, [CIS No. 2499-10; DHS Docket No.

19 USCIS-2010-0012]; RIN 1615-AA22, Proposed Rule: Inadmissibility on Public

20 Charge Grounds, Economic Analysis Supplemental Information for Analysis of

21 Public Benefits Program, Table 4, n. 1.

22

204 84 Fed. Reg. at 41,313.

FIRST AMENDED COMPLAINT

87

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.617 Page 95 of 185

1 affected by the Rule, had it been in place at the time. This is but one example of

2 arbitrary qualitative analysis minimizing the reach of the Rule.

3

168. DHS does not adequately assess the costs to states. While

4 acknowledging that state and local governments would “incur costs,” DHS goes

5 on to dismiss these costs as “unclear” and “indirect,” with no substantive

6 analysis.205

7

169. DHS repeatedly cites the Office of Management and Budget’s

8 Circular A-4 as excusing quantitative or even qualitative analysis of various

9 impacts. OMB’s Circular A-4 assists agencies in conducting a regulatory analysis

10 of economically significant actions consistent with Executive Order 12866. Far

11 from excusing analysis of “chilling effects” on immigrants, costs to state

12 governments, private businesses such as hospitals, or the economy, Circular A-4

13 expressly states that agencies should include the monetary values of

14 “Private-sector compliance costs and savings” and “Government administrative

15 costs and savings.” Circular A-4 also does not excuse analysis where there is

16 uncertainty. Rather, it states that while the precise benefits and costs of regulatory

17 options are not always known, “the probability of their occurrence can often be

18 developed.”

19

170. By focusing only on the reduction in direct transfer payments, DHS

20 greatly overstates the benefits of the Rule. In many instances, these “savings”

21

22

205 84 Fed. Reg. at 41,469-70.

FIRST AMENDED COMPLAINT

88

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.618 Page 96 of 185

1 will be offset by even greater costs that are simply shifted to others, including

2 other federal or state programs, or private parties. DHS’s treatment of the impacts

3 to the Medicaid program provides a clear example of this deficiency in analysis.

4 DHS estimates a reduction in transfer payments related to Medicaid of over

5 $1 billion.206 But this estimate fails to take into account increased costs from

6 emergency services that will result from delaying health care until conditions

7 become emergent and they are much more costly to treat. At that time, costs are

8 borne by other federal programs, states, private hospitals and health providers,

9 and individuals receiving care. For example, in Washington, the Alien

10 Emergency Medical Program covers certain emergency care for noncitizens. The

11 program is funded through both state and federal sources. Private medical

12 providers will also suffer costs by providing uncompensated care. By making no

13 effort to analyze these resulting costs, DHS has overstated the actual benefits of

14 the Rule in its cost-benefit analysis.

15

16

17

18

19

206 Department of Homeland Security, [CIS No. 2499-10; DHS Docket No.

20 USCIS-2010-0012]; RIN 1615-AA22, Proposed Rule: Inadmissibility on Public

21 Charge Grounds, Economic Analysis Supplemental Information for Analysis of

22 Public Benefits Program, Table 5.

FIRST AMENDED COMPLAINT

89

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

VI. THE RULE’S CHILLING EFFECTS ON PARTICIPATION IN

FEDERAL AND STATE PUBLIC BENEFITS PROGRAMS

2 171. As the Department itself recognizes, the Rule will cause lawfully

3 present noncitizens whom Congress specifically made eligible to participate in

4 federal benefit programs—and U.S. citizens with participating or eligible family

5 members—to disenroll or forbear enrollment. The Rule does so by making the

6 receipt of benefits (including five non-cash federal benefits—SNAP, Medicaid,

7 Section 8 vouchers, Section 8 rental assistance, and public housing subsidies) a

8 ground for designating a person a public charge. Even harsher, the Rule makes

9 an immigrant beneficiary’s exclusion virtually inevitable by making receipt of

10 such benefits a “heavily weighed negative factor” in the determination.

11 172. The chilling effects of the Rule began to materialize long before its

12 publication, and were observed quickly following the leaks in January 2017 of

13 the draft Executive Order and in March 2018 of the draft Rule. Due to the

14 ambiguity and complexity of the Rule, many noncitizens and their families have

15 foregone and will forego participation in a wide swath of federal, state, and local

16 benefits. Widespread confusion over which forms of “public benefits” will

17 trigger a public charge determination will exacerbate the Rule’s harms to the

18 Plaintiff States and their residents.

19 173. As eligible noncitizens and their families disenroll or refrain from

20 seeking federal benefits for fear of jeopardizing their ability to immigrate, many

21 will turn to the Plaintiff States’ programs to fill the gap. Others will refrain from

22

FIRST AMENDED COMPLAINT

90

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.620 Page 98 of 185

1 seeking any government assistance at all—including state-funded non-cash

2 benefits that would not even be subject to the Rule—leading to increased poverty,

3 homelessness, hunger, poor health, and other social costs. These harms to

4 individuals and families will place increased downstream financial strain on the

5 Plaintiff States, including their housing, public health, and education systems.

6

174. The Department admits that the Rule will deter immigrant

7 participation in public benefits programs, despite Congress’s express

8 determination allowing immigrant participation.207 Indeed, in the Department’s

9 view, the chilling effects are not a vice of the Rule but a virtue—regardless of the

10 acknowledged decline in health, income, educational opportunities, housing, and

11 overall quality of life they will cause among millions in our communities.208 The

12 Department even suggests that state agencies “advise potential beneficiaries of

13 the potential immigration consequences of receiving certain public benefits.”209

14 The manifest intent of the Rule is to exclude immigrants this Administration

15 deems “undesirable” from the United States and, barring that, to exclude them

16 and their families from the U.S. social safety net, contrary to congressional and

17 state determinations regarding eligibility.

18

19

20

207 83 Fed. Reg. at 51,267.

21

208 83 Fed. Reg. at 51,270.

22

209 83 Fed. Reg. at 51,174.

FIRST AMENDED COMPLAINT

91

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.621 Page 99 of 185

1

175. As a result of those chilling effects, implementation of the Rule will

2 also cause severe and irreparable harm to the Plaintiff States. First, States will

3 lose federal dollars from benefits programs that they administer to the benefit of

4 their residents. Additional direct costs to states will result from immigrants who

5 shift from federal programs to state programs that do not qualify as “public

6 benefits” under the Rule. At the same time, disenrollment and non-enrollment in

7 nutrition, health, and other federal and state assistance programs will make many

8 working class immigrant families less healthy, less productive, more reliant on

9 state-covered emergency medical care, more likely to experience economic

10 dislocation and homelessness—all of which will redound to greater strains on

11 state agencies and programs. Further, the broader chilling effects among all state-

12 run assistance programs will undermine those programs’ administration and

13 effectiveness. Those affected programs include, but are not limited to, medical

14 and healthcare services, food assistance programs, housing benefits, financial and

15 cash assistance programs, long-term support services for elderly and disabled

16 residents, education systems, job and employment training programs, and

17 programs supporting crime victims.

18

176. For any immigrants reviewing this Complaint for guidance on the

19 types of programs that are deemed a “public benefit” for purposes of the Rule,

20 the Plaintiff States strongly urge the immigrant to contact the relevant State

21

22

FIRST AMENDED COMPLAINT

92

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.622 Page 100 of 185

1 agency. As mentioned throughout, many state programs do not qualify as “public

2 benefits” under the Rule.

3 A. Health Care Programs

4

177. The Plaintiff States manage and administer medical services and

5 benefits programs such as Medicaid. Some of these programs are jointly funded

6 by federal and state funds and others by only state funds. As set forth below, the

7 Rule would imperil the effectiveness of these programs by reducing enrollment,

8 jeopardizing public health, and dramatically increasing costs to the Plaintiff

9 States.

10

1. Federal health care benefits

11

178. Congress created Medicaid in 1965 to assist states in furnishing

12 medical assistance to individuals and families.210

13

179. Medicaid is jointly funded by the states and the federal government.

14 A state’s participation in Medicaid is voluntary, but once a state chooses to

15 participate it must comply with federal statutory and regulatory requirements to

16 receive federal matching funds.211

17

180. Anyone who qualifies under program rules can receive Medicaid.

18

19

20

210 See Pub. L. 89-97, 79 Stat. 286 (codified as amended at 42 U.S.C.

21 § 1396-1).

22

211 42 U.S.C. §§ 1396–1, 1396a, 1396b, 1396c.

FIRST AMENDED COMPLAINT

93

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

181. States administer Medicaid and generally determine financial

2 eligibility criteria for participants.

3

182. Federal law requires coverage for certain groups of individuals,

4 including some low-income families, qualified pregnant women and children,

5 and individuals receiving Supplemental Security Income. States may offer

6 coverage for additional groups, such as people receiving home and

7 community-based services and children in foster care who are not otherwise

8 eligible. States may extend Medicaid coverage to all children and pregnant

9 women, including any immigrants lawfully residing in the United States.212

10

183. The Affordable Care Act established a new methodology for

11 determining Medicaid income eligibility. Some individuals are eligible for

12 Medicaid based on methodology other than income, such as disability. These

13 changes resulted in greater participation in the Medicaid Program. Thirty-six

14 states, and the District of Columbia, participated in the Medicaid expansion.

15

184. Over half of all non-elderly adults receiving Medicaid—about

16 60%—are working. An even greater number of Medicaid recipients—about

17 79%—are from a home where at least one household member works. Among

18 adult Medicaid enrollees who work, over half (about 51%) work full-time for the

19 entire year.

20

21

22

212 42 U.S.C.§ 1396b(v)(4)(A).

FIRST AMENDED COMPLAINT

94

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.624 Page 102 of 185

1

185. Under the Welfare Reform Act, states may extend Medicaid

2 eligibility to lawful permanent residents and all other “qualified” immigrants

3 after a five year waiting period.213 States may also elect to use state-only funds

4 to cover qualified immigrants during the five-year ban.214 Many of the Plaintiff

5 States have done so.215 Although such state-only health benefits do not constitute

6 “public benefits” under the Rule’s public charge test, many noncitizens will fear

7 that enrollment in state-funded programs (which often have the same name as the

8 state’s Medicaid program) will carry adverse immigration consequences.

9

2. State health care benefits

10

186. The Plaintiff States manage and administer numerous health care

11 services programs, including Medicaid.

12

187. Certain classes of citizens and noncitizens are eligible to participate

13 in these state-run medical services programs. If implemented, the Rule would

14 result in many otherwise eligible individuals—including citizens—disenrolling

15

16

213 See 8 U.S.C. § 1613(a).

17

214 8 U.S.C. § 1622(a).

18

215 See ASPE Issue Brief: Overview of Immigrants’ Eligibility for SNAP,

19 TANF, Medicaid, and CHIP, Office of the Ass’t Sec’y for Planning & Eval., U.S.

20 Dep’t of Health & Human Servs. (Mar. 2012), https://aspe.hhs.gov/basic-report/

21 overview-immigrants-eligibility-snap-tanf-medicaid-and-chip

22 (HHS Issue Brief).

FIRST AMENDED COMPLAINT

95

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.625 Page 103 of 185

1 or forbearing enrollment for fear of jeopardizing their own or their family

2 members’ immigration status.

3

188. Individuals who are eligible to enroll in these programs but elect not

4 to participate because of the Rule will likely delay seeking both routine and

5 necessary medical treatment (including vital preventative services such as

6 vaccinations) until they require emergency care. Indeed, the Department

7 essentially concedes this fact, noting that “DHS acknowledges that increased use

8 of emergency rooms and emergent care as a method of primary healthcare due to

9 delayed treatment is possible and there is a potential for increases in

10 uncompensated care in which a treatment or service is not paid for by an insurer

11 or patient.”216 Individuals who resort to emergency care as a method of primary

12 healthcare are more likely to experience severe medical conditions, creating

13 public health concerns and requiring unnecessarily expensive emergency medical

14 treatment, the overwhelming cost of which will be borne by the Plaintiff States

15 and their private hospitals.

16

189. As set forth below, implementing the Rule will cause irreparable

17 harm to the Plaintiff States by undermining the functions and effectiveness of

18 these health care services programs.

19

20

21

22

216 84 Fed. Reg. at 41,384.

FIRST AMENDED COMPLAINT

96

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.626 Page 104 of 185

1

a. The Plaintiff States’ medical assistance programs

2

190. Each of the Plaintiff States manages and administers a Medicaid

3 program for its residents. In addition, the Plaintiff States administer numerous

4 other health care programs, some with combined federal and state funds and some

5 with state-only funds. With community, state, and national partners, the Plaintiff

6 States provide evidence-based, cost-effective services that support the health and

7 well-being of individuals, families, and communities in their States.

8

191. Many of the Plaintiff States’ Medicaid programs include coverage

9 groups encompassing citizens and noncitizens, including adults between the ages

10 of 19 and 65; certain parents and caretakers; the elderly; the blind and disabled;

11 those using long-term support services or hospice; and Medicare Savings

12 Program enrollees.

13

192. The Washington Health Care Authority (HCA) administers

14 Washington’s Medicaid program, as well as other federal and state-funded

15 medical assistance programs. HCA has over 1,300 employees and a biennial

16 budget of over $20 billion.

17

193. Washington Apple Health is the name for Washington’s medical

18 assistance programs, which include not only the state Medicaid program, which

19 is covered under the Rule, but also other programs that are not expressly covered

20 but are likely to be affected, including because of the Rule’s chilling effect on

21 eligible individuals. This chilling effect on programs not expressly covered under

22

FIRST AMENDED COMPLAINT

97

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.627 Page 105 of 185

1 the Rule will extend to CHIP and various health-assistance programs funded

2 solely by the state.

3

194. Through the Apple Health program, Washington purchases health

4 care for approximately 1.9 million people. In state fiscal year 2019, Washington’s

5 HCA is expected to spend $10.1 billion to support Apple Health and its

6 Community Behavioral Health Services program. Of this amount, $6.8 billion

7 will come from federal contributions.

8

195. Washington’s Apple Health currently covers adults with incomes up

9 to 138 percent of the federal poverty level under the Adult Medical Program and

10 provides these individuals with essential health coverage, including preventative

11 care, inpatient hospitalization, prescription drugs, and many other health services.

12

196. The Massachusetts Executive Office of Health and Human Services

13 (EOHHS) manages Massachusetts’s Medicaid program, which is covered by the

14 Rule, as well as other health assistance programs that are not expressly covered

15 but are likely to be affected by the Rule’s chilling effect on eligible individuals.

16 EOHHS comprises 12 agencies, has over 22,000 employees, and oversees an

17 annual budget of over $22 billion.

18

197. Massachusetts’s Medicaid program and CHIP are combined into

19 one program, MassHealth, through which Massachusetts provides healthcare

20 benefits to almost 1.8 million adults, children, and people with disabilities. In

21 state fiscal year 2019, Massachusetts’s MassHealth spent $16.5 billion to support

22

FIRST AMENDED COMPLAINT

98

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.628 Page 106 of 185

1 MassHealth medical and behavioral programs and services to covered

2 populations. Of this amount, $4.3 billion came from state contributions.

3 Massachusetts’s MassHealth provides essential health coverage to adults and

4 children, including inpatient and outpatient services, preventive care, mental

5 health and addiction services, and various other services and benefits.

6

198. The Virginia Department of Medical Assistance Services (DMAS)

7 administers Virginia’s Medicaid program, which is subject to the Rule, as well

8 as various other programs that the Rule does not expressly cover. Virginia’s

9 Medicaid program currently covers adults with incomes up to 138% of the federal

10 poverty level and provides a full range of inpatient and outpatient services,

11 pharmacy, mental health and addiction treatment, long term services and

12 supports. In 2018, 983,000 Virginians received Medicaid benefits. That number

13 is projected to rise to as many as 1,406,000 people in 2019.

14

199. The Maryland Department of Health runs the state Medicaid

15 program. Through Maryland’s medical assistance programs, the state provides

16 assistance to 1,160,067 enrollees.

17

200. In New Mexico, 840,860 people were enrolled in the state Medicaid

18 program in 2018. The program, which is covered by the Rule, is administered by

19 the State’s Human Services Department.

20

201. In New Jersey, the State’s Medicaid and CHIP programs together

21 serve approximately 1.8 million low- and moderate-income residents—or about

22

FIRST AMENDED COMPLAINT

99

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.629 Page 107 of 185

1 20% of the State’s population. Notably, New Jersey is one of the most diverse

2 states in the country, with 22% of its residents having been born in a foreign

3 country.

4

202. The Rhode Island Executive Office of Health and Human Services

5 and the Department of Human Services administer the State’s Medicaid program,

6 as well as other federal- and State- funded medical assistance programs. Under

7 the State’s Medicaid expansion, eligible Rhode Island residents between the ages

8 of 19 and 64 with incomes up to 133% of the federal poverty level are eligible

9 for Medicaid coverage. Rhode Island’s health care services cover approximately

10 300,000 Rhode Island residents, including citizens and noncitizens.

11

203. The Minnesota Department of Human Services administers

12 Minnesota’s Medicaid program, known as Medical Assistance, as well as other

13 related federal and state-funded health care assistance programs, collectively

14 known as Minnesota Health Care Programs. Through the State’s Medical

15 Assistance program, Minnesota purchases health care for approximately

16 1,031,888 people.

17

204. The State of Hawai’i Department of Human Services (HIDHS)

18 contains the Med-QUEST Division, which oversees the State’s Medicaid

19 Program and assists low income adults and children in obtaining health coverage

20 through managed care plans. Additionally, Hawai’i is home to a large population

21 of residents subject to the Compact of Free Association (COFA) between the

22

FIRST AMENDED COMPLAINT

100

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.630 Page 108 of 185

1 Federated States of Micronesia, the Marshall Islands, Palau and the United States,

2 which permits residents from the freely associated states to migrate to the United

3 States and its territories without regard to visa and labor certification

4 requirements. The HIDHS provides Medicaid coverage for over 345,000 Hawai’i

5 residents. Of that number, more than 30,000 are non-U.S. citizens, of which 5,246

6 are COFA residents. The state’s Medicaid program provides medical insurance

7 coverage for nearly one-half of Hawai’i’s children. HIDHS has more than 2,300

8 employees deployed in 84 offices statewide, and manages an annual budget of

9 nearly $3.6 billion, of which 64.5% are federal funds.

10

205. The Plaintiff States also provide supplemental health care programs

11 specifically targeted to children. Although the Rule exempts from its public

12 charge test Medicaid benefits received by immigrants under age 21 and pregnant

13 women,217 it nevertheless will likely undermine these supplemental children’s

14 health care programs because of (1) the chilling effect the Rule will have on

15 eligible participants; and (2) the programs’ close and intertwined relationship to

16 Medicaid benefits (which are generally considered “public benefits”). For

17 example, Virginia’s CHIP program, called Family Access to Medical Insurance

18 Security (FAMIS), provides free health coverage to children in households at or

19 below 205% of the poverty level. In fiscal year 2018, Virginia’s CHIP program

20 alone provided medical care services to more than 200,000 children and pregnant

21

22

217 84 Fed. Reg. at 41,297.

FIRST AMENDED COMPLAINT

101

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.631 Page 109 of 185

1 women. Virginia relies on the CHIP Program to assist in providing low-income

2 children with health insurance coverage and keeping all children in Virginia

3 healthy. In fiscal year 2017, Virginia received approximately $291.1 million

4 federal allotment under the CHIP program.

5

206. Washington Apple Health for Kids similarly provides free coverage

6 to children in households at or below 210% of the federal poverty level. For a

7 monthly premium, the program also provides coverage to households at or below

8 312% of the federal poverty level. Washington Apple Health for Kids is partially

9 funded through CHIP, which receives matching federal funds under the Social

10 Security Act218 and provides low-income children with essential health coverage,

11 including preventive care, inpatient hospitalization, prescription drugs, and many

12 other health services.

13

207. As part of the Washington Apple Health for Kids program,

14 Washington uses federal funds related to CHIP to provide services for

15 low-income children whose families are slightly above the income cutoff for free

16 child health coverage. CHIP dollars also fund other Washington programs and

17 services, such as medical coverage for lawfully present noncitizen children, and

18 prenatal coverage for pregnant women ineligible for Medicaid because of their

19 citizenship status.

20

21

22

218 See 42 U.S.C. § 1397dd.

FIRST AMENDED COMPLAINT

102

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.632 Page 110 of 185

1

208. The Plaintiff States also manage and administer several related

2 health care programs, which are not considered “public benefits” under the Rule

3 but which will likely be affected by its chilling effect on eligible participants. For

4 example, the Washington Family Medical Program provides coverage to adults

5 with countable income at or below the applicable Medicaid standard who have

6 dependent children living in their home under age 18. Similarly, Washington’s

7 Pregnancy and Family Planning Program provides coverage to pregnant women

8 at or below 193% of the federal poverty level without regard to citizenship or

9 immigration status.

10

209. Washington provides a host of other medical services programs that

11 likewise are not directly covered by the Rule but are likely to be harmed by it,

12 including the Community and Behavioral Health Services Program; the Breast

13 and Cervical Cancer Treatment Program for Women; the Refugee Medical

14 Assistance Program; the Alien Emergency Medical Program; the Supplemental

15 Security Income Program; Healthcare for Workers with Disabilities; the

16 Medically Needy Program; the Medicare Savings Program; and Long-Term

17 Services and Supports and Hospice.

18

210. Similarly, Virginia state agencies administer a host of additional

19 medical services that are not covered by the Rule but are likely to be affected by

20 it, including community mental health services through Community Service

21

22

FIRST AMENDED COMPLAINT

103

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.633 Page 111 of 185

1 Boards; newcomer refugee health program; breast and cervical cancer prevention

2 and treatment; labor and delivery services, and dialysis services.

3

211. Massachusetts similarly administers various other medical services

4 programs that, while not covered by the Rule, are likely to be harmed by it. These

5 include programs targeted towards infectious and chronic disease prevention,

6 substance abuse treatment and prevention, cancer screening and diagnosis, and

7 sexual and domestic violence prevention.

8

212. Many of the Plaintiff States also provide state-only-funded health

9 coverage to qualified immigrants prior to the five-year ban. Those states include

10 Illinois, Hawai’i, Massachusetts, Minnesota, New Mexico, Virginia, and

11 Washington.219

12

b. Irreparable harm to medical assistance programs

13

213. The Rule will cause irreparable harm to the Plaintiff States’ medical

14 assistance programs. For example, the Rule will result in (1) a loss of medical

15 care and healthcare insurance for the Plaintiff States’ residents; (2) higher and

16 more frequent emergency services costs and uncompensated care for the Plaintiff

17 States; (3) severe public health concerns, including by deterring eligible

18 individuals from accessing routine preventative medical care such as

19 vaccinations; and (4) significant harm to the Plaintiff States’ sovereign interests

20 in the effective administration of their health services programs.

21

22

219 HHS Issue Brief at 5–6.

FIRST AMENDED COMPLAINT

104

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.634 Page 112 of 185

1

214. The Rule will cause a devastating loss of health coverage under

2 government-sponsored health programs in the Plaintiff States. If the Rule is

3 implemented, the Plaintiff States will experience disenrollment rates for

4 noncitizens ranging from 15 to 35%, based on metrics and data analysis from the

5 Kaiser Family Foundation, a non-profit foundation focused on providing the

6 United States public with unbiased research and journalism on major health care

7 issues.220

8

215. Below are specific examples of the types of harms the Plaintiff

9 States and their residents will experience.

10

(1) Plaintiff States’ residents will lose medical care and

become uninsured 11

216. In Washington, as of October 31, 2017, there were 107,244

12

noncitizens insured for health coverage under Apple Health. These enrollees will

13

be deterred from using government health insurance and government-funded

14

health services by the Rule.

15

16

17

18

220 See S. Artiga, R. Garfield, A. Damico, Estimated Impacts of the

19 Proposed Public Charge Rule of Immigrants and Medicaid (Henry J. Kaiser

20 Family Foundation Oct. 11, 2018), https://www.kff.org/disparities-policy/issue-

21 brief/estimated-impacts-of-the-proposed-public-charge-rule-on-immigrants-

22 and-medicaid/.

FIRST AMENDED COMPLAINT

105

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.635 Page 113 of 185

1

217. An additional 140,612 Washington families had a member of a

2 household who might be subject to a public charge determination while another

3 household member is receiving Apple Health coverage. Although the Rule does

4 not expressly consider public benefits accessed by another member of the

5 immigrant’s household,221 members of mixed-status households will fear

6 accessing Apple Health-covered services to which they are legally entitled,

7 resulting in public health concerns and increased costs due to delays in accessing

8 preventative care, vaccinations, prenatal care, and wellness checks.

9

218. Based on projected disenrollment rates in Washington the Rule will

10 result in an annual reduction in medical and behavioral care in Washington of

11 between $42.6 million and $99.4 million.

12

219. Based on projected disenrollment rates in Washington the Rule will

13 cause approximately 10,000 to 24,000 lawfully present adults to lose medical

14 care annually and become uninsured.

15

220. Based on projected disenrollment rates in Washington the Rule will

16 cause approximately 2,600 to 6,000 undocumented adults and children to lose

17 Medicaid annually and become uninsured.

18

221. The severe effects of such a loss of coverage could also result in a

19 reduction of health care jobs and supporting services, particularly in rural regions

20 of Washington.

21

22

221 84 Fed. Reg. at 41,370.

FIRST AMENDED COMPLAINT

106

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.636 Page 114 of 185

1

222. In Massachusetts, as of December 2018, approximately 264,000

2 MassHealth members were noncitizens, including 52,000 children. Six thousand

3 of these children were enrolled in CHIP.

4

223. Based on projected disenrollment rates in Massachusetts the Rule

5 will cause approximately 39,600 to 92,400 lawfully present MassHealth

6 members to lose medical care annually and become uninsured.

7

224. Based on projected disenrollment rates in Massachusetts the Rule

8 will cause approximately 7,800 to 18,200 citizen or lawfully present noncitizen

9 children to lose MassHealth medical coverage annually and become uninsured.

10

225. The effects of the Rule, however, are not merely limited to deterring

11 individuals who may be subject to a public charge determination from

12 participating in assistance programs specifically defined as “public benefits.” The

13 Rule will also likely have a chilling effect on individuals who are not subject to

14 it and on assistance programs that are not considered “public benefits” under the

15 analysis.

16

226. For example, for many families in Massachusetts, some household

17 members will be subject to a public charge determination while others will not,

18 and some family members may receive benefits that are part of the public charge

19 analysis while others receive benefits not subject to the rule. The Massachusetts

20 Health Connector estimates that as of December 2018, up to 60,000 enrollees live

21 in households where participation in Massachusetts’s health care benefits

22

FIRST AMENDED COMPLAINT

107

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.637 Page 115 of 185

1 programs could result in negative immigration consequences under the Final

2 Rule for at least one family member. Because of the complexity of determining

3 these impacts and disenrolling only those family members from only those

4 benefits that could have negative impacts, however, whole families may opt to

5 simply withdraw their participation from the Massachusetts health insurance

6 exchange.

7

(2) Shift of healthcare costs to the Plaintiff States

8

227. The harms to the Plaintiff States will include an increase in

9 emergency and uncompensated care, which refers to unreimbursed medical

10 services provided by hospitals to patients resulting in charity care or bad debts.

11

228. Individuals who lose their health insurance coverage will likely

12 delay seeking medical care until their conditions require emergency treatment.

13 When these individuals present at a hospital emergency room for such treatment,

14 the Plaintiff States will ultimately bear the more expensive cost of their care.

15 Further, because their conditions are more serious, they will require greater

16 resources to treat.

17

229. Many of the Plaintiff States have made significant gains in reducing

18 their uninsured populations, all of which will be undermined by implementation

19 of the Rule. Between 2013 and 2016, for example, Washington significantly

20 reduced its rate of uninsured residents, from 14% in 2013 to 5.4% in 2016. The

21 State’s reduction in its number of uninsured residents is associated with a parallel

22

FIRST AMENDED COMPLAINT

108

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.638 Page 116 of 185

1 reduction in uncompensated care for medical services, which dropped from

2 $2.638 billion in 2013 to $932 million in 2016.

3

230. Similarly, Virginia has reduced its number of uninsured residents

4 with the state’s January 1, 2019 expansion of its Medicaid program. As of

5 July 2019, over 300,000 adults in the state have newly enrolled in the program.

6

231. In Maryland, the uninsured rate likewise fell by more than 64%

7 between 2013 and 2017. The drop in uninsured rates closely aligns with a

8 reduction in uncompensated care: From fiscal year 2013 to 2015, hospital

9 uncompensated care costs in Maryland declined by approximately $311 million.

10

232. Because of the Public Charge Rule, however, the Plaintiff States

11 stand to lose all these gains. For example, Massachusetts foresees a substantial

12 increase in the provision of uncompensated care across the Commonwealth due

13 to loss of health coverage resulting from the Rule. Safety net providers such as

14 hospitals and community health centers will disproportionately bear the financial

15 burden of providing uncompensated care, and in turn, the demand on state

16 programs that compensate providers for such care will increase. The state’s

17 EOHHS estimates that Massachusetts hospitals are in danger of losing almost

18 $457 million in Medicaid and CHIP funding because of the chilling effect of the

19 Rule on otherwise-eligible individuals.

20

233. Because the Rule will reduce the number of insured residents and

21 increase the amount of individuals who rely on emergency treatment for their

22

FIRST AMENDED COMPLAINT

109

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.639 Page 117 of 185

1 primary source of medical care, uncompensated care in the Plaintiff States will

2 rise. This increase will result in higher medical bills and health care costs charged

3 by hospitals, undermining the Plaintiff States’ efforts to reduce their uninsured

4 populations and harming their economies.

5

(3) Significant public health concerns prompted by

reduced preventive care 6

234. By deterring individuals from accessing the government-sponsored

7

healthcare coverage to which they are legally entitled, the Final Rule discourage

8

these individuals from engaging in routine medical care such as wellness exams

9

and vaccinations.

10

235. A general decline in engagement with such routine medical

11

preventive services, including vaccinations, risks increasing the spread of viruses

12

and communicable diseases in the Plaintiff States. As a result, the Rule threatens

13

to cause dangerous public health hazards for the Plaintiff States and their

14

residents.

15

236. DOJ has previously recognized that discouraging eligible

16

immigrants from accessing these health care benefits may lead to the very same

17

public health concerns cited by the Plaintiff States. As noted above, in 1999 DOJ

18

proposed a rule, 64 Fed. Reg. 28,676, stating: “Immigrants’ fears of obtaining

19

these necessary medical and other benefits are not only causing them

20

considerable harm, but are also jeopardizing the general public. For example,

21

22

FIRST AMENDED COMPLAINT

110

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 infectious diseases may spread as the numbers of immigrants who decline

2 immunization services increase.”

3

(4) Harm to the Plaintiff States’ sovereign interests in

the successful operation of their health care

4

systems

5

237. In addition to the above costs, implementation of the Rule will also

6 harm the Plaintiff States’ sovereign interests in administering their health benefits

7 systems.

8

238. The Plaintiff States have carefully developed state-funded health

9 care programs to fill gaps in Medicaid and to provide coverage to financially or

10 medically vulnerable individuals, including noncitizens. Although the Rule

11 expressly applies only to Medicaid-related health benefits, the Plaintiff States’

12 own programs are often closely intertwined with their Medicaid programs, and

13 the Rule will cause noncitizens and mixed-status families to forgo health

14 coverage to which they are legally entitled—even when such coverage would not

15 be considered a negative factor under the Department’s public charge test. This

16 chilling effect will undermine the comprehensive network of services the Plaintiff

17 States have developed to address their unique public health needs.

18

239. The Rule would, for example, undermine Massachusetts’s ability to

19 achieve its policy of universal health coverage among its residents. As of 2017,

20 97.2% of Massachusetts residents are covered by health insurance, the highest

21 insurance coverage rate in the nation. This is largely due to watershed health

22

FIRST AMENDED COMPLAINT

111

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 reform legislation enacted by the state in 2006, including state subsidy programs

2 for low- and moderate-income individuals and a state-level individual mandate

3 to have health insurance.

4

240. The Department’s highly restrictive, complex, and vague treatment

5 of public benefits, however, threatens to upend the system of incentives and

6 disincentives that informs the choices of individuals and families enrolling in

7 health insurance through Massachusetts’s health insurance marketplace.

8

241. Since 2006, Massachusetts has required that most adult

9 Massachusetts residents have health coverage or pay a penalty through their tax

10 returns. The Rule, however, will interfere with Massachusetts’s ability to

11 maintain this requirement, particularly for any residents who would face adverse

12 immigration consequences by virtue of accessing health coverage.

13

242. About 260,000 Massachusetts residents individually purchase

14 health coverage through the Health Connector, which procures high-quality plans

15 at competitive prices that residents can access. Any disenrollment that will follow

16 from the Rule will diminish the collective impact of individuals purchasing health

17 coverage and make Massachusetts’s health insurance marketplace less

18 competitive. A less competitive health insurance marketplace will put at risk the

19 progress Massachusetts has made towards universal health coverage for all its

20 residents.

21

22

FIRST AMENDED COMPLAINT

112

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

243. In Massachusetts, individuals and small businesses share the same

2 risk pool, insurance products, and premiums. The Massachusetts Health

3 Connector’s data shows that on average, noncitizen enrollees have 25% lower

4 medical claims than their citizen counterparts, which is attributable to the overall

5 lower age of noncitizens and their lower utilization of medical services. A decline

6 in enrollment or retention of coverage for noncitizens as a result of the Rule could

7 impact the overall risk pool in Massachusetts, which could in turn lead to monthly

8 premium increases for citizens and noncitizens alike. Based on the merged

9 structure of the insurance risk pool in Massachusetts, such impacts can flow

10 beyond the Health Connector and cause premiums to increase for not only the

11 small business community but potentially throughout the health insurance

12 market.

13

244. Federal regulation requires that state health exchanges use a single

14 streamlined application that collects the information needed to determine an

15 applicant’s eligibility for a qualified health plan, health coverage subsidies,

16 Medicaid, CHIP, or a basic health plan.

17

245. In Massachusetts, all applicants for federally funded and state

18 funded health insurance—including Medicaid, CHIP, and ConnectorCare—use

19 a uniform application portal, and after applying are matched with the appropriate

20 program for which they are determined eligible. The chilling effect of the Rule

21 will likely require Massachusetts to create new forms, policies, and procedures

22

FIRST AMENDED COMPLAINT

113

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 for its various health care programs and services to ensure that benefits applicants

2 are aware of the potential public charge consequences of their application and

3 can choose to apply only for those programs which are not considered as part of

4 the public charge analysis.

5

246. Additionally, MassHealth and Health Connector may have to

6 expand its customer service support to answer questions about public charge

7 consequences from potentially affected individuals. MassHealth and the Health

8 Connector would have to absorb the costs and administrative burden for these

9 modifications.

10

247. Further, the Plaintiff States will be required to cover expenses

11 associated with adopting new laws, regulations, and administrative practices,

12 policies, and procedures as a result of the Public Charge Rule. Those changes

13 will be necessary to adapt to and mitigate the effects of enrollment decisions by

14 noncitizens and mixed-status families, as well as the public health consequences

15 for their reduced access to health care services.

16 B. Food Assistance Programs

17

248. The Plaintiff States manage and administer various state and

18 federally funded food assistance programs for eligible individuals and families,

19 including noncitizens. Implementation of the Public Charge Rule, however, will

20 irreparably harm the Plaintiff States by undermining the effectiveness of these

21 programs, as eligible individuals—including working families and their

22

FIRST AMENDED COMPLAINT

114

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 children—will opt not to participate for fear of jeopardizing their immigration

2 status. This reduction in participation will lead to significant public health

3 concerns, including child hunger and malnourishment.

4

1. Federal Food Assistance Benefits

5

249. In 1977, Congress created the federal Food Stamp Program, known

6 since 2008 as the Supplemental Nutrition Assistance Program (SNAP), which

7 provides food purchasing assistance to low-income individuals and families.222

8

250. SNAP benefits are provided on a “household” basis. For purposes

9 of SNAP eligibility, a “household” is defined as “an individual who lives alone

10 or who, while living with others, customarily purchases food and prepares meals

11 for home consumption separate and apart from others; or a group of individuals

12 who live together and customarily purchase food and prepare meals together for

13 home consumption.”223

14

251. Under federal law, SNAP is available to households with income at

15 or below 130% of the federal poverty level; a net monthly income after

16 deductions for housing, child care and other expenses at less than or equal to

17 100% of the federal poverty level; and with assets under the amount set in the

18 applicable federal regulations.

19

20

21

222 See 7 U.S.C. § 2013 (2018).

22

223 7 U.S.C. § 2012(m).

FIRST AMENDED COMPLAINT

115

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

252. The average monthly SNAP benefit per household is

2 $253—or $8.40 per day, per household. SNAP households may purchase food

3 by using the benefit at one of the quarter million retailers authorized by the

4 federal Food and Nutrition Service to participate in the program.

5

253. SNAP imposes work requirements on program participants. Federal

6 law requires that able-bodied adult SNAP recipients who are not exempt register

7 to work, accept a job if offered, and not quit a job without good cause. The

8 Welfare Reform Act limits SNAP benefits for able-bodied adults without

9 dependents to 3 months of assistance within a 36 month period unless they are

10 participating in work activities for at least 20 hours per week. States also operate

11 SNAP Employment and Training (E&T) programs, which help participants build

12 job skills, receive training, find work, and increase work experience.

13

254. About 14.9 million workers—or about 10% of workers

14 nationwide—are from households that received SNAP benefits over the past

15 year.

16

255. Under the Welfare Reform Act, adult immigrants with lawful

17 permanent residency status, and other “qualified” immigrants, are eligible for

18 SNAP after five years.224 The five-year ban does not apply to children,

19 immigrants with 40 qualifying quarters of work, or to members of the military

20

21

22

224 8 U.S.C. § 1612(a)(2)(L).

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116

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 and veterans (or their spouses), all of whom are immediately eligible for SNAP

2 benefits upon adjustment to lawful permanent resident status.225

3

256. States have the authority to use state-only funds to provide nutrition

4 assistance benefits to non-qualified immigrants and qualified immigrants before

5 the five-year SNAP ban. Plaintiff States Minnesota and Washington have done

6 so. Although such state-only nutrition benefits do not constitute “public benefits”

7 under the Department’s public charge test, many noncitizens will fear that

8 enrollment in state-funded programs will carry adverse immigration

9 consequences, and therefore disenroll or forbear enrollment.

10

257. As set forth below, implementing the Rule will cause irreparable

11 harm to the Plaintiff States by undermining the functions and effectiveness of

12 these food assistance programs.

13

2. State food assistance programs

14

258. The Plaintiff States manage and administer various food assistance

15 programs, including SNAP. These programs are intended to reduce food

16 insecurity and assist in fulfilling the food and nutritional needs of some of the

17 states’ most vulnerable populations.

18

259. Certain classes of citizens and noncitizens are eligible to participate

19 in these state-run food assistance programs. If implemented, the Rule would

20 result in many otherwise eligible individuals—including citizens—disenrolling

21

22

225 8 U.S.C. § 1612(a)(2)(B)–(C) & (J).

FIRST AMENDED COMPLAINT

117

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INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 or refraining from participating for fear of jeopardizing their or their family

2 members’ immigration status.

3

260. As set forth below, implementing the Rule will cause irreparable

4 harm to the Plaintiff States by undermining the functions and effectiveness of

5 their food assistance programs.

6

a. The Plaintiff States’ food assistance programs

7

261. All Plaintiff States manage and administer a SNAP program for their

8 residents. In addition, the Plaintiff States administer numerous other food

9 assistance programs, some using combined federal and state funds and some

10 using state-only funds. While the Rule considers only SNAP-related benefits as

11 “public benefits” under the public charge test, other state-only food assistance

12 programs are likely to be harmed because of the broad chilling effects on eligible

13 individuals.

14

262. Washington’s Basic Food program assists eligible children and

15 adults in purchasing food. The Basic Food program combines federally funded

16 SNAP benefits with the state-funded Food Assistance Program for legal

17 immigrants (FAP). FAP is available to individuals who are lawfully present and

18 meet all eligibility requirements for SNAP except for their citizenship or

19 immigration status.

20

263. Virginia’s food assistance program includes SNAP (including debit

21 card technology for accessing SNAP benefits); nutrition education; supplemental

22

FIRST AMENDED COMPLAINT

118

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 nutrition program for women, infants, and children; nutrition program for seniors

2 (Fresh Market Fresh for Seniors), national school lunch program, food banks, and

3 meals on wheels.

4

264. Massachusetts’s Department of Transitional Assistance (MA-DTA)

5 assists and empowers low-income individuals and families to meet their basic

6 needs, improve their quality of life, and achieve long-term economic

7 self-sufficiency through training programs, and cash and food benefits, such as

8 SNAP. Massachusetts also funds a supplement to SNAP through the state budget.

9 In state fiscal year 2019, the SNAP state supplement was $300,000. Another

10 $300,000 for the state supplement has been appropriated for state fiscal year

11 2020.

12

265. Maryland’s Food Supplement Program reached 684,000 Maryland

13 residents in fiscal year 2017, or 11% of the state population. The state

14 supplemented the program with approximately $3.3 million in state funds during

15 state fiscal year 2019, and over $4.1 million in fiscal year 2020.

16

266. In New Mexico, approximately 25% of the State’s residents receive

17 SNAP benefits, with enrollment capped for a family of four at the federal poverty

18 limit of $25,100. In March 2018, for example, there were 456,190 people enrolled

19 in the state’s program.

20

267. New Jersey administers a SNAP program that helps provide food

21 assistance to residents suffering from food insecurity. An estimated 1 in 10 New

22

FIRST AMENDED COMPLAINT

119

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 Jersey residents are food insecure—which translates to more than 900,000

2 residents, including nearly 270,000 children.

3

268. In Rhode Island, the Department of Human Services administers the

4 SNAP program to low-income families and individuals with income less than

5 185% of the federal poverty level. Rhode Island residents who meet eligibility

6 requirements may receive up to $642 per month in food-assistance based on their

7 family size and income level.

8

269. The State of Hawai’i Department of Human Services includes the

9 Benefit, Employment and Support Services Division, which administers General

10 Assistance, SNAP, TANF, TAONF, and Child Care Subsidies in the state. In

11 state fiscal year 2018, HIDHS provided SNAP benefits to 142,991 individuals

12 across the state, of which 5,160 are non-U.S. citizen individuals.

13

b. Irreparable harm to food assistance programs

14

270. The Plaintiff States’ food assistance programs will be irreparably

15 harmed by the Rule, which will result in, among other things, (1) more vulnerable

16 families and individuals in the Plaintiff States experiencing food insecurity; and

17 (2) severe public health concerns, including child hunger and malnutrition.

18

271. The Rule will cause a devastating loss of food assistance for working

19 families and individuals in the Plaintiff States. This will occur in SNAP-related

20 programs that are “public benefits” under the Rule as well as other state-only

21 food assistance programs that are not “public benefits” under the Rule.

22

FIRST AMENDED COMPLAINT

120

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

272. For example, using metrics and data analysis from the above-noted

2 Kaiser Family Foundation study, the Washington State Department of Social and

3 Health Services (DSHS) has estimated the effects the Rule will have on food

4 assistance participation in the state.226 Specifically, DSHS estimates the Rule will

5 lead to disenrollment rates ranging from 15 to 35% among food assistance

6 enrollees in cases involving a noncitizen. DSHS further estimates that full

7 implementation of the Rule will reduce combined food and cash assistance to

8 Washington families by up to $55.3 million.

9

273. In Massachusetts, each year between 2009 and 2012, SNAP benefits

10 kept 141,000 residents out of poverty, including 57,000 children. It is estimated

11 the Rule will jeopardize approximately $122 million in SNAP benefits, or almost

12 10 percent of Massachusetts’s SNAP program.

13

274. In New Jersey, it is estimated that as many as 50,000 residents who

14 are eligible for and receiving SNAP benefits might be affected by the chilling

15 effect of the Rule.

16

275. Below are examples of the specific types of harms the Plaintiff

17 States and their residents will experience.

18

19

20

21

22

226 See S. Artiga, R. Garfield, A. Damico, supra.

FIRST AMENDED COMPLAINT

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FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

(1) Increased Hunger and Food Insecurity in the

Plaintiff States’ Residents

2 276. The Plaintiff States’ food assistance programs are specifically

3 tailored to provide food assistance to low-income individuals who otherwise

4 likely could not afford to purchase sufficient food for themselves and their

5 families.

6 277. Individuals who are eligible to participate in the Plaintiff States’

7 food assistance programs but who forgo participation because of the Rule are

8 likely to experience greater food insecurity and will struggle to provide food for

9 themselves and their families.

10 278. In Massachusetts, speculation about the impact of the Rule has

11 already spurred a decline in numbers of participants in public nutrition programs

12 such as the Special Supplemental Nutrition Program for Women, Infants, and

13 Children (WIC), even though the program is not a “public benefit” under the

14 Rule. Since February 2018, when Reuters released a draft of the Proposed Rule,

15 which included WIC as a public benefit, there has been a 2,000 person decrease

16 from 2017 levels in WIC participation in Massachusetts.

17 279. The number of individuals and households disenrolling from or

18 forgoing participation in the Plaintiff States’ SNAP programs, which are

19 considered “public benefits” under the Rule, is likely to be even greater.

20 280. This increase in food insecurity and hunger directly undermines the

21 purposes and effectiveness of the Plaintiff States’ food assistance programs,

22

FIRST AMENDED COMPLAINT

122

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 which are intended to alleviate hunger and improve nutrition for the States’ most

2 vulnerable residents.

3

(2) Significant public health concerns

4

281. The Plaintiff States’ food assistance programs are specifically

5 tailored to assist working families who might not otherwise be able to afford

6 sufficient food for their children.

7

282. The projected reduction in the number of immigrants and

8 mixed-status families participating in these programs because of fears associated

9 with the Rule will undermine the programs and lead to significant public health

10 concerns, including increases in child hunger and malnutrition.

11

283. Children who experience hunger, food insecurity, and

12 malnourishment are more likely to suffer deficits in cognitive development,

13 behavioral problems, and poor health, along with reduced learning and academic

14 achievement, all of which tends to diminish future earning potential. Children

15 who are hungry will experience more difficulty in school and will require greater

16 resources from the Plaintiff States’ educational systems.

17

284. Further, eligibility for many federal school breakfast and lunch

18 programs—which provide free or reduced price meals to eligible students—are

19 based at least in part on enrollment in SNAP. Thus, although the Rule does not

20 expressly consider receipt of free or reduced price school meals as a “public

21 benefit” under the public charge test, the Rule will undoubtedly have a negative

22

FIRST AMENDED COMPLAINT

123

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 effect on these programs by limiting enrollment in the underlying programs. In

2 this way, the Rule will negatively affect far more assistance programs than only

3 the limited programs it expressly identifies as public benefits.

4

285. The Plaintiff States will ultimately bear the higher healthcare and

5 other costs associated with treating the medical conditions resulting from this

6 unnecessary child malnourishment.

7

286. For this reason, the increase in food insecurity resulting from the

8 Rule would undermine not only the Plaintiff States’ interests in healthy, stable,

9 productive residents and workforces, but also a purported goal of the Rule

10 itself—to “better ensure” that immigrants “are self-sufficient, i.e., do not depend

11 on public resources to meet their needs.”

12 C. Housing Assistance Programs

13

287. The Plaintiff States manage and administer various state and

14 federally funded housing assistance programs for eligible individuals and

15 families, including noncitizens. The Rule, however, will irreparably harm the

16 Plaintiff States by undermining the effectiveness of these programs, as eligible

17 individuals and their families will disenroll or refrain from seeking housing

18 assistance for fear of jeopardizing their ability to immigrate.

19

1. Federal housing assistance benefits

20

288. In general, individuals and families with incomes at or below 50 to

21 80% of their area median income are eligible for federal housing assistance.

22

FIRST AMENDED COMPLAINT

124

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 Federal housing assistance is not an entitlement program, and for families that

2 make it on the waiting list, the average wait time to receive a housing voucher is

3 2.5 years. Thus, federal housing assistance serves only about 25% of eligible

4 households.

5

289. The Housing Act of 1937227 provides for subsidies to be paid from

6 the U.S. government to local public housing agencies to improve living

7 conditions for low-income families (Subsidized Housing Program). There are

8 currently approximately 1 million units in the federal public housing subsidies

9 program. Nearly two-thirds of public housing subsidies households are

10 considered “extremely low income,” with incomes below 30% of the Area

11 Median Income and an average annual income of $14,605. Approximately 3.3

12 million children live in such subsidized public housing.228

13

290. The Section 8 Housing Choice Voucher Program (Housing Voucher

14 Program) is the federal government’s major program for assisting low-income

15 families, the elderly, and the disabled to afford decent, safe, and sanitary housing

16 in the private market.229 Housing choice vouchers are administered locally by

17

18

19

227 Pub. L. 75-412, 50 Stat. 888.

20

228 Public Housing, National Housing Law Project, www.nhlp.org/

21 resource-center/public-housing/ (last visited Aug. 14, 2019).

22

229 42 U.S.C. §§ 1437f, 1437u.

FIRST AMENDED COMPLAINT

125

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INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 public housing agencies, which receive federal funds from the U.S. Department

2 of Housing and Urban Development (HUD).

3

291. The Section 8 Project-Based Rental Assistance (PBRA) program

4 also provides housing assistance to low-income families.230 This HUD program

5 provides critical affordable housing stock to more than 2 million people—in 1.2

6 million households—across the country. HUD contracts with private owners to

7 rent units in their housing developments, paying a subsidy that helps pay tenants’

8 rent.

9

292. The Housing Voucher and PBRA programs (together, Section 8

10 programs) and the Subsidized Housing Program help prevent homelessness and

11 other kinds of housing instabilities. To participate in the Section 8 programs,

12 families must demonstrate incomes at or below certain threshold levels; an

13 absence of criminal- or drug-related records and evictions; and proof of

14 citizenship or eligible immigrant status.

15

293. Under the Welfare Reform Act and the Housing and Community

16 Development Act of 1980, lawful permanent residents and certain other qualified

17 immigrants are eligible for Section 8 programs.231 The Welfare Reform Act’s five

18

19

20

230 42 U.S.C. 1437f; 24 CFR parts 5, 402, 880–81, 883–84, and 886.

21

231 Pub. L. 96-399, 94 Stat. 1614, Sec. 214, codified as amended at

22 42 U.S.C. § 1436a(a); 8 U.S.C. § 1611(a) & (c).

FIRST AMENDED COMPLAINT

126

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 year ban applicable to Medicaid, SNAP, and other “federal means-tested public

2 benefits” does not apply to Section 8 programs.232

3

294. The Rule treats as “public benefits” (1) Section 8 Housing

4 Assistance under the Housing Choice Voucher program; (2) Section 8

5 Project-Based Rental Assistance; and (3) Public Housing under Section 9 of the

6 Housing Act of 1937. Under the Rule, an immigrant’s participation in any of

7 these programs could constitute a heavily weighed negative factor favoring a

8 public charge determination, even though Congress has explicitly authorized

9 eligible noncitizens to participate in those programs.233

10

2. State housing assistance programs

11

295. The Plaintiff States manage and administer a variety of housing

12 assistance programs, including by using a combination of state, federal, and

13 private funding to provide safe and stable shelter options for eligible individuals

14 and their families. Certain classes of citizens and noncitizens are eligible to

15 participate in these housing assistance programs.

16

17

232 8 U.S.C. § 1613(a); 8 C.F.R. § 213a.1; Eligibility Restrictions on

18 Noncitizens: Inapplicability of Welfare Reform Act Restrictions on Federal

19 Means-Tested Public Benefits, Dep’t of Housing and Urban Devel., 65 Fed. Reg.

20 49994-01, Aug. 16, 2000.

21

233 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(b)(1)(ii)(B)

22 & (b)(2)(iv)).

FIRST AMENDED COMPLAINT

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INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

296. The chilling effect of the Rule, however, will deprive vulnerable

2 individuals of opportunities to obtain such housing assistance, and irreparably

3 harm the functioning of the Plaintiff States’ programs.

4

a. The Plaintiff States’ housing assistance programs

5

297. All Plaintiff States manage and administer housing assistance

6 programs. Working together with community, state, and national partners, the

7 Plaintiff States provide effective programs seeking to prevent and alleviate

8 homelessness and housing instability for their most vulnerable residents.

9 Although the Department does not consider receipt of state-only housing

10 assistance as a “public benefit”—unlike the federal programs described

11 above— these state programs are likely to be harmed by the Rule’s broad chilling

12 effects on eligible individuals and families who forgo participation for fear of

13 jeopardizing their ability to immigrate.

14

298. For example, the Washington Department of Commerce administers

15 Washington’s state and federal housing assistance funding. The Department of

16 Commerce manages the Washington State Housing Trust Fund, a 33-year-old

17 source of capital to develop and preserve affordable housing for low-income and

18 vulnerable Washingtonians. County governments act as lead grantees and are

19 responsible for directing and managing the local homeless response system.

20 These local homeless response systems assist homeless families and individuals

21 who need help obtaining or maintaining permanent housing.

22

FIRST AMENDED COMPLAINT

128

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

299. Washington’s housing assistance programs receive approximately

2 $196 million per year in funding from a variety of sources, including private

3 funders as well as federal, state, and local governments. Using these funds, the

4 programs seek to both (1) stabilize households that are currently in permanent

5 housing but are at risk of homelessness; and (2) provide homeless individuals and

6 families with emergency shelter, temporary housing, or placement into

7 permanent housing.

8

300. DSHS administers the Washington Housing and Essential Needs

9 (HEN) Referral Program, which provides access to essential needs items and

10 potential rental assistance for low income individuals and families who are

11 unable to work for at least 90 days due to a physical and/or mental incapacity.

12 DSHS provides this assistance even if the individuals are ineligible to receive

13 federal funds.

14

301. The Massachusetts Department of Housing and Community

15 Development (MA-DHCD) similarly administers numerous federal and state

16 housing programs and services to promote safe and affordable housing for

17 residents. In particular, MA-DHCD oversees the operations of approximately 240

18 local housing authorities as well as programs that provide federal- and

19 state-funded rental vouchers to low-income families; assist families in moving

20 from shelter into housing or in avoiding homelessness altogether; and provide

21

22

FIRST AMENDED COMPLAINT

129

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 shelter access for all low-income families that become homeless if they meet

2 certain eligibility criteria.

3

302. Massachusetts’s state budget allocated over $500 million for

4 homelessness and housing safety net programs and services in fiscal year 2019.

5 The Massachusetts Rental Voucher Program (MRVP), which provides both

6 mobile and project-based vouchers, alone received $100 million in state funding,

7 and Massachusetts’s Emergency Assistance (MA-EA) program, through which

8 MA-DHCD funds family shelters, received over $175 million.

9

303. The Virginia Department of Housing and Community Development

10 (VDHCD) and Virginia Housing Development Authority (VHDA), under the

11 oversight of Virginia’s Secretary of Commerce and Trade, administer Virginia’s

12 housing assistance programs. VDHCD creates safe and affordable housing by

13 regulating building and fire codes while investing more than $100 million each

14 year into affordable housing and community development projects throughout

15 Virginia. VHDA promotes access to home loans, homeowner and homebuyer

16 education to ensure quality, affordable housing for all in Virginia.

17

304. VDHA also administers the federal Housing Choice Voucher and

18 Housing Credit programs in Virginia, and administers multiple programs that

19 offer state and federal funding to address homelessness. For example, the

20 Virginia Homeless Solutions Programs is a homeless and special needs housing

21 funding source that supports the development and implementation of localized

22

FIRST AMENDED COMPLAINT

130

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.660 Page 138 of 185

1 emergency crisis response systems with housing-focused, coordinated

2 community-based activities. VDHCD also administers the housing opportunities

3 for persons with AIDS program, HUD funding dedicated to the housing needs of

4 low income people living with HIV/AIDS.

5

b. Irreparable harms to the Plaintiff States’ housing

assistance programs 6

305. The Rule will lead to reduced immigrant participation in federal

7

housing assistance programs for eligible residents of the Plaintiff States.

8

306. Further, while the Rule does not treat the above state housing

9

assistance programs as “public benefits,” because of the complexity of the

10

regulatory regime and widespread public confusion and fear, it will nevertheless

11

deter many immigrants and mixed-status families from participating in state-

12

funded housing assistance programs for which they are eligible.

13

307. For these reasons, the Rule will cause irreparable harm to the

14

Plaintiff States. Among other harms, the Rule will (1) lead to increased numbers

15

of homeless individuals and families in the Plaintiff States; and (2) result in

16

poorer health, educational, and other outcomes for vulnerable children who reside

17

in the Plaintiff States and who, because of their or their family member’s

18

immigration status, will be deprived of opportunities for emergency shelter or

19

placement into permanent housing.

20

308. Below are examples of the specific types of harms the Plaintiff

21

States and their residents will experience.

22

FIRST AMENDED COMPLAINT

131

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

(1) Homelessness and other public health consequences

2

309. If the Rule is implemented, it will cause increased numbers of

3 individuals and families to experience homelessness in the Plaintiff States, as

4 individuals who are otherwise eligible for such assistance will forgo seeking it

5 for fear of jeopardizing their or their family member’s ability to immigrate.

6

310. The Rule provides that officials will consider Public Housing and

7 Section 8 participation in making a determination regarding whether someone is

8 likely to become a public charge. This will deter many eligible households from

9 seeking benefits and will delay placement of homeless families into permanent

10 housing.

11

311. For example, in Washington, over 78,000 low-income households

12 use Public Housing and Section 8 assistance to afford modest rents and make

13 ends meet. Most of these individuals are either working themselves or come from

14 working families that cannot afford fair market rents.

15

312. In Massachusetts, approximately 175,000 households receive

16 Section 8 or Public Housing assistance. Massachusetts’s MRVP supported 5,100

17 households as of January 2013.

18

313. In Maryland, approximately 84,000 households receive Section 8 or

19 Public Housing assistance. Approximately 48,000 Maryland households receive

20 federal rental assistance through the Section 8 Housing Choice Voucher Program.

21

22

FIRST AMENDED COMPLAINT

132

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

314. Further, many immigrant workers are employed in typically

2 low-wage fields such as agriculture, construction, building and grounds cleaning

3 and maintenance, and food service, which make it difficult for them to afford

4 current market-based rents.

5

315. In Massachusetts, large numbers of low-wage immigrant workers

6 are employed in the health care system, serving in positions such as home health

7 aides and nursing assistants. A minimum wage worker in Massachusetts would

8 need to work, on average, at least 104 hours per week to afford a two-bedroom

9 apartment.

10

316. Washington currently provides 50,000 families per year with rental

11 assistance, and about 15,000 of these families have children. About 14% of these

12 families who receive rental assistance and have children are immigrant families.

13

317. Washington has recently faced increased homelessness, with an

14 estimated 3,285 homeless families with children. About 14% of the State’s

15 homeless families with children are immigrant families. Available data suggests

16 the Rule is likely to compel over 10,000 immigrants and their families in

17 Washington to give up the lifeline assistance that prevents them from suffering

18 homelessness. For other eligible families, implementation of the Rule will

19 significantly delay their placement into permanent housing.

20

318. The homeless population in Massachusetts increased by 2,500

21 people, or 14%, in 2018. Massachusetts estimates that about 3,600 families with

22

FIRST AMENDED COMPLAINT

133

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.663 Page 141 of 185

1 children and pregnant individuals are in the MA-EA shelter system on any given

2 night. This number does not include families who are doubled up, living in unsafe

3 conditions, or sleeping in their cars.

4

319. Further, because many of the placements into permanent housing

5 are related to Public Housing or Section 8 programs (17% of placements in

6 Washington last year), the Rule will hinder the Plaintiff States’ ability to

7 successfully transition homeless individuals and their families into permanent

8 housing, significantly harming their residents who are otherwise unable to obtain

9 permanent housing.

10

(2) Poorer health, educational, and other outcomes

11

320. The Rule will also lead to other harmful related costs for the Plaintiff

12 States and their homeless and housing-insecure populations.

13

321. Access to good housing is well-recognized as a social determinant

14 of public health, as families and individuals without stable housing are more

15 likely to use emergency services and require hospitalizations.

16

322. Data shows that children who suffer homelessness and housing

17 insecurity experience dramatically poorer health outcomes, including having

18 twice as many respiratory infections and being three times more likely to be

19 hospitalized for asthma. This creates significant public health concerns for the

20 Plaintiff States.

21

22

FIRST AMENDED COMPLAINT

134

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

323. Further, children who experience homelessness and housing

2 insecurity also tend to suffer worse educational outcomes and generally have

3 access to fewer and less profitable work opportunities. This results in harm to the

4 Plaintiff States’ economies and job markets.

5

324. Directly contrary to the supposed purpose of the Rule, needlessly

6 depriving children of access to housing assistance only makes it more likely these

7 children will require additional assistance as they grow older and will carry with

8 them the adverse effects of their childhood homelessness.

9

325. The many negative effects of increased homelessness in families

10 with children will irreparably harm the families, their children, and the Plaintiff

11 States, which will ultimately bear responsibility for the many increased costs and

12 other consequences associated with childhood homelessness.

13 D. Cash Assistance Programs

14

326. The Plaintiff States manage and administer various state and

15 federally funded cash assistance programs for eligible individuals and families,

16 including noncitizens. Under the Rule, however, eligible individuals and their

17 families will opt not to seek critical financial assistance for fear of jeopardizing

18 their immigration status.

19

1. Federal cash assistance benefits

20

327. Congress created the Temporary Assistance to Needy Families

21 (TANF) program in 1996 as part of the Welfare Reform Act.

22

FIRST AMENDED COMPLAINT

135

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

328. TANF provides grant funds to states to provide families with

2 financial assistance and related support services including childcare assistance,

3 job preparation, and work assistance.

4

329. To qualify for TANF, individuals must either be pregnant or

5 responsible for a child under 19, have a low or very low income, and be

6 unemployed, under-employed, or about to be unemployed.

7

330. As the first word in the program name suggests, TANF was designed

8 as a temporary benefit to help otherwise self-sufficient, working families get back

9 on their feet while experiencing joblessness, unanticipated adverse life events, or

10 other hard times.

11

331. Federal law imposes work requirements applicable to TANF

12 participants. It requires states administering TANF to (1) ensure that cash

13 assistance recipients are working within 24 months of receiving assistance, or

14 sooner if the state deems them ready for work, and (2) achieve annual work

15 participation rates. Fifty percent of all TANF families with one work-eligible

16 adult and 90 percent of families with two work-eligible adults must engage in

17 specified work or work-related activities for a minimum number of weekly hours.

18

332. The Welfare Reform Act allows qualified immigrants, including

19 lawful permanent residents, to participate in TANF after five years in qualified

20 immigrant status. Certain qualified immigrants are exempt from the five year ban,

21 including members of the military and veterans (and their spouses and children).

22

FIRST AMENDED COMPLAINT

136

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

333. States are permitted under the Welfare Reform Act to provide

2 state-funded cash assistance benefits to nonexempt qualified immigrants during

3 the five year TANF ban to replace the loss of federal benefits, as well as to

4 provide state-only-funded assistance to nonqualified immigrants.

5

334. The Rule treats TANF as a “public benefit” program in which an

6 immigrant’s participation could constitute a heavily weighed negative factor

7 favoring a public charge determination.

8

335. The Rule also treats some state-only-funded cash assistance as

9 “public benefits” in which an immigrant’s participation could constitute a heavily

10 weighed negative factor favoring a public charge determination. The Rule’s

11 definition of public benefit includes “[s]tate or local cash benefit programs for

12 income maintenance (often called ‘General Assistance in the State context, but

13 which may exist under other names).”234 That ambiguous definition does not

14 provide clear notice of the state cash assistance programs in which an

15 immigrant’s participation may “heavily” weigh in favor of a public charge

16 determination.

17

336. As set forth below, implementing the Rule will cause irreparable

18 harm to the Plaintiff States by undermining the functioning and effectiveness of

19 their cash assistance programs.

20

21

22

234 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(b)(1)(iii)).

FIRST AMENDED COMPLAINT

137

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

2. State cash assistance programs

2

337. All Plaintiff States manage and administer various financial

3 assistance programs intended to provide modest monetary assistance to eligible

4 residents and their families for maintaining financial stability in certain

5 circumstances. Certain classes of citizens and noncitizens are eligible to

6 participate in these programs.

7

338. The Rule, however, considers as “public benefits” not only federal

8 cash assistance programs such as TANF but also state and local cash benefit

9 programs for income maintenance. As a result, the Rule will deprive vulnerable

10 individuals and their families of opportunities to access these programs and

11 achieve financial stability.

12

a. The Plaintiff States’ cash assistance programs

13

339. All Plaintiff States manage and administer cash assistance programs

14 to assist eligible individuals and their families in dealing with financial hardship.

15

340. For example, the Washington Department of Social and Health

16 Services administers Washington’s TANF program as well as several other cash

17 assistance programs for eligible individuals.

18

341. Washington’s TANF program provides cash assistance to certain

19 parents or caregivers and pregnant individuals to bolster their ability to support

20 their families’ foundational needs, including a safe home, healthy food, reliable

21 transportation, and school supplies.

22

FIRST AMENDED COMPLAINT

138

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

342. During the 2017 to 2019 biennium, the Washington TANF program

2 cost over $300 million in combined federal and state service and administrative

3 costs, including over $90 million in total state funding.

4

343. Washington complements TANF with a state-funded program

5 called State Family Assistance (SFA). SFA is available to individuals who meet

6 TANF’s income requirements but are ineligible for TANF for other reasons,

7 including certain noncitizens. Washington extends SFA cash assistance to

8 qualified immigrants during the five year TANF ban, as well as to non-qualified

9 immigrants who are residents of Washington and legally present in the United

10 States.235 Some families receive a mix of TANF and SFA based on the eligibility

11 or immigrant status of each family member. Under the Rule, SFA constitutes a

12 state cash benefit program for income maintenance in which an immigrant’s

13 participation could constitute a “heavily weighed negative factor” favoring a

14 public charge determination.

15

344. The Virginia Department of Social Services administers Virginia’s

16 TANF program. Virginia’s TANF program provides eligible families with a

17 monthly cash payment to meet their basic needs. Virginia’s TANF program

18 emphasizes personal responsibility. Participants may be provided with services

19 such as job skills training, work experience, job readiness training, child care

20 assistance, transportation and other work related expenses. The Virginia TANF

21

22

235 WAC 388-400-0010, 388-424-0001, 388-468-0005.

FIRST AMENDED COMPLAINT

139

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 program also includes an employment advancement program that is designed to

2 provide proven service approaches and strategies to help current and former

3 TANF clients to prepare to enter, succeed, and advance in the workplace. The

4 expected outcome of this program are improved job placement, improved job

5 retention, higher employment wages upon entry, and increased wage gains from

6 job advancement.

7

345. In Massachusetts, MA-DTA manages aid programs designed to help

8 low-income individuals and families escape poverty, including the Transitional

9 Aid to Families with Dependent Children (TAFDC), Massachusetts’s TANF cash

10 assistance program.

11

346. Massachusetts’s TAFDC program provides cash assistance, child

12 care, and transportation support for job assistance to families with children and

13 pregnant women with little or no assets or income, to meet their emergency and

14 transitional needs.

15

347. In state fiscal year 2019, Massachusetts’s TAFDC program spent

16 $841 million, including $382 million in state funds.

17

348. The Hawai’i Department of Human Services’ Benefit, Employment

18 and Support Services Division administers the General Assistance (GA) program

19 which provides cash benefits for food, clothing, shelter, and other essentials to

20 adults ages 18 through 64 years, without minor dependents, who are temporarily

21 disabled and who do not qualify for Social Security. As a 100% state-funded

22

FIRST AMENDED COMPLAINT

140

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.670 Page 148 of 185

1 program in support of temporarily disabled residents (due to physical or mental

2 disability), the potential effect could diminish participation in the program.

3 Individuals receiving GA benefits, already living below the poverty line but

4 having some form of assistance, will be adversely affected and become destitute.

5 GA benefits are received by 5,054 residents, of which 488 are non-U.S. citizens.

6 Approximately 341 COFA residents receive GA benefits, with a corresponding

7 state fiscal note of $1,497,173.16.

8

349. The Hawai’i Department of Human Services also administers

9 Temporary Assistance for Other Needy Families (TAONF) in Hawai’i.

10 Approximately 1,695 individuals receive TAONF benefits, of which 988 are non-

11 U.S. citizen individuals. Approximately 848 COFA residents are recipients of

12 TAONF, with a corresponding state fiscal note of $1,700,382.74.

13

350. The Plaintiff States administer other programs that, due to the Rule’s

14 ambiguity, may or may not be considered “public benefits” in which an

15 immigrant’s participation would weigh in favor of a public charge determination.

16

351. For example, Washington’s Aged, Blind, or Disabled Cash

17 Assistance Program is a state-funded program that provides financial assistance

18 to certain eligible, low-income individuals who are age 65 or older, blind, or are

19 determined likely to meet specific Supplemental Security Income disability

20 criteria expected to last at least 12 consecutive months. Washington also

21 administers the state-funded Pregnant Women Assistance Program, which

22

FIRST AMENDED COMPLAINT

141

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 provides financial assistance to certain pregnant noncitizens ineligible for TANF;

2 the Consolidated Emergency Assistance Program, which provides emergency

3 assistance to families and pregnant women; the Diversion Cash Assistance

4 Program, which provides alternative assistance to TANF for families with

5 short-term financial needs; the State Supplemental Program, which assists certain

6 individuals while the Social Security Administration determines their eligibility

7 for Supplemental Security Income; and the Additional Requirements for

8 Emergent Needs Program, which assists individuals in keeping housing or

9 utilities.

10

352. In Massachusetts, MA-DTA similarly administers Emergency Aid

11 for Elderly, Disabled, and Children (EAEDC), a wholly state-funded cash

12 assistance program for persons who are age 65 or older, disabled adults,

13 caretakers, and children who are not able to get TAFDC.

14

353. In Hawai’i, the Assistance to the Aged, Blind and Disabled (AABD)

15 program is 100% state-funded and provides cash benefits for food, clothing,

16 shelter, and other essentials to a gap group of Hawai’i residents. They are elderly

17 adults (65 years of age or older) or individuals who meet the Social Security

18 Administration definition of disabled or blind. Most are not eligible for federal

19 Social Security benefits and living below the poverty line but at least having some

20 form of assistance, will be adversely affected and become destitute.

21 Approximately 924 individuals receive ABD benefits, of which 753 are non-U.S.

22

FIRST AMENDED COMPLAINT

142

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.672 Page 150 of 185

1 citizen individuals. Approximately 492 COFA residents receive ABD, with a

2 corresponding state fiscal note of $1,852,454.69.

3

354. Due to the Rule’s ambiguity, it is uncertain whether the Department

4 would treat an immigrant’s participation in these state-only cash assistance

5 programs as a “heavily weighed negative factor” favoring a public charge

6 determination. Regardless, the chilling effect of such ambiguity will be

7 substantial, resulting in many individuals opting not to seek state-funded cash-

8 assistance benefits for which they may be eligible.

9

b. Irreparable harm to the Plaintiff States’ cash assistance

programs

10

355. The Rule will cause irreparable harm to the Plaintiff States and their

11

cash assistance programs, as eligible individuals and families facing financial

12

hardship will elect not to access the program benefits for fear of jeopardizing

13

their own or a family member’s immigration status. Due to the Rule’s ambiguity,

14

as well as widespread fear and confusion among immigrant communities, those

15

chilling effects will reduce enrollment both in cash assistance programs in which

16

a noncitizen’s participation could trigger a public charge determination and in

17

programs the Department would not consider a state or local cash benefit program

18

for income maintenance.

19

356. The Rule will thus irreparably harm the Plaintiff States by increasing

20

the number of their residents whose financial hardships lead to loss of medical

21

coverage or housing.

22

FIRST AMENDED COMPLAINT

143

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

357. For example, Washington’s DSHS estimates that full

2 implementation of the Rule will reduce combined food and cash assistance to

3 Washington families by approximately $23.7 to $55.3 million as eligible

4 individuals either terminate their benefits or decline to seek assistance.

5

358. The Rule will irreparably harm the Plaintiff States by deterring

6 individuals from seeking temporary, hardship-based cash assistance they are

7 otherwise eligible to receive. Without access to temporary financial assistance,

8 these individuals and their families are less likely to be able to weather

9 unexpected financial hardships, increasing the likelihood they will lose valuable

10 stability in the form of housing, transportation, or medical coverage or care.

11

359. The resulting economic dislocations will cause significant harm to

12 the Plaintiff States, which will ultimately bear the greater costs associated with

13 noncitizens’ or mixed-status families’ loss of financial stability, medical

14 coverage, or housing.

15 E. Other State Benefits Programs

16

360. In addition to irreparably harming the Plaintiff States by

17 undermining the proper functioning and effectiveness of their medical, housing,

18 food, and cash assistance programs, implementation of the Rule will also imperil

19 a host of other critical, state-managed assistance programs.

20

361. These various state-administered programs include but are not

21 limited to long-term care for elderly and disabled residents, job and employment

22

FIRST AMENDED COMPLAINT

144

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 training programs, support and advocacy services for crime victims and energy

2 assistance.

3

362. Although the Rule does not expressly consider participation in these

4 programs as a “public benefit” under the public charge test, the programs will

5 nevertheless be harmed by the chilling effect the Rule has on eligible individuals.

6 As set forth below, implementing the Rule will cause irreparable harm to the

7 Plaintiff States and their residents by undermining the functions and effectiveness

8 of these and similar assistance programs.

9

1. Long term services and supports for elderly and disabled

residents

10

363. The Plaintiff States manage and administer various programs to

11

provide care for elderly and disabled residents.

12

364. Long Term Services and Supports (LTSS) is a specific category of

13

care that includes both paid and unpaid medical and personal care services, which

14

may be provided in a person’s home, a community residential setting, or an

15

institution such as a nursing home.

16

365. For example, in Washington, the Aging and Long-Term Support

17

Administration (ALTSA) is an agency within DSHS that administers LTSS

18

services to the State’s low-income elderly and disabled individuals.

19

366. In Virginia, DMAS and the Department of Aging and Rehabilitative

20

Services (DARS) are agencies with the Secretary of Health and Human

21

22

FIRST AMENDED COMPLAINT

145

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 Resources (HSS) that administer long terms services and supports for

2 low-income elderly people and people with disabilities.

3

367. There is rapidly growing demand for workers who provide LTSS

4 (called Direct Care Workers) because of the increasing population of individuals

5 over the age of 65.

6

368. According to the U.S. Department of Health and Human Services,

7 demand for Direct Care Workers nationally will grow from 2.3 million in 2015

8 to 3.4 million in 2030. Without a ready supply of workers, Plaintiff States’

9 programs and elderly and disabled residents will struggle to recruit sufficient

10 staff.

11

369. According to the U.S. Government Accountability Office,

12 approximately 23% of Direct Care Workers are immigrants.

13

370. The average annual earnings for these jobs are at or below the

14 federal poverty level. Accordingly, many of these workers rely on public

15 assistance for health care, food, and housing. For example, in Massachusetts over

16 40 percent of direct care workers depend on Medicaid, SNAP, or other benefits.

17 Under the Rule, however, these workers will be discouraged from seeking such

18 benefits, as doing so might jeopardize their immigration status.

19

371. Other factors for consideration under the Rule, including credit

20 history, education, and language, are all likely to increase the chances many

21 Direct Care Workers will be considered a “public charge.”

22

FIRST AMENDED COMPLAINT

146

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

372. Under the Rule, many immigrants who are currently Direct Care

2 Workers or would become employed in such positions would likely be

3 considered a public charge. A decrease in LTSS labor will increase the risk of

4 injury, institutionalization, and death for the Plaintiff States’ many vulnerable

5 elderly and disabled residents, including citizens and noncitizens.

6

373. This will also increase costs for states like Washington to ensure that

7 their elderly and disabled residents are properly cared for, including by increasing

8 costs to Medicaid in the Apple Health program.

9

374. The resulting labor shortage will also force more citizens into

10 nursing homes, destroying decades of federal and state efforts to keep aging

11 individuals in their own homes. The Plaintiff States will therefore suffer a

12 diminished ability to administer elderly and disabled support services in a manner

13 approved by the States’ residents, legislatures, and governors.

14

2. Job and employment training programs

15

375. The Plaintiff States manage and administer various job and

16 employment training programs. Although these programs are not identified as

17 “public benefits” under the Rule, they are likely to be affected by the chilling

18 effect the rule will have on eligible populations.

19

376. For example, in Washington, DSHS administers employment and

20 training programs designed to provide recipients of cash and food benefits with

21 opportunities to gain skills, secure employment, and escape poverty.

22

FIRST AMENDED COMPLAINT

147

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.677 Page 155 of 185

1

377. In combination with other state agencies and community partners,

2 DSHS develops custom plans to support people in building skills through

3 employment and education training. DSHS tailors these programs to serve

4 particular populations, including programs specifically designed to assist

5 noncitizen families.

6

378. Washington also has a WorkFirst program for families receiving

7 TANF or SFA benefits. The WorkFirst program provides families with

8 opportunities to engage in work activities that support financial stability and

9 resilience, including a Limited English Proficiency Pathway Program offering

10 employment services, job skills training, and English-as-a-Second-Language

11 services to nearly 5,000 people every year. DSHS infuses state funding into this

12 program to serve noncitizens who are ineligible for federally-funded services.

13

379. Further, the Washington State Basic Food Employment and

14 Training program (BFET) provides job search training, self-directed job search,

15 educational services, skills training, and other employment opportunities to Basic

16 Food (SNAP) recipients. This is an example of a program that, although not

17 directly identified as a “public benefit” itself under the Rule, is likely to be

18 severely affected because of its close relation to programs that are considered

19 public benefits, such as SNAP.

20

380. BFET is an important part of the State’s comprehensive workforce

21 development system, as the program serves the needs of low-income individuals,

22

FIRST AMENDED COMPLAINT

148

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.678 Page 156 of 185

1 displaced workers, and employers by encouraging financial independence from

2 public assistance through skill acquisition, personal responsibility, and gainful

3 employment.

4

381. Washington dedicates state funding to support a BFET program

5 designed specifically to provide culturally and linguistically appropriate services

6 to more than 1,000 noncitizens in Washington. This program is available only to

7 those individuals eligible to receive other federal benefits.

8

382. In Virginia, the Department of Social Services (DSS) administers

9 employment and training programs designed to provide recipients of cash and

10 food benefits with opportunities to gain skills, secure employment, and get out of

11 poverty. The Department for Aging and Rehabilitative Services provides

12 employment and vocational rehabilitation services for low-income elderly people

13 and individuals with disabilities and their families. The Virginia Department for

14 the Blind and Vision Impaired provides employment services for low-income

15 blind and visually impaired individuals and their families. In combination with

16 other state agencies and community partners, DSS supports people in building

17 skills through employment and education training. DSS has specific programs

18 that service particular populations, including programs specifically designed to

19 assist noncitizen families.

20

383. Virginia provides job skills, work experience, job readiness training,

21 child care assistance, transportation, and other work related expenses to families

22

FIRST AMENDED COMPLAINT

149

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.679 Page 157 of 185

1 receiving TANF. Virginia also provides former TANF clients opportunities to

2 prepare to enter, succeed, and advance in the workplace.

3

384. In Massachusetts, the Commonwealth’s Department of Transitional

4 Assistance administers and funds, in cooperation with the federal government, a

5 skills and employment program, Path to Work, for SNAP recipients who need

6 help finding work. The program reflects the agency’s statutory mandate to

7 connect participating SNAP recipients with “education, employment and training

8 activities.” Because of the program’s close relationship to SNAP, however, it is

9 likely to be severely affected by implementation of the Rule. Even though the

10 program is not itself identified as a “public benefit” under the Rule, SNAP

11 benefits are considered to be “public benefits” that may result in a public charge

12 determination. Thus, eligible immigrants are likely to forgo participating in either

13 program, particularly where participation in one is contingent on participation in

14 the other.

15

385. Due to the Rule’s ambiguity and because it considers SNAP

16 enrollment in making public charge determinations, eligible immigrants are

17 likely to be uncertain of whether their participation in one of the above

18 employment training programs would be a negative factor weighing in favor of a

19 public charge determination. Immigrants will therefore be strongly discouraged

20 from accessing the above programs, many of which are based on SNAP

21

22

FIRST AMENDED COMPLAINT

150

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.680 Page 158 of 185

1 enrollment. In this way, the Rule affects far more benefits programs than are

2 identified in the text of the rule.

3

386. Reduced participation in the above training programs will

4 negatively impact the Plaintiff States’ residents, employers, economy, and

5 pursuit of their policy priorities.

6

387. Residents who might otherwise have participated in the programs

7 will be deprived of the opportunity to develop their skills, increase their earning

8 potential, and improve their quality of life. Ironically, the change will leave these

9 residents more vulnerable and more likely, in the long term, to rely on emergency

10 public assistance. Employers will lose access to a more highly trained pool of

11 potential employees. The Plaintiff States’ economies will lose the benefits of

12 would-be participants’ increased productivity. The Plaintiff States will be unable

13 to achieve their policy goals of providing the greatest possible access to

14 workforce development in order to maximize the public welfare.

15

388. Lower participation in job and employment training programs will

16 also have the self-defeating result of making fewer people capable of becoming

17 independent from public benefits, directly contradicting the supposed purpose of

18 the Rule.

19

389. In sum, the Rule will harm the Plaintiff States’ sovereign interests

20 in administering comprehensive work training programs critical to their

21 continued economic growth and success.

22

FIRST AMENDED COMPLAINT

151

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.681 Page 159 of 185

1

3. Irreparable harm to the Plaintiff States’ support services for

crime victims

2 390. The Plaintiff States manage and administer various services to

3 advocate on behalf of and provide support for crime victims. Although these and

4 similar programs are not considered “public benefits” under the Rule, they are

5 nevertheless likely to be negatively affected by the chilling effect the Rule will

6 have on individuals who are eligible to access these programs.

7 391. For example, Washington State has established the Office of Crime

8 Victims Advocacy (OCVA) to serve as an advocate for crime victims in

9 Washington. OCVA’s mission is to support, heal, and assist crime victims in

10 reaching their full potential.

11 392. OCVA supports crime victims in obtaining services and resources,

12 assists communities with planning and implementing the provision of services to

13 crime victims, advises local and state government agencies that assist crime

14 victims, and administers grant funds for community programs that support crime

15 victims.

16 393. The Virginia General Assembly promulgated the Virginia Victim

17 and Witness of Crime Act to service crime victims, including providing support

18 related to financial assistance and social services in Virginia. The Virginia

19 Victims Fund (VVF) is a state program created to help victims of violent crimes

20 with out of pocket expenses, including medical bills, prescriptions, funeral

21 expenses, lost wages, temporary housing, counseling services, and many other

22

FIRST AMENDED COMPLAINT

152

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.682 Page 160 of 185

1 expenses. The Victims Services Team within the Virginia’s Department of

2 Criminal Justice Services (DCJS) provides grant funding, training, technical

3 assistance, and written resources to programs and individuals serving crime

4 victims. The DCJS and the VVF are the lead coordinating agencies in Virginia

5 for crime victims during critical events and emergencies under emergency

6 management plans.

7

394. The Rule will deter immigrant crime victims from accessing vital

8 benefits for themselves or their families, including children and elderly relatives

9 trying to escape from or address the trauma of domestic violence, sexual assault,

10 unlawful labor or sex trafficking, and other crimes.

11

395. The Rule will significantly harm the Plaintiff States’ efforts to assist

12 crime victims, as many victims and their families will sacrifice basic needs,

13 safety, and health in the form of food assistance, housing assistance, and medical

14 insurance, all to avoid potentially adverse immigration consequences.

15

VII. THE RULE’S OTHER ADVERSE IMPACTS

16

396. As set forth in detail above, the Rule’s chilling effects will cause

17 far-reaching harms to the Plaintiff States and their residents due to the loss of

18 public benefits and services to which they are legally entitled. In addition to those

19 harms, the Rule will have a vast array of other adverse impacts, including

20 (1) wrongfully denying marriage-based green cards to half of applicants due to

21 the irrationally high income threshold; (2) destabilizing the Plaintiff States’

22

FIRST AMENDED COMPLAINT

153

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.683 Page 161 of 185

1 workforces by erecting arbitrary new barriers to immigration and adjustment or

2 change of status; (3) reducing overall economic output and tax revenues in the

3 Plaintiff States; (4) imposing a disparate burden on communities of color,

4 particularly Latinos; and imposing a disparate burden on individuals with

5 physical or mental disabilities.

6 A. Family Reunification Impacts

7

397. The INA requires most green card applicants to have a

8 sponsor—typically a U.S. citizen-spouse or other family member—with a high

9 enough income to ensure the immigrant would not become a public charge.236 By

10 statute, the sponsor must “agree[] to provide support to maintain the sponsored

11 alien at an annual income that is not less than 125 percent of the Federal poverty

12 [guide]line” (FPG) based on household size.237 When the sponsor is the green

13 card applicant’s spouse, the applicant’s income may be included “to meet the

14 income requirement” of 125%of FPG.238 The affidavit of support provision thus

15

16

17

236 8 U.S.C. §§ 1182(a)(4)(C), 1183a.

18

237 8 U.S.C. § 1183a(a)(1)(A); see also 8 C.F.R. § 213a.2 (“In order for the

19 intending immigrant to overcome the public charge ground of inadmissibility, the

20 sponsor must demonstrate the means to maintain the intending immigrant at an

21 annual income of at least 125 percent of the Federal poverty line.”).

22

238 8 C.F.R. § 213a.2(i)(3).

FIRST AMENDED COMPLAINT

154

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.684 Page 162 of 185

1 reflects a Congressional determination that an income of at least 125% of FPG is

2 sufficient to ensure a lawful permanent resident will not become a public charge.

3

398. The Rule eviscerates Congress’s intent in establishing the 125% of

4 FPG threshold for an affidavit of support. It does so by doubling the income

5 threshold to 250% of FPG at which an immigrant’s household income would

6 constitute a “heavily weighed positive factor” in the public charge test.239 Even

7 with a household income exceeding 250% of FPG, the Department would

8 apparently retain the discretion to deny the sponsored immigrant’s green card

9 application based on its other public charge factors.240 The Department provides

10 no rational reason for disregarding the statutory 125% FPG threshold and

11 adopting the significantly higher 250% threshold instead. In doing so, the

12 Department is attempting to rewrite the INA by regulation.

13

399. The Department’s new 250% FPG threshold would significantly

14 inhibit the goal of family reunification that has long been a cornerstone of U.S.

15 immigration policy. According to the analysis of one public commenter, 54%of

16 the foreign-born spouses who are currently eligible for green cards would become

17 ineligible under the Rule’s higher income threshold.241 The Rule will force

18

19

239 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R. § 212.22(2)(c)(2)(i)).

20

240 See generally, 84 Fed. Reg. at 41,504 (to be codified at 8 C.F.R.

21 § 212.22).

22

241 Boundless Cmt. at 48.

FIRST AMENDED COMPLAINT

155

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.685 Page 163 of 185

1 200,000 U.S. citizens to choose whether to leave the United States or live apart

2 from their spouse, disrupting family cohesion and stability in the Plaintiff States.

3 B. Workforce Impacts

4

400. Non-cash public assistance benefits are essential for workers to

5 remain employed, employable, and productive. For example, access to affordable

6 health insurance helps workers to enter and remain in the workforce.242 Workers

7 with health insurance miss approximately 75% fewer work days and are more

8 productive at work than their uninsured peers.243 The Rule will therefore make

9 the workforces in the Plaintiff States less healthy and less productive, reducing

10 overall economic output.

11

401. As explained above, the Rule will significantly reduce the labor

12 supply of direct care workers, who provide LTSS to low-income elderly and

13 disabled individuals. The resulting shortage in the direct care worker labor market

14 will increase costs for Plaintiff States to administer LTSS programs, endangering

15 the safety of their elderly and disabled residents.

16

17

242 Larisa Antonisse and Rachel Garfield, The Relationship Between Work

18 and Health: Findings from a Literature Review, Kaiser Fam. Found.

19 (Aug. 7, 2018), https://tinyurl.com/KKFRelationship-work-health.

20

243 Allan Dizioli and Roberto Pinheiro, Health Insurance as a Productive

21 Factor, 40 Labour Econ. 1-24, (June 2016), https://www.sciencedirect.com

22 /science/article/abs/pii/S0927537116300021.

FIRST AMENDED COMPLAINT

156

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1 C. Other Macroeconomic Impacts

2

402. The mass disenrollment from and forgone participation in public

3 assistance programs by immigrants and their families will have significant

4 adverse impacts on the Plaintiff States’ economies. The loss of medical, food,

5 cash, and other benefits will reduce revenue to numerous health care providers,

6 grocers, farmers’ markets, and other market participants providing basic goods

7 and services—constraining overall economic output in the Plaintiff States both

8 directly and indirectly.

9

403. For example, Washington State estimates that the Rule will directly

10 reduce total economic output by as much as nearly $100 million. Economists with

11 Washington’s DSHS used an input-output model to calculate indirect economic

12 impacts from multiplier effects flowing from the reduced assistance to eligible

13 families. Under this model, implementation of the Rule will reduce total

14 economic output in Washington from between $41.8 million and $97.5 million.

15 Under Washington’s projections, this will also result in an annual reduction in

16 wages, salaries, and benefits for workers in the amount of $15.7 million to $36.7

17 million, as well as a loss of approximately 334 to 782 Washington jobs.

18

404. State and local governments benefit from the significant tax

19 revenues from immigrant taxpayers. Between 2011 and 2013, tax revenues

20 received from immigrants were $130 billion higher than public money spent on

21

22

FIRST AMENDED COMPLAINT

157

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.687 Page 165 of 185

1 that same population.244 On average, an immigrant in the United States pays $900

2 more per individual in tax revenue than she collects in public expenditures.245

3

405. Those state and local tax revenues are likely to decrease

4 substantially as a result of the Rule, which will cause eligible immigrants to

5 disenroll from public benefits programs, limit their participation in the

6 workforce, and not fully participate in the economy.

7 D. Disparate Impacts

8

406. The effects of the Rule will have a disparate impact on communities

9 of color, most severely on Latinos. It is well established that income and wealth

10 disparities across racial and ethnic groups are substantial. The Rule, by selecting

11 for wealthy immigrants and punishing the working class—including participation

12 in common social safety net programs—would severely disadvantage non-white

13

14

15

16

17

244 Nat’l Academies. Sci., Engineering, Med., The Economic and Fiscal

18 Consequences of Immigration, 522 (2017), https://doi.org/10.17226/23550; Sang

19 V. Nguyen and Alice Zawacki, Health Insurance and Productivity: Evidence

20 from the Manufacturing Sector, Ctr. for Econ. Studies, U.S. Census Bureau,

21 Working Papers (Jan. 2009), https://tinyurl.com/Health-Insur-Productivity.

22

245 Id. at 524.

FIRST AMENDED COMPLAINT

158

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.688 Page 166 of 185

1 immigrants.246 In other words, the Rule would effectively implement the

2 President’s policy of preferring white immigrants like those from “Norway.”

3

407. By one estimate, the chilling effects of the Rule would

4 disproportionately fall on people of color, prompting as many as 18.3 million

5 Latino noncitizens or their family members to disenroll or forgo enrollment in

6 public benefit programs—roughly 70% of the total noncitizen families at risk.247

7 The Department’s arbitrarily high 250% FPG income threshold would have

8 disproportionate effects based on national origin and ethnicity, blocking 71% of

9 applicants from Mexico and Central America, 69% from Africa, and 52% from

10 Asia—compared to only 36% from Europe, Canada, and Oceania.248

11

408. Other factors in the Public Charge Rule will cause a disparate impact

12 on the basis of race, ethnicity, or national origin. Credit scores are lower among

13 blacks and Hispanics than among non-Hispanic whites and Asians.249

14

15

246 That is, the Rule would effectively enact the President’s policy of

16 preferring white immigrants like those from “Norway.” See supra ¶ X.

17

247 Boundless Cmt. at 65; Public Charge Proposed Rule: Potentially

18 Chilled Population Data, Manatt, Phelps & Phillips, LLP (Oct. 11, 2018),

19 goo.gl/nWawDr.

20

248 Boundless Cmt. at 65–66.

21

249 Bd. of Governors of the Fed. Reserve Sys., Report to the Congress on

22 Credit Scoring and Its Effects on the Availability and Affordability of Credit,

FIRST AMENDED COMPLAINT

159

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.689 Page 167 of 185

1

409. The high school degree factor will also have a disparate impact,

2 since 54% of immigrants from Mexico and 46% of immigrants from Central

3 America have not obtained a high school degree, while only 10% of immigrants

4 from Europe or Canada have not obtained one.250

5

410. Finally, the English proficiency factor will also exacerbate the

6 Rule’s disparate impact on the basis of race, ethnicity, and national origin. Of the

7 seven countries with the highest rates of English proficiency, six are in Europe

8 and none is in Latin America or Africa. Conversely, none of the 24 countries with

9 the lowest rates of English proficiency is in Europe, while all but one are in Latin

10 America, Africa, or the Middle East.251

11

411. The racial and ethnic animus evident in the President’s own

12 statements indicates that the Rule was adopted because of, and not in spite of, its

13 disparate impact.

14

15 at O-25 (Aug. 2007), https://www.federalreserve.gov/boarddocs/rptcongress/

16 creditscore/creditscore.pdf.

17

250 Jynnah Radford, Key Findings About U.S. Immigrants, Pew Research

18 Ctr. (June 17, 2019), https://www.pewresearch.org/fact-tank/2019/06/17/key-

19 findings-about-u-s-immigrants/.

20

251 Education First, EF English Proficiency Index at 6–7 (2018),

21 https://www.ef.edu/__/~/media/centralefcom/epi/downloads/full-reports/v8/ef-

22 epi-2018-english.pdf.

FIRST AMENDED COMPLAINT

160

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

412. Through Section 504 of the Rehabilitation Act of 1973, Congress

2 statutorily barred discrimination based on disability in any program or activity of

3 any federal executive branch agencies.252

4

413. Despite Section 504’s prohibition on disability discrimination, the

5 Public Charge Rule subjects individuals with disabilities to an increased

6 likelihood of a public charge determination. It does so by, for example, requiring

7 immigration officers to consider in the negative any medical condition that may

8 interfere with self-care or restricts the individual’s ability to attend school or

9 work, and by targeting non-monetary public benefits, such as Medicaid, which

10 such individuals are likelier to receive to pay for medical costs related to their

11 conditions.

12

414. DHS knowingly maintained these elements in the Rule despite the

13 disproportionate impact it will have on individuals with disabilities.

14

VIII. CAUSES OF ACTION

15

Count I:

Violation of the Administrative Procedure Act—Action Not in Accordance

16

with Law

17

415. All the foregoing allegations are repeated and realleged as though

18 fully set forth herein.

19

20

21

22

252 29 U.S.C. § 794.

FIRST AMENDED COMPLAINT

161

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.691 Page 169 of 185

1

416. The APA requires a reviewing court to “hold unlawful and set aside

2 agency action, findings, and conclusions found to be . . . not in accordance with

3 law.”253

4

417. Congress used the term “public charge” in the INA consistent with

5 its original public meaning which includes determining whether an immigrant is

6 likely to become “primarily dependent” on the government for subsistence.254 By

7 redefining “public charge” as “an alien who receives one or more public

8 benefit[s],”255 in even modest amounts, the Rule unmoors the term from its

9 original public meaning and departs from the unambiguously expressed intent of

10 Congress in numerous statutes. The Rule’s redefinition of public charge and new

11 standards governing public charge determinations are not in accordance with the

12 following statutes:

13

a. INA Section 212(a)(4);256

14

b. INA Section 202(a)(1);257

15

c. INA Section 212(a)(1);258

16

17

253 5 U.S.C. § 706(2)(C).

18

254 64 Fed. Reg. at 28,689.

19

255 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a)).

20

256 8 U.S.C. § 1182(a)(4).

21

257 8 U.S.C. § 1152.

22

258 8 U.S.C. § 1182(a)(1).

FIRST AMENDED COMPLAINT

162

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

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1

d. Personal Responsibility and Work Opportunity

2

Reconciliation Act of 1996 (Welfare Reform Act),259 including Sections

3

401–03,260 411–12,261 and 431;262

4

e. Illegal Immigration Reform and Immigrant Responsibility

5

Act of 1996 (Immigration Reform Act),263 including Sections 531264 and

6

551;265

7

f. Section 504 of the Rehabilitation Act of 1973, which provides

8

that “[n]o otherwise qualified individual with a disability in the United

9

States . . . shall, solely by reason of her or his disability, be excluded from

10

the participation in, be denied the benefits of, or be subjected to

11

discrimination . . . under any program or activity conducted by any

12

Executive agency.”266

13

14

15

259 Pub. L. 104-193, 110 Stat. 2105.

16

260 8 U.S.C. §§ 1611–13.

17

261 8 U.S.C. §§ 1621–22.

18

262 8 U.S.C. § 1641.

19

263 Pub. L. 104-208, 110 Stat. 3009.

20

264 8 U.S.C. § 1182.

21

265 8 U.S.C. § 1183a.

22

266 29 U.S.C. § 794(a).

FIRST AMENDED COMPLAINT

163

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.693 Page 171 of 185

1

418. The Final Rule’s inclusion of SNAP as a negatively weighted

2 consideration for public charge is contrary to federal statutes governing those

3 programs. Specifically, the Final Rule’s allowance of consideration of a

4 noncitizen’s receipt of SNAP benefits is contrary to the express statutory

5 provision prohibiting consideration of those benefits “[as] income or resources

6 for any purpose under any Federal, State, or local laws.” 7 U.S.C. § 2017(b).

7

Count II:

Violation of the Administrative Procedure Act—Ultra Vires Conduct 8
419. All the foregoing allegations are repeated and realleged as though

9 fully set forth herein.

10 420. The APA requires a reviewing court to “hold unlawful and set aside

11 agency action, findings, and conclusions found to be . . . in excess of statutory

12 jurisdiction [or] authority.”267

13 421. The Rule expands the public charge exclusion to reach applicants

14 for extension of stay and change of status. The INA does not permit—either

15 expressly or impliedly—the Department to expand its authority in this regard. As

16 the Department itself acknowledges, the public charge exclusion statute “by its

17 terms only applies to applicants for visas, admission, and adjustment of status,

18

19

20

21

22

267 5 U.S.C. § 706(2)(C).

FIRST AMENDED COMPLAINT

164

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.694 Page 172 of 185

1 and thus does not, by its terms, render aliens who are likely to become a public

2 charge ineligible for the extension of stay or change of status.”268

3

422. Congress has specifically confined the categories of immigration

4 applications to which the “public charge” designation applies. DHS may not

5 expand those statutory limitations by regulation. Its attempt to do so is ultra vires

6 and unlawful.269

7

Count III

Violation of the Administrative Procedure Act—Arbitrary or Capricious

8

Agency Action

9

423. All the foregoing allegations are repeated and realleged as though

10 fully set forth herein.

11

424. The APA requires a reviewing court to “hold unlawful and set aside

12 agency action, findings, and conclusions found to be . . . arbitrary, capricious,

13 [or] an abuse of discretion.”270

14

425. In general, a rule is arbitrary and capricious where the agency “relied

15 on factors which Congress has not intended it to consider, entirely failed to

16 consider an important aspect of the problem, offered an explanation for its

17 decision that runs counter to the evidence before the agency, or is so implausible

18

19

268 83 Fed. Reg. at 51,135.

20

269 See MCI Telecommunications Corp. v. American Telephone &

21 Telegraph Co., 512 U.S. 218 (1994).

22

270 5 U.S.C. § 706(2)(C).

FIRST AMENDED COMPLAINT

165

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.695 Page 173 of 185

1 that it could not be ascribed to a difference in view or the product of agency

2 expertise.”271 The agency must consider “the advantages and the disadvantages”

3 of the proposal before taking action.272

4

426. When an agency reverses position, it must “supply a reasoned

5 analysis for the change,”273 and may not “depart from a prior policy sub silentio

6 or simply disregard rules that are still on the books.”274 Further, any “serious

7 reliance interests must be taken into account,”275 particularly where “decades

8 of . . . reliance on the Department’s prior policy” demand a fulsome explanation

9 for the reversal.276

10

427. Under the standards set forth above, the Rule is arbitrary or

11 capricious in its entirety, including in the following particular respects:

12

a. the redefinition of public charge to mean “an alien who

13

receives one or more public benefits”;277

14

15

271 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. (State

16 Farm), 463 U.S. 29, 43 (1983) (citation and internal quotation marks omitted).

17

272 Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015).

18

273 State Farm at 42.

19

274 FCC v. Fox Telev. Stations, Inc., 556 U.S. 502, 515 (2009).

20

275 Id.

21

276 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016).

22

277 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a)).

FIRST AMENDED COMPLAINT

166

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.696 Page 174 of 185

1

b. the inclusion of non-cash public assistance programs in the

2

definition of “public benefit,” reversing a consistent, decades-old policy;

3

c. the arbitrary selection of 12 months within a 36 month period

4

as the duration of time at which receipt of public benefits constitutes a

5

heavily weighted negative in public charge determinations;

6

d. the creation of “heavily weighed negative factors” in public

7

charge determinations that are not among the enumerated factors Congress

8

directed the Department to consider;

9

e. the decision to consider whether a noncitizen is more likely

10

than not to become a public charge “at any time in the future”;

11

f. the decision to weigh in favor of a public charge

12

determination a noncitizen’s unfavorable credit history or financial

13

liabilities;

14

g. the selection of 250% of FPG as the minimum income level

15

disfavoring a public charge determination as a “heavily weighed positive

16

factor”;

17

h. the selection of 125% of FPG as the income level below

18

which a noncitizen’s income will weigh in favor of a public charge

19

determination;

20

21

22

FIRST AMENDED COMPLAINT

167

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.697 Page 175 of 185

1

i. the decision to weigh in favor of a public charge

2

determination a noncitizen’s having applied for or received a fee waiver

3

for an immigration benefit;

4

j. the decision to weigh in favor of a public charge

5

determination a noncitizen’s lack of private health insurance;

6

k. the decision to weigh in favor of a public charge

7

determination a noncitizen’s lack of a high school diploma or equivalent;

8

l. the decision to weigh in favor of a public charge

9

determination a noncitizen’s lack of proficiency in English;

10

m. the selection of factors that do not (independently or in

11

conjunction) predict whether a person is more likely than not to utilize

12

public benefits;

13

n. the discriminatory animus on the basis of race, ethnicity, or

14

national origin that was a motivating factor in the Rule’s adoption;

15

o. the pretextual nature of the explanations given for the Rule,

16

which do not match the evidence as a whole;

17

p. the vague and irrational factor-weighing framework;

18

q. the decision to weigh in favor of a public charge

19

determination a noncitizen’s mere application for public benefits;

20

r. the failure to consider, account for, or respond to the

21

significant public comments regarding the Rule;

22

FIRST AMENDED COMPLAINT

168

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.698 Page 176 of 185

1

s. the failure to consider the impact of the new public charge test

2

on lawful permanent residents returning from a trip abroad of 180 days or

3

more;278

4

t. the failure to accurately assess or acknowledging the

5

substantial costs of the Rule;

6

u. the failure to engage in proper analysis of the Department’s

7

obligations under Executive Order 13,132 and subsequent failure to

8

provide meaningful analysis of the federalism impacts as required by

9

Executive Order 13,132; and

10

v. the overestimation of the purported benefits of the Rule.

11

Count IV:

Denial of the Constitutional Right to Equal Protection of the Laws 12

428. All the foregoing allegations are repeated and realleged as though

13

fully set forth herein.

14

429. The Due Process Clause of the Fifth Amendment to the U.S.

15

Constitution forbids the federal government from denying equal protection of

16

the laws.279 It is an equal protection violation where a “discriminatory purpose”

17

18

19

20

278 84 Fed. Reg. at 41,327.

21

279 See, e.g., Davis v. Passman, 442 U.S. 228, 234 (1979); Bolling v.

22 Sharpe, 347 U.S. 497, 500 (1954).

FIRST AMENDED COMPLAINT

169

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.699 Page 177 of 185

1 was a “motivating factor” in a government decision.280

2

430. The Rule was motivated by Administration officials’ intent to

3 discriminate on the basis of race, ethnicity, or national origin.

4

431. That discriminatory intent is evidenced by the Rule’s

5 disproportionate adverse impacts on communities of color, including affecting

6 as many as 18.3 million Latinos in the United States.281 While people of color

7 account for approximately 36% of the total U.S. population, approximately 90%

8 of those chilled from seeking public services would be people of color (70% of

9 whom are Latino). In other words, the Rule will cause Latinos and other people

10 of color to be disproportionately excluded from the United States under the

11 INA’s public charge provision.

12

432. In addition to that anticipated disparate racial and ethnic impact,

13 other circumstantial evidence indicates that discrimination against people of

14 color was a motivating factor behind the Rule. That evidence includes the

15 historical background of the Rule, the specific sequence of events leading up to

16 the Rule, departures from normal rulemaking procedures, the rulemaking

17

18

280 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

19 265–66 (1977).

20

281 See Public Charge Proposed Rule: Potentially Chilled Population

21 Data, Manatt, Phelps & Phillips, LLP (Oct. 11, 2018), https://www.manatt.com

22 /Insights/Articles/2018/Public-Charge-Rule-Potentially-Chilled-Population. Id.

FIRST AMENDED COMPLAINT

170

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.700 Page 178 of 185

1 history, and remarks by administration officials—including President Trump

2 and Kenneth Cuccinelli—reflecting animus towards non-European immigrants.

3

433. Because discrimination on the basis of race, ethnicity, or national

4 origin is a motivating factor in the Rule’s adoption, it violates the Fifth

5 Amendment’s equal protection guarantee.

6

IX. PRAYER FOR RELIEF

7

WHEREFORE, the Plaintiff States request that the Court enter a judgment

8 against Defendants and award the following relief:

9

a. Declare that the Rule shall be vacated for violation of the

10

APA on any or each of the following grounds:

11

• the Rule is contrary to enacted legislation and

12

Congressional intent;

13

• the Rule is arbitrary and capricious, and issued in

14

excess of the Department’s authority; and

15

• the Department failed to undertake legally required

16

analyses.

17

b. Declare the Rule unconstitutional as a violation of the equal

18

protection guarantees in the Fifth Amendment’s Due Process Clause;

19

c. Stay the effective date of the Rule pending final judgment

20 pursuant to 5 U.S.C. § 705;

21

d. Preliminarily and permanently enjoin the Rule; and

22

FIRST AMENDED COMPLAINT

171

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.701 Page 179 of 185

1

e. Award Plaintiff States’ reasonable costs and attorney fees and

2

such additional relief as the interests of justice may require.

3

RESPECTFULLY SUBMITTED this 5th day of September, 2019.

4 Presented by:

5 ROBERT W. FERGUSON Attorney General of Washington
6
/s/ Rene D. Tomisser 7 RENE D. TOMISSER, WSBA #17509
Senior Counsel 8 JEFFREY T. SPRUNG, WSBA #23607
ZACHARY P. JONES, WSBA #44557 9 JOSHUA WEISSMAN, WSBA #42648
PAUL M. CRISALLI, WSBA #40681 10 NATHAN K. BAYS, WSBA #43025
BRYAN M.S. OVENS, WSBA #32901 11 Assistant Attorneys General
8127 W. Klamath Court, Suite A 12 Kennewick, WA 99336
(509) 734-7285 13 Rene.Tomisser@atg.wa.gov
Jeff.Sprung@atg.wa.gov 14 Zach.Jones@atg.wa.gov
Joshua.Weissman@atg.wa.gov 15 Paul.Crisalli@atg.wa.gov
Nathan.Bays@atg.wa.gov 16 Bryan.Ovens@atg.wa.gov
Attorneys for Plaintiff State of Washington 17

18

19

20

21

22

FIRST AMENDED COMPLAINT

172

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.702 Page 180 of 185

1 MARK R. HERRING Attorney General of Virginia
2 /s/ Michelle S. Kallen
3 MICHELLE S. KALLEN, VSB #93286 Deputy Solicitor General
4 RYAN SPREAGUE HARDY, VSB #78558 ALICE ANNE LLOYD, VSB #79105
5 MAMOONA H. SIDDIQUI, VSB #46455 Assistant Attorneys General
6 Office of the Attorney General 202 North Ninth Street
7 Richmond, Virginia 23219 (804) 786-7240
8 MKallen@oag.state.va.us RHardy@oag.state.va.us
9 ALloyd@oag.state.va.us MSiddiqui@oag.state.va.us
10 SolicitorGeneral@oag.state.va.us Attorneys for Plaintiff Commonwealth of Virginia
11
12 PHIL WEISER Attorney General of Colorado
13 /s/ Eric R. Olson
14 ERIC R. OLSON, #36414 Solicitor General
15 Office of the Attorney General Colorado Department of Law
16 1300 Broadway, 10th Floor Denver, CO 80203
17 (720) 508 6548 Eric.Olson@coag.gov
18 Attorneys for Plaintiff the State of Colorado
19
20
21
22

FIRST AMENDED COMPLAINT

173

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.703 Page 181 of 185

1 KATHLEEN JENNINGS Attorney General of Delaware
2 AARON R. GOLDSTEIN State Solicitor
3 ILONA KIRSHON Deputy State Solicitor
4 /s/ Monica A. Horton
5 MONICA A. HORTON, #5190 Deputy Attorney General
6 820 North French Street Wilmington, DE 19801
7 Monica.horton@delaware.gov Attorneys for Plaintiff the State of Delaware
8
9 KWAME RAOUL Attorney General State of Illinois
10 /s/ Liza Roberson-Young
11 LIZA ROBERSON-YOUNG, #6293643 Public Interest Counsel
12 Office of the Illinois Attorney General 100 West Randolph Street, 11th Floor
13 Chicago, IL 60601 (312) 814-5028
14 ERobersonYoung@atg.state.il.us Attorneys for Plaintiff State of Illinois
15
16
17
18
19
20
21
22

FIRST AMENDED COMPLAINT

174

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.704 Page 182 of 185

1 CLARE E. CONNORS Attorney General of Hawai‘i
2 /s/ Lili A. Young
3 LILI A. YOUNG, #5886* *To Appear Pro Hac Vice
4 Deputy Attorney General Department of the Attorney General
5 425 Queen Street Honolulu, HI 96813
6 (808) 587-3050 Lili.A.Young@hawaii.gov
7 Attorneys for Plaintiff State of Hawai‘i
8 BRIAN E. FROSH
9 Attorney General of Maryland
10 /s/ Jeffrey P. Dunlap JEFFREY P. DUNLAP
11 D. MD Bar #20846 MD State Bar #1812100004
12 Assistant Attorney General 200 St. Paul Place
13 Baltimore, MD 21202 T: (410) 576-6325
14 F: (410) 576-6955 JDunlap@oag.state.md.us
15 Attorneys for Plaintiff State of Maryland
16
17
18
19
20
21
22

FIRST AMENDED COMPLAINT

175

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.705 Page 183 of 185

1 MAURA HEALEY Attorney General of Commonwealth of Massachusetts
2 /s/ Abigail B. Taylor
3 ABIGAIL B. TAYLOR, #670648 Chief, Civil Rights Division
4 DAVID UREÑA, #703076 Special Assistant Attorney General
5 ANGELA BROOKS, #663255 Assistant Attorney General
6 Office of the Massachusetts Attorney General One Ashburton Place
7 Boston, MA 02108 (617) 963-2232
8 abigail.taylor@mass.gov david.urena@mass.gov
9 angela.brooks@mass.gov Attorneys for Plaintiff Commonwealth of Massachusetts
10
11 DANA NESSEL Attorney General of Michigan
12 /s/Toni L. Harris
13 FADWA A. HAMMOUD, #P74185 Solicitor General
14 TONI L. HARRIS, #P63111 First Assistant Attorney General
15 Michigan Department of Attorney General P.O. Box 30758
16 Lansing, MI 48909 (517) 335-7603 (main)
17 HarrisT19@michigan.gov Hammoudf1@michigan.gov
18 Attorneys for the People of Michigan
19
20
21
22

FIRST AMENDED COMPLAINT

176

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.706 Page 184 of 185

1 KEITH ELLISON Attorney General of Minnesota
2 /s/ R.J. Detrick
3 R.J. DETRICK, #0395336 Assistant Attorney General
4 Minnesota Attorney General’s Office Bremer Tower, Suite 100
5 445 Minnesota Street St. Paul, MN 55101-2128
6 (651) 757-1489 (651) 297-7206
7 Rj.detrick@ag.state.mn.us Attorneys for Plaintiff State of Minnesota
8
9 AARON D. FORD Attorney General of Nevada
10 /s/ Heidi Parry Stern
11 HEIDI PARRY STERN, #8873 Solicitor General
12 Office of the Nevada Attorney General 555 E. Washington Ave., Ste. 3900
13 Las Vegas, NV 89101 HStern@ag.nv.gov
14 Attorneys for Plaintiff State of Nevada
15 GURBIR SINGH GREWAL
16 Attorney General of New Jersey
17 /s/ Glenn J. Moramarco GLENN J. MORAMARCO, #030471987
18 Assistant Attorney General Office of the Attorney General
19 Richard J. Hughes Justice Complex 25 Market Street, 1st Floor, West Wing
20 Trenton, NJ 08625-0080 (609) 376-3232
21 Glenn.Moramarco@law.njoag.gov Attorneys for Plaintiff State of New Jersey
22

FIRST AMENDED COMPLAINT

177

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

Case 4:19-cv-05210-RMP ECF No. 31 filed 09/05/19 PageID.707 Page 185 of 185

1 HECTOR BALDERAS Attorney General of New Mexico
2 /s/ Tania Maestas
3 TANIA MAESTAS, #20345 Chief Deputy Attorney General
4 P.O. Drawer 1508 Santa Fe, New Mexico 87504-1508
5 tmaestas@nmag.gov Attorneys for Plaintiff State of New Mexico
6
7 PETER F. NERONHA Attorney General of Rhode Island
8 /s/ Lauren E. Hill
9 LAUREN E. HILL, #9830 Special Assistant Attorney General
10 Office of the Attorney General 150 South Main Street
11 Providence, Rhode Island 02903 (401) 274-4400 x 2038
12 E-mail: lhill@riag.ri.gov Attorneys for Plaintiff State of Rhode Island
13
14
15
16
17
18
19
20
21
22

FIRST AMENDED COMPLAINT

178

FOR DECLARATORY AND

INJUNCTIVE RELIEF

ATTORNEY GENERAL OF WASHINGTON 8127 W. Klamath Court, Suite A Kennewick, WA 99336 (509) 734-7285

 
 Case 4:19-cv-05210-RMP ECF No. 162 filed 10/11/19 PageFIIDLE.D4I0N 2TH1E Page 1 of 59
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

1

Oct 11, 2019

SEAN F. MCAVOY, CLERK

2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF WASHINGTON

4 STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA;
5 STATE OF COLORADO; STATE OF DELAWARE; STATE OF
6 HAWAI’I; STATE OF ILLINOIS; STATE OF MARYLAND;
7 COMMONWEALTH OF MASSACHUSETTS; DANA
8 NESSEL, Attorney General on behalf of the people of Michigan; STATE OF
9 MINNESOTA; STATE OF NEVADA; STATE OF NEW
10 JERSEY; STATE OF NEW MEXICO; and STATE OF RHODE
11 ISLAND,

NO: 4:19-CV-5210-RMP
ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION

12

Plaintiffs,

v.

13

UNITED STATES DEPARTMENT

14 OF HOMELAND SECURITY, a

federal agency; KEVIN K.

15 MCALEENAN, in his official

capacity as Acting Secretary of the

16 United States Department of

Homeland Security; UNITED

17 STATES CITIZENSHIP AND

IMMIGRATION SERVICES, a

18 federal agency; and KENNETH T.

CUCCINELLI, II, in his official

19 capacity as Acting Director of United

States Citizenship and Immigration

20 Services,

21

Defendants.

ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION ~ 1

Case 4:19-cv-05210-RMP ECF No. 162 filed 10/11/19 PageID.4022 Page 2 of 59

1

Fourteen states challenge the Department of Homeland Security’s expansive

2 revision of the Public Charge Rule. Congress and the U.S. Constitution authorize

3 this Court to provide judicial review of agency actions. The Plaintiff States ask the

4 Court to serve as a check on the power asserted by the Department of Homeland

5 Security to alter longstanding definitions of who is deemed a Public Charge. After

6 reviewing extensive briefing and hearing argument, the Court finds that the Plaintiff

7 States have shown that the status quo should be preserved pending resolution of this

8 litigation.1 Therefore, the Court GRANTS the motion to stay the effective date of

9 the Public Charge Rule until the issues can be adjudicated on their merits.

10

The Motion for a Section 705 Stay and for Preliminary Injunction, ECF No.

11 34, is brought by Plaintiffs State of Washington, Commonwealth of Virginia, State

12 of Colorado, State of Delaware, State of Hawai’i, State of Illinois, State of

13

14 1 The Court has reviewed the Motion for Preliminary Injunction, ECF No. 34, and supporting declarations and materials, ECF Nos. 35−87; the Plaintiff States’ First
15 Amended Complaint, ECF No. 31; the Briefs of Amici Curiae submitted in support 16 of the Plaintiff States’ Motion, ECF Nos. 111 (from nonprofit anti-domestic
violence and anti-sexual assault organizations), 109 (from Health Law Advocates 17 and other public health organizations), 110 (from nonprofit organizations support
of the disability community), 149 (from hospitals and medical schools), 150 (from 18 nonprofit organizations supporting seniors), 151 (from health care providers and
health care advocates), 152 (from professional medical organizations), and 153 19 (from the Fiscal Policy Institute, the Presidents’ Alliance on Higher Education and 20 Immigration, and other organizations addressing economic impact); the Federal
Defendants’ Opposition to Preliminary Relief, ECF No. 155; and the Plaintiff 21 States’ Reply, ECF No. 158.

ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION ~ 2

Case 4:19-cv-05210-RMP ECF No. 162 filed 10/11/19 PageID.4023 Page 3 of 59

1 Maryland, Commonwealth of Massachusetts, Attorney General Dana Nessel on

2 behalf of the People of Michigan, State of Minnesota, State of Nevada, State of New

3 Jersey, State of New Mexico, and State of Rhode Island (collectively, “the Plaintiff

4 States”).

5

Defendants are the United States Department of Homeland Security (“DHS”),

6 Acting Secretary of DHS Kevin K. McAleenan, United States Citizenship and

7 Immigration Services (“USCIS”), and Acting Director of USCIS Kenneth T.

8 Cuccinelli II (collectively, “the Federal Defendants”). Pursuant to the

9 Administrative Procedure Act and the guarantee of equal protection under the Due

10 Process Clause of the U.S. Constitution, the Plaintiff States challenge the Federal

11 Defendants’ redefinition of who may be denied immigration status as a “public

12 charge” in federal immigration law among applicants for visas or legal permanent

13 residency.

14 I. BACKGROUND

15

On August 14, 2019, DHS published in the Federal Register a final rule,

16 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to

17 be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245 and 248) (“Public Charge

18 Rule”), that redefines whether a visa applicant seeking admission to the United

19 States and any applicant for legal permanent residency is considered inadmissible

20 because DHS finds him or her “likely at any time to become a public charge.” See 8

21

ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION ~ 3

Case 4:19-cv-05210-RMP ECF No. 162 filed 10/11/19 PageID.4024 Page 4 of 59

1 U.S.C. § 1182(a)(4). The Public Charge Rule is scheduled to take effect on October

2 15, 2019. 84 Fed. Reg. at 41,292.

3

A. The Immigration and Nationality Act’s Public Charge Ground of

4 Inadmissibility

5

The Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. § 1101 et

6 seq., requires visa applicants and individuals applying to become permanent legal

7 residents to demonstrate that they are not “inadmissible.” 8 U.S.C. §§ 1361,

8 1225(a), and 1255(a).2 The INA sets forth ten grounds of inadmissibility, all of

9 which make a person “ineligible to receive visas and ineligible to be admitted to the

10 United States.” 8 U.S.C. § 1182(a). This case concerns one of those grounds: a

11 likelihood of becoming a public charge. Id. § 1182(a)(4)(A).

12

In its current form, the INA provides that “[a]ny alien who, in the opinion of

13 the consular officer at the time of application for a visa, or in the opinion of the

14 Attorney General at the time of application for admission or adjustment of status, is

15 likely at any time to become a public charge is inadmissible.”3 8 U.S.C. §

16 2 The INA “established a ‘comprehensive federal statutory scheme for regulation of
17 immigration and naturalization’ and set ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’”
18 Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 587 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353 (1976)).
19 3 When Congress transferred the adjudicatory functions of the former 20 Commissioner of the Immigration and Naturalization Service (“INS”) to the
Secretary of DHS, the Attorney General’s authority regarding the public charge 21 provision was delegated to the Director of USCIS, a division of DHS. See 6 U.S.C.
§ 271(b)(5).

ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION ~ 4

Case 4:19-cv-05210-RMP ECF No. 162 filed 10/11/19 PageID.4025 Page 5 of 59

1 1182(a)(4)(A). The same provision requires the officer determining whether an

2 applicant is inadmissible as a public charge to consider “at a minimum” the

3 applicant’s

4

(I) age;

(II) health;

5

(III) family status;

(IV) assets, resources, and financial status; and

6

(V) education and skills.

7 8 U.S.C. § 1182(a)(4)(B)(i).

8

The officer “may also consider any affidavit of support under section 213A [8

9 U.S.C. § 1183a] for purposes of exclusion” on the public charge ground. Id. §

10 1182(a)(4)(B)(ii).

11

B. Public Charge Rulemaking Process and Content of the Public

12 Charge Rule

13

The Public Charge Rule followed issuance of a proposed rule on October 10,

14 2018. Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (proposed

15 Oct. 10, 2018) (to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245 and 248).

16 According to the Public Charge Rule, DHS received “266,077 comments” on the

17 proposed rule, “the vast majority of which opposed the rule.” 84 Fed. Reg. at

18 41,297.

19

20

21

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1

The final rule made several changes to the proposed rule. See 84 Fed. Reg. at

2 41,297−41,300. For instance:

3

Under the proposed rule, DHS would not have considered the receipt

of benefits below the applicable threshold in the totality of the

4

circumstances. As a consequence, USCIS would have been unable to

consider an alien’s past receipt of public benefits below the threshold

5

at all, even if such receipt was indicative, to some degree, of the alien’s

likelihood of becoming a public charge at any time in the future. Under

6

this final rule, adjudicators will consider and give appropriate weight to

past receipt of public benefits below the single durational threshold

7

described above in the totality of the circumstances.

8 84 Fed. Reg. at 41,297.

9

In addition, while the proposed rule provided for consideration of the receipt

10 of Medicaid benefits by applicants under age 21, the Public Charge Rule does not

11 negatively assess applicants for being enrolled in Medicaid while under the age 21,

12 while pregnant, or “during the 60-day period after pregnancy.” 84 Fed. Reg. at

13 41,297.

14

1. Redefinition of “Public Charge”

15

The Public Charge Rule, in its final format, defines “public charge” to denote

16 “an alien who receives one or more public benefits, as defined in paragraph (b) of

17 this section, for more than 12 months in the aggregate within any 36-month period

18 (such that, for instance, receipt of two benefits in one month counts as two months).”

19

20

21

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1 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a))4. The Public Charge

2 Rule redefines “public benefit” to include: “(1) [a]ny Federal, State, local, or tribal

3 cash assistance for income maintenance (other than tax credits),” including

4 Supplemental Security Income (“SSI”), Temporary Assistance for Needy Families

5 (“TANF”) or state “General Assistance”; (2) Supplemental Nutrition Assistance

6 Program (“SNAP,” colloquially known as “food stamps”); (3) housing assistance

7 vouchers under Section 8 of the U.S. Housing Act of 1937; (4) Section 8 “Project-

8 Based” rental assistance, including “Moderate Rehabilitation”; (5) Medicaid, with

9 exceptions for benefits for an emergency medical condition, services or benefits

10 under the Individuals with Disabilities Education Act (“IDEA”), school-based

11 services or benefits, and benefits for immigrants under age 21 or to a woman during

12 pregnancy or within 60 days after pregnancy; and (6) public housing under Section 9

13 of the U.S. Housing Act of 1937. 8 C.F.R. § 212.21(b).

14

2. Weighted Factors for Totality of the Circumstances

15 Determination

16

The Public Charge Rule instructs officers to evaluate whether an applicant is

17 “likely to become a public charge” using a “totality of the circumstances” test that

18 “at least entail[s] consideration of the alien’s age; health; family status; education

19

20 4 The Court’s subsequent references to the provisions of the Public Charge Rule
21 will use the C.F.R. citations scheduled to take effect on October 15, 2019.

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1 and skills; and assets, resources, and financial status” as described in the Rule. 8

2 C.F.R. § 212.22(a), (b). The Public Charge Rule then prescribes a variety of factors

3 to weigh “positively,” in favor of a determination that an applicant is not a public

4 charge, and factors to weigh “negatively,” in favor of finding the applicant

5 inadmissible as a public charge. 8 C.F.R. § 212.22(a), (b), and (c); see also, e.g., 84

6 Fed. Reg. 41,295 (“Specifically, the rule contains a list of negative and positive

7 factors that DHS will consider as part of this determination, and directs officers to

8 consider these factors in the totality of the alien’s circumstances. . . . The rule also

9 contains lists of heavily weighted negative factors and heavily weighted positive

10 factors.”). The Public Charge Rule attributes heavy negative weight to the following

11 circumstances:

12

(1) “not a full-time student and is authorized to work, but is

unable to demonstrate current employment, recent employment history,

13

or a reasonable prospect of future employment”;

14

(2) “certified or approved to receive one or more public benefits

. . . for more than 12 months in the aggregate within any 36-month

15

period, beginning no earlier than 36 months prior to the alien’s

application for admission or adjustment of status”;

16

(3) “diagnosed with a medical condition that is likely to require

extensive medical treatment or institutionalization or that will interfere

17

with the alien’s ability to provide for himself or herself, attend school,

18

or work; and . . . uninsured and has neither the prospect of obtaining

private health insurance, nor the financial resources to pay for

19

reasonably foreseeable medical costs related to such medical

condition”; and

20

(4) “previously found inadmissible or deportable on public

charge grounds[.]” 21

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1 8 C.F.R. § 212.22(c)(1)(i)−(iv).

2

Conversely, the Public Charge Rule attributes heavy positive weight to three

3 factors:

4

(1) an annual household income, assets, or resources above 250

percent of the Federal Poverty Guidelines (“FPG”) for the household

5

size;

6

(2) an annual individual income of at least 250 percent of the

FPG for the household size; and

7

(3) private health insurance that is not subsidized under the

Affordable Care Act.

8

See 8 C.F.R. § 212.22(c)(2)(i)−(iii). 9

The Public Charge Rule also directs officers to consider whether the applicant 10

(1) is under the age of 18 or over the minimum early retirement age for social 11

security; (2) has a medical condition that will require extensive treatment or interfere 12

with the ability to attend school or work; (3) has an annual household gross income 13

under 125 percent of the FPG; (4) has a household size that makes the immigrant 14

likely to become a public charge at any time in the future; (5) lacks significant 15

assets, like savings accounts, stocks, bonds, or real estate; (6) lacks significant assets 16

and resources to cover reasonably foreseeable medical costs; (7) has any financial 17

liabilities; (8) has applied for, been certified to receive, or received public benefits 18

after October 15, 2019; (9) has applied for or has received a USCIS fee waiver for an 19

immigration benefit request; (10) has a poor credit history and credit score; (11) 20

lacks private health insurance or other resources to cover reasonably foreseeable 21

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1 medical costs; (12) lacks a high school diploma (or equivalent) or a higher education

2 degree; (13) lacks occupational skills, certifications, or licenses; or (14) is not

3 proficient in English. See 8 C.F.R. § 212.22(b).

4

The officer administering the public charge admissibility test has the

5 discretion to determine what factors are relevant and may consider factors beyond

6 those enumerated in the rule. See 8 C.F.R. § 212.22(a)

7

C. Applicability of the Rule

8

The Public Charge Rule applies to any non-citizen subject to section 212(a)(4)

9 of the INA, 8 U.S.C. § 1182(a)(4), who applies to DHS anytime on or after October

10 15, 2019, for admission to the United States or for adjustment of status to that of

11 lawful permanent resident. 8 C.F.R. § 212.20.

12

D. Summary of the Counts of the First Amended Complaint

13

On the same day that the Public Charge Rule was published in the federal

14 register, the fourteen Plaintiff States filed a lawsuit seeking to enjoin the Federal

15 Defendants from enacting the rule. The Plaintiff States subsequently filed a First

16 Amended Complaint, ECF No. 31, stating four causes of action: (1) a violation of

17 the APA, 5 U.S.C. § 706(2)(C), for agency action “not in accordance with law”; (2)

18 a violation of the APA, 5 U.S.C. § 706(2)(C), for agency action “in excess of

19 statutory jurisdiction [or] authority” or “ultra vires”; (3) a violation of the APA, 5

20 U.S.C. § 706(2)(C), for agency action that is “arbitrary, capricious, [or] an abuse of

21 discretion”; and (4) a violation of the guarantee of equal protection under the U.S.

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1 Constitution’s Fifth Amendment Due Process Clause on the basis that the Public

2 Charge Rule allegedly was motivated by an intent to discriminate based on race,

3 ethnicity, or national origin. ECF No. 31 at 161−70.

4

The Federal Defendants have not yet filed an answer, but they have responded

5 to the pending motion. ECF No. 155. In their response, the Federal Defendants

6 challenge the Plaintiff States’ standing to bring this action. Id. at 18.

7 II. JURISDICTION

8

The Court has subject-matter jurisdiction over this action pursuant to 28

9 U.S.C. § 1331.

10 III. STANDING AND RIPENESS

11

A. Standing Requirement

12

Article III, section 2 of the Constitution extends the power of the federal

13 courts to only “Cases” and “Controversies.” U.S. Const., Art. III, sect. 2. “Those

14 two words confine ‘the business of federal courts to questions presented in an

15 adversary context and in a form historically viewed as capable of resolution through

16 the judicial process.’” Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (quoting

17 Flast v. Cohen, 392 U.S. 83, 95 (1968)).

18

To establish standing to sue under Article III, “a plaintiff must demonstrate

19 ‘that it has suffered a concrete and particularized injury that is either actual or

20 imminent, that the injury is fairly traceable to the defendant, and that it is likely that

21 a favorable decision will redress that injury.’” Washington v. Trump, 847 F.3d 1151,

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1 1159 (9th Cir. 2017) (quoting Massachusetts, 549 U.S. at 517)). While an injury

2 sufficient for constitutional standing must be concrete and particularized rather than

3 conjectural or hypothetical, “an allegation of future injury may suffice if the

4 threatened injury is certainly impending, or there is a substantial risk that the harm

5 will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)

6 (internal quotations omitted).

7

The Federal Defendants assert that the Plaintiff States lack standing because

8 their injuries are speculative and do not qualify as injuries-in-fact. ECF No. 155 at

9 18−21. The Federal Defendants further maintain that the Plaintiff States’ described

10 injuries would be the result of third parties’ independent decisions to “unnecessarily

11 . . . forgo all federal benefits,” which the Federal Defendants argue is too weak a

12 basis to support that the injury is fairly traceable to the Public Charge Rule. ECF

13 No. 155 at 19−21.

14

At this early stage in the litigation, the Plaintiff States may satisfy their burden

15 with allegations in their Amended Complaint and other evidence submitted in

16 support of their Motion for a Section 705 Stay and Preliminary Injunction. See

17 Washington, 847 F.3d at 1159. Amici briefs also may support the Plaintiff States’

18 showing of the elements of standing. See SEC v. Private Equity Mgmt. Grp., Inc.,

19 No. CV 09-2901 PSG (Ex), 2009 U.S. Dist. LEXIS 75158, at *18 n.5, 2009 WL

20 2488044 (C.D. Cal. Aug. 10, 2009) (exercising the court’s discretion to consider

21

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1 evidence submitted by amicus curiae where it was “in a sense, the same evidence

2 produced by a party”).

3

B. Alleged Harms

4

1. Missions of State Benefits Programs

5

The Plaintiff States allege that they “combine billions of dollars of federal

6 funds from Medicaid with billions of dollars of state funds to administer health care

7 programs for millions” of the Plaintiff States’ residents. ECF No. 34 at 26; see ECF

8 Nos. 37 at 4; 38 at 4; 40 at 4. The Plaintiff States argue that the health programs

9 administered by them enable beneficiaries in varying degrees to access preventative

10 care, chronic disease management, prescription drug treatment, mental health

11 treatment, and immunizations. See, e.g., ECF No. 40 at 5−7. The Plaintiff States

12 contend that they administer their programs “to ensure the health, well-being, and

13 economic self-sufficiency” of all of their residents and to provide “comprehensive

14 and affordable health insurance coverage” to State residents. ECF Nos. 41 at 7; 45

15 at 5.

16

Multiple submissions from the Plaintiff States and the amici briefs endorse an

17 estimate that “the Public Charge Rule could lead to Medicaid disenrollment rates

18 ranging from 15 percent to 35 percent” among Medicaid and Children’s Health

19 Insurance Program enrollees who live in mixed-status households, which “equates

20 to between 2.1 and 4.9 million beneficiaries disenrolling from the programs.” ECF

21 No. 151 at 20−21; see also ECF Nos. 111-1 at 69; 149 at 15−16. The Plaintiff States

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1 argue that residents’ disenrollment or foregoing enrollment “unwinds all the

2 progress that has been achieved” and results “in a sicker risk pool and increase[d]

3 premium costs for all remaining residents enrolled in commercial coverage” through

4 the state plans. ECF Nos. 37 at 14; 43 at 7.

5

As stated in the comments submitted to DHS by the Dana-Farber Cancer

6 Institute, “regulations that will make immigrant families fearful of seeking health

7 care services like primary care and routine health screenings will increase the burden

8 of both disease and healthcare costs across the country.” ECF No. 35-2 at 3.

9

In addition to making receipt of Medicaid health insurance and other public

10 benefit programs a negative factor, the Plaintiff States proffer that the Public Charge

11 Rule disincentivizes individuals from seeking medical diagnoses and treatment

12 because a diagnosis of a medical condition requiring extensive medical treatment or

13 institutionalization will be weighed as a heavy negative factor when combined with

14 a lack of health insurance or independent resources to cover the associated costs; or

15 weighed as a negative factor even with health insurance or independent resources to

16 cover the associated costs. See ECF Nos. 35-2 at 3; 35-1 at 158, 165, and 168.

17

Health care professionals noted that the weighting of these factors “creates a

18 strong incentive for immigrants to avoid medical examinations and tests to prevent

19 identification of any serious health problem.” ECF No. 35-2 at 3; see also ECF No.

20 65 at 14 (“Fear of the rule change and its effects on utilizing cancer-screening

21 services for people of a variety of citizenship status can lead to grave consequences

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1 both in lives lost from treatable cancers and intensive financial costs of late stage

2 treatment and related care.”). Delaying diagnosis and treatment until a condition

3 results in a medical emergency compromises the health and wellbeing of individuals

4 and families and increases the cost of health care for the hospitals, the Plaintiff

5 States, and the Plaintiff States’ residents as a whole. See ECF Nos. 35-2 at 3; 109 at

6 18, 47.

7

Health care providers within the Plaintiff States’ health systems likely will

8 incur harms as well. A larger uninsured population is likely to “generate significant

9 uncompensated care costs,” which, in turn, are likely to “fall disproportionately on

10 providers in low-income communities who rely on Medicaid for financial support.”

11 ECF No. 109 at 48. Service cuts to make up for the uncompensated care costs

12 would then result in fewer patients being able to access primary care services. Id.

13

Another filing supports that the Public Charge Rule likely will burden the

14 doctor-patient relationship. See ECF No. 151. First, amici health care providers

15 highlight the “well-established state interest in protecting doctor-patient

16 consultations from state intrusion so that patients and doctors may work together to

17 determine the best course of medical care.” Id. at 19. By “entwining medical

18 decision-making” with immigration considerations, the health care providers

19 maintain that the Public Charge Rule will constrain “clinicians’ abilities to

20 recommend public benefit programs as well as their access to reliable forthright

21 disclosures from their patients.” Id.; see also ECF No. 60 at 9 (“Families have asked

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1 our providers about applying for Medicaid or SNAP in the past, but our providers

2 note that they rescinded these requests” after hearing about the proposed public

3 charge rule.). Furthermore, health care providers anticipate that “forcing non-

4 citizens to choose between medical treatment or potential deportation or family

5 separation” will induce “patients to miss follow-up appointments or forego

6 treatment” that a clinician has prescribed. Id. at 20.

7

The Plaintiff States submitted declarations and copies of the comments

8 submitted to DHS during the rulemaking process supporting the conclusion that

9 disenrollment from publicly-funded health insurance programs and related benefits

10 already has begun to occur in anticipation of the effective date of the Public Charge

11 Rule. See ECF Nos. 35-2 at 3; 35-3 at 11; see also ECF Nos. 152 at 8; 153 at 17.

12

2. Health and Well-Being of Plaintiff State Residents

13

The Plaintiff States’ evidence supports that decreased utilization of

14 immunizations against communicable diseases “could lead to higher rates of

15 contagion and worse community health,” both in the immigrant population and the

16 U.S. citizen population because of the nature of epidemics. ECF No. 65 at 14

17 (further recounting that “[d]isease prevention is dependent upon access to vaccines

18 and high vaccination rates”); see also, e.g., ECF No. 44 at 9.

19

State health officials anticipate that the Public Charge Rule and its potential to

20 incentivize disenrollment from “critical services” “will unduly increase the number

21

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1 of people living in poverty and thus destabilize the economic health” of communities

2 in the Plaintiff States. ECF No. 37 at 14.

3

The amici briefs submitted for the Court’s consideration, in addition to the

4 Plaintiff States’ submissions, detail harm specific to particular vulnerable groups in

5 the Plaintiff States and throughout the country.

6

a. Children and Pregnant Women

7

Perhaps best documented in the extensive submissions in support of the

8 instant motion are the anticipated harms to children from disenrollment as a result of

9 the Public Charge Rule. DHS acknowledges in the Public Charge Rule notice that

10 the Public Charge Rule may “increase the poverty of certain families and children,

11 including U.S. citizen children.” 84 Fed. Reg. at 41,482. The Plaintiff States focus

12 on harm to children stemming from lack of access to health care, sufficient and

13 nutritious food, and adequate housing.

14

A chilling effect from the Public Charge Rule will deter eligible people,

15 including U.S. Citizen children of immigrant parents, from accessing non-cash

16 public benefits, which will result in further injury to the Plaintiff States. For

17 instance, disenrolling from SNAP benefits and other supplemental nutrition services

18 is likely to lead to food insecurity with resultant injuries. See, e.g., ECF No. 35-2 at

19 7. Forgoing medical care for children or adult family members because of fear of

20 using non-cash public benefits will lead to less preventative care and result in

21 increased hospital admissions and medical costs, and poor health and developmental

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1 delays in young children. ECF No. 35-2 at 278−79. Food insecurity and poor health

2 care ultimately result in long-term health issues and lower math and reading

3 achievement test scores among school children. Id.

4

With respect to housing, fair market rent without non-cash public benefits

5 may be unaffordable in higher-cost areas of the Plaintiff States even for a family

6 with two household members who each work full-time minimum wage jobs. See

7 ECF No. 77 at 17 (providing detail regarding the Massachusetts housing market).

8 Therefore, “[f]or immigrants who work low-wage jobs and their families, many of

9 which include U.S. citizen children, dropping housing benefits to avoid adverse

10 immigration consequences . . . can be reasonably expected to upend their financial

11 stability and substantially increase homelessness.” Id. The Plaintiff States

12 submitted evidence that homelessness and housing instability during childhood “can

13 have lifelong effects on children’s physical and mental health.” ECF No. 35-2 at 39.

14 When families lose their residences because they no longer receive financial

15 assistance with rent, children in those households “are more likely to develop

16 respiratory infections and asthma,” among other harms. ECF No. 37 at 14.

17

b. Disabled Individuals

18

Amici provide a compelling analysis of how the factors introduced by the

19 Public Charge Rule disproportionately penalize disabled applicants by “triple-

20 counting” the effects of being disabled. ECF No. 110 at 23. The medical condition

21 and use of Medicaid or other services used to facilitate independence for disabled

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1 individuals each may be assessed negatively against an applicant. See 8 C.F.R. §

2 212.22(b); see also ECF No. 110 at 23. An individual who is disabled with a

3 medical condition likely to require extensive medical treatment would be

4 disqualified from the positive “health” factor, even if he or she is in good health

5 apart from the disability. See id. Therefore, there is a significant possibility that

6 disabled applicants who currently reside in the Plaintiff States, or legal permanent

7 residents who return to the U.S. after a 180-day period outside of the U.S., would be

8 deemed inadmissible primarily on the basis of their disability.

9

In addition, the chilling effect arising out of predictable confusion from the

10 changes in the Public Charge Rule may cause immigrant parents to refuse benefits

11 for their disabled U.S. citizen children or legal permanent resident children. ECF

12 No. 110 at 26. Notably, disenrollment of disabled individuals from services in

13 childhood is the type of harm that may result in extra costs to Plaintiff States far into

14 the future because of the citizen and legal permanent resident children reaching

15 adulthood with untreated disabilities.

16

c. Elderly

17

Amici have argued convincingly that the Public Charge Rule will have a

18 substantial negative impact on the elderly. Many of the Public Charge Rule’s

19 negative factors inherently apply to the elderly. For instance, being over the age of

20 sixty-two may be weighed negatively against an applicant. ECF No. 150 at 16; see

21 8 C.F.R. § 212.22(b)(1)(i). Additionally, many elderly people rely on their

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1 families for support. See id. at 19–20. Although immigration law in the United

2 States has traditionally favored family unification, the Public Charge Rule may

3 penalize people for living with their families, counting their family reliance against

4 them. See ECF No. 150 at 19 (citing the “preference allocation for family-

5 sponsored immigrants” in 8 U.S.C. § 1153(a)). Furthermore, the new rule

6 penalizes people with a medical diagnosis that will require extensive treatment,

7 and most adults over fifty years old have at least one chronic health condition. Id.

8 at 18 (citing AARP Public Policy Institute, Chronic Care: A Call to Action for

9 Health Reform, 11–12, 16 (2009); University of New Hampshire Institute on

10 Disability/ UCED, 2017 Disability Statistics Annual Report (2018)); see 8 C.F.R. §

11 212.22(b)(2)(ii)(B). Many elderly people rely on non-cash forms of public

12 assistance like Medicaid, SNAP, and public housing and rental assistance. ECF

13 No. 150 at 15. That assistance will be counted against them by the Public Charge

14 Rule, predictably leading to disenrollment from such programs. See id. at 27; 8

15 C.F.R. § 212.22(d). Amici persuasively argue that without assistance from

16 important programs like Medicaid elderly people will experience additional and

17 exacerbated medical problems, “creating a new and uncompensated care burden on

18 society.” ECF No. 150 at 27.

19

Moreover, many elderly people do not satisfy the Public Charge Rule’s

20 positive factors. For instance, one of the Rule’s positive factors is having an

21 income that exceeds 250 percent of the federal poverty level. Id. at 16; 8 C.F.R. §

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1 212.22(c)(2)(ii). Amici state that most people over the age of sixty-two live in

2 moderate to low-income households, making them ineligible for this positive

3 factor. See ECF No. 150 at 16 (citing Public Charge Proposed Rule: Potentially

4 Chilled Population Data Dashboard, Mannat (Oct. 11, 2018)). Many people also

5 will have their income level counted negatively against them because having an

6 income of less than 125 percent of the federal poverty level is a negative

7 factor. Id.; see 8 C.F.R. § 212.22(b)(4)(i).

8

d. Domestic Violence Victims

9

Amici organizations who support victims of domestic violence identify an

10 overlap between the assistance a woman may seek or receive as she leaves an

11 abusive relationship and establishes independence and the new definition of “public

12 benefit” in the Public Charge Rule. See ECF No. 111 at 20−32. In addition, the

13 Public Charge Rule does not except health issues resulting from abuse from the

14 negative medical condition factors. See id.; 8 C.F.R. § 212.22(b). The amici

15 represent that the chilling effect is occurring in anticipation of the Public Charge

16 Rule, with “victims . . . already foregoing critical housing, food, and healthcare

17 assistance out of fear that it will jeopardize their immigration status.” ECF No. 111

18 at 22. Foregoing non-cash public benefits by domestic violence victims risks

19 “broader impacts” to the health and wellbeing of residents throughout the Plaintiff

20 States “as a result of unmitigated trauma to victims and their families.” Id. at 24.

21

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1

3. Financial Harm to Plaintiff States

2

The Plaintiff States and the amici briefs make a cohesive showing of ongoing

3 financial harm to the States as disenrollment from “safety net” benefits programs

4 predictably occurs among vulnerable populations. As noted above, both immigrant

5 and U.S. citizen children of immigrants are more likely to experience poorer long-

6 term outcomes, including impaired growth, compromised cognitive development,

7 and obesity without access to non-cash public benefits. ECF No. 149 at 21. Further,

8 exposure to housing insecurity and homelessness often is associated with increased

9 vulnerability to a range of adult diseases such as heart attacks, strokes, and smoking-

10 related cancers. Id. at 22. Even if the immigrant children no longer reside in the

11 Plaintiff States, the affected U.S. citizen children will remain entitled to live in the

12 Plaintiff States, or in other states not plaintiffs before this Court, once they are

13 adults. Therefore, the Plaintiff States face increased costs to address the predictable

14 effects of the adverse childhood experiences over the course of these U.S. citizen

15 children’s lifetimes, potentially fifty years or more down the road.

16

The Plaintiff States further face likely pecuniary harm from contagion due to

17 unvaccinated residents, resulting in outbreaks of influenza, measles, and a higher

18 incidence of preventable disease among immigrants as well as U.S. citizens. ECF

19 No. 38 at 7−8. It is reasonably certain that any outbreaks would result in “reduced

20 days at work, reduced days at school, lower productivity, and long-term negative

21

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1 economic consequences,” as well as the cost of responding to an epidemic for state

2 and local health departments. Id.

3

The Plaintiff States also allege that they will incur additional administrative

4 costs as a result of the Public Charge Rule, including “training staff, responding to

5 client inquiries related to the Final Rule, and modifying existing communications

6 and forms.” ECF No. 40 at 7−8 (declaration from the Deputy Commissioner of the

7 New Jersey Department of Human Services, adding “Because the rules for

8 determining whether someone is a public charge are technical and confusing, it will

9 be extremely difficult to train frontline staff to have the requisite understanding

10 necessary to help potential applicants determine whether they would be deemed a

11 public charge under the proposed Final Rule.”). The Plaintiff States also may incur

12 the expense of developing alternative programming and enacting new eligibility

13 rules across multiple systems of benefits to “mirror” the effect of Medicaid and other

14 federal programs and to mitigate the negative effects from the Public Charge Rule

15 on individual and community health. See ECF No. 37 at 15.

16

C. Application of Harms to Standing Requirements

17

The Plaintiff States argue that they have made a clear showing of each

18 element of standing by showing that “the Rule will lead to a cascade of costs to

19 states as immigrants disenroll from federal and state benefits programs, . . . thereby

20 frustrating the States’ mission in creating such programs and harming state

21 residents.” ECF No. 158 at 11 (citing cases supporting state standing based on a

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1 proprietary interest and a quasi-sovereign interest in the health and wellbeing of the

2 state’s residents). The Plaintiff States further allege future economic harm. Id. at

3 35 (citing a declaration at ECF No. 66 at 19 estimating an annual reduction in total

4 economic output of $41.8 to $97.5 million and other damage to the Washington

5 State economy alone).

6

The Federal Defendants argue that the Plaintiff States’ alleged harm is not

7 fairly traceable to the Public Charge Rule but would be the result of third-party

8 decisions, such as “unnecessarily choosing to forgo all federal benefits.” See ECF

9 No. 155 at 19−21. The Supreme Court recently addressed the Federal Defendants’

10 traceability argument in Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019), in

11 which a group of states and other plaintiffs challenged the Secretary of Commerce’s

12 decision to inquire about citizenship status on the census questionnaire. Id. at 2557.

13 There, the Government argued “that any harm to respondents is not fairly traceable

14 to the Secretary’s decision, because such harm depends on the independent action of

15 third parties choosing to violate their legal duty to respond to the census.” 139 S. Ct.

16 at 2565. The Supreme Court rejected the Government’s argument, concluding:

17

But we are satisfied that, in these circumstances, respondents have met

their burden of showing that third parties will likely react in predictable

18

ways to the citizenship question, even if they do so unlawfully and

despite the requirement that the Government keep individual answers

19

confidential. . . . Respondents’ theory of standing . . . does not rest on

mere speculation about the decisions of third parties; it relies instead on

20

the predictable effect of Government action on the decisions of third

parties.

21

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1 139 S. Ct. at 2566.

2

The Plaintiff States have made a strong showing of the predictable effect of

3 the Government action on individual residents who are not parties in this action, and

4 in turn, the predictable effect on the Plaintiff States. The complexities of the multi-

5 factor totality of the circumstances test and the new definition of “public charge”

6 that USCIS officers must administer are not fully captured in this Order.

7 Nevertheless, from the components of the rule that the Court already has closely

8 examined, it is predictable that applying the multi-factor Public Charge Rule would

9 result in disparate results depending on each USCIS officer. Moreover, the general

10 message conveyed to USCIS officers, immigrants, legal permanent residents, and

11 the general public alike is unmistakable: the Public Charge Rule creates a wider

12 barrier to exclude individuals seeking to alter their immigration status.

13

Therefore, it is further predictable that individuals who perceive that they or

14 their children may fall within the broadened scope of the public charge

15 inadmissibility ground will seek to reduce that risk by disenrolling from non-cash

16 public benefits. Otherwise stated, the chilling effect of the Public Charge Rule

17 likely will lead individuals to disenroll from benefits, because receipt of those

18 benefits likely would subject them to a public charge determination, and, equally

19 foreseeably, because the Public Charge Rule will create fear and confusion regarding

20 public charge inadmissibility.

21

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1

Also predictable is that the chilling effect will negatively impact the Plaintiff

2 States’ missions, the health and wellbeing of their residents, citizens and non-

3 citizens alike, and the Plaintiff States’ budgets and economies. “‘A causal chain does

4 not fail simply because it has several ‘links,’ provided those links are not

5 hypothetical or tenuous.’” California v. Azar, 911 F.3d 558, 571−72 (9th Cir. 2018)

6 (quoting Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (internal

7 quotation omitted)). While the magnitude of the injuries may remain in dispute, the

8 Plaintiff States have shown that their likely injuries are a predictable result of the

9 Public Charge Rule. See California, 911 F.3d at 572 (citing United States v.

10 Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n. 14

11 (1973), for the proposition that injuries of only a few dollars can establish standing).

12

D. Ripeness

13

A case is ripe for adjudication only if it presents “issues that are ‘definite and

14 concrete, not hypothetical or abstract.’” Clark v. City of Seattle, 899 F.3d 802, 809

15 (9th Cir. 2018) (quoting Bishop Paiute Tribe v. Inyo Cty., 863 F.3d. 1144, 1153 (9th

16 Cir. 2017)). Just as the Federal Defendants argue that the Plaintiff States’ alleged

17 harms are not concrete or imminent, they make the same arguments for purposes of

18 ripeness. The Court applies the same analysis as discussed for standing and

19 concludes that the alleged harms are sufficiently concrete and imminent to support

20 ripeness.

21

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1

The Federal Defendants also argue that the Court should decline to hear the

2 case on the basis of prudential ripeness. See ECF No. 155 at 25. Courts resolve

3 questions of prudential ripeness “in a twofold aspect,” evaluating “both the fitness of

4 the issues for judicial decision and the hardship to the parties of withholding court

5 consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). Where review

6 of an administrative action is at issue, “[f]itness for resolution depends on the nature

7 of the issue and the finality of the administrative agency’s action.” Hotel Emples. &

8 Rest. Emples. Int’l Union v. Nev. Gaming Comm’n, 984 F.2d 1507, 1513 (9th Cir.

9 1993). Once a court has found that constitutional ripeness is satisfied, the prudential

10 ripeness bar is minimal, as “‘a federal court’s obligation to hear and decide’ cases

11 within its jurisdiction is ‘virtually unflagging.’” Susan B. Anthony List, 572 U.S. at

12 167 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

13 125−26 (2014) (internal quotation omitted)).

14

The Federal Defendants misconstrue the issues raised by the Amended

15 Complaint and the record on the instant motion. Challenges to the validity of a rule

16 under the judicial review provisions of the APA present issues fit for adjudication by

17 a court. See Abbott Laboratories, 387 U.S. at 149−52 (review of a rule before it has

18 been applied and enforced is available where “the regulations are clear-cut,” present

19 a legal issue, and constitute the agency’s formal and definitive statement of policy).

20 Moreover, the Plaintiff States’ harm would only be exacerbated by delaying review.

21 For example, delaying review increases the potential for spread of infectious

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1 diseases among the populations of the Plaintiff States, as well as to nearby states, as

2 a result of reduced access to health care and vaccinations. Therefore, the Court finds

3 this matter is ripe for review.

4

E. Zone of Interests

5

The Federal Defendants argue that the Plaintiff States do not fall within the

6 “zone of interests” of the INA because: “It is aliens improperly determined

7 inadmissible, not States, who ‘fall within the zone of interests protected’ by any

8 limitations implicit in § 1182(a)(4)(A) and § 1183 because they are the

9 ‘reasonable—indeed, predictable—challengers’ to DHS’s inadmissibility decisions.”

10 ECF No. 155 at 28 (citing Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians

11 v. Patchak, 567 U.S. 209, 227 (2012); 8 U.S.C. § 1252 (providing for appeal by an

12 individual of a final order of removal based on a public charge determination)).

13

However, the zone of interests test is “not ‘especially demanding.’” Lexmark

14 Int’l, 572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish, 567 U.S. at 225).

15 Particularly where a plaintiff pursues relief through the APA, the Supreme Court has

16 directed that the test shall be applied “in keeping with Congress’s ‘evident intent’

17 when enacting the APA ‘to make agency action presumptively reviewable.’”

18 Match-E-Be-Nash-She-Wish, 567 U.S. at 225 (quoting Clarke v. Sec. Indus. Ass’n,

19 479 U.S. 388, 399 (1987)). There is no requirement that a plaintiff show “any

20 ‘indication of congressional purpose to benefit the would-be plaintiff.’” Id. (quoting

21 Clarke, 479 U.S. at 399−400). Moreover, the “benefit of any doubt goes to the

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1 plaintiff.” Id. “The test forecloses suit only when a plaintiff’s ‘interests are so

2 marginally related to or inconsistent with the purposes implicit in the statute that it

3 cannot reasonably be assumed that Congress intended to permit the suit.’” Id.

4 (quoting Clarke, 479 U.S. at 399).

5

The Plaintiff States meet this lenient standard by tracing the origins of the

6 public charge exclusion enacted by Congress in 1882 “to protect state fiscs.” ECF

7 No. 158 at 14. The concept of a “public charge” exclusion originally was

8 incorporated into U.S. law by Congress in 1882 to protect states from having to

9 spend state money to provide for immigrants who could not provide for themselves.

10 ECF No. 158 at 14−15 n. 3. The Plaintiff States reasonably extrapolate: “By

11 imposing significant uncompensated costs on the Plaintiff States and undermining

12 their comprehensive public assistance programs, the Rule undermines the very

13 interests advanced by the statutes on which DHS relies.” ECF No. 158 at 14−15

14 (citing Texas v. United States, 809 F.3d 124, 163 (5th Cir. 2015), aff’d, 136 S. Ct.

15 2271 (2016) for the proposition that it “recogniz[es] states’ economic interests in

16 immigration policy”). Thus, states were at the center of the zone of interest for use

17 of the term “public charge” from the beginning of the relevant statutory scheme, and

18 the Plaintiff States continue to have interests that are sufficiently consistent with the

19 purposes implicit in the public charge inadmissibility policy to challenge its

20 application now.

21

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1

The Court finds that the Plaintiff States have standing to pursue this action,

2 that the issues are ripe for adjudication, and that the Plaintiff States are within the

3 zone of interests of the Public Charge Rule.

4 IV. LEGAL STANDARDS FOR STAYS AND PRELIMINARY

INJUNCTIONS IN CASES CHALLENGING AGENCY ACTION

5

The Administrative Procedure Act’s stay provision states, in relevant part:

6

On such conditions as may be required and to the extent necessary to

7

prevent irreparable injury, the reviewing court . . . may issue all

necessary and appropriate process to postpone the effective date of an

8

agency action or to preserve status or rights pending conclusion of the

review proceedings.

9

5 U.S.C. § 705.5

10

The Court applies a closely similar standard in deciding whether to stay the

11

effect of a rule under section 705 as it does in deciding whether to issue a

12

preliminary injunction under Fed. R. Civ. P. Rule 65(a). Nken v. Holder, 556 U.S.

13

418, 425−26 (2009); see also Hill Dermaceuticals, Inc. v. United States FDA, 524 F.

14

Supp.2d 5, 8 (D.D.C. 2007). For a preliminary injunction, the moving party must

15

demonstrate: (1) likelihood of success on the merits; (2) likelihood of irreparable

16

harm in the absence of preliminary relief; (3) that the balance of equities tips in the

17

moving party’s favor; and (4) that an injunction is in the public interest. Winter v.

18

19
20 5 Alternatively, Section 705 authorizes an agency itself to temporarily stay the effective date of its rule pending judicial review, when it “finds that justice so
21 requires.” 5 U.S.C. § 705.

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1 Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). For a stay, the traditional

2 test articulates the third factor in slightly different terms: “‘whether issuance of the

3 stay will substantially injure the other parties.” Nken, 556 U.S. at 419 (quoting

4 Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

5

Provided the Court considers all four parts of the Winter test, the Court may

6 supplement its preliminary injunction inquiry by considering whether “the likelihood

7 of success is such that ‘serious questions going to the merits were raised and the

8 balance of hardships tips sharply in [the requesting party’s] favor.’” Alliance for the

9 Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011) (quoting Clear

10 Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003)). The Ninth

11 Circuit’s “sliding scale” approach survives Winter, “so long as the [movant] also

12 shows that there is a likelihood of irreparable injury and that the injunction is in the

13 public interest.” Alliance for the Wild Rockies, 632 F.3d at 1135.

14

Both a stay under section 705 and a preliminary injunction serve the purpose

15 of preserving the status quo until a trial on the merits can be held. Univ. of Texas v.

16 Camenisch, 451 U.S. 390, 395 (1981); Boardman v. Pac. Seafood Grp., 822 F.3d

17 1011, 1024 (9th Cir. 2016); Sierra Club v. Jackson, 833 F.Supp.2d 11, 28 (D.D.C.

18 2012) (“Such a stay is not designed to do anything other than preserve the status

19 quo.”) (citing 5 U.S.C. § 705).

20

Section 705 and preliminary injunctions under Rule 65, although determined

21 by application of similar standards, offer different forms of relief. Nken, 556 U.S. at

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1 428. An injunction “is directed at someone, and governs that party’s conduct.” Id.

2 “By contrast, instead of directing the conduct of a particular actor, a stay operates

3 upon the judicial proceeding itself. It does so either by halting or postponing some

4 portion of the proceeding, or by temporarily divesting an order of enforceability.”

5 Id. “If nothing else, the terms are by no means synonymous.” Id.

6

One difference is that Fed. R. Civ. P. 65(c) requires the court to determine the

7 amount that the movant must give in security for “the costs and damages sustained

8 by any party found to have been wrongfully enjoined or restrained.” Section 705

9 contains no such requirement.

10

In granting preliminary injunctive relief pursuant to Fed. R. Civ. P. 65, a

11 court must consider whether the defendant shall be enjoined from enforcing the

12 disputed rule against all persons nationwide, or solely against plaintiffs. “Crafting a

13 preliminary injunction is an exercise of discretion and judgment, often dependent as

14 much on the equities of a given case as the substance of the legal issues it presents.”

15 Trump v. Intern. Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017).

16

There is “no bar against . . . nationwide relief in federal district or circuit court

17 when it is appropriate.” Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987); see

18 also Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) (“[T]he District Court in

19 exercising its equity powers may command persons properly before it to cease or

20 perform acts outside its territorial jurisdiction.”); Monsanto Co. v. Geertson Seed

21 Farms, 561 U.S. 139, 181 n. 12 (2010) (J. Stevens, dissenting) (“Although we have

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1 not squarely addressed the issue, in my view there is no requirement that an

2 injunction affect only the parties in the suit. To limit an injunction against a federal

3 agency to the named plaintiffs would only encourage numerous other regulated

4 entities to file additional lawsuits in this and other federal jurisdictions.”) (internal

5 quotations omitted). The primary consideration is whether the injunctive relief is

6 sufficiently narrow in scope to “‘be no more burdensome to the defendant than

7 necessary to provide complete relief to the plaintiffs’ before the court.” L.A. Haven

8 Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v.

9 Yamasaki, 442 U.S. 682, 702 (1979)).

10

The Ninth Circuit has “upheld nationwide injunctions when ‘necessary to give

11 Plaintiff a full expression of their rights.’” City & Cty. of San Francisco v. Trump,

12 897 F.3d 1225, 1244 (9th Cir. 2018) (quoting Hawaii v. Trump, 878 F.3d 662, 701

13 (9th Cir. 2017), rev’d on other grounds Trump v. Hawaii, 138 S. Ct. 2392 (2018),

14 and citing Washington v. Trump, 847 F.3d 1151, 1166−67 (9th Cir. 2017) (per

15 curium)). By contrast, the Ninth Circuit has vacated a nationwide injunction on a

16 finding that the plaintiffs did not make “a sufficient showing of ‘nationwide impact’

17 demonstrating that a nationwide injunction is necessary to completely accord relief

18 to them.’” Id.

19 / / /

20 / / /

21 / / /

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1 V. ANALYSIS

2

A. Likelihood of Success on the Merits

3

For purposes of the Motion for a Stay and Preliminary Injunction, the Plaintiff

4 States highlight the likelihood of success on the merits of their first and third causes

5 of action, both of which are pursuant to the APA. ECF No. 34 at 21−51.

6

Under the APA, “[a] person suffering legal wrong because of agency action. .

7 . is entitled to judicial review thereof.” 5 U.S.C. § 702. The APA further directs

8 courts to “hold unlawful and set aside agency action, findings, and conclusions

9 found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in

10 accordance with law.” 5 U.S.C. § 706(2)(A).

11

1. First Cause of Action: Violation of the Administrative

12

Procedure Act—Action Not in Accordance with Law

13

An administrative agency “may not exercise its authority ‘in a manner that is

14 inconsistent with the administrative structure that Congress enacted into law.’” FDA

15 v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000), superseded by

16 statute on other grounds, 21 U.S.C. § 387a. When an administrative agency’s action

17 involves the construction of a statute that the agency administers, a court’s analysis

18 is governed by the two-step framework set forth in Chevron U.S.A., Inc. v. Natural

19 Resources Defense Council, Inc., 467 U.S. 837 (1984). Id. at 125−26.

20

A reviewing court’s first inquiry under Chevron is whether Congress has

21 expressed its intent clearly and unambiguously in the statutory language at issue.

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1 Brown & Williamson, 529 U.S. at 132. If Congress has spoken directly to the issue

2 before the reviewing court, the court’s inquiry need not proceed further, and the

3 court “must give effect to the unambiguously expressed intent of Congress.”

4 Chevron, 467 U.S. at 843. If Congress has not addressed the specific question raised

5 by the administrative agency’s construction of a statute, “a reviewing court must

6 respect the agency’s construction of the statute so long as it is permissible.” Brown

7 & Williamson, 529 U.S. at 132 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424

8 (1999); Auer v. Robbins, 519 U.S. 452, 457 (1997)).

9

In analyzing the first step of Chevron, “whether Congress has specifically

10 addressed the question at issue, a reviewing court should not confine itself to

11 examining a particular statutory provision in isolation.” Brown & Williamson, 529

12 U.S. at 133. The reviewing court must read the words of a statute “‘in their context

13 and with a view to their place in the overall statutory scheme.’” Id. (quoting Davis

14 v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)). A court must interpret a

15 particular statutory provision both in the context of other parts of the same

16 regulatory scheme and with respect to other statutes that may affect the meaning of

17 the statutory provision at issue. Id.

18

In this case, the issue is whether Congress has expressed its intent regarding

19 barring individuals from obtaining visas or changing their status to legal permanent

20 residents based on a specific definition of public charge. Congress has expressed its

21 intent regarding the public charge statute in a variety of forms. In 1986, Congress

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1 included a special rule in a section of the INA addressing waivers of the public

2 charge inadmissibility ground for applicants seeking legal permanent residency

3 status. 8 U.S.C. § 1255a(d)(2)(B)(iii). The “special rule for determination of public

4 charge,” excepts an immigrant seeking relief under that section from inadmissibility

5 as a public charge if he or she demonstrates “a history of employment in the United

6 States evidencing self-support without receipt of public cash assistance.” Id.

7

Later, as part of the Personal Responsibility and Work Opportunity

8 Reconciliation Act of 1996 (“Welfare Reform Act”), Congress enacted a statutory

9 provision articulating the following “Statements of national policy concerning

10 welfare and immigration”:

11

The Congress makes the following statements concerning national

policy with respect to welfare and immigration:

12

(1) Self-sufficiency has been a basic principle of United States

13

immigration law since this country’s earliest immigration statutes.

(2) It continues to be the immigration policy of the United States that—

14

(A) aliens within the Nation’s borders not depend on public

resources to meet their needs, but rather rely on their own capabilities

15

and the resources of their families, their sponsors, and private

organizations, and

16

(B) the availability of public benefits not constitute an incentive

for immigration to the United States.

17

(3) Despite the principle of self-sufficiency, aliens have been applying

for and receiving public benefits from Federal, State, and local

18

governments at increasing rates.

(4) Current eligibility rules for public assistance and unenforceable

19

financial support agreements have proved wholly incapable of assuring

that individual aliens not burden the public benefits system.

20

(5) It is a compelling government interest to enact new rules for

eligibility and sponsorship agreements in order to assure that aliens be

21

self-reliant in accordance with national immigration policy.

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1

(6) It is a compelling government interest to remove the incentive for

illegal immigration provided by the availability of public benefits.

2

(7) With respect to the State authority to make determinations

concerning the eligibility of qualified aliens for public benefits in this

3

title, a State that chooses to follow the Federal classification in

determining the eligibility of such aliens for public assistance shall be

4

considered to have chosen the least restrictive means available for

achieving the compelling governmental interest of assuring that aliens

5

be self-reliant in accordance with national immigration policy.

6 8 U.S.C. § 1601.

7

The Welfare Reform Act further limited eligibility for many “federal means-

8 tested public benefits,” such as Medicaid and SNAP, to “qualified” immigrants, and

9 Congress defined “qualified” to include lawful permanent residents and certain other

10 legal statuses. See 8 U.S.C. § 1641(b). Most immigrants become “qualified” for

11 benefits eligibility five years after their date of entry. 8 U.S.C. §§ 1612, 1613.

12 States retain a significant degree of authority to determine eligibility for state

13 benefits. See 8 U.S.C. §§ 1621−22, 1641.

14

Thus, in the course of significantly restricting access to public benefits by

15 non-citizens, Congress expressly states that part of its national immigration policy is

16 allowing public benefits to qualified aliens in “the least restrictive means available”

17 in order to achieve the goal that the aliens “be self-reliant.” 8 U.S.C. § 1601(7).

18 Congress did not state that there should be no public benefits provided to qualified

19 aliens, but rather that public benefits be provided in “the least restrictive means

20 available.” See id. The Public Charge Rule at issue here likely would chill qualified

21

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1 aliens from accessing all public benefits by weighing negatively the use of non-cash

2 public benefits for inadmissibility purposes.

3

One month after enactment of the Welfare Reform Act, the Illegal

4 Immigration Reform and Immigrant Responsibility Act of 1996 (“Immigration

5 Reform Act”) reenacted the existing public charge provision and codified the five

6 minimum factors approach to public charge determinations that remains in effect

7 today and will continue to be in effect if the Public Charge Rule is not implemented

8 on October 15, 2019. See 8 U.S.C. § 1182(a)(4).

9

In the course of enacting the Immigration Reform Act, members of Congress

10 debated whether to expand the public charge definition to include use of non-cash

11 public benefits. See Immigration Control & Financial Responsibility Act of 1996,

12 H.R. 2202, 104th Cong. § 202 (1996) (early House bill that would have defined

13 public charge for purposes of removal to include receipt by a non-citizen of

14 Medicaid, supplemental food assistance, SSI, and other means-tested public

15 benefits). However, in the Senate, at least one senator criticized the effort to include

16 previously unconsidered, non-cash public benefits in the public charge test and to

17 create a bright-line framework of considering whether the immigrant has received

18 public benefits for an aggregate of twelve months as “too quick to label people as

19 public charges for utilizing the same public assistance that many Americans need to

20 get on their feet.” S. Rep. No. 104-249, at *63−64 (1996) (Senator Leahy’s

21 remarks).

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1

Congress’s intent is reflected by the fact that the Immigration Reform Act that

2 was enacted into law did not contain the provisions that would have incorporated

3 into the public charge determination non-cash public benefits. See 8 U.S.C. §

4 1182(a)(4).

5

After the Welfare Reform Act and the Immigration Reform Act took effect,

6 Congress further demonstrated its intent regarding non-cash public benefits for

7 immigrants by expanding access to SNAP benefits for certain immigrants who

8 resided in the United States at the time that the Welfare Reform Act was enacted and

9 to children and certain immigrants with disabilities regardless of how long they had

10 been in the country. See Agricultural Research, Extension, and Education Reform

11 Act of 1998, Pub. L. No. 105-185, 112 Stat. 523; Farm Security and Rural

12 Investment Act of 2002, Pub. L. No. 107-171, 116 Stat. 134.

13

In 1999, to “help alleviate public confusion over the meaning of the term

14 ‘public charge’ in immigration law and its relationship to the receipt of Federal,

15 State, and local public benefits,” the INS issued “field guidance” (“the 1999 field

16 guidance”) and a proposed rule to guide public charge determinations by INS

17 officers. INS, Field Guidance on Deportability and Inadmissibility on Public Charge

18 Grounds, 64 Fed. Reg. 28,689 (Mar. 26, 1999). The 1999 field guidance provided

19 that a person may be deemed a public charge under the inadmissibility provision at 8

20 U.S.C. § 1182(a)(4) if the person is “primarily dependent on the government for

21 subsistence, as demonstrated by either (i) the receipt of public cash assistance for

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1 income maintenance or (ii) institutionalization for long-term care at government

2 expense.” Id. at 28,692.

3

In issuing the field guidance and proposed rule, the INS reasoned as follows:

4

The Service is proposing this definition by regulation and adopting it

on an interim basis for several reasons. First, confusion about the

5

relationship between the receipt of public benefits and the concept of

‘‘public charge’’ has deterred eligible aliens and their families,

6

including U.S. citizen children, from seeking important health and

nutrition benefits that they are legally entitled to receive. This

7

reluctance to access benefits has an adverse impact not just on the

potential recipients, but on public health and the general welfare.

8

Second, non-cash benefits (other than institutionalization for long-term

care) are by their nature supplemental and do not, alone or in

9

combination, provide sufficient resources to support an individual or

family. In addition to receiving non-cash benefits, an alien would have

10

to have either additional income—such as wages, savings, or earned

retirement benefits—or public cash assistance. Thus, by focusing on

11

cash assistance for income maintenance, the Service can identify those

who are primarily dependent on the government for subsistence without

12

inhibiting access to non-cash benefits that serve important public

interests. Finally, certain federal, state, and local benefits are

13

increasingly being made available to families with incomes far above

the poverty level, reflecting broad public policy decisions about

14

improving general public health and nutrition, promoting education,

and assisting working-poor families in the process of becoming self-

15

sufficient. Thus, participation in such noncash programs is not

evidence of poverty or dependence.

16

64 Fed. Reg. at 28,692.

17

In addition, the INS noted: “In adopting this new definition, the Service does

18

not expect to substantially change the number of aliens who will be found deportable

19

or inadmissible as public charges.” Id.

20

21

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1

The proposed rule was never finalized, but the 1999 field guidance has

2 applied to public charge determinations since it was issued twenty years ago. See

3 ECF No. 35-1 at 109. During the past twenty-year period, Congress has not

4 expressly altered the working definition of public charge or the field guidance as to

5 how the public charge inadmissibility ground should be applied to applicants for

6 visas or permanent legal residency.

7

In 2013, Congress again considered and rejected a proposal to broaden the

8 public charge inadmissibility ground to require applicants to show that “they were

9 not likely to qualify even for non-cash employment supports such as Medicaid, the

10 SNAP program, or the Children’s Health Insurance Program (CHIP).” S. Rep. No.

11 113-40 (Jun. 7, 2013).

12

The Plaintiff States also maintain that the Public Charge Rule “departs from

13 the unambiguously expressed intent of Congress” in statutes other than the Welfare

14 Reform Act and the INA, namely section 504 of the Rehabilitation Act and a statute

15 governing SNAP benefits. ECF No. 31 at 169−71.

16

With respect to the Rehabilitation Act of 1973, the Plaintiff States assert that

17 the Public Charge Rule is not in accordance with section 504, which provides that

18 “[n]o otherwise qualified individual with a disability in the United States . . . shall,

19 solely by reason of her or his disability, be excluded from the participation in, be

20 denied the benefits of, or be subjected to discrimination . . . under any program or

21 activity conducted by an Executive agency.” 29 U.S.C. § 794(a). The SNAP statute

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1 provides that “the value of benefits that may be provided under this chapter shall not

2 be considered income or resources for any purpose under any Federal, State, or local

3 laws.” 7 U.S.C. § 2017(b).

4

The Federal Defendants broadly assert: “From the beginning, immigration

5 authorities have recognized that the plain meaning of the public charge ground of

6 inadmissibility encompasses all of those likely to become a financial burden on the

7 public, and that the purpose of the provision is to exclude those who are not self-

8 sufficient.” ECF No. 155 at 35−36. The Federal Defendants rely on the statements

9 of the Secretary of Labor to the House Committee on Immigration and

10 Naturalization in 1916 to support that the goal behind the public charge

11 inadmissibility ground is to support self-sufficiency:

12

[(1)] a person is ‘likely to become a public charge’ when ‘such

applicant may be a charge (an economic burden) upon the community

13

to which he is going.’[; and]

[(2)] the public charge clause ‘for so many years has been the chief

14

measure of protection in the law . . . intended to reach economic rather

than sanitary objections to the admission of certain classes of aliens.’

15

Id. (citing H.R. Doc. No. 64-886, at 3−4 (1916)); see also ECF No. 155 at 37 (“As

16

explained above, Congress and the Executive Branch have long recognized the

17

‘public charge’ ground as a ‘chief measure’ for ensuring the economic self-

18

sufficiency of aliens.”).

19

The Federal Defendants’ arguments to this Court replicate DHS’s assertion in

20

the rulemaking record that “self-sufficiency is the rule’s ultimate aim.” 84 Fed. Reg.

21

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1 at 41,313. DHS attempts to reconcile the absence of the Welfare Reform Act’s

2 “self-sufficiency” language in the public charge inadmissibility provision at 8 U.S.C.

3 § 1182(a)(4) by noting the temporal proximity between the Welfare Reform Act and

4 the Immigration Reform Act:

5

Although the INA does not mention self-sufficiency in the context of .

. . 8 U.S.C. § 1182(a)(4), DHS believes that there is a strong connection

6

between the self-sufficiency policy statements [in the Welfare Reform

Act] (even if not codified in the INA itself) at 8 U.S.C. 1601 and the

7

public charge inadmissibility language in . . . 8 U.S.C. 1182(a)(4),

which were enacted within a month of each other.

8

84 Fed. Reg. at 41,355−56.

9

Notably, DHS cites no basis for interpreting the policy statements at 8 U.S.C.

10

§ 1601 beyond a belief in “a strong connection” between those policy statements and

11

the public charge rule inadmissibility ground.

12

Essentially, at this early stage in the litigation, the Federal Defendants urge the

13

Court to take two unsupported leaps of statutory construction. First, they seek a

14

legal conclusion that the purpose of the public charge inadmissibility provision is to

15

“ensur[e] the economic self-sufficiency of aliens.” ECF No. 155 at 37. Second, the

16

Federal Defendants argue that Congress has delegated to DHS the role of

17

determining what benefits programs, income levels, and household sizes or

18

compositions, promote or undermine self-sufficiency. However, the Federal

19

Defendants have not cited any statute, legislative history, or other resource that

20

supports the interpretation that Congress has delegated to DHS the authority to

21

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1 expand the definition of who is inadmissible as a public charge or to define what

2 benefits undermine, rather than promote, the stated goal of achieving self-

3 sufficiency.

4

By contrast, the Plaintiff States offer extensive support for the conclusion that

5 Congress unambiguously rejected key components of the Public Charge Rule,

6 including the consideration of non-cash public benefits and a rigid twelve-month

7 aggregate approach in determining whether someone would be deemed a public

8 charge. In the pivotal legislative period of 1996, and again in 2013, Congress

9 rejected the provisions that the Public Charge Rule now incorporates. In 2013, as

10 the Plaintiff States underscore, Congress rejected expansion of the benefits

11 considered for public charge exclusion with full awareness of the 1999 field

12 guidance in effect. See ECF No. 158 at 18 (citing Lorillard v. Pons, 434 U.S. 575,

13 580 (1978) (“Congress is presumed to be aware of an administrative or judicial

14 interpretation of a statute and to adopt that interpretation when it re-enacts a statute

15 without change.”)).

16

Furthermore, the Plaintiff States make a strong showing in the record that

17 DHS has overstepped its authority. The Federal Defendants assert, without any

18 citation to authority, that “an individual who relies on Medicaid benefits for an

19 extended period of time in order ‘to get up, get dressed, and go to work,’ is not self-

20 sufficient.’” ECF No. 155 at 54 (quoting from Plaintiff’s motion at ECF No. 34).

21 Yet, again, the Federal Defendants offer no authority to support that DHS’s role, by

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1 Congressional authorization, is to define self-sufficiency. See Comcast Corp. v.

2 FCC, 600 F.3d 642, 655 (D.C. Cir. 2010) (rejecting the FCC’s interpretation of its

3 authority because “if accepted it would virtually free the Commission from its

4 congressional tether.”). The Federal Defendants also have not explained how DHS

5 as an agency has the expertise necessary to make a determination of what promotes

6 self-sufficiency and what amounts to self-sufficiency.

7

As further illustration of DHS’s unmooring from its Congressionally

8 delegated authority, DHS justifies including receipt of Medicaid in the public charge

9 consideration by reciting that “‘the total Federal expenditure for the Medicaid

10 program overall is by far larger than any other program for low-income people.’”

11 ECF No. 109 at 41 (brief from Health Law Advocates and other public health

12 organizations, quoting 84 Fed. Reg. at 41,379). However, “[t]he cost of Medicaid is

13 not DHS’s concern[, as] Congress delegated the implementation and administration

14 of Medicaid, including the cost of the program, to HHS and the states.” Id. (citing

15 42 U.S.C. §§ 1396, 1396-1, 1315(a)). Congress cannot delegate authority that the

16 Constitution does not allocate to the federal government in the first place, and the

17 states exercise a central role in formulation and administration of health care policy.

18 See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 636 (“[T]he facets of

19 governing that touch on citizens’ daily lives are normally administered by smaller

20 governments closer to the governed.”); see also Medtronic, Inc. v. Lohr, 518 U.S.

21 470, 484 (1996) (noting the “historic primacy of state regulation of matters of health

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1 and safety”). Therefore, the Court finds a likelihood that the Plaintiff States will be

2 successful in proving that DHS acted beyond its Congressionally delegated authority

3 when it promulgated the Public Charge Rule.

4

Moreover, the Rehabilitation Act prohibits denying a person benefits,

5 excluding a person from participating, or discriminating against a person “solely by

6 reason of her or his disability[.]” 29 U.S.C. § 794(a). Although DHS acknowledges

7 in the Public Charge Rule notice that the Public Charge Rule will have a “potentially

8 outsized impact” on individuals with disabilities, DHS rationalizes that “Congress

9 did not specifically provide for a public charge exemption for individuals with

10 disabilities and in fact included health as a mandatory factor in the public charge

11 inadmissibility consideration.” 84 Fed. Reg. at 41,368. The Federal Defendants

12 argue that the Public Charge Rule is consistent with the Rehabilitation Act because

13 disability is “one factor (among many) that may be considered.” ECF No. 155 at 61.

14

At this early stage in the litigation, the plain language of the Public Charge

15 Rule casts doubt that DHS ultimately will be able to show that the Public Charge

16 Rule is not contrary to the Rehabilitation Act. First, contrary to the Federal

17 Defendants’ assertion, the Public Charge Rule does not state that disability is a

18 factor that “may” be considered. Rather, if the “disability” is a “medical condition

19 that is likely to require extensive medical treatment,” it is one of the minimum

20 factors that the officer must consider. See 8 C.F.R. § 212.22(b). Second, as the

21 amici highlighted, an individual with a disability is likely to have the disability

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1 counted at least twice as a negative factor in the public charge determination because

2 receipt of Medicaid is “essential” for millions of people in the United States with

3 disabilities, and “a third of Medicaid’s adult recipients under the age of 65 are

4 people with disabilities.” ECF No. 110 at 19 (emphasis in original removed).

5

Amici maintain that contrary to being an indicator of becoming a public

6 charge, Medicaid is “positively associated with employment and the integration of

7 individuals with disabilities, in part because Medicaid covers employment supports

8 that enable people with disabilities to work.” ECF No. 110 at 19−20; see also 42

9 U.S.C. § 1396-1 (providing that grants to states for medical assistance programs for

10 families with dependent children and aged, blind, or disabled individuals are for the

11 purpose of “help[ing] such families and individuals attain or retain capability for

12 independence or self-care[.]”). Therefore, accessing Medicaid logically would assist

13 immigrants, not hinder them, in becoming self-sufficient, which is DHS’s stated goal

14 of the Public Charge Rule.

15

Given the history of the public charge provision at 8 U.S.C. § 1182(a)(4)(B),

16 particularly the two recent rejections by Congress of arguments in favor of

17 expanding the rule to include consideration of non-cash benefits for exclusion as the

18 Public Charge Rule now does, the Court finds a significant likelihood that the

19 language of the final rule expands beyond the statutory framework of what a USCIS

20 officer previously was to consider in applying the public charge test. See INS v.

21 Cardoza-Fonseca, 480 U.S. 421, 442−43 (1987) (“‘Few principles of statutory

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1 construction are more compelling than the proposition that Congress does not intend

2 sub silentio to enact statutory language that it has earlier discarded in favor of other

3 language.’”) (quoting Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S.

4 359 392−93 (1980) (Stewart, J. dissenting)).

5

The U.S. Constitution vests Congress with plenary power to create

6 immigration law, subject only to constitutional limitations. See U.S. Const. Art. I,

7 sect. 8, cl. 4; Zadvydas v. Davis, 533 U.S. 678, 695 (2001). An administrative

8 agency may not make through rulemaking immigration law that Congress declined

9 to enact. See Cuomo v. Clearing House Ass’n, LLC, 557 U.S. 519, 533 (2009)

10 (rejecting a federal agency’s interpretation of a statute and finding that the agency

11 had “attempted to do what Congress declined to do”).

12

Therefore, the Court finds that the Plaintiff States have demonstrated a strong

13 likelihood of success on the merits of their first cause of action.

14

2. Count 3: Violation of the Administrative Procedure Act—

15

Arbitrary and Capricious Agency Action

16

Review of a rulemaking procedure under section 706(2)’s arbitrary and

17 capricious standard is “narrow and a court is not to substitute its judgment for that of

18 the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.

19 Ins. Co., 463 U.S. 29, 43 (1983). Nevertheless, an agency has a duty to examine

20 “the relevant data” and to articulate “a satisfactory explanation for its action,

21 ‘including a rational connection between the facts found and the choice made.’”

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1 Dep’t of Commerce, 139 S. Ct. at 2569 (quoting State Farm, 463 U.S. at 43

2 (internal quotation omitted)). An agency rule is arbitrary and capricious “if the

3 agency has ruled on factors which Congress has not intended it to consider, entirely

4 failed to consider an important aspect of the problem, offered an explanation for its

5 decision that runs counter to the evidence before the agency, or is so implausible that

6 it could not be ascribed to a difference in view or the product of agency expertise.”

7 State Farm, 463 U.S. at 43.

8

Further, when an agency’s prior policy has engendered “serious reliance

9 interests,” an agency would be “arbitrary and capricious to ignore such matters,” and

10 the agency must “provide a more detailed justification than what would suffice for a

11 new policy created on a blank slate.” FCC v. Fox TV Stations, Inc., 556 U.S. 502,

12 515−16 (2009). For instance, in INS v. Yueh-Shaio Yang, 519 U.S. 26, 29−30

13 (1996), the Supreme Court examined statutory text elsewhere in the INA

14 establishing minimum requirements to be eligible for a waiver of deportation.

15 Although the Court found that the relevant provision of the INA “imposes no

16 limitations on the factors that the Attorney General (or her delegate, the INS) may

17 consider,” the Court determined that the practices of the INS in exercising its

18 discretion nonetheless were germane to whether the agency violated the APA. Id. at

19 31−32 (internal citation omitted). “Though the agency’s discretion is unfettered at

20 the outset, if it announces and follows—by rule or by settled course of

21 adjudication—a general policy by which its exercise of discretion will be governed,

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1 an irrational departure from that policy (as opposed to an avowed alteration of it)

2 could constitute action that must be overturned as ‘arbitrary, capricious, [or] an

3 abuse of discretion’ within the meaning of the Administrative Procedure Act, 5

4 U.S.C. § 706(2)(A).” Id. at 32.

5

The record on the instant motion raises concerns that the process that DHS

6 followed in formulating the Public Charge Rule did not adhere to the requirements

7 of the APA. First, based on the statutory and agency history of the public charge

8 inadmissibility ground discussed above, it is likely that the status quo has

9 engendered “serious reliance interests” and DHS will be held to the higher standard

10 of providing “a more detailed justification.” FCC, 556 U.S. at 515−16. Although

11 DHS received over 266,000 comments, the agency’s responses to those comments

12 appear conclusory. Moreover, the repeated justification of the changes as promoting

13 self-sufficiency of immigrants in the United States appears inconsistent with the new

14 components of the Public Charge Rule, such as the negative weight attributed to

15 disabled people who use Medicaid to become or remain self-sufficient. See ECF

16 No. 110; 42 U.S.C. § 1396-1.

17

Therefore, the Court finds that there are serious questions going to the merits

18 regarding whether DHS has acted in an arbitrary and capricious manner in

19 formulating the Public Charge Rule. Moreover, the Plaintiff States have

20 demonstrated a substantial likelihood of success on the merits of at least two of their

21 causes of action in this matter.

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1

B. Likelihood of Irreparable Harm

2

The Plaintiff States are likely to incur multiple forms of irreparable harm if

3 the Public Charge Rule takes effect as scheduled on October 15, 2019, before this

4 case can be resolved on the merits.

5

First, the Plaintiff States provide a strong basis for finding that disenrollment

6 from non-cash benefits programs is predictable, not speculative. See, e.g., ECF No.

7 35-1 at 98−140 (detailing the chilling effects of the Public Charge Rule on the use of

8 benefits by legal immigrant families including those with U.S. citizen children); see

9 also Rodde v. Bonta, 357 F.3d 988, 999 (9th Cir. 2004) (finding irreparable harm

10 caused by denial of Medicaid and resulting lack of necessary treatment, increased

11 pain, and medical complications). Not only that, DHS’s predecessor agency noted

12 the harms resulting from a chilling effect twenty years before publication of the

13 Public Charge Rule. 64 Fed. Reg. at 28,692 (“ . . . reluctance to access benefits has

14 an adverse impact not just on the potential recipients, but on public health and the

15 general welfare.”).

16

As discussed in terms of standing, the Public Charge Rule threatens a wide

17 variety of predictable harms to the Plaintiff States’ interests in promoting the

18 missions of their health care systems, the health and wellbeing of their residents, and

19 the Plaintiff States’ financial security. The harms to children, including U.S. citizen

20 children, from reduced access to medical care, food assistance, and housing support

21 particularly threaten the Plaintiff States with a need to re-allocate resources that will

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1 only compound over time. Chronic hunger and housing insecurity in childhood is

2 associated with disorders and other negative effects later in life that are likely to

3 impose significant expenses on state funds. See ECF No. 149 at 21−22. As a

4 natural consequence, the Plaintiff States are likely to lose tax revenue from affected

5 children growing into adults with a compromised ability to contribute to their

6 families and communities. See ECF No. 35-1 at 171, 618.

7

Second, the Public Charge Rule notice itself acknowledges many of the harms

8 alleged by the Plaintiff States. DHS recognizes that disenrollment or foregone

9 enrollment will occur. 84 Fed. Reg. at 41,463. DHS also acknowledges that more

10 individuals will visit emergency rooms for emergent and primary care, resulting in

11 “a potential for increases in uncompensated care” and that communities will

12 experience increases in communicable diseases. Id. at 41,384.

13

In the Public Charge Rule notice, DHS attempts to justify the likely harms by

14 invoking the goal of promoting “the self-sufficiency of aliens within the United

15 States.” See, e.g., 84 Fed. Reg. 41,309 (as underscored by the Plaintiff States at oral

16 argument, the Public Charge Rule notice uses the word “self-sufficiency” 165 times

17 and the word “self-sufficient” 135 times). Whether DHS can use the stated goal of

18 promoting self-sufficiency to justify this rulemaking remains an open question for a

19 later determination, although, as the Court found above, the Plaintiff States have

20 made a strong showing that DHS overstepped their Congressionally authorized role

21 in interpreting and enforcing the policy statements in 8 U.S.C. § 1601.

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1

The operative question for this prong of both a section 705 stay and

2 preliminary injunction analysis is whether there is a likelihood of irreparable injury.

3 The Court finds this prong satisfied and notes that DHS itself recognizes that

4 irreparable injury will occur. The Federal Defendants contest only the magnitude of

5 the harms claimed by the Plaintiff States and the amici. However, the Federal

6 Defendants do not contest the existence of irreparable harm and DHS acknowledged

7 many of the harms in its own rulemaking notice. See Simula, Inc. v. Autoliv, Inc.,

8 175 F.3d 716 (9th Cir. 1999) (requiring a party moving for a preliminary injunction

9 to demonstrate “a significant threat of irreparable injury, irrespective of the

10 magnitude of the injury”).

11

Therefore, the Court finds that immediate and ongoing harm to the Plaintiff

12 States and their residents, both immigrant and non-immigrant, is predictable, and

13 there is a significant likelihood of irreparable injury if the rule were to take effect as

14 scheduled on October 15, 2019.

15

C. Balance of the Equities, Substantial Injury to the Opposing Party,

16 and the Public Interest6

17

The third and fourth factors of both a section 705 stay and preliminary

18 injunction analysis also tip in favor of preserving the status quo until this litigation is

19
20 6 When the federal government is a party, the balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir.
21 2014) (citing Nken, 556 U.S. at 435).

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1 resolved. The Federal Defendants assert that they have “a substantial interest in

2 administering the national immigration system, a solely federal prerogative,” and

3 that they “have made the assessment in their expertise that the ‘status quo’ referred

4 to by Plaintiffs is insufficient or inappropriate to serve the purposes of proper

5 immigration enforcement.’” ECF No. 155 at 67−68 (emphasis in original).

6

However, the Federal Defendants have made no showing of hardship, injury

7 to themselves, or damage to the public interest from continuing to enforce the status

8 quo with respect to the public charge ground of inadmissibility until these issues can

9 be resolved on the merits. See Sierra Forest Legacy v. Sherman, 646 F.3d 1161,

10 1186 (9th Cir. 2011) (reasoning that automatically deferring to federal agencies’

11 expert assessment of the equities of an injunction would result in “nearly

12 unattainable” relief from the federal government’s policies, “as government experts

13 will likely attest that the public interest favors the federal government’s preferred

14 policy, regardless of procedural failures.”).

15

In contrast, the Plaintiff States have shown a significant threat of irreparable

16 injury as a result of the impending enactment of the Public Charge Rule by

17 numerous individuals disenrolling from benefits for which they or their relatives

18 were qualified, out of fear or confusion, that accepting those non-cash public

19 benefits will deprive them of an opportunity for legal permanent residency. The

20 Plaintiff States have further demonstrated how that chilling effect predictably would

21 cause irreparable injury by creating long-term costs to the Plaintiff States from

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1 providing ongoing triage for residents who have missed opportunities for timely

2 diagnoses, vaccinations, or building a strong foundation in childhood that will allow

3 U.S. citizen children and future U.S. citizens to flourish and contribute to their

4 communities as taxpaying adults.

5

Further, the Court finds a significant threat of immediate and ongoing harm to

6 all states because of the likelihood of residents of the Plaintiff States travelling

7 through or relocating to other states. Consequently, the balance of equities tips

8 sharply in favor of the Plaintiff States, and the third factor for purposes of a stay,

9 threat of substantial injury to the opposing party, favors the Plaintiff States, as well.

10

The Court finds that the Plaintiff States and the dozens of amici who

11 submitted briefs in support of the stay and injunctive relief have established that “an

12 injunction is in the public interest” because of the numerous detrimental effects that

13 the Public Charge Rule may cause. See Winter, 555 U.S. at 20; see also League of

14 Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (“[T]here is a

15 substantial public interest in having governmental agencies abide by the federal laws

16 that govern their existence and operations.”).

17 VI. FORM AND SCOPE OF RELIEF

18

The Plaintiff States have shown under the four requisite considerations of the

19 Winter test that they are entitled to both a stay under 5 U.S.C. § 705 and a

20 preliminary injunction under Fed. R. Civ. P. 65.

21

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1

In section 705, Congress expressly created a mechanism for a reviewing court

2 to intervene to suspend an administrative action until a challenge to the legality of

3 that action can be judicially reviewed. 5 U.S.C. § 705.7 Here, postponing the

4 effective date of the Public Charge Rule, in its entirety, provides the Plaintiff States’

5 the necessary relief to “prevent irreparable injury,” as section 705 instructs. See

6 Nken, 556 U.S. at 421 (“A stay does not make time stand still, but does hold a ruling

7 in abeyance to allow an appellate court the time necessary to review it.”).

8

Alternatively, if a reviewing court determines that a section 705 stay is not

9 appropriate or timely, the Court also finds that the Plaintiff States offer substantial

10 evidence to support a preliminary injunction from enforcement of the Public Charge

11 Rule, without geographic limitation.

12

Just as the remedy under section 705 for administrative actions is to preserve

13 the status quo while the merits of a challenge to administrative action is resolved, an

14 injunction must apply universally to workably maintain the status quo and

15 adequately protect the Plaintiff States from irreparable harm. Limiting the scope of

16 the injunction to the fourteen Plaintiff States would not prevent those harms to the

17 Plaintiff States, for several reasons. First, any immigrant residing in one of the

18 7 See Frank Chang, The Administrative Procedure Act’s Stay Provision: Bypassing
19 Scylla and Charybdis of Preliminary Injunctions, 85 Geo. Wash. L. Rev. 1529, 20 1552 (2017) (“The nationwide stay is an acceptable and rational policy choice that
Congress made: while it delegates certain rulemaking authority to the agencies, it 21 does so on the premise that the judiciary will curb their excesses.”).

ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION ~ 56

Case 4:19-cv-05210-RMP ECF No. 162 filed 10/11/19 PageID.4077 Page 57 of 59

1 Plaintiff States may in the future need to move to a non-plaintiff state but would be

2 deterred from accessing public benefits if relief were limited in geographic scope.

3 Second, a geographically limited injunction could spur immigrants now living in

4 non-plaintiff states to move to one of the Plaintiff States, compounding the Plaintiff

5 States’ economic injuries to accommodate a surge in social services enrollees.

6 Third, if the injunction applied only in the fourteen Plaintiff States, a lawful

7 permanent resident returning to the United States from a trip abroad of more than

8 180 days may be subject to the Public Charge Rule at a point of entry. Therefore,

9 the scope of the injunction must be universal to afford the Plaintiff States the relief

10 to which they are entitled. See, e.g., California, 911 F.3d at 582 (“Although there is

11 no bar against nationwide relief in federal district court . . . such broad relief must be

12 necessary to give prevailing parties the relief to which they are entitled.”) (internal

13 quotation marks and citation omitted).

14

Finally, the Court declines to limit the injunction to apply only in those states

15 within the U.S. Court of Appeals for the Ninth Circuit. In addition to the reasons

16 discussed above, a Ninth Circuit-only injunction would deprive eleven of the

17 fourteen Plaintiff States any relief at all. Colorado, Delaware, Illinois, Maryland,

18 Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Rhode Island, and

19 Virginia are located in seven other judicial circuits (the First, Third, Fourth, Sixth,

20 Seventh, Eighth, and Tenth Circuits) and would derive no protection from

21 irreparable injury from relief limited to jurisdictions within the Ninth Circuit.

ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION ~ 57

Case 4:19-cv-05210-RMP ECF No. 162 filed 10/11/19 PageID.4078 Page 58 of 59

1

Accordingly, IT IS HEREBY ORDERED:

2

1. The Plaintiff States’ Motion for a Section 705 Stay Pending Judicial

3 Review and for Preliminary Injunction, ECF No. 34, is GRANTED.

4

2. The Court finds that the Plaintiff States have established a likelihood of

5 success on the merits of their claims under the Administrative Procedure Act, that

6 they would suffer irreparable harm absent a stay of the effective date of the Public

7 Charge Rule or preliminary injunctive relief, that the lack of substantial injury to the

8 opposing party and the public interest favor a stay, and that the balance of equities

9 and the public interest favor an injunction.

10

3. The Court therefore, pursuant to 5 U.S.C. § 705, STAYS the

11 implementation of the U.S. Department of Homeland Security’s (DHS) Rule entitled

12 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to

13 be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245 and 248), in its entirety,

14 pending entry of a final judgment on the Plaintiff States’ APA claims. The effective

15 date of the Final Rule is POSTPONED pending conclusion of these review

16 proceedings.

17

4. In the alternative, pursuant to Rule 65(a) of the Federal Rules of Civil

18 Procedure, the Court PRELIMINARILY ENJOINS the Federal Defendants and

19 their officers, agents, servants, employees, and attorneys, and any person in active

20 concert or participation with them, from implementing or enforcing the Rule entitled

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

ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION ~ 58

Case 4:19-cv-05210-RMP ECF No. 162 filed 10/11/19 PageID.4079 Page 59 of 59

1 any manner or in any respect, and shall preserve the status quo pursuant to the

2 regulations promulgated under 8 C.F.R. Parts 103, 212, 213, 214, 245, and 248, in

3 effect as of the date of this Order, until further order of the Court.

4

5. No bond shall be required pursuant to Federal Rule of Civil

5 Procedure 65(c).

6

IT IS SO ORDERED. The District Court Clerk is directed to enter this

7 Order and provide copies to counsel.

8

DATED October 11, 2019.

9

s/ Rosanna Malouf Peterson

ROSANNA MALOUF PETERSON

10

United States District Judge

11

12

13

14

15

16

17

18

19

20

21

ORDER GRANTING PLAINTIFF STATES’ MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION ~ 59

 
 Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 1 of 79

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
DEC 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF SANTA CLARA,
Plaintiffs-Appellees,

No. 19-17213
D.C. No. 4:19-cv-04717-PJH Northern District of California, Oakland

v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,

ORDER

Defendants-Appellants.

STATE OF CALIFORNIA; DISTRICT OF COLUMBIA; STATE OF MAINE; COMMONWEALTH OF PENNSYLVANIA; STATE OF OREGON,
Plaintiffs-Appellees,

No. 19-17214
D.C. No. 4:19-cv-04975-PJH Northern District of California, Oakland

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 2 of 79

v.
U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; DANA NESSEL, Attorney General on behalf of the People of Michigan; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF RHODE ISLAND; STATE OF HAWAI’I,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND

No. 19-35914
D.C. No. 4:19-cv-05210-RMP Eastern District of Washington, Richland

2

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 3 of 79
SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.
Before: BYBEE, IKUTA, and OWENS, Circuit Judges. BYBEE, Circuit Judge:
Since 1882, when the Congress enacted the first comprehensive immigration statute, U.S. law has prohibited the admission to the United States of “any 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 (1882). Although the precise formulation of this provision has been amended regularly in the succeeding century and a quarter, the basic prohibition and the phrase “public charge” remains. Most recently, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress amended the Immigration and Nationality Act (INA) to provide that “[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of
3

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 4 of 79
application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). In making this determination, “the consular officer or the Attorney General shall at a minimum” take five factors into account: age; health; family status; assets, resources, and financial status; and education and skills. Id. § 1182(a)(4)(B)(i). Under longstanding practice, consular officers and the Attorney General consider these factors under a “totality of the circumstances” test.
In 1999, the Immigration and Naturalization Service (INS), providing guidance to the public and INS field officers, defined “public charge” as an “alien . . . who is likely to become . . . primarily dependent on the government for subsistence” as demonstrated by either “institutionalization for long-term care at government expense” or “receipt of public cash assistance for income maintenance.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (May 26, 1999) (1999 Field Guidance) (internal quotation marks omitted). Although INS determined that the receipt of cash benefits received under a public program would be considered a factor in determining whether an alien was likely to become a public charge, it stated that non-cash benefits would not be taken into account for public-charge purposes. Id.
4

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 5 of 79
In August 2019, following notice and comment, the Department of Homeland Security adopted a new rule, redefining the term “public charge” to require a consideration of not only cash benefits, but also certain non-cash benefits. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,292 (Aug. 14, 2019) (Final Rule). Under DHS’s Final Rule a public charge is “an alien who receives one or more public benefits . . . for more than 12 months in the aggregate within any 36-month period.” Id. at 41,501. In turn, DHS defined “public benefits.” Consistent with the 1999 Field Guidance, DHS still considers receipt of cash assistance from Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); and federal, state, or local general assistance programs to be public benefits. To that list, DHS added non-cash assistance received through the Supplemental Nutrition Assistance Program (SNAP), Section 8 housing assistance, Section 8 project-based rental assistance, Medicaid (with certain exceptions), and Section 9 public housing. Id. DHS’s rule exempts public benefits received for emergency medical conditions, benefits received under the Individuals with Disabilities Education Act, and school-based services or benefits. Id. It also exempts those benefits received by aliens under 21 years of age, women during pregnancy, and members of the armed forces and their families. Id. DHS repeated that “[t]he determination of an alien’s likelihood of
5

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 6 of 79
becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances.” Id. at 41,502.
Prior to the Final Rule taking effect in October 2019, various states, municipalities and organizations brought suits in California and Washington seeking a preliminary injunction against the implementation of the rule. In Nos. 19-17213 and 19-17214, California, Maine, Oregon, Pennsylvania, and the District of Columbia; the City and County of San Francisco and the County of Santa Clara; and various organizations brought suit in the Northern District of California against the United States under the Due Process Clause of the Fifth Amendment; the Administrative Procedure Act (APA), 5 U.S.C. § 706; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02. The district court granted a preliminary injunction on the basis of the APA, effective against implementation of the rule in the plaintiff states. City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 2019 WL 5100718 (N.D. Cal. Oct. 11, 2019). In No. 1935914, thirteen states—Washington, Virginia, Colorado, Delaware, Hawai‘i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island—filed suit in the Eastern District of Washington against DHS under the Due Process Clause of the Fifth Amendment and the APA. The district court granted a preliminary injunction on the basis of the APA claims and issued a
6

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 7 of 79
nationwide injunction. Washington v. U.S. Dep’t of Homeland Sec., 2019 WL 5100717 (E.D. Wash. Oct. 11, 2019).
DHS seeks a stay of both preliminary injunctions.1 Our authority to issue a stay of a preliminary injunction is circumscribed. Nevertheless, for the reasons explained below, we will grant the stay. DHS 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. See Nken v. Holder, 556 U.S. 418, 434 (2009).
I. BACKGROUND AND PROCEDURE We begin with the governing statutory framework, the proposed change to this framework, and the proceedings below. A. Statutory Framework The INA requires all aliens who seek lawful admission to the United States, or those already present but seeking to become lawful permanent residents (LPRs), to prove that they are “not inadmissible.” 8 U.S.C. § 1361; see also id. §§ 1225(a), 1255(a). Section 212 of the INA lists the grounds on which an alien may be adjudged inadmissible. Id. § 1182(a)(1)–(10). One of the grounds for
1 For clarity, we will refer to the plaintiffs below as “the States” and the defendants as “DHS.”
7

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 8 of 79
inadmissibility is a determination that the alien is likely to become a “public
charge.” Id. § 1182(a)(4). Section 212(a)(4) of the INA reads as follows:
(4) PUBLIC CHARGE. —
(A) IN GENERAL.—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.
(B) FACTORS TO BE TAKEN INTO ACCOUNT.—
(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General[2] shall at a minimum consider the alien’s—
(I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills.
(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any
2 The Homeland Security Act of 2002 transferred much of the Attorney General’s immigration authority to the newly created office of the Secretary of Homeland Security. See In re D-J-, 23 I. & N. Dec. 572, 573–74 & n.2 (Op. Att’y Gen. 2003) (citing Homeland Security Act of 2002, Pub. L. No. 108-7, 117 Stat. 531 (2003)). Though the Attorney General retains authority over the Executive Office for Immigration Review, id. n.3, the Secretary of Homeland Security is now responsible with the general administration and enforcement of immigration law, id. n.2.
8

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 9 of 79
affidavit of support[3] under section 1183a of this title for purposes of exclusion under this paragraph. Id. This provision is applied at different times by different government agencies. When an alien seeks a visa to travel to the United States, a Department of State (DOS) consular officer must make an admissibility determination. See 84 Fed. Reg. at 41,294 n.3. When an alien arrives at a port of entry without a visa, DHS makes that determination. Id. An alien may also be deemed “inadmissible” even when the alien is already in the country. For example, when an alien seeks an adjustment of status from non-immigrant to LPR, DHS must determine that the alien is not inadmissible. See id. And when an alien is processed in immigration court, the Department of Justice (DOJ) through immigration judges and the Board of Immigration Appeals (BIA) must determine whether that alien is inadmissible. Id. Though § 212 of the INA lays out the factors an immigration official must consider “at a minimum” when making a public-charge determination, the INA does not define the term “public charge,” or restrict how officials are to consider
3 An affidavit of support is a binding pledge, often made by an employer or family member of the alien, to financially support the alien at 125 percent of the Federal poverty line. 8 U.S.C. § 1183.
9

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 10 of 79
age, health, family status, financial resources, and education. Indeed, as explained in more detail below, in the context of immigration law, the term “public charge” has had several meanings. Since 1999, however, the term has been defined according to guidelines issued by the INS Field Guidance on the matter. See 1999 Field Guidance, 64 Fed. Reg. at 28,689. The 1999 Field Guidance defined a public charge as an alien 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 or (ii) institutionalization for long-term care at government expense.” Id. (internal quotation marks omitted). The 1999 Field Guidance did not permit immigration officers to “place any weight on the receipt of non-cash public benefits,” id., and allowed consideration of only cash-benefit programs like SSI, TANF, and “[s]tate and local cash assistance programs that provide benefits for income maintenance,” id. at 28,692. B. The Proposed Rule
On October 10, 2018, DHS published a Notice of Proposed Rulemaking (NPRM) indicating its intent to abandon the 1999 Field Guidance and redefine the term “public charge.” See Inadmissibility on Public Charge Grounds, 83 Fed. Reg.
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Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 11 of 79
51,114 (proposed Oct. 10, 2018).4 It did so acting under the authority vested in the Secretary of Homeland Security to establish immigration regulations and enforce immigration law. See 8 U.S.C. § 1103(a)(3) (“[The Secretary of Homeland Security] shall establish such regulations . . . as he deems necessary for carrying out his authority under the provisions of this chapter.”). The proposed rule redefined the term “public charge” in two ways.
First, the proposed rule for the first time established a required length of time for which the alien would have to rely on public benefits before being labeled a public charge. Under the 1999 Field Guidance, a public charge was defined as an individual “primarily dependent” on government benefits, but the 1999 Field Guidance prescribed no specific time period for which this determination should be made. See 64 Fed. Reg. at 28,689, 28,692. Under the new rule, an alien would be considered a public charge if he or she “receives one or more [designated] public benefits . . . for more than 12 months in the aggregate within a 36-month period.” 83 Fed. Reg. at 51,157–58. Moreover, the proposed rule counts each
4 The proposed rule would not change the definition of public charge for removability determinations, only for determinations of inadmissibility. 83 Fed. Reg. at 51,134. And though the rule only applies to DHS, DHS is currently working with DOS and DOJ to ensure that all three agencies apply a consistent definition of the term in their admissibility inquiries. 84 Fed. Reg. at 41,294 n.3.
11

Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 12 of 79
public benefit received, so that “receipt of two different non-monetizable benefits in one month counts as two months.” Id. at 51,166.
Second, the proposed rule expanded which benefits contributed to a publiccharge determination. The proposed rule still included those cash-benefit programs that were listed in the 1999 Field Guidance, but now also includes various in-kind programs, such as:
(A) Supplemental Nutrition Assistance Program (SNAP, formerly called ‘‘Food Stamps’’), 7 U.S.C. 2011 to 2036c; (B) Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD under 24 CFR part 984; 42 U.S.C. 1437f and 1437u; (C) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under 24 CFR parts 5, 402, 880 through 884 and 886; and . . .
(i) Medicaid, 42 U.S.C. 1396 et seq., [with several exceptions, discussed below] . . . (iv) Subsidized Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.
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Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 13 of 79
Id. at 51,290 (to be codified at 8 C.F.R. § 212.21).5
Additionally, the proposed rule added other factors for immigration officers
to consider when making a public-charge determination. The rule still required
consideration of the alien’s age, health, family status, financial status, education
and skills, as well as any affidavits of support the alien presents. See 83 Fed Reg.
51,178 (to be codified at 8 C.F.R. § 212.22). But the proposed rule also laid out
new factors to be afforded extra weight. Four factors weigh heavily against the
alien in a public-charge determination: (1) a finding that the alien “is not a
full-time student and is authorized to work,” but cannot demonstrate “current
employment, employment history, or [a] reasonable prospect of future
employment”; (2) a previous finding of inadmissibility on public-charge grounds;
(3) a medical diagnosis that would likely require extensive medical treatment or
interfere with the alien’s ability to be self-sufficient; and (4) receipt of benefits for
5 DHS altered the Final Rule to make clear that certain benefits were exempt from consideration, including “Medicaid [collected] by aliens under the age of 21[, Medicaid collected by] pregnant women during pregnancy and during the 60-day period after pregnancy,” school-based services, Individuals with Disabilities Education Act (IDEA) services, Medicare Part D Low-Income Subsidies, and emergency medical care. 84 Fed. Reg. at 41,296–97 (codified at 8 C.F.R. § 212.21). Further, in certain circumstances, the proposed rule excuses receipt of covered public benefits. See id. (codified at 8 C.F.R. § 212.21) (exempting public benefits from consideration when the recipient has received certain humanitarian relief, the recipient or his spouse was in the Armed Forces, or the recipient received a waiver).
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more than twelve months within a thirty-six month period. Id. at 51,198–201 (to be codified at 8 C.F.R. § 212.22). Conversely, two factors would weigh heavily in favor of the alien in a public-charge determination: (1) assets or household income over 250 percent of the Federal poverty line, and (2) individual income over 250 percent of the Federal poverty line.6 Id. at 51,292 (to be codified at 8 C.F.R. § 212.22(c)(2)).
During the sixty-day public comment period that followed the NPRM, DHS collected 266,077 comments, “the vast majority of which opposed the rule.” 84 Fed. Reg. at 41,297. On August 14, 2019, DHS published the Final Rule in the Federal Register. Id. at 41,292. In its 216-page Final Rule, DHS made some changes to the proposed rule (which are not relevant here) and addressed the comments it received. The Final Rule was scheduled to take effect on October 15, 2019, and would apply to anyone applying for admission or adjustment of status after that date. Id. C. The Proceedings
1. The Northern District of California Case
6 The Final Rule added a third factor: private health insurance not subsidized under the Affordable Care Act. 84 Fed. Reg. at 41,504.
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On August 13, 2019, the City and County of San Francisco and the County of Santa Clara sued several government agencies and officials, including U.S. Citizenship and Immigration Services (USCIS), the Acting Director of USCIS Kenneth T. Cuccinelli, DHS, and the then Acting Director of DHS Kevin McAleenan. They brought suit in the United States District Court for the Northern District of California, claiming that the proposed rule violated the APA on two grounds: (1) the rule was not made in accordance with the law, and (2) the rule was arbitrary, capricious, and an abuse of discretion. See 5 U.S.C. § 706(2). Three days later, on August 16, 2019, California, Maine, Oregon, Pennsylvania, and the District of Columbia, sued the same defendants in the same court. They claimed that (1) the proposed rule violated § 706 of the APA because (a) it was not made in accordance with the INA, the IIRIRA, the Rehabilitation Act, or state healthcare discretion, (b) it was arbitrary, capricious, and an abuse of discretion, and (2) the proposed rule violated the Fifth Amendment’s Due Process Clause because it denied equal protection based on race and unconstitutional animus.
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Each set of plaintiffs filed a motion to preliminarily enjoin enforcement of the proposed rule. On August 27, 2019, the district court ordered the two cases consolidated.7
The district court heard oral argument on October 2, 2019, and on October 11, granted the preliminary injunction. See City & Cty. of San Francisco, 2019 WL 5100718 at *1, 53. The court first held that both the Counties and the States had standing to sue because they showed imminent financial injury. Id. at *46–47. It held that they were in the statute’s zone of interests because, in enacting the public-charge provision of the INA, “Congress intended to protect states and their political subdivisions’ coffers.” Id. at *41. On the merits, the district court found that the States satisfied the four-factor test for a preliminary injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The court held that the States had a likelihood of success on the merits for at least some of their claims. It found the States were likely to successfully show that the proposed rule was contrary to law because it unreasonably defined the term “public charge,” and thus failed the second step of the Chevron analysis. City & Cty. of San Francisco, 2019
7 Several legal and health-care organizations were also parties to the motion for a preliminary injunction below. The district court found that they failed to establish that they were within the zone of interests. City & Cty. of San Francisco, 2019 WL 5100718, at *53. They are not parties to this appeal.
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WL 5100718, at *28. Alternatively, the court found that the States had shown a serious question as to whether the INA unambiguously foreclosed the proposed change to the definition of public charge, thus causing the Final Rule to fail at Chevron step one. Id. The court also concluded that the States had demonstrated a likelihood of success on the arbitrary-and-capricious claim because DHS failed to adequately consider the adverse economic and public health-related costs of the proposed rule. Id. at *34, *37.
Further, the court found that the rule’s implementation would irreparably harm the Counties and States by causing them to lose millions of dollars in federal reimbursements and face increased operational costs. Id. at *46–49. Focusing on the public’s interest in the continued provision of medical services and the prevention of communicable diseases, the district court found both the balance of the equities and the public interest weighed in favor of granting an injunction. Id. at *50–51. However, because the court found that the States had failed to show why a nationwide injunction would be necessary, the court granted an injunction that applied only to those persons living in plaintiff states or counties. Id. at *53.
On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it would seek appellate relief if the court did not act by November 14.
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2. The Eastern District of Washington Case On August 14, 2019, Washington, Virginia, Colorado, Delaware, Hawai‘i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, Rhode Island, and the state attorney general on behalf of Michigan sued USCIS, Cuccinelli, DHS, and McAleenan in the United States District Court for the Eastern District of Washington. They alleged claims similar to those presented in the California cases: (1) the proposed rule violated the APA because (a) it was not in accordance with immigration law or the Rehabilitation Act, (b) it exceeded DHS’s statutory jurisdiction or authority, and (c) it was arbitrary, capricious, and an abuse of discretion, and (2) the proposed rule violated the Fifth Amendment’s Due Process Clause because it denied equal protection based on race and unconstitutional animus. The district court heard oral argument on October 3, 2019, and on October 11, granted the preliminary injunction. See Washington, 2019 WL 5100717, at *23. The court’s conclusions largely mirrored those of the Northern District of California, though there were some differences. Citing the States’ anticipated economic, administrative, and public-health costs, the court held that the States had standing and that the matter was ripe. Id. at *11. Finding that the INA was enacted “to protect states from having to spend state money to provide for
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Case: 19-17213, 12/05/2019, ID: 11523019, DktEntry: 27, Page 19 of 79
immigrants who could not provide for themselves,” the court concluded that the States were within the INA’s zone of interests. Id.
On the merits, the court held that the States had shown a likelihood of success on the arbitrary-and-capriciousness claim and the Chevron claim, though the Washington court was less clear than the California court had been about at which step of the Chevron analysis the proposed rule would fail. Id. at *13–17. Unlike the California court, the Washington court also found that the States were likely to succeed in proving that DHS had violated the Rehabilitation Act, and that DHS acted beyond its congressionally delegated authority in defining selfsufficiency. Id. at *17–18. Noting that “the Plaintiff States provide a strong basis for finding that disenrollment from non-cash benefits programs is predictable, not speculative,” and that such disenrollment would financially harm the States, the court found that the States would suffer irreparable harm if the injunction were not issued. Id. at *20–21. On these same grounds, the court found that the balance of the equities and public interest both “tip[ped] in favor” of granting a preliminary injunction. Id. at *21. However, unlike the California court, the Washington court found a geographically limited injunction untenable, in part because a limited injunction might give immigrants an incentive to move from unprotected states to
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protected states. Accordingly, the Washington court granted the States a nationwide injunction. Id. at *22–23.
On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it would seek appellate relief if the court did not act by November 14.
* * * By November 14, neither district court responded to the respective motions to stay. On November 15, 2019, DHS filed a motion in this court for an emergency stay of the injunction.
II. JURISDICTION DHS contends that the plaintiffs do not have Article III standing to sue and that their claims do not fall within the zone of interests protected by the INA. We have an obligation to ensure that jurisdiction exists before proceeding to the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–95 (1998).8 Additionally, although no party has raised the issue, we must address whether
8 Both district courts also held that the States’ claims fall within the INA’s “zone of interests.” See City & Cty. of San Francisco, 2019 WL 5100718, at *41; Washington, 2019 WL 5100717, at *11. For present purposes, because the issue is close and raises a prudential rather than jurisdictional concern, see Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017), we will assume that the States’ claims satisfy the requirement.
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DHS’s request for a stay pending appeal is moot in light of the fact that two courts outside our circuit have also issued nationwide injunctions, and any decision we issue here would not directly affect those orders. We conclude that, at this preliminary stage of the proceedings, the States have sufficiently alleged grounds for Article III standing and that DHS’s petition for a stay is not moot.
A. Article III Standing Article III of the Constitution limits the federal judicial power to the
adjudication of “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1. This fundamental limitation “is founded in concern about the proper—and properly limited—role of the courts in a democratic society.” Summers v. Earth Island Inst., 555 U.S. 488, 492–93 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue.” Trump v. Hawai’i, 138 S. Ct. 2392, 2416 (2018). “[B]uilt on separation-of-powers principles,” standing ensures that litigants have “a personal stake in the outcome of the controversy as to justify the exercise of the court’s remedial powers on their behalf.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (internal citations and alterations omitted).
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To demonstrate Article III standing, a plaintiff must show a “concrete and particularized” injury that is “fairly traceable” to the defendant’s conduct and “that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “At least one plaintiff must have standing to seek each form of relief requested,” Town of Chester, 137 S. Ct. at 1651, and that party “bears the burden of establishing” the elements of standing “with the manner and degree of evidence required at the successive stages of the litigation,” Lujan, 504 U.S. at 561. “At this very preliminary stage,” plaintiffs “may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their [preliminary-injunction] motion to meet their burden.” Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017) (per curiam). And they “need only establish a risk or threat of injury to satisfy the actual injury requirement.” Harris v. Bd. of Supervisors, 366 F.3d 754, 762 (9th Cir. 2004); see Spokeo, 136 S. Ct. at 1548 (noting that the injury must be “actual or imminent, not conjectural or hypothetical” (quoting Lujan, 504 U.S. at 560)).
The district courts concluded that the States had standing based on their alleged loss of federal funds and increase in operational costs related to individuals disenrolling from the non-cash public benefits at issue. DHS challenges this
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finding, arguing that predictions of future financial harm are based on an “‘attenuated chain of possibilities’ that does not show ‘certainly impending’ injury.”9 DHS’s argument is unavailing for several reasons.
First, the injuries alleged are not entirely speculative—at least for standing purposes. DHS acknowledges that one result of the Final Rule will be to encourage aliens to disenroll from public benefits. It predicted a 2.5 percent disenrollment rate when proposing the rule. 84 Fed. Reg. at 41,463. This disenrollment, DHS predicted, would result in a reduction in Medicaid reimbursement payments to the States of about $1.01 billion. Id. at 41,301. DHS also acknowledged increased administrative costs that would result from the Final Rule. Id. at 41,389. To be sure, the predicted result is premised on the actions of third parties, but this type of “predictable effect of Government action on the decisions of third parties” is sufficient to establish injury in fact. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019).
Moreover, according to evidence supplied by the States, the predicted results have already started. As more individuals disenroll from Medicaid, the States will no longer receive reimbursements from the federal government for treating them.
9 DHS raises no argument about the second and third elements of the standing analysis.
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Similarly, the States have sufficiently alleged that they are facing new and ongoing operational costs resulting from the Final Rule. See City & Cty. of San Francisco, 2019 WL 5100718, at *48. These costs are predictable, likely, and imminent. It is disingenuous for DHS to claim that they are too attenuated at this point when it acknowledged these costs in its own rulemaking process.
Finally, DHS’s reliance on Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), is unfounded. There, the Court found that various human rights, labor, legal, and media organizations did not have standing to challenge the constitutionality of a law authorizing governmental electronic surveillance of communications for foreign intelligence purposes. Id. at 414. The alleged injury was that the threat of surveillance would compel them to travel abroad to have inperson conversations with sources and witnesses, in addition to other costs related to protecting the confidentiality of sensitive communications. Id. at 406–07. The Court found that the injury was not “certainly impending” because it was highly speculative whether the government would imminently target communications between the plaintiffs and foreign individuals. Id. at 410–11. The assumption that their communications would be targeted was not enough to demonstrate injury in fact. Id. at 411–14. Here, the States are not making assumptions about their
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claimed injuries. Unlike in Clapper, the States present evidence that the predicted disenrollment and rising administrative costs are currently happening.
Thus, based on the available evidence at this early stage of the proceedings, we conclude that the States have shown that they have suffered and will suffer direct injuries traceable to the Final Rule and thus have standing to challenge its validity.
B. Mootness Finally, we raise on our own the question of whether we can consider DHS’s
request for a stay of the district court’s preliminary injunctions. See Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (“[W]e have an independent duty to consider sua sponte whether a case is moot.”). The stay would, presumably, allow the Final Rule to go into effect pending further proceedings in the district court and this court. The question of mootness arises because, contemporaneous with the district courts’ orders here, district courts in Maryland and New York also issued nationwide injunctions. Casa de Md/, Inc. v. Trump, 2019 WL 5190689 (D. Md. Oct. 14, 2019); New York v. U.S. Dep’t of Homeland Sec., 2019 WL 5100372
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(S.D.N.Y. Oct. 11, 2019).10 Thus, unless a stay also issues in those cases, any stay we might issue would not allow the Final Rule to go into effect; the Final Rule would still be barred by those injunctions.
We recently addressed this precise question in California v. U.S. Department of Health & Human Services, 941 F.3d 410, 423 (9th Cir. 2019), and we concluded that even if an injunction from another court “has a fully nationwide scope, we nevertheless retain jurisdiction under the exception to mootness for cases capable of repetition, yet evading review.” Similarly, we conclude that DHS’s petition is not moot, and we proceed to the merits of its petition.
III. STANDARD OF REVIEW DHS requests that we stay the district courts’ preliminary injunctions pending resolution of the consideration of the merits of DHS’s appeals. We have authority to do so under the All Writs Act, 28 U.S.C. § 1651, which provides that the courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” See ScrippsHoward Radio, Inc. v. FCC, 316 U.S. 4, 9–10 (1942) (finding that a federal court may stay judgments pending appeal “as part of its traditional equipment for the
10 In a third case out of the Northern District of Illinois, the district court issued an order enjoining enforcement of the Final Rule in Illinois only. Cook Cty. v. McAleenan, 2019 WL 5110267 (N.D. Ill. Oct. 14, 2019).
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administration of justice”); In re McKenzie, 180 U.S. 536, 551 (1901) (noting the “inherent power of the appellate court to stay . . . proceedings on appeal”); see also Fed. R. Civ. P. 62(g).
Two standards affect our determination, the standard applicable to district courts for preliminary injunctions, and the standard for appellate courts for stays pending appeal. The district court must apply a four-factor standard:
A plaintiff seeking a preliminary injunction 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, 555 U.S. at 20. Alternatively, “‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Generally, the purpose of a preliminary injunction is to “preserve the status quo and the rights of the parties until a final judgment issues in the cause.” U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Sierra On-Line, Inc. v. Phoenix
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Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). An injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. It “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted).
The standard we apply to DHS’s request for a stay is similar, although the burden of proof is reversed. “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion,” and our analysis is guided by 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 injury the other parties interested in the proceeding; and (4) where the public interest lies. Nken, 556 U.S. at 433–34 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors . . . are the most critical,” and the “mere possibility” of success or irreparable injury is insufficient to satisfy them. Id. at 434 (internal quotation marks omitted). At this stage of the proceedings, it is now DHS’s burden to make “a strong showing that [it] is likely to” prevail against the States’ claims. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556
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U.S. at 426). We consider the final two factors “[o]nce an applicant satisfies the first two.” Nken, 556 U.S. at 435.
“A stay is an ‘intrusion into the ordinary process of administration and judicial review,’ and accordingly ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.’” Id. at 427 (citations omitted). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’” Id. at 433 (alteration omitted) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672–73 (1926)).
There is significant overlap in these standards. The first prong in both tests—likelihood of success on the merits—is the same. And the Supreme Court has made clear that satisfaction of this factor is the irreducible minimum requirement to granting any equitable and extraordinary relief. Trump v. Hawai’i, 138 S. Ct. at 2423. The analysis ends if the moving party fails to show a likelihood of success on the merits of its claims. Id.
IV. LIKELIHOOD OF SUCCESS ON THE MERITS Any “person suffering legal wrong . . . or adversely affected or aggrieved” by an agency’s final action may seek judicial review. 5 U.S.C. § 702. The scope of our review is determined by the APA. As a reviewing court, we must “set
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aside” a final rule if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). In making this determination, we may “decide all relevant questions of law, interpret . . . statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Id. § 706.
DHS argues that it is likely to succeed on the merits of its appeal because, contrary to the conclusions of the district courts, the Final Rule is neither contrary to law nor arbitrary and capricious. We agree. The Final Rule’s definition of “public charge” is consistent with the relevant statutes, and DHS’s action was not arbitrary or capricious. A. Contrary to Law
The States argue that the Final Rule is invalid under the APA because the Final Rule’s definition of “public charge” is contrary to (1) the INA and (2) the Rehabilitation Act. We disagree and find that DHS is likely to succeed in its argument that the Final Rule is not contrary to law.11
11 The States also brought claims in both courts under the equal protection component of the Due Process Clause. U.S. CONST. art. V. Neither district court reached this issue. We also decline to reach this issue. We will consider the likelihood of success on the merits only as to those issues that formed the bases for the district courts’ injunctions. In any further proceedings, the district courts are free to consider any issues fairly before them.
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1. The INA and “Public Charge”
When confronted with an argument that an agency’s interpretation of a
statute that it administers is wrong, we employ the familiar Chevron two-step test.
First, we ask “whether Congress has directly spoken to the precise question at
issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842
(1984). If it has, “that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.” Id. at
842–43. But if Congress has not spoken directly to the issue at hand, we proceed
to the second step and ask “whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843.
We must keep in mind why Chevron is an important rule of construction:
Chevron is rooted in a background presumption of congressional intent: namely, that Congress, when it left ambiguity in a statute administered by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows. Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.
Arlington v. FCC, 569 U.S. 290, 296 (2013) (quotation marks and citations
omitted).
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The district courts found that the Final Rule failed the Chevron test at one or both steps because the Final Rule’s definition of “public charge” was an impermissible reading of that phrase in the INA. We will consider each step in turn.
a. Chevron Step 1 At Chevron’s first step, we determine whether Congress has directly spoken to the issue at hand by “employing traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n.9. That means we start with the text. Afewerki v. Anaya Law Grp., 868 F.3d 771, 778 (9th Cir. 2017). We will then examine the history of interpretation to see if there has been a judicial construction of the term “public charge” that “follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). Finally, we will consider other factors raised by the district courts and the States. (1) Text. Under § 212 of the INA, an alien is inadmissible if, “in the opinion of” the immigration official, the alien “is likely at any time to become a public charge.” In making that determination, the immigration official must consider “at a minimum” the alien’s age, health, family status, financial resources, education, and skills. 8 U.S.C. § 1182(a)(4)(A). Congress did not define these terms and
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placed no further restrictions on what these officers may consider in the publiccharge assessment. Nor did Congress prescribe how the officers are to regard the five enumerated factors.
We have four quick observations. First, the determination is entrusted to the “opinion” of the consular or immigration officer.12 That is the language of discretion, and the officials are given broad leeway. Depending on the context in which the “opinion” is given, the decision may be nonreviewable. Under the rule of consular nonreviewability, only the most egregious abuses of discretion may be reviewed. See Kerry v. Din, 135 S. Ct. 2128, 2140–41 (2015) (Kennedy, J., concurring); see also Cardenas v. United States, 826 F.3d 1164, 1171–72 (9th Cir. 2016) (holding that Justice Kennedy’s concurring opinion in Din is the controlling opinion and summarizing the consular nonreviewability rule). Indeed, we have previously held that the phrase “in the opinion of the Attorney General” in a nowrepealed immigration statute conferred “unreviewable” discretion to the Executive Branch. See Kalaw v. I.N.S., 133 F.3d 1147, 1151–52 (9th Cir. 1997), superseded by statute on other grounds. And to the extent the federal courts may review such
12 The text of the INA does not mention immigration officers. Rather, it commits the public-charge determination to the “opinion of the Attorney General.” 8 U.S.C. § 1182(a)(4)(A). As we explained above, Congress has since transferred the authority granted by the INA to DHS’s immigration officers.
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determinations, our review is narrow. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002) (holding that judicial review of discretionary acts by the BIA is limited to “the purely legal and hence non-discretionary” aspects of the BIA’s action); see also Allen v. Milas, 896 F.3d 1094, 1106–07 (9th Cir. 2018) (noting that judicial review of visa denials is “limited . . . to constitutional challenges” and does not extend to APA-based challenges (emphasis omitted)).
Second, the critical term “public charge” is not a term of art. It is not selfdefining. That does not mean that officials may pour any meaning into the term, but it does mean that there is room for discretion as to what, precisely, being a “public charge” encompasses. In a word, the phrase is “ambiguous” under Chevron; it is capable of a range of meanings. So long as the agency has defined the term within that range of meanings, we have no grounds for second-guessing the agency, “even if the agency’s reading differs from what [we] believe[] is the best statutory interpretation.” Brand X, 545 U.S. at 980 (citing Chevron, 467 U.S. at 843–44 & n.11). It also means that an agency “must consider varying interpretations and the wisdom of its policy on a continuing basis,” including “in response to changed factual circumstances, or a change in administrations.” Id. at 981 (quotations marks and citations omitted).
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Third, Congress set out five factors to be taken into account by immigration officials, but expressly did not limit the discretion of officials to those factors. Rather the factors are to be considered “at a minimum.” Other factors may be considered as well, giving officials considerable discretion in their decisions.
Fourth, Congress granted DHS the power to adopt regulations to enforce the provisions of the INA. When Congress created DHS, Congress vested the Secretary of Homeland Security “with the administration and enforcement of . . . all [] laws relating to the immigration and naturalization of aliens” and authorized the Secretary to “establish such regulations . . . as he deems necessary.” 8 U.S.C. § 1103(a)(1) & (3); see also 6 U.S.C. § 112(b)(1) (authorizing the Secretary to “delegate any of the Secretary’s functions to any [DHS] officer, employee, or organizational unit”); Matter of D-J-, 23 I. & N. Dec. at 573–74. By granting regulatory authority to DHS, Congress intended that DHS would resolve any ambiguities in the INA. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (“A premise of Chevron is that when Congress grants an agency the authority to administer a statute by issuing regulations with the force of law, it presumes the agency will use that authority to resolve ambiguities in the statutory scheme.”). As we have already noted, the INA’s text is ambiguous. DHS has
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attempted to elucidate that ambiguity in the Final Rule. In short, we do not read the text of the INA to unambiguously foreclose DHS’s action.
(2) Historic Understanding. Although the foregoing would ordinarily be sufficient to end our inquiry, the current provision, which was most recently rewritten in 1996 in IIRIRA, is merely the most recent iteration of federal immigration law to deem an alien inadmissible if he or she is likely to become a “public charge.” There is a long history of judicial and administrative interpretations of this phrase in the immigration context that predates the enactment of the INA. Because “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change,” Lorillard v. Pons, 434 U.S. 575, 580 (1978), we must examine this history to determine if “public charge” has a welldefined and congressionally understood meaning that limits DHS’s discretion.
The history of the term “public charge” confirms that its definition has changed over time to adapt to the way in which federal, state, and local governments have cared for our most vulnerable populations. “Public charge” first appeared in this country’s immigration law in 1882. That statute excluded a would-be immigrant from the United States if the person was a “convict, lunatic,
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idiot, or a[] 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.
Congress did not define “public charge” in the 1882 act. We thus ascribe to that phrase its commonly understood meaning at the time, as evidenced by contemporary sources. See Freeman v. Quicken Loans, Inc., 566 U.S. 624, 633–34 & nn.6–8 (2012) (citing contemporary dictionary definitions to interpret statutory phrases). An 1828 dictionary defined “charge” as “[t]hat which is enjoined, committed, entrusted or delivered to another, implying care, custody, oversight, or duty to be performed by the person entrusted,” or a “person or thing committed to anothers [sic] custody, care or management.” Charge, WEBSTER’S DICTIONARY (1828 Online Edition), http://webstersdictionary1828.com/Dictionary/charge; see also Stewart Rapaljb & Robert L. Lawrence, DICTIONARY OF AMERICAN AND ENGLISH LAW, WITH DEFINITIONS OF THE TECHNICAL TERMS OF THE CANON AND CIVIL LAWS 196 (Frederick D. Linn & Co. 1888) (defining “charge” as “an obligation or liability. Thus we speak . . . of a pauper being chargeable to the parish or town”). That is a broad, common-sense definition, which was reflected in Nineteenth-Century judicial opinions using the phrase. See, e.g., In re Day, 27 F. 678, 681 (C.C.S.D.N.Y. 1886) (defining a “public charge” as a person who “can neither take care of themselves, nor are under the charge or protection of any other
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person”); State v. The S.S. “Constitution”, 42 Cal. 578, 584–85 (1872) (noting that those who are “liable to become a public charge” are “paupers, vagabonds, and criminals, or sick, diseased, infirm, and disabled persons”); City of Alton v. Madison Cty., 21 Ill. 115, 117 (1859) (noting that a person is not a “public charge” if the person has “ample means” of support).
The 1882 act did not consider an alien a “public charge” if the alien received merely some form of public assistance. The act itself established an “immigrant fund” that was designed to provide “for the care of immigrants arriving in the United States.” Act of Mar. 26, 1910 ch. 376, § 1, 22 Stat. 214. Congress thus accepted that providing some assistance to recent immigrants would not make those immigrants public charges. But Congress did not draw that line with any precision. Instead, we read “public charge” in the 1882 act to refer generally to those who were unwilling or unable to care for themselves. In context that often meant that they were housed in a government or charitable institution, such as an almshouse, asylum, or penitentiary.
The term “public charge” endured through subsequent amendments to the 1882 act. In 1910, Congress enacted a statute that deemed “paupers; persons likely to become a public charge; professional beggars;” and similar people inadmissible. ch. 128, § 2, 36 Stat. 263 (1910). Relying on the placement of “public charge”
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between “paupers” and “professional beggars,” the Supreme Court held that a person is likely to become a public charge if that person has “permanent personal objections” to finding employment. Gegiow v. Uhl, 239 U.S. 3, 10 (1915). In that case, the petitioners, Russian emigrees, arrived in the United States with little cash and the intention of going to Portland, Oregon. The immigration officials considered them likely to become public charges because Portland had a high unemployment rate. In a spare, three-page opinion by Justice Holmes, the Court noted that the “single question” before the Court 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. The Court answered in the negative. In making the public-charge determination, immigration officers must consider an alien’s “personal” characteristics, not a localized job shortage. Id. at 10. The Court observed that “public charge” should be “read as generically similar to the other[] [statutory terms] mentioned before and after” that phrase. Id. Five years later, we followed the Supreme Court’s lead, holding that “the words ‘likely to become a public charge’ are meant to exclude only those persons who are likely to become occupants of almshouses for want of means with which to support themselves in the future.” Ng Fung Ho v. White, 266 F. 765, 769 (9th Cir. 1920) (citing Howe v. United States, 247 F. 292, 294 (2d Cir. 1917)),
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aff’d in part and rev’d in part on other grounds, 259 U.S. 276 (1922).13 Thus, as
of 1920, we considered the likelihood of being housed in a state institution to be
the primary factor in the public-charge analysis.
By the mid-Twentieth Century, the United States had largely abandoned the
poorhouse in favor of direct payments through social welfare legislation. At the
federal level, the government had created Social Security and Aid to Families With
Dependent Children (AFDC). At the state level, governments supplemented
family income through programs such as unemployment insurance and worker’s
compensation. Similar changes were being made in other programs such as mental
health care, where we moved from institutionalizing the mentally ill to a program
of treatment with the end of releasing them. As Chief Justice Burger observed:
Historically, and for a considerable period of time, subsidized custodial care in private foster homes or boarding houses was the
13 In Ng Fung Ho, the petitioner had been admitted to the United States, based partly on his holding a “certificate” that allowed him to be a “merchant.” Id. at 768. Several years after his admission, he pleaded guilty to gambling. Id. at 769. It was then determined that the petitioner was no longer a merchant. The government argued that the petitioner was deportable because he had been likely to become a public charge at the time of his admission. Because there was no evidence that the certificate he had produced prior to admission had been fraudulent, we held that merely pleading guilty to gambling and paying a $25 fine three years after being admitted did not “prove that the alien . . . was likely to become a public charge” at the time of admission. Id. We thus rejected the government’s assertion that the petitioner should be deported on that basis. Id. at 770.
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most benign form of care provided incompetent or mentally ill persons for whom the States assumed responsibility. Until well into the 19th century the vast majority of such persons were simply restrained in poorhouses, almshouses, or jails. O’Connor v. Donaldson, 422 U.S. 563, 582 (1975) (Burger, C.J., concurring). “[T]he idea that States may not confine the mentally ill except for the purpose of providing them with treatment [was] of very recent origin.” Id. (footnote omitted). The way in which we regarded the poor and the mentally infirm not only brought changes in the way we treated them, but major changes in their legal rights as well. See, e.g., McNeil v. Director, Patuxent Inst., 407 U.S. 245, 248–50 (1972) (requiring a hearing before a person who has completed his criminal sentence can be committed to indefinite confinement in a mental institution); cf. Goldberg v. Kelly, 397 U.S. 254, 260–61 (1970) (holding that a recipient of public assistance payments is constitutionally entitled to an evidentiary hearing before those payments are terminated). The movement towards social welfare was soon reflected in the definition of “public charge.” In Matter of B-, 3 I. & N. Dec. 323 (BIA 1948), the recently created BIA articulated a new definition of “public charge.” Permanent institutionalization would not be the sole measure of whether an alien was a public charge. The BIA said it would also consider whether an alien received temporary
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services from the government. At the same time, the BIA recognized that mere “acceptance by an alien of services provided by” the government “does not in and of itself make the alien a public charge.” Id. at 324. Instead, the BIA stated that an alien becomes a public charge if three elements are met: “(1) The State or other governing body must, by appropriate law, impose a charge for the services rendered to the alien. . . . (2) The authorities must make demand for payment of the charges . . . . And (3) there must be a failure to pay for the charges.” Id. at 326. In other words, the government benefit received by the alien must be monetized, a bill must be presented to the alien, and the alien must refuse to pay. Ultimately, in Matter of B-, the BIA held that the petitioner had not become a public charge, even though she had been involuntarily committed to a mental institution, because the state of Illinois had not charged her or demanded payment. Id. at 327. The BIA’s order was subsequently affirmed by the Attorney General. Id. at 337.
Four years later, Congress substantially revised the immigration laws in the Immigration and Nationality Act of 1952. The amended statute retained the term “public charge,” but, for the first time, made clear that the decision was committed to the opinion of a consular officer or the Attorney General. The INA deemed inadmissible “[a]liens who, in the opinion of the consular officer at the time of
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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 public charges.” Title 2, ch. 2, § 212, 66 Stat. 163, 183 (1952). Although Matter of B- was not mentioned in the legislative history accompanying the 1952 act, it is notable that Congress chose to insert this “opinion” language following the BIA’s articulation of a new definition of “public charge” that departed from prior judicial interpretations of the term.
In 1974, the BIA altered course again. The BIA limited Matter of B-’s threepart test to determining whether a person had become a public charge after having been admitted to the United States. See Matter of Harutunian, 14 I. & N. Dec. 583, 585 (BIA 1974). After noting that the phrase “public charge” had been interpreted differently by various courts, the BIA held:
[A]ny alien who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support is excludable as likely to become a public charge whether or not the public support which will be available to him is reimbursable to the state. Id. at 589–90. The BIA thus pegged the public-charge determination to whether the alien was likely to “need public support,” irrespective of whether the alien was
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likely to be institutionalized for any length of time and billed for the cost by the state. Id. at 589.
That definition of “public charge” was subsequently amended by the INS. In 1987, the INS issued a final rule that deemed an applicant for adjustment of status to be a “public charge” if the applicant had “received public cash assistance.” Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205, 16,211 (May 1, 1987). INS did not state how much “public cash assistance” an alien had to receive, but left the decision to officers who would judge the totality of the circumstances. See id. at 16,211 (noting that “all [the] evidence produced by the applicant will be judged”), 16,212 (“The weight given in considering applicability of the public charge provisions will depend on many factors . . . .”). INS did make clear that “public cash assistance” would not include the value of “assistance in kind, such as food stamps, public housing, or other non-cash benefits,” including Medicare and Medicaid. Id. at 16,209.
In 1996, through IIRIRA, Congress enacted the current language appearing in § 212 of the INA. Omnibus Consolidated Appropriations Act, Title 5 § 531, 110 Stat. 3009 (1996). As detailed above, Congress added a requirement that an immigration officer consider an alien’s “age;” “health;” “family status;” “assets,
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resources and financial status;” and “education and skills” when determining if a person is likely to become a public charge. 8 U.S.C. § 1182(a)(4)(B).
Responding to the 1996 act, INS published the 1999 Field Guidance to “establish clear standards governing a determination that an alien is inadmissible or ineligible to adjust status . . . on public charge grounds.” 64 Fed. Reg. at 28,689. In the 1999 Field Guidance, INS defined “public charge” as “an alien . . . 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 or (ii) institutionalization for long-term care at government expense.” Id. (internal quotation marks omitted). The 1999 Field Guidance made clear that the public-charge determination remained a “totality of the circumstances test.” Id. at 28,690. Within this totality-of-the-circumstances assessment, only the receipt of “cash public assistance for income maintenance” should be considered; “receipt of non-cash benefits or the receipt of specialpurpose cash benefits not for income maintenance should not be taken into account.” Id. The 1999 Field Guidance thus largely reaffirmed INS’s 1987 rule. For the past twenty years, the 1999 Field Guidance has governed, until it was replaced by the Final Rule.
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So what to make of this history? Unlike the district courts, we are unable to discern one fixed understanding of “public charge” that has endured since 1882. If anything has been consistent, it is the idea that a totality-of-the-circumstances test governs public-charge determinations. But different factors have been weighted more or less heavily at different times, reflecting changes in the way in which we provide assistance to the needy. Initially, the likelihood of being housed in a government or charitable institution was most important. Then, the focus shifted in 1948 to whether public benefits received by an immigrant could be monetized, and the immigrant refused to pay for them. In 1974, it shifted again to whether the immigrant was employable and self-sufficient. That was subsequently narrowed in 1987 to whether the immigrant had received public cash assistance, which excluded in-kind benefits. Congress then codified particular factors immigration officers must consider, which was followed by the 1999 Field Guidance’s definition of “public charge.” In short, we find that the history of the use of “public charge” in federal immigration law demonstrates that “public charge” does not have a fixed, unambiguous meaning. Rather, the phrase is subject to multiple interpretations, it in fact has been interpreted differently, and the Executive Branch has been afforded the discretion to interpret it.
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Congress simply has not spoken to how “public charge” should be defined. We must presume that when Congress enacted the current version of the INA in 1996, it was aware of the varying historical interpretations of “public charge.” See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239–40 (2009). Yet Congress chose not to define “public charge” and, instead, described various factors to be considered “at a minimum,” without even defining those factors. It is apparent that Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of “public charge” as necessary.
(3) Other Factors. Both district courts found it significant that Congress twice considered, but failed to enact, a definition of “public charge” that is similar to the definition adopted in the Final Rule. City & Cty. of San Francisco, 2019 WL 5100718 at *27; Washington, 2019 WL 5100717, at *17. During the debates over IIRIRA in 1996, Congress considered whether to enact the following definition of “public charge”: “the term ‘public charge’ includes any alien who receives [certain means-tested] benefits . . . for an aggregate period of at least 12 months or 36 months” in some cases. 142 Cong. Rec. 24,313, at 24,425 (1996). Senator Leahy argued that this was “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet,” and that the phrase “means tested” was “unnecessarily uncertain.” S. Rep. No. 104-249, at
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63–64 (1996). Nevertheless, the Senate passed the bill containing the definition of “public charge.” Before the House considered the bill, however, President Clinton implicitly threatened to veto it because it went “too far in denying legal immigrants access to vital safety net programs which could jeopardize public health and safety.” Statement on Senate Action on the “Immigration Control and Financial Responsibility Act of 1996,” 32 Weekly Comp. Pres. Doc. 783 (May 6, 1996). Ultimately, Congress chose not to enact this “public charge” definition. In 2013, the Senate rejected an amendment to the INA that “would have expanded the definition of ‘public charge’ such that people who received non-cash health benefits could not become legal permanent residents. This amendment would also have denied entry to individuals whom the Department of Homeland Security determines are likely to receive these types of benefits in the future.” S. Rep. No. 113-40, at 63 (2013).
The district courts viewed these failed legislative efforts as evidence that Congress specifically rejected the interpretation of “public charge” DHS articulated in the Final Rule, and that the Final Rule is thus an impermissible reading of the INA. City & Cty. of San Francisco, 2019 WL 5100718, at *27; Washington, 2019 WL 5100717, at *17. We disagree. If this legislative history is probative of anything, it is probative only of the fact that Congress chose not to
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codify a particular interpretation of “public charge.”14 See Cent. Bank of Denver,
N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 184 (1994) (“[F]ailed
legislative proposals are a particularly dangerous ground on which to rest an
interpretation of a prior statute.” (quotation marks and citation omitted)). But the
failure of Congress to compel DHS to adopt a particular rule is not the logical
equivalent of forbidding DHS from adopting that rule. The failure to adopt a new rule is just that: no new rule.15 And no change to § 212 means that consular
officers, the Attorney General, and DHS retain all the discretion granted them in
the INA.
14 Sometimes it is appropriate to consider language Congress has rejected, primarily when Congress rejected language in favor of the statute adopted and under review. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 441–42 (1987) (contrasting Congress’s decision to adopt the House proposal over the Senate version).
15 We can speculate as to the reasons that members of Congress declined to adopt these legislative proposals, but the speculation will not help us. “A bill can be proposed for any number of reasons, and it can be rejected for just as many others.” Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 170 (2001). Although some members may have thought the rule too harsh, others may have thought it too lenient, while a third group may have thought the rule should be left flexible and in the hands of the immigration agencies. If anything, this legislative history proves only that Congress decided not to constrain the discretion of agencies in determining who is a public charge. That discretion had long been vested in the agencies, and these failed legislative efforts did not alter that discretion.
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A second argument made by the States and relied upon by the Eastern District of Washington is that DHS exceeded its authority by determining what makes a person “self-sufficient.” Washington, 2019 WL 5100717, at *17–18. This argument is refuted by the statute itself. As we have discussed, the INA requires immigration officers to consider an alien’s “health,” “family status,” “assets, resources, [] financial status,” “education and skills.” 8 U.S.C. § 1182(a)(4)(B)(i)(II)–(V) . The concept of self-sufficiency is subsumed within each of these factors. And even if it were not, the statutory factors are not exhaustive; DHS may add to them. See id. § 1182(a)(4)(B)(i). Because DHS has been “charged with the administration and enforcement” of all “laws relating to the immigration and naturalization of aliens,” Id. § 1103(a)(1); see also 6 U.S.C. §
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112(b)(1), determining what constitutes self-sufficiency for purposes of the public-
charge assessment is well within DHS’s authority.16
***
In short, Congress has not spoken directly to the interpretation of “public
charge” in the INA. Nor did it unambiguously foreclose the interpretation
articulated in the Final Rule. Instead, the phrase “public charge” is ambiguous
under Chevron. DHS has the authority to interpret it and “must consider varying
interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467
U.S. at 863–64. Indeed, “the fact that the agency has adopted different definitions
in different contexts adds force to the argument that the definition itself is flexible,
particularly since Congress has never indicated any disapproval of a flexible
16 The Eastern District of Washington also held that, because the states have a “central role in formulation and administration of health care policy,” DHS “acted beyond its Congressionally delegated authority” when it adopted the Final Rule. Washington, 2019 WL 5100717, at *18; see also id. (“Congress cannot delegate authority that the Constitution does not allocate to the federal government in the first place . . . . .”). Congress, of course, has plenary authority to regulate immigration and naturalization. U.S. CONST. art. I, § 8, cl. 4. Pursuant to that authority, Congress adopted the “public charge” rule, which no one has challenged on constitutional grounds. Further, Congress has authorized DHS to adopt regulations. 8 U.S.C. § 1103(a)(3). DHS thus did not overstep its authority by promulgating the Final Rule. Indeed, under the district court’s analysis, even the 1999 Field Guidance might be unconstitutional. But neither the district court nor the States question the lawfulness of the 1999 Field Guidance. We see no meaningful difference between INS’s authority to promulgate the 1999 Field Guidance and DHS’s authority to adopt the Final Rule.
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reading of the statute.” Id. at 864. We thus proceed to the second step of the Chevron analysis.
b. Chevron Step 2 At Chevron’s second step, we ask whether the agency’s interpretation is “reasonable—or ‘rational and consistent with the statute.’” Diaz-Quirazco v. Barr, 931 F.3d 830, 840 (9th Cir. 2019) (quoting Sullivan v. Everhart, 494 U.S. 83, 89 (1990)). If it is, we must defer to it, “even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Perez-Guzman v. Lynch, 835 F.3d 1066, 1073–74 (9th Cir. 2016) (quoting Brand X, 545 U.S. at 980). The Final Rule easily satisfies this test. As we have explained, the INA grants DHS considerable discretion to determine if an alien is likely to become a public charge. To be sure, under the Final Rule, in-kind benefits (other than institutionalization) will for the first time be relevant to the public-charge determination. We see no statutory basis from which a court could conclude that the addition of certain categories of in-kind benefits makes DHS’s interpretation
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untenable.17 And whether the change in policy results from changing circumstances or a change in administrations, the wisdom of the policy is not a question we can review. See Brand X, 545 U.S. at 981.
Our conclusion is reinforced by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which Congress enacted contemporaneous with IIRIRA. PRWORA set forth our “national policy with respect to welfare and immigration.” 8 U.S.C. § 1601. In relevant part, PRWORA provides, “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.” Id. § 1601(1). As a result, “[i]t continues to be the immigration policy of the United States that . . . aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.” Id. § 1601(2). Receipt of non-cash public assistance is surely relevant to “self-sufficiency” and whether immigrants are “depend[ing] on public resources to meet their needs.” See id. § 1601(1)–(2); see
17 Cash benefits and in-kind benefits are often treated under the single rubric of a “direct subsidy.” Witters v. Wash. Dep’t of the Servs. for the Blind, 474 U.S. 481, 487 (1986). In certain contexts, such as settlement, “compensation in kind is worth less than cash of the same nominal value,” In re Mex. Transfer Litig., 267 F.3d 743, 748 (9th Cir. 2001), but the Final Rule does not deal with the valuation of such services. It deals only with whether in-kind benefits have been received under certain specified programs.
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also Korab v. Fink, 797 F.3d 572, 580 (9th Cir. 2014). PRWORA thus lends support to DHS’s interpretation of the INA.
We conclude that DHS’s interpretation of “public charge” is a permissible construction of the INA.
2. The Rehabilitation Act The States argue, and the Eastern District of Washington found, that the Final Rule is inconsistent with the Rehabilitation Act. Washington, 2019 WL 5100717, at *18. The Northern District of California rejected that argument. City & Cty. of San Francisco, 2019 WL 5100718, at *29–30. The Rehabilitation Act provides: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency.” 29 U.S.C. § 794(a). “Program or activity” is defined as “all of the operations of . . . [an] agency.” Id. § 794(b). This argument need not detain us long. First, under the INA, immigration officers are obligated to consider an immigrant’s “health” when making the publiccharge determination. 8 U.S.C. § 1182(a)(4)(B)(i)(II). To the extent that inquiry may consider an alien’s disability, the officers have been specifically directed by
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Congress to do so. Indeed, Congress’s express direction that immigration officers consider an alien’s “health” came twenty-three years after the Rehabilitation Act. We cannot see how a general provision in one statute constrains an agency given a specific charge in a subsequent law. The INA does not violate the Rehabilitation Act. Second, nothing in the Final Rule changes DHS’s practice with respect to considering an alien’s health. Nothing in the Final Rule suggests that aliens will be denied admission or adjustment of status “solely by reason of her or his disability.” Throughout the Final Rule, DHS confirms that the public-charge determination is a totality-of-the-circumstances test. See 84 Fed. Reg. at 41,295, 41,368. And DHS specifically addressed this argument in the Final Rule: “it is not the intent, nor is it the effect of this rule to find a person a public charge solely based on his or her disability.” Id. at 41,368. DHS has shown a strong likelihood that the Final Rule does not violate the Rehabilitation Act.
* * * In sum, DHS is likely to succeed in its argument that the Final Rule should not be set aside as contrary to law. We will not minimize the practical impact of the Final Rule, but we will observe that it is a short leap in logic for DHS to go from considering in-cash public assistance to considering both in-cash and in-kind public assistance. DHS has shown that there is a strong likelihood that its decision
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to consider the receipt of in-kind government assistance as part of its totality-of-
the-circumstances test is a reasonable interpretation of the INA and does not
violate the Rehabilitation Act.
B. Arbitrary and Capricious
Arbitrary and capricious review under the APA addresses the reasonableness
of the agency’s decision. The classic statement of our scope of review is Motor
Vehicle Manufacturers Association of the United States v. State Farm Mutual
Automotive Insurance Co., 463 U.S. 29 (1983):
[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be 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 could not be ascribed to a difference in view of the product of agency expertise.
Id. at 43 (quotation marks and citations omitted); see Org. Vill. of Kake v. Dep’t of
Agric., 795 F.3d 956, 966–67 (9th Cir. 2015). An agency’s failure to respond to
any particular comment or point put forward by a rule’s opponents is not a ground
for finding per se arbitrary-and-capricious action. See Safari Aviation Inc. v.
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Garvey, 300 F.3d 1144, 1150–52 (9th Cir. 2002) (explaining that there is no per se violation of the APA when an agency fails to address comments); Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984) (“[The APA] has never been interpreted to require the agency to respond to every comment, or to analyse [sic] every issue or alternative raised by the comments, no matter how insubstantial.”).
The fact that DHS has changed policy does not substantially alter the burden in the challengers’ favor. DHS must, of course, “show that there are good reasons for the new policy,” but, it
need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). The district courts raised two objections to DHS’s consideration that the district courts found made the Final Rule arbitrary and capricious: (1) DHS’s failure to properly weigh the costs to state and local governments and healthcare providers, such as hospitals, resulting from disenrollment from public benefits programs; and (2) DHS’s inadequate consideration of the Final Rule’s impact on public health. City & Cty. of San Francisco, 2019 WL 5100718, at *31–35; Washington, 2019 WL 5100717, at *19. We will consider each in turn.
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1. Costs of Disenrollment The Northern District of California’s principal concern was the higher costs that state and local governments will face as a result of “disenrollment [from] public benefits.” City & Cty. of San Francisco, 2019 WL 5100718, at *31. Specifically, the district court concluded that “DHS appears to have wholly failed to engage with [comments on the costs of the change]. DHS failed to grapple with the [Final] Rule’s predictable effects on local governments, and instead concluded that the harms—whatever they may be—are an acceptable price to pay.” Id. at *32. The court further faulted DHS for “refus[ing] to consider the costs associated with predicted, likely disenrollment of those not subject to the public charge determination.” Id. We begin with the observation that DHS addressed at length the costs and benefits associated with the Final Rule. See 84 Fed. Reg. at 41,300–03 (summarizing costs and benefits); id. at 41,312–14 (estimating costs to health care providers, states, and localities); id. at 41,463–81 (responding to various comments on costs and benefits); id. at 41,485–41,489 (responding to Executive Orders
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requiring an assessment of the costs and benefits of regulatory alternatives).18 In addition, DHS prepared an “Economic Analysis Supplemental Information for Analysis of Public Benefits Programs,” www.regulations.gov/document?D=USCIS-2010-0012-63742.
DHS’s analysis began by stating, “This rule will impose new costs on this population applying to adjust status . . . that are subject to the public charge ground of inadmissibility.” 84 Fed. Reg. at 41,300. It estimated the direct costs to the federal government of the rule to be $35,202,698 annually. Some of these direct costs to the federal government would be offset by “individuals who may choose to disenroll from or forego enrollment in a public benefits program.” Id. DHS estimated the reduction in federal transfer payments would be about $2.47 billion annually. Id. at 41,301. It further estimated that there would be a reduction in state transfer payments of about $1.01 billion annually. Id. DHS also acknowledged that the Final Rule would impose direct and indirect costs on individuals and entities. The first of these, it suggested, were “familiarization costs,” which was “a
18 Indeed, DHS’s notice is quite comprehensive. In no fewer than 216 pages (which DHS estimated would take sixteen to twenty hours to read), DHS explained the changes proposed, estimated costs and savings, and addressed scores of comments on topics ranging from potential public-health concerns to whether DHS should consider immigrants’ credit scores. See generally 84 Fed. Reg. at 41,292–508.
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direct cost of the rule.” Id. Organizations that work with immigrant communities would similarly experience indirect costs of familiarization. Id.
Elsewhere, DHS responded to comments claiming that the Final Rule would cause aliens to disenroll from or forego enrollment in public benefit programs and that this “would be detrimental to the financial stability and economy of communities, States, local organizations, hospitals, safety net providers, foundations, and healthcare centers.” Id. at 41,312; see also id. (suggesting that the Final Rule would increase the use of hospital emergency rooms). DHS identified three categories of aliens who might be affected by the Final Rule. First, there are aliens who are entitled to public benefits and seek to immigrate or adjust status. Their receipt of some public benefits are simply not covered by the rule. DHS noted, for example, that “emergency response, immunization, education, or [certain] social services” are not included in its revised definition of “public benefits.” Id. On the other hand, there are public benefits to which such an alien is entitled but which will be considered by DHS in its determination whether such alien is a “public charge.” DHS “acknowledge[d] that individuals subject to this rule may decline to enroll in, or may choose to disenroll from, public benefits for which they may be eligible under PRWORA, in order to avoid negative consequences as a result of this final rule.” Id. DHS could not estimate how many
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aliens in this category would be affected by the Final Rule “because data limitations provide neither a precise count nor reasonable estimate of the number of aliens who are both subject to the public charge ground of inadmissibility and are eligible for public benefits in the United States.” Id. at 41,313.
The second category of aliens are those who are unlawfully in the United States. These are “generally barred from receiving federal public benefits other than emergency assistance.” Id. (footnote omitted). Nevertheless, DHS announced that it will not consider “for purposes of a public charge inadmissibility determination whether applicants for admission or adjustment of status are receiving food assistance through other programs, such as exclusively state-funded programs, food banks, and emergency services, nor will DHS discourage individuals from seeking such assistance.” Id.
Third are those aliens and U.S. citizens who are not subject to the Final Rule, but erroneously think they are and disenroll from public benefits out of an abundance of caution. Id. Disenrollment by this category of persons should not be influenced by the Final Rule because their receipt of public benefits will “not be counted against or made attributable to immigrant family members who are subject to this rule.” Id. DHS understood “the potential effects of confusion” over the scope of the Final Rule that might lead to over-disenrollment. DHS stated that it
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would “issue clear guidance that identifies the groups of individuals who are not subject to the rule.” Id.
The Northern District of California pointed out that DHS’s response “fails to discuss costs being borne by the states, hospitals, or others, other than to say DHS will issue guidance in an effort to mitigate confusion.” City & Cty. of San Francisco, 2019 WL 5100718, at *34. The court further criticized DHS for “flatly refus[ing] to consider the costs associated with predicted, likely disenrollment of those not subject to the public charge determination.” Id. at *35.
We think several points must be considered here. First, the costs that the states, localities, and various entities (such as healthcare providers) may suffer are indirect. Nothing in the Final Rule imposes costs on those governments or entities; the Final Rule does not regulate states, localities, and private entities. Disenrollment will be the consequence of either (1) the free choice of aliens who wish to avoid any negative repercussions for their immigration status that would result from accepting public benefits, or (2) the mistaken disenrollment of aliens or U.S. citizens who can receive public benefits without any consequences for their residency status. DHS addressed both groups. DHS said it did not have data to calculate the size of the first group (and, presumably, the value of the benefits from which they will disenroll), and it had no way to estimate the second. 84 Fed. Reg.
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at 41,313. DHS stated that it would try to compensate for the latter group’s error by publishing clear guidance, and it also noted that other organizations, public and private, would have an incentive to provide accurate information to persons who might mistakenly disenroll. Id. at 41,486.
Second, DHS did acknowledge the indirect costs the Final Rule might impose
downstream . . . on state and local economics, large and small businesses, and individuals. For example, the rule might result in reduced revenues for healthcare providers participating in Medicaid, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs.
Id. It did not attempt to quantify those costs, but it recognized the overall effect of the Final Rule, and that is sufficient. See Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 835 (9th Cir. 2002) (“[T]he Secretary acknowledged that some Medicare beneficiaries would possibly have to shoulder an additional financial burden as a result of the repeal of the carry-forward provision. This acknowledgment did not render the Secretary’s rulemaking statement or reliance upon it arbitrary, however.” (internal citation omitted)) .
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Third, DHS is not a regulatory agency like EPA, FCC, or OSHA. Those agencies have broad mandates to regulate directly entire industries or practices, sometimes on no more instruction from Congress than to do so in the “public convenience, interest or necessity,” 47 U.S.C. § 303 (FCC), or as “appropriate and necessary,” 42 U.S.C. § 7412(n)(1)(A) (EPA). When Congress has vested such broad regulatory authority in agencies, the Supreme Court has sometimes insisted that the agencies perform some kind of a cost-benefit analysis. See, e.g., Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (EPA cannot “ignore cost when deciding whether to regulate power plants”); Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 644 (1980) (plurality opinion) (OSHA must “undertake some cost-benefit analysis before [it] promulgates any [safety and health] standard”). But see Am. Textile Mfs. Inst. Inc. v. Donovan, 452 U.S. 490, 510–11 (1981) (“Congress uses specific language when intending that an agency engage in cost-benefit analysis.”). By contrast, DHS is defining a simple statutory term—“public charge”—to determine whether an alien is admissible. Its only mandate is to regulate immigration and naturalization, not to secure transfer payments to state governments or ensure the stability of the health care industry. Any effects on those entities are indirect and well beyond DHS’s charge and expertise. Even if it could estimate the costs to the states, localities, and healthcare
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providers, DHS has a mandate from Congress with respect to admitting aliens to
the United States. As DHS explained,
DHS does not believe that it is sound policy to ignore the longstanding self-sufficiency goals set forth by Congress or to admit or grant adjustment of status applications of aliens who are likely to receive public benefits designated in this rule to meet their basic living needs in . . . hope that doing so might alleviate food and housing insecurity, improve public health, decrease costs to states and localities, or better guarantee health care provider reimbursements. DHS does not believe that Congress intended for DHS to administer [§ 212] in a manner that fails to account for aliens’ receipt of food, medical, and housing benefits so as to help aliens become selfsufficient.
84 Fed. Reg. at 41,314. Even had DHS been able to calculate the indirect costs
that states, localities, and healthcare providers might bear as a result of the Final
Rule, it is not clear what DHS was supposed to balance. Rather, it was
sufficient—and not arbitrary and capricious—for DHS to consider whether, in the
long term, the overall benefits of its policy change will outweigh the costs of
retaining the current policy.
2. Public-Health Concerns
The Northern District of California also found that DHS did not sufficiently
respond to certain public-health concerns. City & Cty. of San Francisco, 2019 WL
5100718, at *35–37. Specifically, the court worried that by disenrolling from
public-health benefits like Medicaid, people may forgo vaccinations, which could
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have serious public-health consequences. Id. The district court also pointed out that the 1999 Field Guidance declined to define “public charge” to include receipt of “health and nutrition benefits” out of fear of possible public-health ramifications. Id. at *37 (citing 64 Fed. Reg. at 28,692).
DHS not only addressed these concerns directly, it changed its Final Rule in response to the comments. 84 Fed. Reg. at 41,297. With respect to vaccines, DHS stated that it “does not intend to restrict the access of vaccines for children or adults or intend to discourage individuals form obtaining the necessary vaccines to prevent vaccine-preventable diseases.” Id. at 41,384. The Final Rule “does not consider receipt of Medicaid by a child under age 21, or during a person’s pregnancy, to constitute receipt of public benefits.” DHS said that would address “a substantial portion, though not all, of the vaccinations issue.” Id. Accordingly, DHS “believes that vaccines would still be available for children and adults even if they disenroll from Medicaid.” Id. at 41,385.
Both the Northern District of California and the Eastern District of Washington expressed concern that the Final Rule was a departure from the 1999 Field Guidance, which raised the vaccine issue, and that the 1999 Field Guidance had “engendered reliance.” City & Cty. of San Francisco, 2019 WL 5100718, at *37; see also Washington, 2019 WL 5100717, at *19. The question is not whether
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an agency can change a policy that people have come to rely on; clearly, it can. The real question is whether the agency has acknowledged the change and explained the reasons for it. DHS knew well that it was adopting a change in policy; that was the whole purpose of this rulemaking exercise. See Encino Motorcars, 136 S. Ct. at 2126 (holding that a Department of Labor regulation was “issued without . . . reasoned explanation” where there was “decades of industry reliance on the Department’s prior policy” and the new rule was “offered [with] barely any explanation”); INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996) (distinguishing an “an irrational departure from [established] policy” from “an avowed alteration of it”). “[I]t suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Fox Television Stations, 556 U.S. at 515. Because DHS has adequately explained the reasons for the Final Rule, it has demonstrated a strong likelihood of success on the merits.
V. OTHER FACTORS We have concluded that DHS is likely to succeed on the merits. Were we reviewing the preliminary injunctions on direct review, this would be sufficient to reverse the district courts’ orders. See Trump v. Hawai’i, 138 S. Ct. at 2423. But
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because we are here on DHS’s motion for a stay, DHS bears the burden of satisfying three additional factors: that DHS will suffer some irreparable harm, that the balance of the hardships favors a stay, and that the stay is in the public interest. Nken, 556 U.S. at 434. A. Irreparable Harm
We first consider whether DHS has shown that it “will be irreparably injured absent a stay.” Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776). The claimed irreparable injury must be likely to occur; “simply showing some ‘possibility of irreparable injury’” is insufficient. Id. (citation omitted). DHS has carried its burden on this factor.
DHS contends that as long as the Final Rule is enjoined, DHS will grant lawful-permanent-resident status to aliens whom the Secretary would otherwise deem likely to become public charges in the exercise of his discretion. DHS currently has no practical means of revisiting public-charge determinations once made, so the injunctions will inevitably result in the grant of LPR status to aliens who, under the Secretary’s interpretation of the statute, are likely to become public charges.
The States do not deny that LPR status might be irrevocably granted to some aliens, but they claim that DHS has “exaggerate[d] the effect of the injunction” because the public-charge exclusion has “never played a significant role in immigration. In contrast, in just 8 of the 14 Plaintiff States [in the Washington
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case] over 1.8 million lawfully present residents may be driven from federal and state assistance programs if the injunction is lifted.” They argue that preserving the status quo will not harm DHS pending adjudication on the merits, especially considering that the Final Rule replaces a policy that had been in place for decades.
Several points emerge from the parties’ claims. First, the States appear to concede that decisions to grant adjustment of status to aliens who could otherwise not be eligible are not reversible. Second, although the States argue that “public charge” exculsions have not been an important component of our immigration scheme in the past, the whole point of DHS’s Final Rule is that “public charge” inadmissibility has been underenforced.
Moreover, to the extent the States are contesting the magnitude of the harm to DHS, the claim is irrelevant here. We have said that this “analysis focuses on irreparability, ‘irrespective of the magnitude of the injury.’” California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999)). But even if we look at the magnitude, the States’ own evidence is double-edged. The States claim that they will suffer harm because millions of persons will disenroll to avoid potential immigration consequences. This seems to prove DHS’s point. If millions of “lawfully present residents” are
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currently receiving public benefits and may choose to disenroll rather than be found to be a “public charge” and inadmissible, the harm cited by DHS is not only irreparable, but significant.
Finally, we think the tenability of DHS’s past practice is of no import here. Congress has granted DHS the authority to enact and alter immigration regulations and DHS has done that, and it has done so in a way that comports with its legal authority. Thus, as of October 15, 2019, DHS had an obligation to deny admission to those likely to become public charge, as defined by the Final Rule. This is true regardless of DHS’s prior policy. As a consequence, the preliminary injunctions will force DHS to grant status to those not legally entitled to it. DHS has satisfied its burden to show irreparable harm to the government absent a stay of the injunctions. B. Balance of Hardships and Public Interest
Since DHS has satisfied the first two factors, we proceed to the final two: balance of equities and the public interest. Nken, 556 U.S. at 435. “Because the government is a party, we consider [these two factors] together.” California v. Azar, 911 F.3d at 581.
To balance the equities, we consider the hardships each party is likely to suffer if the other prevails. N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843–44
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(9th Cir. 2007) (citing Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). We have discussed above the irreparable, non-monetary harm to the government. On the other hand, the States contend that they face financial, publichealth, and administrative harms if the Final Rule takes effect and otherwise eligible individuals disenroll from public benefits. These effects are indirect effects of the Final Rule and they are largely short-term, since they will only result during the pendency of the proceedings in the district courts and any appeals to this court and the Supreme Court.19 Those proceedings are likely to be conducted on an expedited basis, limiting further any potential harm to be considered by this court. DHS does not dispute that the States will incur some financial harm if the Final Rule is not stayed. It cannot, because DHS repeatedly addressed the potential costs to the States in its Final Rule. See, e.g., 84 Fed. Reb. at 41,300, 41,312–14, 41,385–85, 41,469–70, 41,474. And while ordinarily, we do not consider purely economic harm irreparable, we have concluded that “such harm is irreparable” when “the states will not be able to recover monetary damages.” California v. Azar, 911 F.3d at 581. Yet the States’ financial concerns will be mitigated to some extent. As DHS explained in the Final Rule, disenrollment from
19 This is not to say that the States will not continue to incur harms after the litigation terminates, but these potential harms are not relevant to the question of a preliminary injunction or a stay.
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public benefits means a reduction in federal and state transfer payments, so the States will realize some savings in expenditures. 84 Fed. Reg. at 41,485–86. Nevertheless, we consider the harms to the States, even if not readily quantifiable, significant.
Balancing these harms is particularly difficult in this case. First, the harms are not comparable. DHS’s harm is not monetary, but programmatic. The policy behind Congress’s decision not to admit those who are likely to become a public charge may have a fiscal component, but it is not the reason for DHS’s Final Rule, nor has DHS argued financial harm as a reason for seeking a stay. By contrast, the States’ proffered harms are largely financial. Second, both parties’ proffered harms are, to a degree, speculative. We cannot say for certain how many residents of the plaintiff states and counties will disenroll from public benefits programs, nor how much any over-disenrollment will cost the States. Nor can we say for certain how many aliens might be found admissible during the pendency of the preliminary injunction, and would have been found inadmissible under the Final Rule. Given the largely predictive nature of both parties’ alleged harms, we cannot state with any confidence which is greater.
For the same reasons, the public interest in this case is likewise difficult to calculate with precision. DHS contends it is in the public’s interest not to grant
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immigration status to persons likely to become public charges. The States contend that it is in the public’s interest to avoid increased administrative and public-health costs. Both of these contentions are likely true. But on balance, we have few standards for announcing which interest is greater.
We recently observed that “balancing the equities is not an exact science.” Azar, 911 F.3d at 582. Indeed, Justice Frankfurter once remarked that the balancing of the equities was merely “lawyers’ jargon for choosing between conflicting public interests.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring). Whether the stay is granted or denied, one party’s costs will be incurred and the other avoided. In the end, the “critical” factors are that DHS has mustered a strong showing of likelihood of success on the merits and some irreparable harm. Nken, 556 U.S. at 434. Those factors weigh in favor of granting a stay, despite the potential harms to the States. And for that reason, the stay is in the public interest.
VII. CONCLUSION The motion for a stay of the preliminary injunction in Nos. 19-17213 and 19-17214 is GRANTED. The petition for stay of the preliminary injunction in No. 19-35914 is GRANTED. The cases may proceed consistent with this opinion.
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FILED

City and County of San Francisco, et al v. USCIS, et al, No. 19-17213+
DEC 5 2019

BYBEE, Circuit Judge, concurring, perplexed and perturbed:

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

I join the majority opinion in full. I write separately to emphasize two

points—points that I feel must be made, but are better said in a separate opinion.

We as a nation are engaged in titanic struggles over the future of

immigration in the United States. These are difficult conversations. As a court,

the Ninth Circuit in particular has felt the effects of the recent surge in

immigration. As we observed last year with respect to the asylum problem:

We have experienced a staggering increase in asylum applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018 we received about 97,000—nearly a twenty-fold increase. Our obligation to process these applications in a timely manner, consistent with our statutes and regulations, is overburdened. The current backlog of asylum cases exceeds 200,000—about 26% of the immigration courts’ total backlog of nearly 800,000 removal cases. In the meantime, while applications are processed, thousands of applicants who had been detained by immigration authorities have been released into the United States.

E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 754 (9th Cir. 2018) (citations

omitted). Because of our proximity to Mexico, Central America, and East Asia,

the brunt of these cases will find their way into our court. And we are well aware

that we are only seeing the matters that find their way into federal court, and that

the burdens of the increase in immigration are borne not only by our judges, but by

the men and women in the executive branch charged with enforcing the

immigration laws.

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Our court has faced an unprecedented increase in emergency petitions arising out of the administration’s efforts to administer the immigration laws and secure our borders. These controversial efforts have met with mixed success in our court and the Supreme Court. See, e.g., Sierra Club v. Trump, 929 F.3d 670 (9th Cir.) (construction of wall on the border with Mexico), stay issued, 140 S. Ct. 1 (2019) (mem.); E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) (aliens entering outside a port of entry are ineligible for asylum); Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) (DACA), cert. granted, 139 S. Ct. 2779 (2019) (mem.); Trump v. Hawai’i, 878 F.3d 662 (9th Cir. 2017) (per curiam) (entry restrictions), rev’d, 138 S. Ct. 2392 (2018); Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) (treatment of detained alien minors under Flores agreement); Hawai’i v. Trump, 859 F.3d 741 (9th Cir.) (per curiam) (travel ban), vacated as moot, 138 S. Ct. 377 (2017) (mem.); Washington v. Trump, 847 F.3d 1151 (9th Cir.) (per curiam) (travel ban), cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017) (mem.).
My first point is that even as we are embroiled in these controversies, no one should mistake our judgments for our policy preferences. Whether “the iron fist [or an extended velvet glove] would be the preferable policy. . . . our thoughts on the efficacy of the one approach versus the other are beside the point, since our
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business is not to judge the wisdom of the National Government’s policy.” Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 427 (2003); see Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993) (“The wisdom of the policy choices made by Presidents Reagan, Bush, and Clinton is not a matter for our consideration.”); Lochner v. New York, 198 U.S. 45, 69 (1905) (Harlan, J., dissenting) (“Whether or not this be wise legislation it is not the province of the court to inquire. Under our systems of government the courts are not concerned with the wisdom or policy of legislation.”).
Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes. “[I]n our private opinions, [we] need not concur in Congress’ policies to hold its enactments constitutional. Judicially we must tolerate what personally we
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may regard as a legislative mistake.” Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952).
My second point is less politic. In this case, we are called upon to review the merits of DHS’s Final Rule through the lens of the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 706. Our review is quite circumscribed. We can set aside agency action if it is contrary to law, if it exceeds the agency’s jurisdiction or authority, or if the agency failed to follow proper procedure. Id. § 706(2)(B)–(D). Those are largely legal judgments, which we can address through the traditional tools judges have long used. With respect to the policy behind the agency’s action, we are largely relegated to reviewing the action for arbitrariness and caprice. Id. § 706(2)(A). That is not a very rigorous standard and, as a result, an agency has broad discretion to administer the programs entrusted to it by Congress. Cf. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) (“[F]undamental policy questions appropriately resolved in Congress . . . are not subject to reexamination in the federal courts under the guise of judicial review of agency action.”).
In the immigration context, whatever dialogue we have been having with the administration over its policies, we are a poor conversant. We are limited in what we can say and in our ability—even if anyone thought we were qualified to do
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so—to shape our immigration policies. We lack the tools of inquiry, investigation, and fact-finding that a responsible policymaker should have at its disposal. In sum, the APA is the meagerest of checks on the executive. We are not the proper foil to this or any other administration as it crafts our immigration policies.
By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up.
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FILED
City and County of San Francisco, et al v. USCIS, et al, No. 19-17213+
DEC 5 2019
OWENS, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
While I concur with the majority’s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government’s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted)).
1

 
 Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5598 Page 1 of 43

1

FILED IN THE U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

2

UNITED STATES DISTRICT COURT Sep 14, 2020

3

EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK

4 STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA;
5 STATE OF COLORADO; STATE OF DELAWARE; STATE OF
6 ILLINOIS; COMMONWEALTH OF MASSACHUSETTS; DANA
7 NESSEL, Attorney General on behalf of the people of Michigan; STATE OF
8 MINNESOTA; STATE OF NEVADA; STATE OF NEW
9 JERSEY; STATE OF NEW MEXICO; STATE OF RHODE
10 ISLAND; STATE OF MARYLAND; STATE OF HAWAI’I,
11 Plaintiffs,
12 v.
13 UNITED STATES DEPARTMENT
14 OF HOMELAND SECURITY, a federal agency; CHAD F. WOLF, in
15 his official capacity as Acting Secretary of the United States
16 Department of Homeland Security; UNITED STATES CITIZENSHIP
17 AND IMMIGRATION SERVICES, a federal agency; KENNETH T.
18 CUCCINELLI, II, in his official capacity as Senior Official Performing
19 the Duties of Director of United States Citizenship and Immigration Services,
20 Defendants.
21

NO: 4:19-CV-5210-RMP
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 1

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5599 Page 2 of 43

1

BEFORE THE COURT is the Defendants’1 (“DHS’s”) Motion to Dismiss,

2 ECF No. 223, Plaintiffs’2 (the “States’”) Amended Complaint. Having considered

3 DHS’s Motion, ECF No. 223; the States’ opposition, 233; DHS’s reply, ECF No.

4 236; the supplemental authority submitted by the States and DHS, ECF Nos. 241,

5 242, and 245; the remaining docket; and the relevant law; the Court is fully

6 informed.

7

DISMISSAL STANDARDS

8

Complaints filed in federal court must contain “a short and plain statement of

9 the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

10

A motion to dismiss under Fed. R. Civ. P. 12(b)(1) tests whether a complaint

11 alleges grounds for federal subject matter jurisdiction. Under Article III of the U.S.

12 Constitution, the Court has subject matter jurisdiction only over matters brought by a

13

1 Defendants in this lawsuit are the United States Department of Homeland 14 Security (“DHS”), Acting Secretary of DHS Chad Wolf, United States Citizenship

15 and Immigration Services (“USCIS”), and Acting Director of USCIS Kenneth Cuccinelli II (collectively, “DHS”). The Court substitutes Chad F. Wolf for Kevin

16 K. McAleenan in the caption, who was named as a Defendant in the Amended

Complaint but is no longer Acting Secretary of DHS. The Court further corrects 17 the caption to reflect that Cuccinelli’s title has changed to “Senior Official

Performing the Duties of Director.” See Fed. R. Civ. P. 25(d). 18

2 The Plaintiffs in this lawsuit are the State of Washington, Commonwealth of 19 Virginia, State of Colorado, State of Delaware, State of Hawai’i, State of Illinois,

20

State of Maryland, Commonwealth of Massachusetts, Attorney General Dana Nessel on behalf of the People of Michigan, State of Minnesota, State of Nevada,

21 State of New Jersey, State of New Mexico, and State of Rhode Island (collectively, the “States”).

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 2

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5600 Page 3 of 43

1 party with standing, and an allegation that a party lacks standing is properly raised in

2 a Rule 12(b)(1) motion to dismiss. Chandler v. State Farm Mut. Auto. Ins. Co., 598

3 F.3d 1115, 1122 (9th Cir. 2010).

4

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests whether a complaint

5 states a cognizable legal theory as well as essential facts under that theory. See

6 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). When a

7 defendant challenges a complaint’s sufficiency under Fed. R. Civ. P. 12(b)(6), the

8 court must determine whether the complaint bears “sufficient factual matter,

9 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

10 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

11 555 (2007)). A claim is plausible when the plaintiff pleads “factual content that

12 allows the court to draw the reasonable inference that the defendant is liable for the

13 misconduct alleged.” Iqbal, 556 U.S. at 678.

14

In deciding both Rule 12(b)(6) and facial Rule 12(b)(1) motions to dismiss, a

15 court “accept[s] factual allegations in the complaint as true and construe[s] the

16 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul

17 Fire & Marin Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); see also Cassirer v.

18 Kingdom of Spain, 580 F.3d 1048, 1052 n.2 (9th Cir. 2009), rev’d on other grounds

19 en banc, 616 F.3d 1019 (9th Cir. 2010) (applying Iqbal, 556 U.S. 662, to a facial

20 motion to dismiss for lack of subject matter jurisdiction). The non-conclusory

21

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 3

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5601 Page 4 of 43

1 factual allegations need not be detailed but must “raise a right to relief above the

2 speculative level.[]” Twombly, 550 U.S. at 555 (internal citation omitted).

3

BACKGROUND

4

The States are challenging the Department of Homeland Security’s (“DHS’s”)

5 regulatory redefinition of who to exclude from immigration status as “likely . . . to

6 become a public charge.” 8 U.S.C. § 1182(a)(4)(A); see Inadmissibility on Public

7 Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Public Charge Rule”). In

8 the Amended Complaint, the States raise four causes of action: (1) a violation of the

9 Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(C), for agency action

10 contrary to the Immigration and Nationality Act (“INA”)3, the Personal

11 Responsibility and Work Opportunity Reconciliation Act (“PRWORA”)4, the Illegal

12 Immigration Reform and Immigrant Responsibility Act (“IIRIRA”)5, the

13 Rehabilitation Act6, and the SNAP statute7; (2) a violation of the APA, 5 U.S.C. §

14 706(2)(C), for agency action “in excess of statutory jurisdiction [or] authority” or

15 “ultra vires”; (3) a violation of the APA, 5 U.S.C. § 706(2)(C), for agency action that

16 is “arbitrary, capricious, [or] an abuse of discretion”; and (4) a violation of the

17
18 3 8 U.S.C. §§ 1182(a)(4), 1152, and 1182(a)(1).
19 4 8 U.S.C. §§1611−13, 1621−22, and 1641. 5 8 U.S.C. §§ 1182, 1183a.
20 6 29 U.S.C. § 794(a).
21 7 7 U.S.C. § 2017(b).
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 4

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5602 Page 5 of 43

1 guarantee of equal protection under the U.S. Constitution’s Fifth Amendment Due

2 Process Clause. ECF No. 31 at 161−70.

3

The INA sets forth ten grounds of inadmissibility, all of which make a person

4 “ineligible to receive visas and ineligible to be admitted to the United States.” 8

5 U.S.C. § 1182(a). This case concerns one of those grounds: a likelihood of

6 becoming a public charge. Id. § 1182(a)(4)(A).

7

In its current form, the INA provides that “[a]ny alien who, in the opinion of

8 the consular officer at the time of application for a visa, or in the opinion of the

9 Attorney General at the time of application for admission or adjustment of status, is

10 likely at any time to become a public charge is inadmissible.”8 8 U.S.C. §

11 1182(a)(4)(A). The same provision requires the officer determining whether an

12 applicant is inadmissible as a public charge to consider “at a minimum” the

13 applicant’s

14

(I) age;

(II) health;

15

(III) family status;

(IV) assets, resources, and financial status; and

16

(V) education and skills.

17 8 U.S.C. § 1182(a)(4)(B)(i).

18

19 8 When Congress transferred the adjudicatory functions of the former Commissioner of the Immigration and Naturalization Service (“INS”) to the
20 Secretary of DHS, the Attorney General’s authority regarding the public charge provision was delegated to the Director of USCIS, a division of DHS. See 6 U.S.C.
21 § 271(b)(5).

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1

The officer “may also consider any affidavit of support under section 213A [8

2 U.S.C. § 1183a] for purposes of exclusion” on the public charge ground. Id. §

3 1182(a)(4)(B)(ii).

4

A. Redefinition of “Public Charge”

5

The Public Charge Rule, in its final format, defines “public charge” to denote

6 “an alien who receives one or more public benefits, as defined in paragraph (b) of

7 this section, for more than 12 months in the aggregate within any 36-month period

8 (such that, for instance, receipt of two benefits in one month counts as two months).”

9 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a))9. The Public Charge

10 Rule redefines “public benefit” to include: “(1) [a]ny Federal, State, local, or tribal

11 cash assistance for income maintenance (other than tax credits),” including

12 Supplemental Security Income (“SSI”), Temporary Assistance for Needy Families

13 (“TANF”) or state “General Assistance”; (2) Supplemental Nutrition Assistance

14 Program (“SNAP,” colloquially known as “food stamps”); (3) housing assistance

15 vouchers under Section 8 of the U.S. Housing Act of 1937; (4) Section 8 “Project-

16 Based” rental assistance, including “Moderate Rehabilitation”; (5) Medicaid, with

17 exceptions for benefits for an emergency medical condition, services or benefits

18 under the Individuals with Disabilities Education Act (“IDEA”), school-based

19 services or benefits, and benefits for immigrants under age 21 or to a woman during

20
21 9 The Court’s subsequent references to the provisions of the Public Charge Rule uses the C.F.R. citations that took effect with the Public Charge Rule.
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1 pregnancy or within 60 days after pregnancy; and (6) public housing under Section 9

2 of the U.S. Housing Act of 1937. 8 C.F.R. § 212.21(b).

3

B. Weighted Factors for Totality of the Circumstances Determination

4

The Public Charge Rule instructs officers to evaluate whether an applicant is

5 “likely to become a public charge” using a “totality of the circumstances” test that

6 “at least entail[s] consideration of the alien’s age; health; family status; education

7 and skills; and assets, resources, and financial status” as described in the Rule. 8

8 C.F.R. § 212.22(a), (b). The Public Charge Rule then prescribes a variety of factors

9 to weigh “positively,” in favor of a determination that an applicant is not a public

10 charge, and factors to weigh “negatively,” in favor of finding the applicant

11 inadmissible as a public charge. 8 C.F.R. § 212.22(a), (b), and (c); see also, e.g., 84

12 Fed. Reg. 41,295 (“Specifically, the rule contains a list of negative and positive

13 factors that DHS will consider as part of this determination, and directs officers to

14 consider these factors in the totality of the alien’s circumstances. . . . The rule also

15 contains lists of heavily weighted negative factors and heavily weighted positive

16 factors.”). The Public Charge Rule attributes heavy negative weight to the following

17 circumstances:

18

(1) “not a full-time student and is authorized to work, but is

unable to demonstrate current employment, recent employment history,

19

or a reasonable prospect of future employment”;

20

(2) “certified or approved to receive one or more public benefits . . . for more than 12 months in the aggregate within any 36-month

21

period, beginning no earlier than 36 months prior to the alien’s

application for admission or adjustment of status”;

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1

(3) “diagnosed with a medical condition that is likely to require

extensive medical treatment or institutionalization or that will interfere

2

with the alien’s ability to provide for himself or herself, attend school,

3

or work; and . . . uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for

4

reasonably foreseeable medical costs related to such medical

condition”; and

5

(4) “previously found inadmissible or deportable on public

charge grounds[.]” 6

8 C.F.R. § 212.22(c)(1)(i)−(iv). 7

Conversely, the Public Charge Rule attributes heavy positive weight to three 8

factors: 9

(1) an annual household income, assets, or resources above 250

10

percent of the Federal Poverty Guidelines (“FPG”) for the household

11

size;

(2) an annual individual income of at least 250 percent of the

12

FPG for the household size; and

(3) private health insurance that is not subsidized under the

13

Affordable Care Act.

14 See 8 C.F.R. § 212.22(c)(2)(i)−(iii).
15 The Public Charge Rule also directs officers to consider whether the applicant
16 (1) is under the age of 18 or over the minimum early retirement age for social
17 security; (2) has a medical condition that will require extensive treatment or interfere
18 with the ability to attend school or work; (3) has an annual household gross income
19 under 125 percent of the FPG; (4) has a household size that makes the immigrant
20 likely to become a public charge at any time in the future; (5) lacks significant
21 assets, like savings accounts, stocks, bonds, or real estate; (6) lacks significant assets

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1 and resources to cover reasonably foreseeable medical costs; (7) has any financial

2 liabilities; (8) has applied for, been certified to receive, or received public benefits

3 after October 15, 2019; (9) has applied for or has received a USCIS fee waiver for an

4 immigration benefit request; (10) has a poor credit history and credit score; (11)

5 lacks private health insurance or other resources to cover reasonably foreseeable

6 medical costs; (12) lacks a high school diploma (or equivalent) or a higher education

7 degree; (13) lacks occupational skills, certifications, or licenses; or (14) is not

8 proficient in English. See 8 C.F.R. § 212.22(b).

9

The officer administering the public charge admissibility test may determine

10 what factors are relevant and may consider factors beyond those enumerated in the

11 rule. See 8 C.F.R. § 212.22(a)

12

C. Applicability of the Rule

13

The Public Charge Rule applies to non-citizens subject to section 212(a)(4) of

14 the INA, 8 U.S.C. § 1182(a)(4), who apply to DHS for admission to the United

15 States or for adjustment of status to that of lawful permanent resident. See 8 C.F.R.

16 § 212.20.

17

The Public Charge Rule was set to take effect on October 15, 2019. 84 Fed.

18 Reg. at 41,292. Beginning on the day that the Rule was published in the Federal

19 Register, however, various plaintiffs filed nine complaints challenging the rule

20

21

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1 change in five district courts around the country.10 On October 11, 2019, this Court

2 issued a stay pursuant to 5 U.S.C. § 705 of the APA and a preliminary injunction

3 (the “Preliminary Injunction Order”), halting the implementation and enforcement of

4 the Public Charge Rule during the course of this litigation. ECF No. 162. On or

5 around the same date, all five district courts hearing plaintiffs’ motions for entry of a

6 preliminary injunction, entered preliminary injunctions that ranged from nationwide

7 in scope to more geographically limited in their application.

8

DHS appealed this Court’s Preliminary Injunction Order on October 30, 2019.

9 ECF No. 175. A three-judge motions panel of the United States Court of Appeals

10 for the Ninth Circuit stayed the preliminary injunction entered by this Court, as well

11 as the preliminary injunction entered in the three Northern District of California

12 cases, on December 5, 2019. City & Cty. of San Francisco v. USCIS (“San

13 Francisco”), 944 F.3d 773, 788 (9th Cir. 2019) (“Ninth Circuit stay opinion”).

14

On January 27, 2020, the United States Supreme Court stayed enforcement of

15 the last remaining national injunctions from the Second Circuit, and the preliminary

16

17 10 See City and Cty. of San Francisco v. USCIS, Case No. 19-cv-4717-PJH (N.D.

18 Cal.); California et al. v. DHS et al., Case No. 19-cv-4975-PJH (N.D. Cal.); La

Clinica de la Raza et al. v. Trump, Case No. 19-cv-4980-PJH (N.D. Cal.); New 19 York et al. v. DHS, Case No. 19-cv-7777-GBD (S.D.N.Y.); Make the Road New

20

York et al. v. DHS et al., Case No. 19-cv-7993-GBD (S.D.N.Y.); Casa de Maryland, Inc., et al. v. Trump, et al. Case No. 19-cv-2715-PWG (D. Md.); City of

21 Gaithersburg, Maryland v. DHS, Case No. 19-cv-2851-PWG (D. Md.); Cook Cty. v. Wolf, Case No. 19-C-6334 (N.D. Ill.).

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1 injunction applicable to Illinois, and the Public Charge Rule took effect nationwide

2 on February 24, 2020. Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020)

3 (staying the preliminary injunction through either the denial of a petition for a writ

4 of certiorari from DHS based on the Second Circuit’s resolution of the preliminary

5 injunction appeal, or, if certiorari were granted, resolution of the matter by the

6 Supreme Court); Wolf v. Cook Cty., 140 S. Ct. 681 (2020) (same for the Seventh

7 Circuit).

8

On July 29, 2020, the Southern District of New York granted a preliminary

9 injunction barring enforcement of the Public Charge Rule for the duration of the

10 state of public health emergency due to the novel coronavirus (COVID-19)

11 pandemic. New York v. DHS, 2020 U.S. Dist. LEXIS 134493 (S.D.N.Y. Jul. 29,

12 2020); see also Determination that a Public Health Emergency Exists, Jan. 31, 2020,

13 available at https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-

14 nCoV.aspx. The Second Circuit affirmed the preliminary injunction order on

15 August 4, 2020, but modified the scope to enjoin application of the Public Charge

16 Rule only in Connecticut, New York, and Vermont. New York v. DHS, Docket Nos.

17 19-3591, 19-3595, 2020 U.S. App. LEXIS 24492, at *96−97 (2d Cir. Aug. 4, 2020).

18

THRESHOLD MATTERS

19

DHS argues that in this case the States lack standing to raise their claims

20 against enactment of the Public Charge Rule and are outside the zone of interests

21 regulated by the Public Charge Rule. ECF No. 223 at 14−15.

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1

A. Standing

2

The role of a federal court “is neither to issue advisory opinions nor to declare

3 rights in hypothetical cases, but to adjudicate live cases or controversies consistent

4 with the powers granted the judiciary in Article III of the Constitution.” Thomas v.

5 Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc).

6

To satisfy the “‘irreducible constitutional minimum’” for standing under

7 Article III, a plaintiff must establish three elements: “(1) injury in fact (2) that is

8 fairly traceable to the challenged conduct of the defendant and (3) that is likely to be

9 redressed by a favorable decision.” Skyline v. Wesleyan Church v. Cal. Dep’t of

10 Managed Health Care, 959 F.3d 341, 349 (9th Cir. 2020) (quoting Lujan v. Defs. of

11 Wildlife, 504 U.S. 555, 560−61 (1992)). “[S]tanding is not dispensed in gross.”

12 Davis v. Federal Election Comm’n, 554 U. S. 724, 734 (2008) (quoting Lewis v.

13 Casey, 518 U. S. 343, 358, n. 6 (1996) (alteration omitted)). Rather, “‘a plaintiff

14 must demonstrate standing for each claim he seeks to press and for each form of

15 relief that is sought.’” Id. In cases involving multiple plaintiffs, one plaintiff must

16 have standing to seek each form of relief requested in the complaint. Town of

17 Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650−51 (2017).

18

In the Preliminary Injunction Order, this Court previously extensively

19 analyzed and found that the States satisfied the standing requirements. ECF No.

20 162 at 11−26. The Court found that the States had alleged sufficient injury to

21 satisfy the first prong of the standing inquiry. Id. at 23−24. The Court also found

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1 that the harms alleged by the States were fairly traceable to the Public Charge

2 Rule.

3

The Court determined that the States made a strong showing at the

4 preliminary injunction stage that applying the multi-factor totality of the

5 circumstances test and the expanded definition of “public charge” would “result in

6 disparate results” across the USCIS officials administering the exclusion. ECF No.

7 162 at 25. The States further demonstrated predictable harm from the chilling

8 effect from the “unmistakable” message sent by the broadened scope of the public

9 charge inadmissibility ground. Id. The Court found that “the chilling effect of the

10 Public Charge Rule likely will lead individuals to disenroll from benefits, because

11 receipt of those benefits likely would subject them to a public charge

12 determination, and, equally foreseeably, because the Public Charge Rule will

13 create fear and confusion regarding public charge inadmissibility.” Id. The Court

14 further found equally predictable the damage that the States had shown was likely

15 to their missions, the health and wellbeing of their residents, citizens and non-

16 citizens alike, and the States’ budgets and economies. Id. at 26.

17

DHS argues in its Motion to Dismiss that the Public Charge Rule “governs

18 DHS personnel and certain aliens,” but neither requires nor forbids any action by the

19 States and does not “expressly interfere with any of [the States’] programs

20 applicable to aliens.” ECF No. 223 at 13. DHS further argues that the States do not

21 “adequately allege that the Rule would produce a net increase in costs” for the

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1 States. Id. Rather, DHS contends, the Plaintiffs’ allegations regarding the “broader

2 chilling effect” support that the Public Charge Rule would conserve the States’

3 resources through decreased receipt of state benefits overall and through

4 “discouraging reliance” on state benefits. Id. Additionally, DHS argues that the

5 States lack organizational or parens patriae standing. Id. at 14.

6

The Court previously heard and addressed DHS’s arguments that the States

7 have not stated an injury in fact that is fairly traceable to the challenged conduct of

8 the defendant, and the Court finds no basis to depart from its prior analysis and

9 conclusion that the States have sufficiently alleged concrete and particularized

10 injuries resulting from DHS’s promulgation of the Public Charge Rule.

11

As the three Circuit judges on the motions panel that granted DHS’s stay of

12 the preliminary injunction unanimously agreed,11 “the States have shown that they

13 have suffered and will suffer direct injuries traceable to the Final Rule and thus have

14 standing to challenge its validity.” San Francisco, 944 F.3d at 787. In reaching that

15 conclusion, the motions panel found that DHS’s arguments that the Plaintiff’s

16 allegations of future financial harm are too attenuated and speculative to support

17 standing were “unavailing” and “disingenuous . . . when [DHS] acknowledge these

18 costs in its own rulemaking process.” Id. at 787; see also New York, 2020 U.S.

19

20

11 In contrast to the motions panel Circuit judges’ unanimity regarding standing, the panel split 2-1 regarding the application of the stay factors set forth by Nken v.

21 Holder, 556 U.S. 418, 427, 433−34 (2009). See San Francisco, 944 F.3d at 809−10.

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1 App. LEXIS 24492, at *25 (“Where the agency itself forecasts the injuries claimed

2 by the States, we agree with the Ninth Circuit that it is ‘disingenuous’ for DHS to

3 claim that the injury is not sufficiently imminent.”) (quoting San Francisco, 944

4 F.3d at 787).

5

Therefore, as DHS concedes in its reply, the States have established standing

6 for their APA claims. ECF No. 236 at 9 n. 3. However, DHS contests in a footnote

7 whether the States have standing to pursue their equal protection claim, asserting

8 that the States lack standing as parens patriae to bring an action against the federal

9 government under Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458

10 U.S. 592, 610 n.16 (1982). ECF Nos. 223 at 9 n. 2; 336 at 9 n. 3.

11

States are “not normal litigants for the purposes of invoking federal

12 jurisdiction,” and are entitled to “special solicitude” when they seek to vindicate

13 their “proprietary” or “quasi-sovereign” interests. Massachusetts v. EPA, 549 U.S.

14 497, 518 (2007). Quasi-sovereign interests are “independent of the benefits that

15 might accrue to any particular individual,” and the Supreme Court has recognized

16 that neither an exhaustive formal definition nor a definitive list of qualifying

17 interests can be presented in the abstract . . . .” Snapp, 458 U.S. at 607. However,

18 the Supreme Court has recognized as a general category of interests “the health and

19 well-being—both physical and economic—of its residents in general[,]” which

20 includes a state’s “substantial interest in securing its residents from the harmful

21 effects of discrimination.” Snapp, 458 U.S. at 608−09 (adding, “This Court has had

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1 too much experience with the political, social, and moral damage of discrimination

2 not to recognize that a State has a substantial interest in assuring its residents that it

3 will act to protect them from these evils.”). A state also must allege a sufficiently

4 “substantial” effect on its residents, “rather than a narrow and definable class.” Aziz

5 v. Trump, 231 F. Supp. 3d 23, 32 (E.D. Va. 2017) (citing Snapp, 458 U.S. at

6 607−09). When evaluating whether an effect is substantial, a court must consider

7 both persons who are directly and indirectly affected. Id.

8

Although DHS argues that there is a blanket prohibition against parens patriae

9 suits by states against the federal government, courts have widely observed that

10 Massachusetts v. EPA cannot be reconciled with an absolute bar against parens

11 patriae standing for a state suing the federal government. Compare ECF Nos. 223 at

12 9 n. 2; 336 at 9 n. 3 with Ariz. State Legis. v. Ariz. Ind. Redistricting Comm’n, 576

13 U.S. 787, 802 n. 10 (2015); Wash. Utils. And Transp. Comm’n v. Fed. Commc’ns

14 Comm’n, 513 F.2d 1142, 1153 (9th Cir.), cert. denied, 423 U.S. 836 (1975) (finding

15 state standing based on parens patriae against the federal government); Aziz, 231 F.

16 Supp. 3d 23 (finding state standing to pursue the equal protection claims of its

17 residents in litigation challenging the Trump Administration’s second ban on travel

18 from majority-Muslim countries).

19

As with the States’ APA claims, the States’ allegations demonstrate a

20 sufficiently concrete stake in the outcome of this lawsuit for purposes of their equal

21 protection claim. The nature of the equal protection claim they raise implicates their

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1 quasi-sovereign interests in the health and well-being of their residents, and their

2 interests in securing their residents from the harmful effects of discrimination. See

3 Snapp, 458 U.S. at 608−09.

4

Therefore, the Court denies DHS’s Motion to Dismiss with respect to

5 standing.

6

B. Zone of Interests

7

For the claims that the States are pursuing under the APA, they must satisfy

8 an additional test beyond Article III’s standing requirements; the interests asserted

9 by an APA plaintiff “must be ‘arguably within the zone of interests to be protected

10 or regulated by the statute’ that [the plaintiff] says was violated.” Match-E-Be-

11 Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012)

12 (quoting Assoc. of Data Processing Serv. Org., Inc., 397 U.S. 150, 153 (1970)). The

13 zone of interests test is not “especially demanding.” Id. at 225. Moreover, the

14 Supreme Court has emphasized Congress’s “‘evident intent’ when enacting the APA

15 ‘to make agency action presumptively reviewable.’” Id. (quoting Clarke v. Sec.

16 Indus. Assn., 479 U.S. 388, 399 (1987)). The Supreme Court has “conspicuously

17 include the word ‘arguably’ in the test to indicate that the benefit of any doubt goes

18 to the plaintiff.” Id. (quoting Clarke, 479 U.S. at 399). There is no requirement that

19 a would-be plaintiff demonstrate any “indication of congressional purpose to

20 benefit” that plaintiff. Id. “The test forecloses suit only when a plaintiff’s ‘interests

21 are so marginally related to or inconsistent with the purposes implicit in the statute

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1 that it cannot reasonably be assumed that Congress intended to permit the suit.’” Id.

2 (quoting Clarke, 479 U.S. at 399).

3

DHS argues that the States fall outside of the zone of interests protected by the

4 public charge inadmissibility provision in the INA because the States’ “‘interests are

5 . . . marginally related to or inconsistent with the purposes implicit in the statute.’”

6 ECF No. 236 at 4 (quoting Clark, 479 U.S. at 399). DHS argues that the States’

7 “interest here is practically the inverse” of the public charge provision’s objective of

8 “conserv[ing] federal and State resources by excluding aliens who are likely to

9 consume public benefits” because “the States here seek to conserve their resources

10 by enhancing reliance on federal resources.” Id. at 11 (emphasis in original)

11

The States respond that the protection of state fiscs has been an objective of

12 the public charge exclusion since it was instituted. ECF No. 233 at 21 (citing

13 Hidetaka Hirota, Expelling the Poor 185 (2017)). The States further argue that the

14 INA itself recognizes the states’ role and authority in administering public benefits

15 programs. Id. (citing 8 U.S.C. §§ 1183(a), (b), (e)(2); Texas v. U.S., 809 F.3d 134,

16 163 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016)). The

17 States argue that they administer the public benefits programs at issue in the Public

18 Charge Rule, and are “well within the zone of interests, as the Rule imposes

19 significant uncompensated costs on them and undermines the administration of their

20 comprehensive public assistance program.” Id.

21

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1

DHS argues about the States’ fiscs from a discrete framework of immediate

2 costs expended for public benefits, such as SNAP or housing assistance, as opposed

3 to the States’ long-range view of fiscs including long-term costs of citizens who are

4 deprived of adequate food or housing before they achieve citizenship. At this early

5 stage of litigation, this Court is satisfied that the States meet the zone of interests

6 standard by identifying the original purpose of the public charge exclusion as

7 protecting “state fiscs” as well as the long-range impact on the States’ fiscs of

8 potential citizens forgoing lawful benefits in order to steer clear of the “public

9 charge” net.12 As the Seventh Circuit observed in finding that Cook County’s

10 financial interests suffice to bring it within the zone of interests of the public charge

11 provision, “though the purpose of the public-charge provision is to screen for and

12 promote ‘self-sufficiency’ among immigrants, it is not obvious what self-sufficiency

13 means.” Cook Cty. v. Wolf, 962 F.3d 208, 220 (7th Cir. 2020). The Seventh Circuit

14 continued:

15

Subsidies abound in the modern world, from discounted or free

transportation for seniors, to public snow removal, to school lunches,

16

to childhood vaccinations, and much more. Ensuring that immigrants

have access to affordable basic health care, for example, may promote

17

their greater self-sufficiency in other domains, including income,

housing, and nutrition. It also protects the community at large from

18

highly contagious diseases such as COVID-19. Cook County’s interest

in ensuring lawful immigrants’ access to authorized federal and state

19

public benefits is not plainly inconsistent with the text of the statute. Its

20
21 12 At the preliminary injunction stage of this case, the Court also found that the States met the zone of interests standard. ECF No. 162 at 29.
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1

financial interests thus suffice to bring it within the zone of interests of

the public-charge provision.

2

Cook Cty., 962 F.3d at 220.

3

The Court renews its earlier finding and denies DHS’s Motion to Dismiss with

4

respect to the zone of interests.

5

C. Precedential Weight of Emergency Stay Opinions

6

With respect to numerous issues raised by the Motion to Dismiss, DHS argues

7

that the Ninth Circuit’s stay opinion is “precedential” and “controlling” on this

8

Court. See, e.g., ECF No. 236 at 12 (arguing that this Court is bound by the Ninth

9

Circuit stay opinion’s discussion and conclusions regarding Chevron step one).

10

DHS also cites to the Supreme Court’s opinions granting DHS’s applications to stay

11

preliminary injunctions of the Public Charge Rule “including one involving an equal

12

protection claim similar to that alleged in this case.” ECF No. 136 at 1 n. 1 (citing

13

New York, 140 S. Ct. 599; Wolf, 140 S. Ct. 681).

14

Subject to various exceptions, the law of the case doctrine generally requires

15

courts to “refuse to reconsider an issue that has already been decided by the same

16

court or a higher court in the same case.” Gonzalez v. Arizona, 677 F.3d 383, 389

17

n.4 (9th Cir. 2012) (citing Jeffries v. Wood, 114 F.3d 1484, 1488−89 (9th Cir. 1997)

18

(en banc)). Recognized exceptions include: “‘(1) the decision is clearly erroneous

19

and its enforcement would work a manifest injustice, (2) intervening controlling

20

authority makes reconsideration appropriate, or (3) substantially different evidence

21

was adduced at a subsequent trial.’” Gonzalez, 677 F.3d at 389 n. 4 (quoting

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1 Jeffries, 114 F.3d at 1489 (footnote omitted) (quoting Caldwell v. Unified Capital

2 Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir. 1996) (internal

3 quotation marks omitted)).

4

This Court’s reading of the relevant caselaw outlining the parameters of the

5 law of the case finds no support for DHS’s argument that the motions panel’s

6 decision regarding an emergency stay of a preliminary injunction is binding with

7 respect to the issues before this Court on DHS’s Motion to Dismiss. The Ninth

8 Circuit was not reviewing whether the claims raised by the States’ Amended

9 Complaint should be dismissed under the Iqbal/Twombly standard that is applicable

10 to a motion to dismiss. See San Francisco, 944 F.3d 773. As the Ninth Circuit

11 recently observed, the question before the merits panel resolving an appeal of a

12 preliminary injunction order is “doctrinally distinct” from the question of a stay

13 pending review posed to a motions panel. E. Bay Sanctuary Covenant v. Trump, 950

14 F.3d 1242, 1263−64 (9th Cir. 2020). “‘[T]here are important differences between a

15 preliminary injunction and a stay pending review.’” Id. (quoting Leiva-Perez v.

16 Holder, 640 F.3d 962, 966 (9th Cir. 2011)). A merits panel resolving an appeal of a

17 preliminary injunction is asking whether the district court abused its discretion while

18 a motions panel instead is evaluating a stay request in “‘likelihood terms,’” and

19 asking whether “the government raised serious questions relating to the propriety of

20 the district court’s preliminary injunction and whether the government would likely

21 prevail on appeal[.]” Id. (quoting Leiva-Perez, 640 F.3d at 967). The “question

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1 presented to the motions panel is an additional step removed from the underlying

2 merits of the district court's preliminary injunction.” Id. at 1264 (observing that the

3 appellate court “exercise[s] restraint in assessing the merits of either question, but

4 particularly so when considering the ‘extraordinary request’ to stay a preliminary

5 injunction granted by a district court.”) (quoting Barr v. E. Bay Sanctuary Covenant,

6 140 S. Ct. 3, 4 (2019) (Sotomayor, J., dissenting from grant of a stay)).

7

The questions now before this Court differ significantly from the question that

8 the Court previously faced in determining the preliminary injunction. Now, the

9 Court must consider whether the States’ Amended Complaint, ECF No. 31, bears

10 sufficient factual matter, accepted as true, to state claims to relief that are plausible

11 on their face. See Iqbal, 556 U.S. at 678. During the preliminary injunction phase,

12 the Court was applying the Winter13 and Nken14 factors to determine whether a

13 preliminary injunction was appropriate.

14

Likewise, the Supreme Court did not reach the merits of any of the claims

15 raised by plaintiffs in the Public Charge Rule litigation from the Second Circuit. See

16 Wolf, 140 S. Ct. at 682 (Sotomayor, J., dissenting) (noting that in granting the

17 Government’s application for a stay in New York, 140 S. Ct. 599, “[n]o Member of

18 the [Supreme] Court discussed the application’s merit apart from its challenges to

19 the injunction’s nationwide scope.”).

20 13 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
21 14 Nken v. Holder, 556 U.S. 418, 425−26 (2009).
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1

The Court is mindful that it is bound by Ninth Circuit decisions. However, it

2 would be a travesty of due process for the litigants to bind district courts at a motion

3 to dismiss stage to a decision made by a motions panel using a different standard of

4 review to consider a different set of factors regarding whether to stay a preliminary

5 injunction. Indeed, much of the concern expressed in legal conferences, appellate

6 decisions, and the academy concern the bar that nationwide injunctions create in

7 allowing cases to “percolate” through the system from the trial court, through the

8 appellate court, and finally to the Supreme Court. See CASA de Md., Inc. v. Trump,

9 No. 19-2222, 2020 U.S. App. LEXIS 24672, at *85−86 (4th Cir. Aug. 5, 2020);

10 Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131

11 Harv. L. Rev. 418, 420−21 (2017). Accordingly, the Court rejects DHS’s argument

12 that this Court’s consideration of the Motion to Dismiss is circumscribed by the

13 Ninth Circuit motion panel’s stay opinion.

14

DISCUSSION

15

DHS moves to dismiss the States’ Amended Complaint in its entirety. ECF

16 No. 223.

17

A. Counts I and III: Contrary to Law under the APA; Arbitrary and

18

Capricious under the APA

19

In the Preliminary Injunction Order, this Court found that the States had

20 shown that they were likely to succeed on the merits of their claims under the APA

21

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1 that the Public Charge Rule is contrary to law and arbitrary and capricious. ECF

2 No. 162 at 34−50; see 5 U.S.C. § 702; 706(2)(A).

3

To prevail on a motion for preliminary injunction, a plaintiff must show that

4 he or she is likely to succeed on the merits. Winter, 555 U.S. at 20. By contrast, as

5 outlined above, a motion to dismiss should not be granted “unless it appears

6 beyond doubt that Plaintiff can prove no set of facts in support of his claim that

7 would entitle him to relief.” Clegg v. Cult Awareness Network, 18 F. 3d 752, 754

8 (9th Cir. 1994). A motion to dismiss provides for early disposal of actions “‘that

9 are fatally flawed in their legal premises and destined to fail, and thus spare

10 litigants the burdens of unnecessary pretrial and trial activity.’” Forsberg v. Fid.

11 Nat’l Credit Servs., No. 03cv2193-DMS(AJB), 2004 U.S. Dist. LEXIS 7622, at *4

12 (S.D. Cal. Feb. 25, 2004) (quoting Advanced Cardiovascular Sys., Inc. v. Scimed

13 Life Sys., Inc., 988 F.2d 1157, 1160 (Fed. Cir. 1993)).

14

At this stage in the countrywide Public Charge Rule litigation, two higher

15 courts, the Seventh and the Second Circuits, have affirmed preliminary injunction

16 orders in part based on conclusions that the Public Charge Rule is contrary to the

17 INA, providing extensive analysis of both Chevron steps one and two. New York,

18 2020 U.S. App. LEXIS 24492, at *35−76 (heavily analyzing IRIIRA and

19 PRWORA along with the INA); Cook Cty., 962 F.3d at 221−29 (concluding that

20 the Public Charge Rule is not a reasonable interpretation of the INA, the

21 Rehabilitation Act, or the SNAP statute). The Second and Seventh Circuits also

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1 concluded that the district courts properly found that DHS’s policymaking process

2 was flawed and that the Public Charge Rule, therefore, is arbitrary and capricious.

3 New York, 2020 U.S. App. LEXIS 24492, at *76−89; Cook Cty., 962 F.3d at

4 229−32. The Fourth Circuit subsequently reversed a preliminary injunction order

5 based in part on its conclusion that the Public Charge Rule likely is a permissible

6 interpretation of the INA. CASA de Md., Inc., 2020 U.S. App. LEXIS 24672, at

7 *36−72.

8

In short, the analyses of the Circuit Courts with respect to the merits of the

9 contrary to law and arbitrary and capricious claims vary significantly, and, the

10 Circuits in which merits panels have resolved DHS’s appeals of the preliminary

11 injunctions issued in the Public Charge Rule litigation are split in their conclusions.

12 Moreover, the time for petitioning for rehearing en banc has not yet expired with

13 respect to all of the opinions. See Fed. R. App. P. 35, 40.

14

In light of the fact that this Court already found that the States were likely to

15 succeed on their APA claims, there is no justification to revisit the analysis of

16 those claims, given the less demanding standard for surviving a motion to dismiss.

17 See Clegg, 18 F. 3d at 754; see also New York, 2020 U.S. Dist. LEXIS 134493, at

18 *21 (reaching the same conclusion while DHS’s appeal of the preliminary

19 injunction order issued by the Southern District of New York was still pending).

20 Furthermore, the fact that two higher courts have found that district courts properly

21

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1 found that the Public Charge Rule is contrary to law and arbitrary and capricious

2 heavily reinforces the conclusion that the States’ APA claims are plausible.

3

Certainly, this Court may significantly revise its analysis of the States’ APA

4 claims if and when the Court is faced with the merits of the States’ Counts I and III

5 with a fully developed record. However, DHS’s Motion to Dismiss is not the

6 appropriate prompt to revisit that analysis or contribute to the lucid, rigorous

7 discourse among the higher courts regarding identical issues raised by the States’

8 APA claims. The Ninth Circuit stay opinion in this case also does not compel this

9 Court to revisit its earlier analysis of the contrary to law and arbitrary and

10 capricious claims because DHS’s appeal of the Preliminary Injunction Order is still

11 pending. A Ninth Circuit merits panel has not yet entered the nationwide

12 discussion of the merits of APA claims challenging the Public Charge Rule, thus

13 leaving this issue still open in the Ninth Circuit.

14

Therefore, this Court denies the Motion to Dismiss with respect to Count I,

15 the contrary to law claim, and Count III, the arbitrary and capricious claim, on the

16 rationale that the Court already found the States likely to prevail on these APA

17 claims based on the more demanding preliminary injunction standard, thereby

18 satisfying the lower Iqbal/Twombly threshold of plausibility under Rule 12(b)(6).

19

B. Count II: Ultra Vires Conduct

20

The Court next considers whether the States have alleged a sufficient basis to

21 find their ultra vires claim plausible. The States allege in their Amended Complaint

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1 that the “INA does not permit—either expressly or impliedly—[DHS] to expand its

2 authority” by extending the public charge exclusion to reach applicants for visa

3 extensions and change of status. ECF Nos. 31 at 171; 233 at 37.

4

DHS argues that the States fail to state a claim because the Public Charge

5 Rule “independently sets a new condition for approval of extension of stay and

6 change of status applications and petitions pursuant to its ample statutory authority

7 to impose such conditions.” ECF No. 236 at 26. DHS contends that unlike the

8 public charge inadmissibility determination, the Public Charge Rule introduces an

9 “exclusively backward-looking condition for extension of stay and change of status

10 applications” that treats “proof that an alien has used covered benefits for 12 or more

11 months in a 36 month period since gaining his or her nonimmigrant status” as “itself

12 disqualifying.” Id. DHS maintains that 8 U.S.C. §§ 1184 and 1258 assign DHS the

13 authority to set these conditions for the relevant applications. Id.

14

The States respond that “DHS’s distinction between backward- and forward-

15 looking assessments disintegrates under scrutiny” because the public charge

16 exclusion test is also backward looking. ECF No. 233 at 38 (pointing out that an

17 individual’s past use of public benefits is counted against them when the officer

18 predicts their future use of benefits). The States urge that DHS may not simply

19 borrow a legal standard that Congress established for a certain statutory application

20 and apply it to a completely different statutory application. Id. (citing Comcast

21 Corp. v. FCC, 600 F.3d 642, 655 (D.C. Cir. 2010) for the proposition that an agency

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1 may not use a Congressional statement of policy in one statutory provision as a basis

2 to interpret a different statutory provision).

3

Non-statutory review of agency action that is allegedly ultra vires, or beyond

4 the agency’s legislative authority, is designed to determine whether the agency has

5 acted “without any authority whatsoever.” Pennhurst State Sch. & Hosp. v.

6 Halderman, 465 U.S. 89, 101 n.11 (1984) (internal quotation omitted). In

7 determining whether an agency regulation is ultra vires, courts apply the Chevron

8 two-step Chevron analysis. City of Arlington v. F.C.C., 569 U.S. 290, 295 (2013);

9 Garfias-Rodriguez v. Holder, 702 F.3d 504, 525 (9th Cir. 2012); Chevron U.S.A.,

10 Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984). The Court’s first task

11 under Chevron is to “give effect to the unambiguously expressed intent of

12 Congress.” Chevron, 467 U.S. at 842. If Congress has “directly spoken to the

13 precise question at issue[,]” the inquiry stops there, as the unambiguously expressed

14 intent of Congress governs. Id. at 842−43. However, “[i]f the statute is silent or

15 ambiguous with respect to the specific issue, the question for the court is whether the

16 agency's answer is based on a permissible construction of the statute.” Id. at 843.

17

The public charge ground of inadmissibility does not apply to individuals who

18 hold nonimmigrant student or exchange visitor visas seeking to extend their stay or

19 change their nonimmigrant status. See 8 U.S.C. § 1182(a)(4). However, as part of

20 the Public Charge Rule, DHS imposed a “public benefits condition” that renders

21 those nonimmigrant visa holders ineligible for an extension of stay or change of

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1 status if they received public benefits for more than twelve months, in the aggregate,

2 within any 36-month period after the alien obtained the nonimmigrant status he or

3 she seeks to extend or change. See 8 C.F.R. §§ 214.1(a)(3)(iv), 428.1(a), and

4 248.1(c)(4).

5

Admission on a nonimmigrant visa to the United States “shall be for such time

6 and under such conditions” as the Attorney General prescribes through regulation. 8

7 U.S.C. § 1184(a)(1). In addition, the Secretary of Homeland Security “may, under

8 such conditions as he may prescribe, authorize a change from any nonimmigrant

9 classification to any other nonimmigrant classification in the case of any alien

10 lawfully admitted to the United States as a nonimmigrant . . .[,]” subject to limited

11 exceptions. 8 U.S.C. § 1258.

12

The States do not make any argument for why this statutory text is ambiguous,

13 and the Court agrees with DHS that on its face the authority allocated to DHS

14 encompasses a regulation that imposes the public benefits condition. Therefore, the

15 Court does not proceed past step one of Chevron. 467 U.S. at 842−43. The ultra

16 vires claim challenges not whether the public benefits condition, and the distinction

17 that DHS is drawing between that condition and the public charge exclusion, make

18 sense or deteriorate under scrutiny, as the States argue. See ECF No. 233 at 38.

19 Rather, the ultra vires claim is not plausible unless the States can direct the court to

20 exactly what authority DHS exceeds by including the public benefits condition in the

21 Public Charge Rule.

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1

In the absence of plausible and detailed allegations that DHS acted outside of

2 its legal authority regarding nonimmigrant visa extensions and changes of status, the

3 Court grants DHS’s Motion to Dismiss the States’ Count II for ultra vires action

4 without prejudice. See Iqbal, 556 U.S. at 678. However, the Court has no basis on

5 which to conclude that the States could not remedy the defects with an amended

6 pleading. Therefore, the Court grants leave to amend. Lopez v. Smith, 203 F.3d

7 1122, 1127 (9th Cir. 2000) (leave to amend is appropriate unless the district court

8 determines that the pleading “could not possibly be cured by the allegation of other

9 facts”) (internal quotation omitted).

10

C. Count IV: Denial of the Right to Equal Protection under the Fifth

11 Amendment Due Process Clause

12

The States’ fourth claim, for denial of equal protection, remains for the Court

13 to evaluate and determine whether the States’ allegations plausibly give rise to an

14 entitlement to relief. Iqbal, 556 U.S. at 679. The States allege in their Amended

15 Complaint that the Public Charge Rule was “motivated by Administration officials’

16 intent to discriminate on the basis of race, ethnicity, or national origin.” ECF No. 31

17 at 176−77. The States allege that the discriminatory purpose behind the Public

18 Charge Rule violates the due process clause of the Fifth Amendment to the U.S.

19 Constitution. Id.

20 / / /

21 / / /

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1

1. Standard of Review

2

The parties disagree as to the appropriate standard of review to apply to the

3 States’ equal protection claims. See ECF Nos. 236 at 31−32; 233 at 50. DHS argues

4 that deferential rational basis review, rather than strict scrutiny, applies to the Public

5 Charge Rule “unless Plaintiffs establish discriminatory intent.” ECF No. 223 at 32

6 (citing Washington v. Davis, 426 U.S. 229, 242 (1976), for the proposition that

7 disproportionate impact alone “does not trigger the rule . . . that racial classifications

8 are to be subjected to the strictest scrutiny). DHS also relies on Trump v. Hawaii,

9 138 S. Ct. 2392, 2418, 2419 (2018), to argue that rational basis is appropriate to

10 review the Public Charge Rule because it concerns the “admission and exclusion of

11 foreign nationals, ‘a matter within the core of executive responsibility.’” Id. (citing

12 Hawaii, 138 S. Ct. at 2418). DHS asserts that the narrower rational basis review

13 contemplated by Hawaii, should apply to any government policies regarding the

14 admission of aliens. ECF No. 236 at 32.

15

The States assert that they may offer circumstantial evidence in support of a

16 reasonable inference of discriminatory intent. ECF No. 233 at 50 (relying on

17 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264−65 (1977)). The

18 States argue that Hawaii does not require rational basis review here because: (1) the

19 statute at issue in Hawaii, 8 U.S.C. § 1182(f), contains much more deferential

20 language regarding executive discretion than the public charge provision at 8 U.S.C.

21 § 1182(a)(4); (2) the “international affairs and national security” concerns present in

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1 Hawaii are not present here, where DHS has offered only economic justifications for

2 the Public Charge Rule; and (3) Hawaii challenged executive action regarding “the

3 entry of foreign nationals” into the United States but the Public Charge Rule applies

4 in part to individuals who are already lawfully present in the United States. ECF

5 No. 233 at 52−53; Hawaii, 138 S. Ct. at 2409, 2420 n. 5.

6

The Fifth Amendment’s Due Process Clause contains an equal protection

7 component that prohibits denying to any person the equal protection of the laws.

8 United States v. Windsor, 570 U.S. 744, 774 (2013). One framework for

9 demonstrating an equal protection violation is to show that “‘defendants acted with

10 an intent or purpose to discriminate against the plaintiff based on membership in a

11 protected class.’” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)

12 (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied,

13 525 U.S. 1154 (1999). “Where the challenged governmental policy is ‘facially

14 neutral,’ proof of its disproportionate impact on an identifiable group can satisfy the

15 intent requirement only if it tends to show that some invidious or discriminatory

16 purpose underlies the policy.’” Id. (quoting Arlington Heights, 429 U.S. at 264−66).

17 The Arlington Heights framework is one method of “alleging a viable equal

18 protection claim. See Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1125 (N.D. Cal.

19 2018) (citing a U.S. Department of Justice legal manual explaining that Arlington

20 Heights and the framework provided by McDonnell Douglas Corp. v. Green, 411

21

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1 U.S. 792, 802−03 (1973), provide alternative methods of proving intentional

2 discrimination).

3

In Hawaii, the Supreme Court resolved an Establishment Clause challenge to

4 an executive order restricting entry into the United States by aliens from several

5 countries. 138 S. Ct. at 2403. The Court held that “plaintiffs’ request for a

6 searching inquiry into the persuasiveness of the President’s justifications” was

7 “inconsistent with the broad statutory text and the deference traditionally accorded

8 the President in this sphere.” 138 S. Ct. at 2409.

9

At least two other district courts already have rejected DHS’s contention that

10 the narrow standard of review from Hawaii applies in the context of the Public

11 Charge Rule, and this Court also finds Hawaii distinguishable for purposes of the

12 appropriate standard by which to evaluate the States’ equal protection claim. See

13 Cook Cty. v. Wolf, Case No. 19-C-6334, 2020 U.S. Dist. LEXIS 87687, at *25−28;

14 La Clinica de la Raza v. Trump, Case No. 19-cv-4980-PJH, 2020 U.S. 141725, at *

15 52−57 (N.D. Cal. Aug. 7, 2020).

16

First, Hawaii addressed foreign nationals seeking initial entry into the

17 territorial United States. 138 S. Ct. at 2403−04. By contrast, the Public Charge Rule

18 applies to applicants for initial admission to the United States as well as to persons

19 already within the United States seeking to adjust status. See 8 C.F.R. § 212.20.

20

Noncitizens have long been recognized to enjoy greater constitutional

21 protections than those outside the geographic borders who are seeking admission for

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1 the first time. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (explaining that 2 “certain constitutional protections available to persons inside the United States are 3 unavailable to aliens outside of our geographic borders . . . [b]ut once an alien enters 4 the country, the legal circumstance changes, for the Due Process Clause applies to 5 all ‘persons’ within the United States, including aliens . . . .”); Landon v. Plascencia, 6 459 U.S. 21, 32 (1982) (noting that “once an alien gains admission to our country 7 and begins to develop the ties that go with permanent residence his constitutional 8 status changes accordingly”). The Ninth Circuit and the Supreme Court have held 9 explicitly that the Due Process Clauses of the Fifth and Fourteenth Amendments 10 protect even those noncitizens who are in the United States without legal status. 11 Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“Even one whose presence in this country 12 is unlawful, involuntary, or transitory is entitled to that constitutional protection.”); 13 Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc) (same); see 14 also Yick Wo v. Hopkins, 118 U.S. 356, 369−70 (1886) (applying Fourteenth 15 Amendment due process and equal protection provisions “to all persons within the 16 territorial jurisdiction, without regard to any differences of race, of color, or of 17 nationality”); Wong v. INS, 373 F.3d 952, 974 (9th Cir. 2004) (“The entry fiction 18 does not preclude non-admitted aliens . . . from coming within the ambit of the equal 19 protection component of the Due Process Clause.”). Nothing in the Hawaii decision 20 indicates that it disturbed this line of caselaw differentiating between the 21
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1 constitutional status of foreign nationals seeking initial admission at the border and

2 foreign nationals already present in the geographic United States.

3

Second, the Supreme Court indicated in Hawaii that executive action is

4 shielded from a more “searching inquiry” where the executive branch acts “in the

5 context of international affairs and security . . . .” 138 S. Ct. at 2409. The Hawaii

6 Court found that the statutory provision at issue in that litigation, 8 U.S.C. § 1182(f),

7 “exudes deference to the President in every clause” and provides a “comprehensive

8 delegation” of power to the President to suspend entry to aliens upon a finding “that

9 the entry of the covered aliens ‘would be detrimental to the interests of the United

10 States.”” 138 S. Ct. at 2408 (quoting 8 U.S.C. §1182(f)). The public charge

11 provision does not contain language similarly indicating that it is aimed at national

12 security interests. See 8 U.S.C. § 1182(a)(4). Moreover, as this Court has noted

13 before, there has been no contention by DHS that this case or the Public Charge Rule

14 implicates national security concerns. ECF No. 229 at 8.

15

In sum, DHS argues that the Hawaii case supports that the rational basis

16 standard should be applied in any case involving the admission or exclusion of

17 foreign nationals. ECF No. 236 at 31. However, the Hawaii decision itself does not

18 countenance such an expansive reading, as numerous lower courts have recognized.

19 See Regents of the Univ. of Cal. v. DHS, 908 F.3d 476, 519−20 (9th Cir. 2018), rev’d

20 in part, vacated in part, 140 S. Ct. 1891 (2020) (distinguishing Hawaii on the basis

21 that it did not concern aliens physically present within the geographic United States);

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1 Saget v. Trump, 375 F. Supp. 3d 280, 367 (E.D.N.Y. 2019) (determining that Hawaii

2 did not provide the applicable standard for an equal protection claim by foreign

3 nationals “lawfully present in the United States along with their U.S.-born

4 dependents); New York v. United States DOC, 351 F. Supp. 3d 502, 666 (S.D.N.Y.

5 2019) (finding that nothing in the Hawaii opinion indicates that the “‘circumscribed

6 inquiry’ applies outside of the ‘national security and foreign affairs context.’”)

7 (quoting Hawaii, 138 S. Ct. at 2420, n. 5); Centro Presente v. DHS, 332 F. Supp. 3d

8 393, 410 (D. Mass. 2018) (recognizing that the Supreme Court has applied

9 heightened scrutiny to a gender-based classification in the immigration context)

10 (citing Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686, 1690 (2017)).

11

Accordingly, DHS has not supported its contention that rational basis review

12 should supplant the well-established strict scrutiny review of Arlington Heights in

13 the particular immigration context in which the Public Charge Rule applies.

14

2. Plausibility of the States’ Equal Protection Claim

15

DHS maintains that the Rule is facially neutral, and the States cannot establish

16 discriminatory intent through the statements of officials outside of DHS. ECF No.

17 223 at 31. DHS further argues that the States’ allegations are analogous to

18 allegations that the Supreme Court found to be insufficient to support a valid equal

19 protection claim in the plurality opinion recently issued in DHS v. Regents of the

20 Univ. of California, 140 S. Ct. 1891, 1915−16 (2020). ECF No. 36 at 33−34.

21

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1

The States filed their response six days before the Regents decision was

2 issued. See ECF No. 233 (filed June 12, 2020); 140 S. Ct. 1891 (issued on June 18,

3 2020). However, the States respond to DHS’s Motion to Dismiss their equal

4 protection claim by asserting that their Amended Complaint includes sufficient

5 factual content to support that the Public Charge Rule was “motivated by

6 Administration officials’ intent to discriminate on the basis of race, ethnicity, or

7 national origin.” ECF No. 233 at 46 (quoting Amended Complaint).

8

Most facially neutral actions by legislators and government officials,

9 including those that “result[] in a racially disproportionate impact” are subject only

10 to judicial review to determine whether the decision had a rational basis “because

11 legislators and administrators are properly concerned with balancing numerous

12 considerations.” Arlington Heights, 429 U.S. at 264−65. However, the Supreme

13 Court recognized in Arlington Heights that “racial discrimination is not just another

14 competing consideration,” so “[w]hen there is a proof that a discriminatory purpose

15 has been a motivating factor in the decision, this judicial deference is no longer

16 justified.” Id. at 265−66.

17

A plaintiff may state a viable equal protection claim by offering evidence that

18 a discriminatory purpose was one motivating factor. See Arce v. Douglas, 793 F.3d

19 968, 978 (9th Cir. 2015) (a plaintiff “does not have to prove that the discriminatory

20 purpose was the sole purpose of the challenged action, but only that it was a

21 ‘motivating factor.’”) (quoting Arlington Heights, 429 U.S. at 266). Rather, courts

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1 determine “whether invidious discriminatory purpose was a motivating factor” by

2 conducting “a sensitive inquiry in such circumstantial and direct evidence of intent

3 as may be available.” Arlington Heights, 429 U.S. at 266. Under the Arlington

4 Heights standard, judicial inquiry beyond the stated reasons for the official action

5 may include the following: “(1) the impact of the official action and whether it bears

6 more heavily on one race than another; (2) the historical background of the decision;

7 (3) the specific sequence of events leading to the challenged action; (4) the

8 defendant’s departures from normal procedures or substantive conclusions; and (5)

9 the relevant legislative or administrative history.” Arce, 793 F.3d at 978 (citing

10 Arlington Heights, 429 U.S. at 266−68, and describing the list as non-exhaustive).

11 Courts have recognized that “any indication of discriminatory motive may suffice to

12 raise a question that can only be resolved by a fact-finder.” Pac. Shores Props., LLC

13 v. City of Newport Beach, 730 F.3d 1142, 1158−59 (9th Cir. 2013).

14

Beginning with the impact of the official action, the States allege that: (1)

15 DHS received many comments alerting the agency to the racially and ethnically

16 disparate impact of the new public charge definition; and (2) DHS itself

17 acknowledged that the Public Charge Rule “may impact in greater numbers

18 communities of color, including Latinos and [Asian Americans and Pacific

19 Islanders], as well as those with particular medical conditions that require public

20 benefits for treatment, and therefore may impact the overall composition of

21

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 38

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5636 Page 39 of 43

1 immigration with respect to these groups. ECF Nos. 31 at 85−86; 233 at 49−50

2 (quoting 84 Fed. Reg. at 41,369).

3

With respect to the sequence of events leading to the challenged action and

4 the rulemaking history, the States quote remarks by Administration officials that the

5 States allege reflect “animus toward non-European immigrants.” ECF No. 31 at

6 177−78. The States allege that White House staff member Stephen Miller remarked

7 that he “would be happy if not a single refugee foot ever touched American soil,”

8 within the same timeframe as he advised President Donald Trump on immigration

9 policy. Id. at 52. The States also allege that emails by Miller that became public

10 after the filing of the Amended Complaint reflect that Miller promoted white

11 supremacist and racist websites. See ECF Nos. 233 at 47; 198 (response by DHS to

12 the States’ motion to compel discovery related to the equal protection claim

13 indicating that DHS does not dispute that Miller is a regular visitor to white

14 supremacist and racist websites). By June 2018, the States allege, Miller was

15 pressuring DHS to expedite its timeline for publishing a rule revising the public

16 charge regulation. Id. at 56, 64−65. By June 2019, at a White House meeting with

17 DHS officials, Miller allegedly expressed frustration that the public charge

18 redefinition had not been finalized and predicted that the rule would be

19 “transformative.” Id. at 65.

20

The States also allege numerous remarks by President Trump that they offer

21 as circumstantial evidence of racially or ethnically discriminatory intent. In January

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 39

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5637 Page 40 of 43

1 2018, the States allege that President Trump rejected a bipartisan immigrant

2 proposal from Congress that included protections for immigrants from Haiti and

3 Africa, asking “why he should accept immigrants from ‘shithole countries’ rather

4 than from nations like ‘Norway.’” ECF No. 31 at 55. In approximately May 2018,

5 the States allege that President Trump called on “administration officials to ‘do

6 much better’ in keeping out undesirable immigrants,” adding “‘You wouldn’t

7 believe how bad these people are . . . . These aren’t people, these are animals . . . .’”

8 ECF No. 31 at 56.

9

The States further allege statements by former Acting Director of USCIS

10 Kenneth Cuccinelli in August 2019 that the poem inscribed on the Statue of Liberty

11 and its invitation to “‘your tired, your poor, your huddled masses,’” “‘was referring

12 back to people coming from Europe where they had class-based societies’ not to

13 immigrants from outside Europe.” ECF No. 31 at 67.

14

DHS does not dispute the validity of the States’ allegations but instead argues

15 that statements by White House officials that do not reference the Public Charge

16 Rule, and by individuals who were not the decision-makers regarding the Rule, do

17 not reveal anything regarding why DHS instituted the Rule. ECF No. 236 at 33−34.

18 DHS emphasizes that the decision-makers with respect to the Public Charge Rule

19 indicated that their support for the Public Charge Rule was motivated by a desire to

20 promote self-sufficiency, and Plaintiffs have not alleged any direct relationship

21

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 40

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5638 Page 41 of 43

1 between any discriminatory animus and the precise policy at issue. ECF No. 236 at

2 34−35.

3

However, under Arlington Heights, the Administration’s stated reasons for the

4 Public Charge Rule do not undermine the viability of an equal protection claim if the

5 States have provided circumstantial or direct evidence from which, drawing

6 inferences in the States’ favor, the Court may find that at least one motivation

7 behind the rule was discriminatory. See Arlington Heights, 429 U.S. at 267−68.

8

DHS also argues in its reply that the recent Regents plurality decision from the

9 Supreme Court should preclude the States from relying on the above statements to

10 state their equal protection claim. Specifically, DHS asserts that the statements

11 offered by the States are analogous to remarks by President Trump that were found

12 to be “unilluminating” in Regents because they were “remote in time and made in

13 unrelated contexts[.]” ECF No. 236 at 34; Regents, 140 S. Ct. at 1916. In Regents,

14 the Supreme Court considered, in relevant part, an equal protection challenge

15 alleging that the decision by DHS to rescind the Deferred Action for Childhood

16 Arrivals (“DACA”) was motivated by racial or ethnic animus. However, the

17 plurality in Regents concluded that the plaintiffs’ allegations that President Trump

18 made critical statements about Latinos before and after he was elected were too

19 remote in time, and in contexts unrelated to the DACA policy, to qualify as

20 “‘contemporary statements’ probative of the decision at issue.” Regents, 140 S. Ct.

21 at 1916 (quoting Arlington Heights, 429 U.S. at 268).

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 41

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5639 Page 42 of 43

1

In this case, the States’ allegations regarding statements by President Trump,

2 in addition to statements by a high-level White House official and a DHS decision-

3 maker, do not suffer from the same deficiency. The statements described above,

4 with the exception of the alleged emails from Miller promoting white supremacist

5 and racist websites, are from January 2018 until August 2019, when the Public

6 Charge Rule was published. See 84 Fed. Reg. 41,292. Moreover, the statements,

7 and others set forth in the States’ Amended Complaint go to the issue of animus

8 against nonwhite immigrants, which directly overlaps with the context of the States’

9 challenge to the Public Charge Rule. See ECF No. 31 at 47−68.

10

The Court finds that all of these statements, made by high-level officials in the

11 Administration contemporaneous with DHS’s finalizing the Public Charge Rule, can

12 reasonably be interpreted as supporting an animus toward nonwhite immigrants.

13 The Court further finds that DHS’s acknowledgement, at the time that the Rule was

14 published, that the Rule would have a likely discriminatory effect further supports

15 that DHS knew of the discriminatory impact of the Rule. These factors raise an

16 inference that an “invidious discriminatory purpose was a motivating factor” in

17 finalizing the Public Charge Rule. See Arlington Heights, 429 U.S. at 266.

18

In analyzing a motion to dismiss, the Court accepts all of the States’

19 allegations as true, and the Court finds that the States have alleged sufficient facts to

20 make their entitlement to relief under the equal protection component of the Due

21

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 42

Case 4:19-cv-05210-RMP ECF No. 248 filed 09/14/20 PageID.5640 Page 43 of 43

1 Process clause plausible. Therefore, DHS’s Motion to Dismiss is denied with

2 respect to the States’ Count IV.

3

Accordingly, IT IS HEREBY ORDERED:

4

1. Defendants’ Motion to Dismiss, ECF No. 223, is DENIED IN PART

5 with respect to Plaintiffs’ Count I: Contrary to Law; Count III: Arbitrary and

6 Capricious; and Count IV: Equal Protection Claims; and GRANTED IN PART

7 with respect to Plaintiffs’ Count II: Ultra Vires Claim.

8

2. Plaintiffs’ Count II: Ultra Vires Claim is dismissed without prejudice

9 and with leave to amend. Any amendment shall be filed by October 16, 2020.

10

IT IS SO ORDERED. The District Court Clerk is directed to enter this

11 Order and provide copies to counsel.

12

DATED September 14, 2020.

13

s/ Rosanna Malouf Peterson

14

ROSANNA MALOUF PETERSON

United States District Judge

15

16

17

18

19

20

21

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS ~ 43

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF SANTA CLARA,
Plaintiffs-Appellees,
v.

No. 19-17213
D.C. No. 4:19-cv-04717-
PJH

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

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2

CITY & CTY. OF SAN FRANCISCO V. USCIS

STATE OF CALIFORNIA; DISTRICT OF COLUMBIA; STATE OF MAINE; COMMONWEALTH OF PENNSYLVANIA; STATE OF OREGON,
Plaintiffs-Appellees,

No. 19-17214
D.C. No. 4:19-cv-04975-
PJH

v.

U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding

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CITY & CTY. OF SAN FRANCISCO V. USCIS

3

STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; DANA NESSEL, Attorney General on behalf of the People of Michigan; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF RHODE ISLAND; STATE OF HAWAII,
Plaintiffs-Appellees,

No. 19-35914 D.C. No.
4:19-cv-05210RMP
OPINION

v.

U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

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4

CITY & CTY. OF SAN FRANCISCO V. USCIS

Appeal from the United States District Court for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted September 15, 2020 San Francisco, California

Filed December 2, 2020

Before: Mary M. Schroeder, William A. Fletcher, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Schroeder; Dissent by Judge VanDyke

SUMMARY*

Immigration
In cases in which two district courts issued preliminary injunctions enjoining implementation of the Department of Homeland Security’s redefinition of the term “public charge,” which describes a ground of inadmissibility, the panel: 1) affirmed the preliminary injunction of the District Court for the Northern District of California covering the territory of the plaintiffs; and 2) affirmed in part and vacated in part the preliminary injunction of the District Court for the Eastern District of Washington, vacating the portion of the injunction that made it applicable nationwide.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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CITY & CTY. OF SAN FRANCISCO V. USCIS

5

Under 8 U.S.C. § 1182(a)(4)(A), any alien who, in the opinion of the Secretary of Homeland Security, at the time of application for admission or adjustment of status, is likely at any time to become a “public charge,” is inadmissible. No statute has ever defined the term. In 1999, the Immigration and Naturalization Service issued guidance (Guidance) defining the term as one who “is or is likely to become primarily dependent on the government for subsistence.” The Guidance expressly excluded non-cash benefits intended to supplement income.

In August 2019, the Department of Homeland Security (DHS) issued a rule (the Rule) that defines “public charge” to include those who are likely to participate, even for a limited period of time, in non-cash federal government assistance programs. The Rule defines the term “public charge” to mean “an alien who receives one or more [specified] 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 (Aug. 14, 2019). The Rule also directs officials to consider English proficiency in making the public charge determination.

States and municipalities brought suits in California and Washington, asserting claims under the Administrative Procedure Act. The District Court for the Northern District of California issued a preliminary injunction covering the territory of the plaintiffs, and the District Court for the Eastern District of Washington issued a nationwide injunction. A divided motions panel of this court granted DHS’s motion for a stay of those injunctions pending appeal.

The panel first concluded that the plaintiffs had established Article III standing. The plaintiffs are states and

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CITY & CTY. OF SAN FRANCISCO V. USCIS

municipalities that alleged that the Rule is causing them continuing financial harm, as lawful immigrants eligible for federal cash, food, and housing assistance withdraw from these programs and instead turn to state and local programs. The panel concluded that this constituted sufficient injury. Addressing whether the injury is apparent or imminent, the panel explained that: 1) the Rule itself predicts a 2.5 percent decrease in enrollment in federal programs and a corresponding reduction in Medicaid payments of over one billion dollars per year; 2) the Rule acknowledges that disenrollment will cause other indirect financial harm to state and local entities; and 3) declarations in the record show that such entities are already experiencing disenrollment.

Next, the panel concluded that the interest of the plaintiffs in preserving immigrants’ access to supplemental benefits is within the zone of interests protected by the “public charge” statute. The panel rejected DHS’s suggestion that only the federal government and individuals seeking to immigrate are within the zone of interest. The panel also rejected DHS’s suggestion that the purpose of the public charge statute is to reduce immigrants’ use of public benefits. Addressing DHS’s contention that the statute’s overall purpose is to promote self-sufficiency, the panel concluded that providing access to better health care, nutrition, and supplemental housing benefits is consistent with precisely that purpose.

The panel next concluded that the plaintiffs had demonstrated a high likelihood of success in showing that the Rule is inconsistent with any reasonable interpretation of the public charge statute and therefore contrary to law. The plaintiffs pointed to repeated congressional reenactment of the provision after it had been interpreted to mean long-term dependence on government support, noting that the statute

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CITY & CTY. OF SAN FRANCISCO V. USCIS

7

had never been interpreted to encompass temporary resort to supplemental non-cash benefits. The plaintiffs contended that this repeated reenactment amounted to congressional ratification of the historically consistent interpretation.

The panel concluded that the history of the provision supported the plaintiffs’ position, noting that: 1) from the Victorian Workhouse through the 1999 Guidance, the concept of becoming a “public charge” has meant dependence on public assistance for survival; 2) the term had never encompassed persons likely to make short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance; and 3) the Rule introduces a lack of English proficiency. The panel also noted that the opinions of the Second Circuit and the Seventh Circuit, in affirming preliminary injunctions of the Rule, agreed that the Rule’s interpretation was outside any historically accepted or sensible understanding of the term.

The panel next concluded that the Rule’s promulgation was arbitrary and capricious, explaining that DHS: 1) failed to adequately consider the financial effects of the Rule; 2) failed to address concerns about the Rule’s effect on public safety, health, and nutrition, as well its effect on hospital resources and vaccination rates in the general population; and 3) failed to explain its abrupt change in policy from the 1999 Guidance.

The panel also concluded that the remaining preliminary injunction factors favored the plaintiffs. The panel explained that the plaintiffs had established that they likely are bearing and will continue to bear heavy financial costs because of withdrawal of immigrants from federal assistance programs and consequent dependence on state and local programs. The

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CITY & CTY. OF SAN FRANCISCO V. USCIS

panel also observed that the public interest in preventing contagion is particularly salient during the current global pandemic, and noted the financial burdens on the plaintiffs and the adverse effects on the health and welfare of the immigrant as well as general population.

Finally, the panel concluded that a nationwide injunction was not appropriate in this case because the impact of the Rule would fall upon all districts at the same time, and the same issues regarding its validity have been and are being litigated in multiple federal district and circuit courts. Accordingly, the panel vacated that portion of the District Court for the Eastern District of Washington’s injunction making it applicable nationwide.

Dissenting, Judge VanDyke, wrote that for the reasons ably articulated by this court in a December 2019 published opinion in this case, by the Fourth Circuit in CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020), and by a dissenting Seventh Circuit judge in Cook County v. Wolf, 962 F.3d 208, 234–54 (7th Cir. 2020) (Barrett, J., dissenting)—and implied by the Supreme Court’s multiple stays this year of injunctions virtually identical to those the majority today affirms—he must respectfully dissent.

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CITY & CTY. OF SAN FRANCISCO V. USCIS

9

COUNSEL

Gerard Sinzdak (argued), Daniel Tenny, Joshua Dos Santos, and Jack Starcher, Appellate Staff; David L. Anderson and William D. Hyslop, United States Attorneys; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington D.C.; for DefendantsAppellants.

H. Luke Edwards (argued), Raphael N. Rajendra, Julia B. Spiegel, and Hannah Kieschnick, Deputy County Counsels; Laura Trice, Lead Deputy County Counsel; Greta S. Hansen, Chief Assistant County Counsel; James R. Williams, County Counsel; Office of the County Counsel, County of Santa Clara, San Jose, California; Dennis J. Herrera, City Attorney; Jesse C. Smith, Chief Assistant City Attorney; Ronald P. Flynn, Chief Deputy City Attorney; Yvonne R. Mere, Chief, Complex & Affirmative Litigation; Sara J. Eisenberg, Chief of Strategic Advocacy; Matthew D. Goldberg, Deputy City Attorney; City Attorney’s Office, San Francisco, California; for Plaintiffs-Appellees City and County of San Francisco; County of Santa Clara.

Xavier Becerra, Attorney General; Matthew Rodriguez, Chief Assistant Attorney General; Michael L. Newman, Senior Assistant Attorney General; Cherokee DM Melton, Supervising Deputy Attorney General; Jennifer C. Bonilla, Lisa Cisneros, Rebekah Fretz, Katherine Lehe, Marissa Malouff, Julia Harumi Mass, Anita Garcia Velasco, Brenda Ayon Verduzco, and Anna Rich, Deputy Attorneys General; Office of the Attorney General, Oakland, California; Karl A. Racine, Attorney General; Loren L. AliKhan, Solicitor General; Office of the Attorney General, Washington, D.C.; Aaron M. Frey, Attorney General; Susan P. Herman, Chief

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CITY & CTY. OF SAN FRANCISCO V. USCIS

Deputy Attorney General; Office of the Attorney General, Augusta, Maine; Ellen Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Nicole DeFever and Patricia Garcia Rincon, Attorneys; Oregon Department of Justice, Salem, Oregon; Josh Shapiro, Attorney General; Michael J. Fischer, Chief Deputy Attorney General; Aimee D. Thomson, Deputy Attorney General; Office of the Attorney General, Philadelphia, Pennsylvania; for PlaintiffsAppellees State of California, District of Columbia, State of Maine, Commonwealth of Pennsylvania and State of Oregon.

Robert W. Ferguson, Attorney General; Noah G. Purcell, Solicitor General; Tera M. Heintz, Deputy Solicitor General; Jeffrey T. Sprung, Nathan K. Bays, and Joshua Weissman, Assistant Attorneys General; Office of the Attorney General, Seattle, Washington; Mark R. Herring, Attorney General; Michelle S. Kallen, Deputy Solicitor General; Jessica Merry Samuels, Assistant Solicitor General; Ryan Spreague Hardy, Alice Anne Lloyd, and Mamoona H. Siddiqui, Assistant Attorneys General; Office of the Attorney General, Richmond, Virginia; Phil Weiser, Attorney General, Eric R. Olson, Solicitor General; Office of the Attorney General, Denver, Colorado; Kathleen Jennings, Attorney General; Aaron R. Goldstein, State Solicitor, Monica A. Horton, Deputy Attorney General; Department of Justice, Wilmington, Delaware; Kwame Raoul, Attorney General; Liza Roberson-Young, Public Interest Counsel; Office of the Attorney General, Chicago, Illinois; Clare C. Connors, Attorney General; Lili A. Young, Deputy Attorney General; Department of the Attorney General, Honolulu, Hawaii; Brian E. Frosh, Attorney General; Jeffrey P. Dunlap, Assistant Attorney General; Office of the Attorney General, Baltimore, Maryland; Maura Healey, Attorney General; Abigail B. Taylor, Chief, Civil Rights Division; David Ureña,

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Special Assistant Attorney General; Angela Brooks, Assistant Attorney General; Office of the Attorney General, Boston, Massachusetts; Dana Nessel, Attorney General; Fadwa A. Hammoud, Solicitor General; Toni L. Harris, First Assistant Attorney General; Michigan Department of Attorney General, Lansing, Michigan; Keith Ellison, Attorney General; R.J. Detrick, Assistant Attorney General; Attorney General’s Office, St. Paul, Minnesota; Aaron D. Ford, Attorney General; Heidi Parry Stern, Solicitor General; Office of the Attorney General; Gurbir S. Grewal, Attorney General; Glenn J. Moramarco, Assistant Attorney General; Office of the Attorney General, Trenton, New Jersey; Hector Balderas, Attorney General; Tania Maestas, Chief Deputy Attorney General; Office of the Attorney General, Santa Fe, New Mexico; Peter F. Neronha, Attorney General; Lauren E. Hill, Special Assistant Attorney General; Office of the Attorney General, Providence, Rhode Island; for Plaintiffs-Appellees Washington, Virginia, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, and Hawaii.

Edward T. Waters, Phillip A. Escoriaza, and Amanda N. Pervine, Feldesman Tucker Leifer Fidell LLP, for Amici Curiae Public Health, Health Policy, Medicine, and Nursing Deans, Chairs, and Scholars; American Public Health Association; and American Academy of Nursing.

R. Adam Lauridsen, Chessie Thacher, Victor H. Yu, and Nicholas R. Green, Keker Van Nest & Peters LLP, San Francisco, California for Amici Curiae National Housing Law Project, Food Research & Action Center, and Center for Law & Social Policy, National Education Association, and Service Employees International Union.

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CITY & CTY. OF SAN FRANCISCO V. USCIS

Nicholas Espíritu, Linton Joaquin, Alvaro M. Huerta, Mayra B. Joachin, and Max S. Wolson, National Immigration Law Center, Los Angeles, California; Allon Kedem, Graham White, Jayce Born, Hillary Anderson, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amici Curiae Immigrant and Healthcare Service Organizations.

Barbara J. Parker, City Attorney; Maria Bee, Chief Assistant City Attorney; Eric Bernstein, Senior Deputy City Attorney; Malia McPherson, Deputy City Attorney; Caroline Wilson, Fellow; Oakland, California; Michael N. Feuer, City Attorney; Kathleen A. Kenealy, Chief Deputy City Attorney; Danielle L. Goldstein, Deputy City Attorney, Los Angeles, California; Vince Ryan, County Attorney; Robert HazeltineShedd, Assistant County Attorney; Harris County, Houston, Texas; Margaret L. Carter and Daniel R. Suvor, O’Melveny & Myers LLP, Los Angeles, California; Esteban A. Aguilar Jr., City Attorney, Albuquerque, New Mexico; Anne L. Morgan, City Attorney, Austin, Texas; Andre M. Davis, City Solicitor, Baltimore, Maryland; Mark A. Flessner, Corporation Counsel; Benna Ruth Solomon, Deputy Corporation Counsel, Chicago, Illinois; Barbara J. Doseck, Director of Law; John C. Muston, Chief Trial Counsel, Dayton, Ohio; Crystal Barnes, Acting City Solicitor, Holyoke, Massachusetts; Howard Phillip Schneiderman, Senior Deputy Prosecuting Attorney, King County, Seattle, Washington; Brian E. Washington, County Counsel, County of Marin, San Rafael, California; Charles J. McKee, County Counsel; William M. Litt, Anne K. Brereton, and Marina S. Pantchenko, Deputy County Counsels; County of Monterey, Salinas, California; Marc. P. Hansen, County Attorney, Montgomery County, Rockville, Maryland; Marcel S. Pratt, City Solicitor, Philadelphia, Pennsylvania; Susana Alcala Wood, City Attorney, Sacramento, California; John C. Beiers,

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County Counsel; David A. Silverman, Chief Deputy County Counsel; Ilana Parmer Mandelbaum, Deputy County Counsel; County of San Mateo, Redwood City, California; Peter S. Holmes, City Attorney, Seattle, Washington; Michael Tubbs, Mayor, Stockton, California; Michael Jenkins, City Attorney, West Hollywood, California; for Amici Curiae 20 Counties, Cities, and Municipalities.

Denny Chan, Justice in Aging, Los Angeles, California; Regan Bailey and Natalie Kean, Justice in Aging, Washington, D.C.; Russel L. Hirschhorn and Christopher Spadaro, Proskauer Rose LLP, New York, New York; for Amici Curiae Justice in Aging, American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Jewish Federations of North America, National Asian Pacific Center on Aging, National Council on Aging, National Hispanic Council on Aging, Mazon, Phi, and Center for Medicare Advocacy.

Alexandra Wald, Cohen & Gresser LLP, New York, New York; Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J. Zolle, Constitutional Accountability Center, Washington, D.C.; for Amici Curiae Legal Historians.

Simon Sandoval-Moshenberg and Kelly Salzmann, Legal Aid Justice Center, Falls Church, Virginia; Ariel Nelson and Chi Chi Wu, National Consumer Law Center, Boston, Massachusetts; for Amici Curiae National Consumer Law Center, Legal Aid Justice Center, Public Citizen Inc., Consumer Action, Equal Justice Society, Impact Fund, Secure Justice, Media Alliance, Americans for Financial Reform Education Fund, and New Economy Project.

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Richard L. Revesz, Jack Lienke, and Max Sarinsky, New York, New York, as and for Amicus Curiae Institute for Policy Integrity.

Debra Gardner, Monisha Cherayil, Sally Dworak-Fisher, and Tyra Robinson, Baltimore, Maryland, as and for Amicus Curiae Public Justice Center.

Paul J. Lawrence and Alanna E. Peterson, Pacifica Law Group, Seattle, Washington, for Amici Curiae Nonprofit Anti-Domestic Violence and Sexual Assault Organizations.

Diana Kasdan, Pilar Herrero, Amy Myrick, and Elyssa Spitzer, New York, New York, as and for Amicus Curiae Center for Reproductive Rights.

Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, and Emily Green, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Douglas N. Letter, General Counsel; Todd B. Tatelman, Principal Deputy General Counsel; Megan Barbero, Josephine Morse, Adam A. Grogg, and William E. Havemann, Deputy General Counsel; Office of General Counsel, U.S. House of Representatives, Washington, D.C., for Amicus Curiae United States House of Representatives.

Harry Lee, Mary Woodson Poag, Johanna Dennehy, Steptoe & Johnson LLP, Washington, D.C., for Amici Curiae Immigration Law Professors.

Emily Tomoko Kuwahara, Crowell & Moring LLP, Los Angeles, California; Austin J. Sutta, Crowell & Moring LLP, San Francisco, California; for Amici Curiae Asian Americans Advancing Justice, Asian American Legal Defense and

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Education Fund, National Women’s Law Center, and 38 Other Amici Curiae.

Sadik Huseny, Brittany N. Lovejoy, Joseph C. Hansen, Tess L. Curet, and Alexandra B. Plutshack, Latham & Watkins LLP, San Francisco, California, for Amici Curiae Fiscal Policy Institute, President’s Alliance on Higher Education and Immigration, and 12 Other Amici Curiae.

Susan M. Krumplitsch, Elizabeth Stameshkin, and Priyamvada Arora, Cooley LLP, Palo Alto, California, for Amici Curiae American Academy of Pediatrics; American Medical Association; American College of Physicians; American College of Obstetricians and Gynecologists; California Medical Association; American Academy of Pediatrics, California; American Academy of Pediatrics, Hawaii Chapter; Alaska Chapter of the American Academy of Pediatrics; Arizona Chapter of the American Academy of Pediatrics; and Nevada Chapter, American Academy of Pediatrics.

Paul W. Hughes, Michael B. Kimberly, and Matthew A. Waring, McDermott Will & Emery LLP, Washington, D.C., for Amici Curiae 105 Businesses and Organizations.

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OPINION

SCHROEDER, Circuit Judge:

The phrase “public charge” enjoys a rich history in Anglo-American lore and literature, one more colorful than our American law on the subject. There have been relatively few published court decisions construing the phrase, even though our immigration statutes have barred admission to immigrants who are likely to become a “public charge” for more than a century. Until recently, the judicial and administrative guidance has reflected the traditional concept—rooted in the English Poor Laws and immortalized by Dickens in the workhouse of Oliver Twist—of incapacity and reliance on public support for subsistence. The first comprehensive federal immigration law barred entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” Immigration Act of 1882, 22 Stat. 214, Chap. 376 § 2 (1882). The 1999 Guidance (the Guidance) issued by the Immigration and Naturalization Service (INS), the predecessor of the current agency, defined a “public charge” as one who “is or is likely to become primarily dependent on the government for subsistence.” See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999).

In 2019, the Department of Homeland Security (DHS) changed direction, however, and issued a rule (the Rule) that defines the term to include those who are likely to participate, even for a limited period of time, in non-cash federal government assistance programs. The programs designated by the Rule are not intended to provide for subsistence but instead to supplement an individual’s ability to provide for

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basic needs such as food, medical care, and housing. 8 C.F.R. § 212.21(b). Foreseeable participation for an aggregate of twelve months in any of the federal programs within a three-year span renders an immigrant inadmissible as a public charge and ineligible for permanent resident status. § 212.21(a). In other words, a single mother with young children who DHS foresees as likely to participate in three of those programs for four months could not get a green card.

Litigation followed in multiple district courts against DHS and U.S. Citizenship and Immigration Services (USCIS) as states and municipalities recognized that the immediate effect of the Rule would be to discourage immigrants from participating in such assistance programs, even though Congress has made them available to immigrants who have been in the country for five years. According to the plaintiffs in those cases, the Rule’s effect would be to increase assistance demands on state and local governments, as their resident immigrants’ overall health and welfare would be adversely affected by non-participation in federal assistance programs.

The challenges to the Rule in the district courts resulted in a chorus of preliminary injunctions holding the Rule to be contrary to law and arbitrary and capricious under the Administrative Procedure Act (APA). 5 U.S.C. § 706(2)(A). These included the two preliminary injunctions before us, one issued by the District Court for the Northern District of California (Northern District) covering the territory of the plaintiffs, and the other by the District Court for the Eastern District of Washington (Eastern District) purporting to apply nationwide. Our court became the first federal appeals court to weigh in when we granted DHS’s motion for a stay of

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those injunctions pending appeal. City and Cnty. of San Francisco v. USCIS, 944 F.3d 773, 781 (9th Cir. 2019). Preliminary injunctions were also issued by courts in the Northern District of Illinois and the Southern District of New York, and they were stayed by the United States Supreme Court before appeals could be considered by the circuit courts of appeals.

When the Seventh Circuit and the Second Circuit did consider those preliminary injunction appeals, both courts affirmed the injunctions. Although their reasoning differed in some respects, both circuits concluded that the Rule’s definition was both outside any historic or commonly understood meaning of “public charge,” and arbitrary and capricious, in concluding that short-term reliance on supplemental benefits made immigrants dependent on public assistance within the meaning of the statutory public charge immigration bar. Cook Cnty., Ill. v. Wolf, 962 F.3d 208, 229, 232–33 (7th Cir. 2020); New York v. DHS, 969 F.3d 42, 80–81 (2nd Cir. 2020). The Second Circuit opinion was unanimous, while a dissenting opinion in the Seventh Circuit agreed with DHS that those who receive such supplemental benefits could be considered public charges because, by receiving some assistance, they are not completely selfsufficient. Cook Cnty., 962 F.3d at 250–51 (Barrett, J., dissenting).

The district court in Maryland also enjoined enforcement of the Rule and was reversed by a divided decision of the Fourth Circuit. The majority looked in large measure to the fact that the Supreme Court had stayed the injunctions in the Seventh and Second Circuits. CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 230 (4th Cir. 2020). In dissent, Judge King viewed the Rule as outside the longstanding meaning of

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“public charge” and would have affirmed the injunction. He also disagreed with the majority about the significance of the Supreme Court’s stay, explaining that “[i]f 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 which the Court has granted a stay.” Id. at 281 n.16 (King, J., dissenting) (citing Cook Cnty., 962 F.3d at 234).

To understand the reason for this recent cascade of litigation after a relatively quiescent statutory and regulatory history, we review the historical background of the Rule. Such a review reveals the extent to which the Rule departs from past congressional and administrative policies.

A. Statutory and Administrative Background

This country has had a federal statutory provision barring the admission of persons likely to become a “public charge” since 1882. The Immigration Act of 1882 barred entry to, among others, “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” The Immigration and Nationality Act now provides that “[a]ny alien who, . . . in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). No statute has ever defined the term. For over a century, agencies have routinely applied these provisions in determining admissibility and removal as well as in issuing visas for entry.

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In 1996, however, Congress amended the statute to add five factors for agencies to consider in determining whether an individual is likely to be a public charge: the non-citizen’s age; health; family status; assets, resources and financial status; and education and skills. § 1182(a)(4)(B)(i). Congress also included a provision requiring applicants to produce an affidavit of support. See § 1182(a)(4)(C)–(D) (requiring most family-sponsored immigrants to submit affidavits of support); § 1183a (affidavit of support requirements).

At nearly the same time, Congress enacted major reforms of public benefit programs that, as relevant here, made only non-citizens with five or more years of residency in the United States eligible for public benefits such as Supplemental Nutrition Assistance Program (SNAP) and Medicaid. Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105, 2265 (1996). Previously, lawful immigrants had generally been eligible for such benefits. Congress thus simultaneously reduced the number of immigrants eligible for this assistance and spelled out the factors to be considered in a public charge determination. The fact that Congress delineated the factors relevant to the public charge determination at the same time it adjusted certain immigrants’ eligibility to receive specific supplemental assistance strongly suggests that Congress did not intend for such assistance to be considered as one of the public charge factors.

Judicial guidance in interpreting the phrase was apparently not in need or demand: There are relatively few such decisions. A leading early Supreme Court case resolved the important question of whether the adverse economic conditions in the location where the immigrant intends to live

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can render an immigrant likely to become a “public charge.” Gegiow v. Uhl, 239 U.S. 3 (1915). The Supreme Court’s answer was no because the statute spoke to the permanent characteristics personal to the immigrant rather than to local labor market conditions. Id. at 10. We followed Gegiow in Ex parte Sakaguchi, 277 F. 913 (9th Cir. 1922), where we held that a person temporarily in need of family assistance should not have been excluded as likely to become a public charge. We so held because there was an absence of “any evidence whatever of mental or physical disability or any fact tending to show that the burden of supporting the appellant is likely to be cast upon the public.” Id. at 916. Thus, our court in Sakaguchi understood the standard for determining whether someone is a public charge to be whether the “burden of support” falls on the public.

Administrative decisions followed the Supreme Court’s lead by looking to the inherent characteristics of the individual rather than to external circumstances. The Board of Immigration Appeals thus held that only an individual with the inherent inability to be self-supporting is excludable as “likely to become a public charge” within the meaning of the statute. Matter of Harutunian, 14 I & N. Dec. 583, 589–90 (BIA 1974); Matter of Vindman, 16 I. & N. Dec. 131, 132 (B.I.A. 1977); see also New York, 969 F.3d at 69. There has been corollary administrative recognition that even if an individual has been on welfare, that fact does not in and of itself establish the requisite likelihood of becoming a public charge. An Attorney General decision collected authorities indicating that it is the totality of circumstances that must be considered in order to determine whether “the burden of supporting the alien is likely to be cast on the public.” Matter of Martinez-Lopez, 10 I & N. Dec. 409, 421–22 (BIA 1962; A.G. 1964) (citing Sakaguchi, 277 F. at 916). Likely receipt

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of some public benefits does not automatically render an immigrant a public charge because the public does not bear the “burden of support.”

The 1996 amendments, which added factors to be considered and created the current public charge statutory provision, caused some confusion as to how big a change they represented. The INS, the agency then in charge of administering immigration, decided a regulatory definition would be helpful. It adopted the 1999 Guidance, the first regulatory guidance to interpret the rather ancient notion of “public charge” in light of the myriad, modern forms of public assistance. 64 Fed. Reg. 28,269.

The Guidance defined a “public charge” as a non-citizen who depends on the government for survival, either by receipt of income or confinement in a public institution. It described persons “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long term care at government expense.” Id. at 28,689. It thus embodied the traditional notion of primary dependence on the government for either income or institutional care.

The Guidance went on to identify the types of public assistance that would typically qualify as evidence of primary dependence: (1) Supplemental Security Income (SSI); (2) Temporary Assistance for Needy Families (TANF); (3) state and local cash assistance programs; and (4) programs supporting people institutionalized for long-term care. Id. at 28,692. The Guidance expressly excluded non-cash benefits intended to supplement income and not to provide primary support. The explanation lay with the changing times that

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were bringing benefits to more and more families to improve their health and welfare. See id. (“[C]ertain federal, state, and local benefits are increasingly being made available to families with incomes far above the poverty level, reflecting broad public policy decisions about improving general public health and nutrition, promoting education, and assisting working-poor families in the process of becoming selfsufficient. Thus, participation in such non-cash programs is not evidence of poverty or dependence.”).

The Guidance actually encouraged non-citizens to receive supplemental benefits in order to improve their standard of living and to promote the general health and welfare. The Guidance drew a sharp distinction between the receipt of such supplemental benefits and dependence on the government for subsistence income that would render the individual a “public charge.” Id. at 28,692–93.

The 2019 Public Charge Rule we review in this case effectively reversed that policy by making receipt of supplemental benefits the very definition of a public charge. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule defines the term “public charge” to mean “an alien who receives one or more [specified] public benefits . . . for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” Id. at 41,501. The public benefits specified by the Rule include most Medicaid benefits, SNAP benefits, Section 8 housing vouchers and rental assistance, and other forms of federal housing assistance. Id. Any receipt of such a benefit, no matter how small, will factor into the public charge determination. The Rule also directs officials to consider

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English proficiency in making the public charge determination. Id. at 41,503–04.

The Rule was greeted with challenges in federal district courts throughout the country. We deal with those in this circuit.

B. The District Court Injunctions

On appeal are two district court decisions granting preliminary injunctions barring enforcement of the Rule. The Northern District considered the challenges of California, the District of Columbia, Maine, Pennsylvania, and Oregon, consolidated with the challenges brought by the City and County of San Francisco, and the County of Santa Clara. The Eastern District heard the challenges brought by Washington, Virginia, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island. Both district courts agreed that the plaintiffs had standing because they had shown that they would likely suffer economic harm and other costs and that their concerns were within the zone of interests of the statute. Both held that the new definition of “public charge” was likely not a permissible interpretation of the statute because it would depart from the longstanding, settled understanding that a person does not become a public charge by receiving short-term aid, and must instead demonstrate an inherent incapacity to provide subsistence. City and Cnty. of San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1101 (N.D. Cal. 2019), Washington v. DHS, 408 F. Supp. 3d 1191, 1219 (E.D. Wash. 2019). Both found the Rule to be likely arbitrary and capricious because the agency failed to consider the burdens the Rule would impose on states and municipalities.

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The Eastern District issued a nationwide injunction, and the Northern District declined to do so.

Within a few weeks of the district court rulings, a divided motions panel of this court, however, stayed both injunctions pending this appeal. City and Cnty. of SF, 944 F.3d 773. The panel majority wrote that DHS was likely to prevail because the Rule would probably be viewed as a reasonable interpretation of a statute that had no consistent historical application and gave the agency “considerable discretion.” Id. at 796, 799. Judge Owens dissented in part and would have denied the stay. Id. at 809–10 (Owens, J., dissenting).

The stay was based on a prediction of what this panel would hold in reviewing the merits of the preliminary injunctions. The stay in this case was entered at a particularly early point, less than two months after the district court injunctions. Almost none of the extensive documentation relevant to this appeal was before the motions panel. The brief of the appellant DHS in the Northern District case had been filed only the day before the panel entered its stay, and the opening brief in the Eastern District case was not filed until the day after. Still to come were not only the answering and reply briefs in both appeals, but two dozen amicus briefs, many of which we have found very helpful.

At least equally important, no other circuit court opinions had yet considered the issues. By now we have heard from three. One of those opinions even discussed and disagreed with the reasoning of this court’s motions panel stay opinion, pointing out that it “pinn[ed] the definition of ‘public charge’ on the form of public care provided” in concluding that there was no consistent interpretation of the Rule. New York, 969 F.3d at 73 (emphasis in original). The court there said

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our motions panel thereby went “astray.” Id. This was because the issue was not whether a “public charge” had always received similar assistance. Id. The issue should have been whether the “inquiry” under the statute had been consistent. Id. The Second Circuit concluded the public charge inquiry had always been whether the non-citizen “is likely to depend on that [assistance] system.” Id.

We therefore turn to the appeal before us. We deal first with DHS’s arguments that the plaintiffs may not maintain the suit because they lack Article III standing or are outside the zone of interests of the immigration statute in question.

C. Plaintiffs’ Capacity to Maintain the Action

Plaintiffs are states and municipalities that allege the Rule is causing them to suffer continuing financial harm, as lawful immigrants eligible for federal cash, food, and housing assistance withdraw from these programs to avoid the impact of the Rule. Plaintiffs allege harm because such immigrants will instead turn to assistance programs administered by the state and local entities.

DHS argues that such injuries are speculative and represent only plausible future injury. There is no question that to have Article III standing to bring this action, the plaintiffs must allege that they have suffered, or will imminently suffer, a “concrete and particularized” injury in fact. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). There is also no question that an increased demand for aid supplied by the state and local entities would be such an injury. The only question is whether such demand is, as of yet, apparent or imminent.

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That is not a difficult question to answer. The Rule itself predicts a 2.5 percent decrease in enrollment in public benefit programs and a corresponding reduction in Medicaid payments of over one billion dollars per year. Final Rule, 84 Fed. Reg. at 41,302, 41,463. The Rule itself further acknowledges that disenrollment will cause other indirect financial harm to state and local entities by increasing the demand for uncompensated indigent care. Declarations in the record show that such entities are already experiencing disenrollment as a result of the Rule. See City and Cnty. of SF, 408 F. Supp. 3d at 1122.

DHS nevertheless asserts that the Rule will result in a long-term cost savings after states compensate for the loss of federal funds by reforming their operations. But such longterm reforms would not remedy the immediate financial injury to the plaintiffs or the harms to the health and welfare of those individuals affected. As the Second Circuit explained, “this simplistic argument fails to account for the fact that the States allege injuries that extend well beyond reduced Medicaid revenue and federal funding to the States, including an overall increase in healthcare costs that will be borne by public hospitals and general economic harms.” New York, 969 F.3d at 60. Thus, plaintiffs have established Article III standing.

Those suing under the APA, must also establish that the interest they assert is at least “arguably within the zone of interests to be protected or regulated by the statute” in question. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). The Supreme Court has described the test as “not meant to be especially demanding” and as “not

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requir[ing] any ‘indication of congressional purpose to benefit the would-be plaintiff.’” Id. at 225 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399–40 (1987)). A plaintiff’s interest need only be “sufficiently congruent with those of the intended beneficiaries that the litigants are not ‘more likely to frustrate than to further the statutory objectives.’” First Nat. Bank & Tr. Co. v. Nat’l Credit Union Admin., 988 F.2d 1272, 1275 (D.C. Cir. 1993) (quoting Clarke, 479 U.S. at 397 n.12).

The statute in question is, of course, the immigration statute that renders inadmissible an individual likely to become a “public charge.” 8 U.S.C. § 1182(a)(4)(A). DHS appears to contend that the only entities within the zone of interests are the federal government itself and individuals seeking to immigrate, because the provision deals with immigration and only the federal government controls immigration. If that were to define the zone of interests regulated by the statute, the scope of permissible immigration litigation against the government would be so narrow as to practically insulate it from many challenges to immigration policy and procedures, even those violating the Constitution or federal laws.

DHS suggests that the purpose of the public charge exclusion is to reduce immigrants’ use of public benefits, and that the plaintiffs’ suit therefore contradicts this purpose by seeking to make more federal benefits available. But this assumes that Congress’s statutory purpose was the same as DHS’s purpose here, which is the very dispute before us. As the Second Circuit pointed out, “DHS assumes the merits of its own argument when it identifies the purpose of the public charge ground as ensuring that non-citizens do not use public benefits . . . . Understood in context, [the public charge bar’s]

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purpose is to exclude where appropriate and to not exclude where exclusion would be inappropriate.”) New York, 969 F.3d at 62–63.

Moreover, DHS maintains that the statute’s overall purpose is to promote self-sufficiency. Providing access to better health care, nutrition and supplemental housing benefits is consistent with precisely that purpose. See Cook Cnty., 962 F.3d at 220 (access to affordable basic health care may promote self-sufficiency); Hilary Hoynes, Diane Whitmore Schanzenbach & Douglas Almond, Long-Run Impacts of Childhood Access to the Safety Net, 106 Am. Econ. Rev. 903, 921 (2016) (access to food stamps in childhood significantly increases economic self-sufficiency among women). For these reasons, the interests of the plaintiffs in preserving immigrants’ access to supplemental benefits is within the zone of interests protected by the statute.

We therefore conclude that the district courts correctly determined that the plaintiffs are entitled to maintain this action. All of the circuits to consider the validity of this Rule have reached a similar conclusion. See Cook Cnty., 962 F.3d at 219–20, CASA de Maryland, 971 F.3d at 240–241, New York, 969 F.3d at 62–63. We now turn to the question whether they were entitled to the preliminary injunctions entered by the district courts.

D. Contrary to Law

Both district courts concluded that the plaintiffs are likely to prevail in their contention that the Rule violates the statute’s public charge provision, and that such a conclusion supports the entry of preliminary injunctions. See Winter v.

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Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). On appeal, DHS contends, as it has throughout the litigation, that the Rule is a permissible interpretation of the statute. The plaintiffs maintain that the Rule violates the statute because the Rule is not a reasonable interpretation of the meaning of “public charge.”

History is a strong pillar supporting the plaintiffs’ case. Plaintiffs point to repeated congressional reenactment of the provision after it had been interpreted to mean long-term dependence on government support, and had never been interpreted to encompass temporary resort to supplemental non-cash benefits. Plaintiffs contend that this repeated reenactment amounts to congressional ratification of the historically consistent interpretation. DHS disagrees, arguing that the repeated reenactments reflect congressional intent to have a flexible standard subject to various executive branch interpretations.

Our review of the history of the provision in our law suggests the plaintiffs have the better part of this dispute. From the Victorian Workhouse through the 1999 Guidance, the concept of becoming a “public charge” has meant dependence on public assistance for survival. Up until the promulgation of this Rule, the concept has never encompassed persons likely to make short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance. The Rule also, for the first time, introduces a lack of English proficiency as figuring into the equation, despite the common American experience of children learning English in the public schools and teaching their elders in our urban immigrant communities. 8 C.F.R. § 212.22(b)(5)(ii)(D). Indeed, in Gegiow, 239 U.S. 3, the Supreme Court found that the individuals in that case were

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not likely to become public charges even though they spoke only Russian.

In New York, 969 F.3d 42, the Second Circuit essentially agreed with plaintiffs’ historical analysis. The court recognized and explained the line of settled judicial and administrative interpretations of a public charge as one who is primarily dependent on the government for subsistence. Id. at 65–70. The court traced that history in far more detail than we have outlined and was “convinced” that there was a wellsettled meaning of “public charge” even before congressional passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, and that was a person “unable to support herself, either through work, savings, or family ties.” Id. at 71. Receipt of cash benefits may be considered in deciding whether a person is dependent on the government but has never been determinative. The Second Circuit persuasively summarized:

The Plaintiffs do not argue, and we do not hold, that the receipt of various kinds of public benefits is irrelevant to the determination of whether a non-citizen is likely to become a public charge. But defining public charge to mean the receipt, even for a limited period, of any of a wide range of public benefits – particularly . . . ones that are designed to supplement an individual's or family's efforts to support themselves, rather than to deal with their likely permanent inability to do so – is inconsistent with the traditional understanding

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of what it means to be a “public charge,” which was well-established by 1996.

Id. at 78 (emphasis removed).

A few months earlier, the Seventh Circuit had come to a similar conclusion that the Rule violates the statutory meaning of public charge. Cook Cnty., 962 F.3d 208. The Seventh Circuit differed somewhat in its analysis. After a historical survey of court decisions and secondary sources, it determined that the phrase “public charge” was susceptible to various interpretations. Id. at 226. It concluded, however, that DHS’s interpretation, quantifying the definition to mean receipt of twelve months’ worth of benefits within three years, represented an understanding of its authority to define the phrase that “has no natural limitation.” Id. at 228–29. If DHS’s interpretation were to be accepted, then there is nothing in the statutory text that would prevent a zerotolerance rule, where foreseeable receipt of a single benefit on one occasion would bar entry or adjustment of status. The majority forcefully rejected such an interpretation, stating:

We see no warrant in the Act for this sweeping view. Even assuming that the term “public charge” is ambiguous and thus might encompass more than institutionalization or primary, long-term dependence on cash benefits, it does violence to the English language and the statutory context to say that it covers a person who receives only de minimis benefits for a de minimis period of

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time. There is a floor inherent in the words “public charge,” backed up by the weight of history.

Id. at 229.

Although the opinions of the Second Circuit in New York and the Seventh Circuit in Cook County reflect some disagreement over whether there was any historically established meaning of the phrase “public charge,” they agreed that the Rule’s interpretation of the statute was outside any historically accepted or sensible understanding of the term. In commenting on the difference between its historical review in New York and that of the Seventh Circuit in Cook County, the Second Circuit noted that the Seventh Circuit had not included the significant administrative rulings that preceded the 1996 statute. New York, 969 F.3d at 74.

The New York opinion was unanimous, but the Cook County opinion was not. The lengthy dissenting opinion in Cook County focused on other statutory provisions aimed at preventing entry of persons who could become dependent on the government. The most significant of these provisions is the requirement that family-sponsored immigrants, and employment-sponsored immigrants whose employment is tied to a family member, must furnish an affidavit from the sponsor. 8 U.S.C. §§ 1182(a)(4)(C)–(D). In the affidavit, the sponsor must agree to support the immigrant at annual income of at least 125 percent of the poverty level and pay back the relevant governmental entity in the event the immigrant receives “any means-tested public benefit.” 8 U.S.C. § 1183a(a)(1)(b).

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The dissent focused on the fact that the affidavit provision forces sponsors to bear responsibility for “any means-tested public benefit” that an immigrant may receive. It concluded that the affidavit provision reflects Congress’s view that “public charge” may encompass receipt of supplemental benefits as well as primary dependence. See Cook Cnty., 962 F.3d at 246 (Barrett, J., dissenting).

In its focus on the provisions in a related but different section of the statute, the dissent did not address the significance of the history of the public charge provision itself, nor did it address the majority’s objection to the duration of the receipt of benefits as a standard having no limiting principle. The dissent concluded only that the choice of an aggregate of twelve months is “not unreasonable.” Id. at 253. Moreover, the dissent’s interpretation of the affidavit requirement’s application here seems to suggest that it would approve a public charge rule excluding individuals who received “any means-tested benefit,” no matter how small, as in line with congressional intent.

In this appeal, DHS also relies upon the affidavit of support provisions to contend that the Rule is consistent with the statutory public charge bar. The public charge bar and affidavit of support provisions were parts of two separate acts. The two have no historic or functional relationship to each other. The public charge bar dates back to the 19th century, embodying an age-old concept of excluding those who may become primarily dependent on the government. Congress enacted the affidavit of support provision, however, in 1996 as part of more recent specific immigration reforms including the financial responsibilities of families and employers sponsoring individual immigrants. See PRWORA, Pub. L. No. 423, 110 Stat. 2271 (1996); IIRIRA, Pub. L. No.

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104-208, 110 Stat. 3009 (1996). The section of the affidavit provision that refers to public benefits serves as a postadmission remedy to help local and federal governments recoup funds. § 1183a(b). The changes to the affidavit provisions were aimed at problems with the unenforceability of such affidavits prior to 1996. Michael J. Sheridan, The New Affidavit of Support and Other 1996 Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Becoming Public Charges, 31 Creighton L. Rev. 741, 743-44, 752-53 (1998) (article by INS Associate General Counsel).

DHS also points to the provision that permits entry of battered women without regard to receipt of “any benefits.” See 8 U.S.C. § 1182(s). DHS argues that this reflects Congress’s belief that the receipt of any public benefits would be a consideration in admission for most other public charge determinations. Had Congress intended to make non-cash benefits a factor for admission or permanent residence, it would have done so directly and not through this ancillary provision. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). It is more likely that Congress created this provision in order to provide sweeping protections for battered migrant women, as it did throughout Section 1182. See § 1182(a)(6)(ii), (a)(9)(B)(iii)(IV).

For these reasons we conclude the plaintiffs have demonstrated a high likelihood of success in showing that the Rule is inconsistent with any reasonable interpretation of the statutory public charge bar and therefore is contrary to law.

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E. Arbitrary and Capricious

Both district courts also ruled that the plaintiffs were likely to succeed in their contention that the Rule is arbitrary and capricious. The APA standard in this regard is inherently deferential. The task of the courts is to ensure that the agency’s action relied on appropriate considerations, considered all important aspects of the issue, and provided an adequate explanation for its decision. The Supreme Court summed it up in its leading decision, Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”), 463 U.S. 29 (1983). The Court explained the general rule:

Normally, an agency rule would be 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.

Id. at 43.

The plaintiffs argue that DHS failed the test in three principal respects: It failed to take into account the costs the Rule would impose on state and local governments; it did not consider the adverse effects on health, including both the health of immigrants who might withdraw from programs and the overall health of the community; and it did not adequately explain why it was changing the policy that was thoroughly explained in the 1999 Guidance.

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1. Disenrollment and Financial Costs

We first turn to DHS’s consideration of the financial impact of the proposed Rule. During the comment period, there was repeated emphasis on the financial burdens that would befall state and local governments because immigrants fearing application of the Rule would disenroll from the supplemental programs, even if the Rule did not apply to them. DHS’s response was a generality coupled with an expression of uncertainty. It said that, despite these effects, the Rule’s “overriding consideration” of self-sufficiency formed “a sufficient basis to move forward.” 84 Fed. Reg. at 41,312. DHS added that there was no way of knowing with any degree of exactitude how many individuals would disenroll or how much of a burden it would place on the state and local governments. Id. at 41,312–13.

DHS provided no analysis of the effect of the Rule on governmental entities like the plaintiffs in these cases. As the Northern District found, DHS had not “grapple[d] with estimates and credible data explained in the comments.” City and Cnty. of SF, 408 F. Supp. 3d at 1106.

Our law requires more from an agency. A bald declaration of an agency’s policy preferences does not discharge its duty to engage in “reasoned decisionmaking” and “explain the evidence which is available.” State Farm, 463 U.S. at 52. The record before DHS was replete with detailed information about, and projections of, disenrollment and associated financial costs to state and local governments. See, e.g., Ninez Ponce, Laurel Lucia, & Tia Shimada, How Proposed Changes to the ‘Public Charge’ Rule Will Affect Health, Hunger and the Economy in California, 32 (Nov. 2018), https://healthpolicy.ucla.edu/newsroom/Documents/

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2018/public-charge-seminar-slides-nov2018.pdf (estimating over 300,000 disenrollments from Medicaid in California alone); Fiscal Policy Institute, Only Wealthy Immigrants Need Apply: The Chilling Effects of “Public Charge,” 5 (Nov. 2019), http://fiscalpolicy.org/wp-content/uploads/2 019/11/FINAL-FPI-Public-Charge-2019-MasterCopy.pdf (estimating over $500 million combined in lost state tax revenue). DHS was required to “reasonably reflect upon” and “grapple with” such evidence. Fred Meyers Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017). But DHS made no attempt to quantify the financial costs of the Rule or critique the projections offered.

Similarly, DHS’s repeated statements that the Rule’s disenrollment impacts are “difficult to predict” do not satisfy its duty to “examine the relevant data” before it. State Farm, 463 U.S. at 43. The Supreme Court held in State Farm that an agency may not, without analysis, cite even “‘substantial uncertainty’ . . . as a justification for its actions.” Id. at 52; see also Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172, 1200 (9th Cir. 2008) (rejecting as arbitrary and capricious agency’s characterization of greenhouse gas reductions as “too uncertain to support their explicit valuation and inclusion” in analysis). DHS’s analysis thus fell short of the standard established by the Supreme Court and recognized by our circuit. DHS did not adequately deal with the financial effects of the Rule.

2. Health Consequences

Although DHS wrote the Rule was intended to make immigrants healthier and stronger, commenters stressed the Rule’s likely adverse health consequences for immigrants and the public as a whole, including infectious disease outbreaks

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and hospital closures. While acknowledging these comments, DHS concluded, without support, that the Rule “will ultimately strengthen public safety, health, and nutrition.” 84 Fed. Reg. at 41,314. The Northern District aptly found that DHS impermissibly “simply declined to engage with certain, identified public-health consequences of the Rule.” City and Cnty. of SF, 408 F. Supp. 3d at 1111–12.

Commenters provided substantial evidence that the Rule would in fact harm public safety, health, and nutrition. DHS itself repeatedly acknowledged that hospitals might face financial harms as a result of the Rule, but DHS repeatedly declined to quantify, assess, or otherwise deal with the problem in any meaningful way. See, e.g., 84 Fed. Reg. at 41,313–14, 41,384, 41,475, 41,476. This is inadequate and suggests that DHS’s position was intractable. As the D.C. Circuit has observed, making some mention of evidence but then coming to a contrary, “unsupported and conclusory” decision “add[s] nothing to the agency’s defense of its thesis except perhaps the implication that it was committed to its position regardless of any facts to the contrary.” Chem. Mfrs. Ass’n. v. EPA, 28 F.3d 1259, 1266 (D.C. Cir. 1994). DHS responded by excluding certain programs for children and pregnant women from the ambit of the Rule, but never addressed the larger concerns about the Rule’s effect on health as well as on hospital resources.

There were other serious health concerns. For example, comments demonstrated that the Rule would endanger public health by decreasing vaccination rates in the general population. DHS insisted that vaccines would “still be available” to Medicaid-disenrolled individuals because “local health centers and state health departments” would pick up the slack, id. at 41,385, despite objections voiced by such

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local health centers and state health departments themselves showing that the Rule will put the populations they serve—citizens and non-citizens alike—in danger. See, e.g., Mass. Dep’t of Pub. Health, Comments on Inadmissibility on Public Charge Grounds (Dec. 2018), https://www.regulations. gov/document?D=USCIS-2010-0012-45697; Hilltown Cmty. Health Ctr., Comments on Inadmissibility on Public Charge Grounds (Dec. 2018), https://www.regulations.gov/docume nt?D=USCIS-2010-0012-45675. A decision that “runs counter to the evidence” or “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise” is arbitrary and capricious. State Farm, 463 U.S. at 43. The promulgation of this Rule is such a decision. DHS claims no expertise in public health, unlike the scores of expert commenters who weighed in against the Rule.

3. Reversal of Position

Above all, DHS failed to explain its abrupt change in policy from the 1999 Guidance. An agency reversing a prior policy “must show that there are good reasons for the new policy” and provide “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009). The district courts below found that DHS had failed to satisfy this standard. City and Cnty. of SF, 408 F. Supp. 3d at 1111–12; Washington v. DHS, 408 F. Supp. 3d at 1220.

The 1999 Guidance had been issued after the 1996 statutory amendments setting out the general factors to be taken into account in making a public charge determination. The Guidance considered all of the different types of public assistance governments offered, including programs

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providing subsistence income and those providing supplemental benefits. The Guidance expressly provided that receipt of supplemental assistance for food, healthcare and housing were not to be considered in assessing an immigrant’s likelihood of becoming a public charge. As discussed above, this provision was consistent with over a century of judicial and administrative decisions interpreting the public charge bar. The Rule, however, provides that the prospect of receiving those same supplemental benefits, for even a few months, renders an individual inadmissible. This is directly contrary to the 1999 Guidance.

Yet DHS promulgated the Rule without any explanation of why the facts found, and the analysis provided, in the prior Guidance were now unsatisfactory. This is a practice the Supreme Court has rejected: an agency about-face with no “reasoned explanation . . . for disregarding” the findings underlying the prior policy. Fox, 556 U.S. at 516. Here is an illustration of the about-face. The 1999 Guidance had found that deterring acceptance of “important health and nutrition benefits” had yielded “an adverse impact . . . on public health and the general welfare.” 64 Fed. Reg. at 28,692. In contrast, DHS now says that the new Rule “will ultimately strengthen public safety, health, and nutrition.” 84 Fed. Reg. at 41,314. DHS provides no basis for this conclusion or for its departure from the empirical assessments underlying the prior policy.

In light of this policy change, coupled with the “serious reliance interests” engendered by over two decades of reliance on the Guidance, DHS was required to provide a “more detailed justification” for the Rule. Fox, 556 U.S. at 515. DHS provides no justification, other than the repeated conclusory mantra that the new policy will encourage selfsufficiency. DHS in effect says that by creating a

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disincentive for immigrants to use available assistance, the Rule will “ensur[e] that [admitted immigrants] be selfsufficient and not reliant on public resources.” 84 Fed. Reg. at 41,319. DHS does not substantiate, and the record does not support, this empirical prediction. See, e.g., Hilary Hoynes, Diane Whitmore Schanzenbach & Douglas Almond, LongRun Impacts of Childhood Access to the Safety Net, 106 Am. Econ. Rev. 903, 930 (finding that having access to food stamps during childhood leads to “significant improvement in adult health” and “increases in economic self-sufficiency,” including decreased welfare participation). Plaintiffs urge that their experience is contrary to DHS’s conclusion. Also to the contrary is the experience related in multiple amicus briefs. See, e.g., Brief for the Institute for Policy Integrity as Amicus Curiae Supporting Petitioners at 9 (citing evidence that reductions in SNAP participation increase homelessness); Brief for National Housing Law Project et al. as Amici Curiae Supporting Petitioners at 13 (citing evidence that Medicaid made it easier for recipients to work and find work).

4. Arbitrary and Capricious

In sum, DHS adopted the Rule, reversing prior, longstanding public policy, without adequately taking into account its potential adverse effects on the public fisc and the public welfare. We must conclude that the Rule’s promulgation was arbitrary and capricious as well as contrary to law within the meaning of the APA. 5 U.S.C. § 706(2)(A).

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F. Remaining Injunction Factors

1. Irreparable Harm

Plaintiffs have shown a likelihood of success on the merits of their claim that the Rule violates the standards of the APA in that it is both contrary to law and arbitrary and capricious. To support entry of an injunction, Plaintiffs must also show a likely threat of irreparable injury in the absence of an injunction. Winter, 555 U.S. at 22. Plaintiffs have established that they likely are bearing and will continue to bear heavy financial costs because of withdrawal of immigrants from federal assistance programs and consequent dependence on state and local programs.

There is no dispute that such economic harm is sufficient to constitute irreparable harm because of the unavailability of monetary damages. See California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018); 5 U.S.C. § 702 (providing for relief “other than monetary damages”). DHS counters that such harm in this case is speculative, amounting to no more than the possibility of future injury. See Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1160 (9th Cir. 2011).

We have, however, already seen that in this case such harm is more than speculative. Plaintiffs have presented evidence that they are already experiencing harm and DHS itself has projected significant disenrollment from federal programs, likely leading to enrollments in state and local ones. The district courts both made factual findings as to harm that DHS does not refute with citations to the record.

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2. Balance of Equities and Public Interest

There was no error in finding that the balance of equities and public interest support an injunction. The Northern District pointed to the need for “continuing the provision of medical services through Medicaid to those who would predictably disenroll absent an injunction” in light of the explanations given by “parties and numerous amici . . . [of the] adverse health consequences not only to those who disenroll, but to the entire populations of the plaintiff states, for example, in the form of decreased vaccination rates.” City and Cnty. of SF, 408 F. Supp. 3d at 1127. The public interest in preventing contagion is particularly salient during the current global pandemic.

Although DHS nevertheless argues that it is harmed by not being able to implement its new definition of public charge, if it is ultimately successful in defending the merits of the Rule, the harm will amount to no more than a temporary extension of the law previously in effect for decades. Given the financial burdens that plaintiffs have persuasively demonstrated will befall them as a result of disenrollment from federal programs, coupled with adverse effects on the health and welfare of the immigrant as well as general population, we cannot say the district courts abused their discretion in finding that the balance of equities and public interest weigh in favor the injunction.

G. Propriety of a Nationwide Injunction

The Northern District issued a preliminary injunction limited to the territory of the plaintiff state and local entities before it. The Eastern District issued a nationwide injunction, explaining that a more limited injunction would not prevent

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all the harms alleged. The court was concerned about protecting immigrants from harm if they moved outside of the plaintiff jurisdictions, about the economic impact on plaintiff states if immigrants moved to them to evade the consequences of the Rule, and about lawful immigrants being subject to the Rule at points of entry after travel abroad. Washington, 408 F. Supp. 3d at 1223.

The appropriateness of nationwide injunctions in any case has come under serious question. See, e.g., DHS v. New York, 140 S Ct. 599, 599–601 (2020) (Gorsuch, J., concurring); Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring). In explaining the limited scope of its injunction, the Second Circuit questioned the propriety of one court imposing its will on all:

It is not clear to us that, where contrary views could be or have been taken by courts of parallel or superior authority entitled to determine the law within their own geographical jurisdictions, the court that imposes the most sweeping injunction should control the nationwide legal landscape.

New York, 969 F.3d at 88.

Whatever the merits of nationwide injunctions in other contexts, we conclude a nationwide injunction is not appropriate in this case. This is because the impact of the Rule would fall upon all districts at the same time, and the same issues regarding its validity have been and are being litigated in multiple federal district and circuit courts.

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Accordingly, we vacate that portion of the Eastern District’s injunction making it applicable nationwide, but otherwise affirm it.

H. Rehabilitation Act

The plaintiffs also contend that the Rule violates the Rehabilitation Act, which bans discrimination on the basis of disabilities. 29 U.S.C. § 794(a). The Seventh Circuit looked favorably on this contention, and the Second Circuit expressly did not address it. Cook Cnty., 962 F.3d at 228, New York, 969 F.3d at 64 n.20. Because we have held that the Rule violates the APA as contrary to law and arbitrary and capricious, we similarly do not address the Rehabilitation Act.

I. Conclusion

The order of the District Court for the Northern District of California is AFFIRMED. The order of the District Court for the Eastern District of Washington is AFFIRMED in part and VACATED in part. Costs are awarded to the plaintiffs.

VANDYKE, Circuit Judge, dissenting:
For the reasons ably articulated by our court in a December 2019 published opinion,1 by the Fourth Circuit in

1 City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019).

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an August 2020 opinion,2 and by a dissenting Seventh Circuit
judge in a June 2020 opinion (particularly notable for its erudition)3—and implied by the Supreme Court’s multiple
stays this year of injunctions virtually identical to those the majority today affirms4—I must respectfully dissent.

2 CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020).
3 Cook County v. Wolf, 962 F.3d 208, 234–54 (7th Cir. 2020) (Barrett, J., dissenting).
4 Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020); Wolf v. Cook County, 140 S. Ct. 681 (2020).

 
 Case 4:19-cv-05210-RMP ECF No. 283 filed 02/01/21 PageID.6461 Page 1 of 10

1

FILED IN THE U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

2

UNITED STATES DISTRICT COURT Feb 01, 2021

3

EASTERN DISTRICT OF WASHINGTON

SEAN F. MCAVOY, CLERK

4 STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA;
5 STATE OF COLORADO; STATE OF DELAWARE; STATE OF
6 ILLINOIS; COMMONWEALTH OF MASSACHUSETTS; DANA
7 NESSEL, Attorney General on behalf of the people of Michigan; STATE OF
8 MINNESOTA; STATE OF NEVADA; STATE OF NEW
9 JERSEY; STATE OF NEW MEXICO; STATE OF RHODE
10 ISLAND; STATE OF MARYLAND; STATE OF HAWAI’I,
11 Plaintiffs,
12 v.
13 UNITED STATES DEPARTMENT
14 OF HOMELAND SECURITY, a federal agency; DAVID PEKOSKE,
15 in his official capacity as Acting Secretary of the United States
16 Department of Homeland Security; UNITED STATES CITIZENSHIP
17 AND IMMIGRATION SERVICES, a federal agency; TRACY RENAUD, in
18 his official capacity as Senior Official Performing the Duties of Director for
19 United States Citizenship and Immigration Services,
20 Defendants.
21

NO: 4:19-CV-5210-RMP
ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 1

Case 4:19-cv-05210-RMP ECF No. 283 filed 02/01/21 PageID.6462 Page 2 of 10

1

BEFORE THE COURT is a Motion for Reconsideration from Defendants

2 U.S. Department of Homeland Security, et al.1 of the Court’s Order granting in part

3 and denying in part DHS’s motion to dismiss this case. ECF No. 254. The Court

4 has reviewed DHS’s Motion, ECF No. 254, Plaintiffs’2 response in opposition to

5 reconsideration, ECF No. 258, DHS’s reply, ECF No. 259, the relevant law, and is

6 fully informed.

7

BACKGROUND

8

The States are challenging DHS’s regulatory redefinition of who to exclude

9 from immigration status as “likely . . . to become a public charge.” 8 U.S.C. §

10 1182(a)(4)(A); see Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292

11 (Aug. 14, 2019) (“Public Charge Rule”). In the Amended Complaint, the States

12

13 1 Defendants in this lawsuit are the United States Department of Homeland Security (“DHS”), Acting Secretary of DHS David Pekoske, United States Citizenship and
14 Immigration Services (“USCIS”), and Senior Official Performing the Duties of Director Tracy Renaud (collectively, “DHS”). The Court substitutes David
15 Pekoske for Chad F. Wolf, who previously was substituted as a Defendant in the Amended Complaint but is no longer Acting Secretary of DHS. The Court further
16 corrects the caption to reflect that Tracy Renaud has replaced Kenneth Cuccinelli as the Senior Official Performing the Duties of Director for USCIS. See Fed. R.
17 Civ. P. 25(d).
18 2 The Plaintiffs in this lawsuit are the State of Washington, Commonwealth of Virginia, State of Colorado, State of Delaware, State of Hawai’i, State of Illinois,
19 State of Maryland, Commonwealth of Massachusetts, Attorney General Dana Nessel on behalf of the People of Michigan, State of Minnesota, State of Nevada,
20 State of New Jersey, State of New Mexico, and State of Rhode Island (collectively, the “States”).
21

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 2

Case 4:19-cv-05210-RMP ECF No. 283 filed 02/01/21 PageID.6463 Page 3 of 10

1 raise four causes of action: (1) a violation of the Administrative Procedure Act

2 (“APA”), 5 U.S.C. § 706(2)(C), for agency action contrary to the Immigration and

3 Nationality Act (“INA”)3, the Personal Responsibility and Work Opportunity

4 Reconciliation Act (“PRWORA”)4, the Illegal Immigration Reform and Immigrant

5 Responsibility Act (“IIRIRA”)5, the Rehabilitation Act6, and the SNAP statute7; (2)

6 a violation of the APA, 5 U.S.C. § 706(2)(C), for agency action “in excess of

7 statutory jurisdiction [or] authority” or “ultra vires”; (3) a violation of the APA, 5

8 U.S.C. § 706(2)(C), for agency action that is “arbitrary, capricious, [or] an abuse of

9 discretion”; and (4) a violation of the guarantee of equal protection under the U.S.

10 Constitution’s Fifth Amendment Due Process Clause. ECF No. 31 at 161−70.

11

DHS moved to dismiss the States’ Amended Complaint in its entirety. ECF

12 No. 223. The Court dismissed the States’ Count II: Ultra Vires Claim without

13 prejudice and denied DHS’s motion in remaining part. ECF No. 248 at 43.

14 Relevant to the instant Motion for Reconsideration, the Court concluded that the

15

16 3 8 U.S.C. §§ 1182(a)(4), 1152, and 1182(a)(1).
17 4 8 U.S.C. §§1611−13, 1621−22, and 1641.
18 5 8 U.S.C. §§ 1182, 1183a.
19 6 29 U.S.C. § 794(a).
20 7 7 U.S.C. § 2017(b).
21

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 3

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1 States’ Count IV: Equal Protection Claim did not meet the standard for dismissal

2 under Fed. R. Civ. P. 12(b)(6) and allowed that claim to proceed. Id.

3

In the Court’s analysis of the States’ equal protection claim, the Court

4 determined that the strict scrutiny review of Vill. Of Arlington Heights v. Metro

5 Hous. Dev. Corp., 429 U.S. 252, 264−65 (1977)), governs the particular immigration

6 context in which the Public Charge Rule applies. ECF No. 248 at 36. The Court

7 proceeded to consider DHS’s argument that the Public Charge Rule is facially

8 neutral, and the States cannot establish discriminatory intent through the statements

9 of officials outside of DHS. See id. The Court further considered DHS’s argument

10 that the States’ allegations of racial discrimination as a motivating factor behind the

11 Public Charge Rule are analogous to allegations that the Supreme Court found to be

12 insufficient to support a valid equal protection claim in the plurality opinion in DHS

13 v. Regents of the Univ. of California, 140 S. Ct. 1891, 1915−16 (2020). See ECF

14 No. 248 at 36−37. The Court concluded that the States’ alleged statements by then-

15 President Trump, a high-level White House official, and a DHS decision-maker do

16 not suffer from the deficiencies identified in Regents, in which the plurality found

17 statements made by then-President Trump about Latinos before and after he was

18 elected to be too remote in time, and in contexts too attenuated from the policy at

19 issue, to qualify as “‘contemporary statements’ probative of the decision at issue.”

20 ECF No. 248 at 41 (quoting Regents, 140 S. Ct. at 1916 (quoting Arlington Heights,

21

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 4

Case 4:19-cv-05210-RMP ECF No. 283 filed 02/01/21 PageID.6465 Page 5 of 10

1 429 U.S. at 268)). The Court found that the statements upon which the States rely in

2 this case were made “contemporaneous with DHS’s finalizing the Public Charge

3 Rule” and “can reasonably be interpreted as supporting an animus toward nonwhite

4 immigrants.” ECF No. 248 at 42.

5

On the same day as the Court’s Order was filed, a United States Court of

6 Appeals for the Ninth Circuit panel issued a 2-1 opinion in Ramos v. Wolf, 975 F.3d

7 872 (9th Cir. 2020), which found that the plaintiffs’ allegations in that case

8 regarding their equal protection claim failed to present serious questions on the

9 merits to support a preliminary injunction. Id. at 897. The Ninth Circuit found that

10 there was no record of evidence in that case to tie then-President Trump’s racial

11 animus against “nonwhite, non-European” immigrants to terminations of Temporary

12 Protective Status (“TPS”) by the Secretaries of DHS in 2017 and 2018. Id.

13 Referencing the Regents plurality and its reasoning, the Ninth Circuit found that the

14 President’s “expressed animus . . . occurred primarily in contexts removed from and

15 unrelated to TPS policy or decisions.” Id. at 898 (citing Regents, 140 S. Ct. at

16 1916). The Ramos majority found that “the only ‘contemporary statement’ might be

17 the President’s comments at the January 11, 2018 meeting with lawmakers, during

18 which TPS terminations were discussed; however, the influence of these remarks on

19 the actual decisions to terminate TPS is belied by the fact that the meeting occurred

20 three days after the TPS termination notices for Haiti and El Salvador issued.” Id.

21

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 5

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1

The Ramos majority further found:

2

Moreover, while the record contains substantial evidence that White

House officials sought to influence the Secretaries’ TPS decisions, and

3

that the Secretaries sought and acted to conform their TPS decisions to

the President’s immigration policy, we find these facts neither unusual

4

nor improper. It is expected—perhaps even critical to the functioning

of government—for executive officials to conform their decisions to

5

the administration's policies. The mere fact that the White House

exerted pressure on the Secretaries’ TPS decisions does not in itself

6

support the conclusion that the President’s alleged racial animus was a

motivating factor in the TPS decisions.

7

Ramos, 975 F.3d at 897−98.

8

LEGAL STANDARDS

9

Rule 54(b), Fed. R. Civ. P., provides that “any order . . . that adjudicates fewer

10

than all the claims or the rights and liabilities of fewer than all the parties . . . may be

11

revised at any time before the entry of a judgment adjudicating all the claims and all

12

the parties’ rights and liabilities.” However, courts in this circuit disfavor motions

13

for reconsideration and deny them “absent highly unusual circumstances, unless the

14

district court is presented with newly discovered evidence, committed clear error, or

15

if there is an intervening change in controlling law.” McDowell v. Calderon, 197

16

F.3d 1253, 1255 (9th Cir. 1999) (per curiam). “A motion for reconsideration ‘may

17

not be used to raise arguments or present evidence for the first time whey they could

18

reasonably have been raised earlier in the litigation.’” Marlyn Nutraceuticals, Inc. v.

19

Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting Kona

20

21

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 6

Case 4:19-cv-05210-RMP ECF No. 283 filed 02/01/21 PageID.6467 Page 7 of 10

1 Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (emphasis in

2 original)).

3

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests whether a complaint

4 states a cognizable legal theory as well as essential facts under that theory. See Ileto

5 v. Glock, Inc., 349 F.3d 1191, 1199−1200 (9th Cir. 2003) (observing that Rule

6 12(b)(6) must be read in conjunction with Rule 8, which requires a “short and plain

7 statement showing that the pleader is entitled to relief”) (internal quote omitted).

8 When a defendant challenges a complaint’s sufficiency under Fed. R. Civ. P.

9 12(b)(6), the court must determine whether the complaint bears “sufficient factual

10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

11 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

12 U.S. 544, 555 (2007)). A claim is plausible when the plaintiff pleads “factual

13 content that allows the court to draw the reasonable inference that the defendant is

14 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

15

DISCUSSION

16

The parties dispute whether Ramos, 975 F.3d 872, constitutes a change in

17 controlling law warranting reconsideration. ECF Nos. 258 at 5−7; 263 at 4. DHS

18 argues that Ramos undermines the Court’s finding that the statements upon which

19 the States rely “made by high-level officials in the Administration contemporaneous

20 with DHS’s finalizing the Public Charge Rule, can reasonably be interpreted as

21

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 7

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1 supporting an animus toward nonwhite immigrants.” ECF Nos. 254 at 11; 248 at 42.

2 DHS maintains that “it is apparent from Ramos that that is insufficient to infer that a

3 particular agency policy was motivated by discrimination” and that, “if the law were

4 otherwise, a plaintiff could state an equal protection claim for virtually any

5 immigration policy of this administration simply by pointing to the same statements

6 of administration officials as alleged by Plaintiffs here.” ECF No. 254 at 11.

7

The States respond that Ramos does not qualify as a change in controlling law

8 because it merely reiterated the analysis of Regents in an analogous context to

9 Regents without “plow[ing] any new ground that would have better informed this

10 Court’s Order.” ECF No. 258 at 6−7. The States add that Ramos also is inapposite

11 because it determined whether the plaintiffs had met their burden to obtain a

12 preliminary injunction, which requires a greater showing than the States’ burden to

13 survive a Rule 12(b)(6) motion to dismiss in this case. Id. at 7.

14

Having reviewed Ramos, 975 F.3d 872, the Court finds that the opinion does

15 not compel dismissal of the States’ equal protection claim. Both Ramos and this

16 Court relied on the plurality in Regents and its reasoning to assess whether

17 statements relied on by plaintiffs in both cases are probative of discriminatory intent.

18 See Ramos, 975 F.3d at 897−98; ECF No. 248 at 36, 41−42 (portion of this Court’s

19 Order considering whether the alleged statements in this case are analogous to the

20 statements examined and deemed insufficient in Regents). In Ramos, the only

21

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1 statements at issue were made by then-President Trump, and the Ninth Circuit

2 found: “Here, the only ‘contemporary statement’ might be the President’s comments

3 at the January 11, 2018 meeting with lawmakers, during which TPS terminations

4 were discussed; however, the influence of these remarks on the actual decisions to

5 terminate TPS is belied by the fact that the meeting occurred three days after the

6 TPS termination notices for Haiti and El Salvador issued.” Ramos, 975 F.3d at 898

7 (emphasis in original). The Ninth Circuit acknowledged that circumstantial

8 evidence may suffice to prove a discriminatory intent claim under Arlington Heights,

9 but concluded that “the circumstantial evidence here do [sic] not help Plaintiffs

10 much.” Id. The Ninth Circuit found the circumstantial evidence to be unhelpful

11 because there was “no indication that the impact of the TPS terminations bear more

12 heavily on ‘non-white, non-European’ countries.” Id.

13

By contrast, in this case, the Court considered allegations regarding statements

14 not only by then-President Trump, but also by a then-high-level White House

15 official and a then-DHS decision-maker, and noted that the majority of the

16 statements were made from January 2018 until August 2019, when the Public

17 Charge Rule was published. ECF No. 248 at 42. Unlike the January 11, 2018

18 statement in Ramos, 975 F.3d at 898, the statements relied on by the States were

19 made during the period in which the Public Charge Rule was being developed and

20 before the final rule was issued. Also in contrast to Ramos, 975 F.3d at 898, the

21

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 9

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1 Court considered the alleged statements in the context that DHS acknowledges in the

2 “Supplementary Information” for the final rule that the Public Charge Rule is likely

3 to disproportionately affect communities of color. See ECF No. 248 at 38−39 (citing

4 ECF Nos. 31 at 85−86; 233 at 49−50 (quoting 84 Fed. Reg. at 41,369), 42.

5 Consequently, after Ramos, the cumulative allegations in the States’ Amended

6 Complaint still suffice under Arlington Heights to survive under Rule 12(b)(6), a

7 lesser standard than the preliminary injunction standard applied in Ramos.

8

Accordingly, IT IS HEREBY ORDERED that DHS’s Motion for

9 Reconsideration, ECF No. 254, is DENIED.

10

IT IS SO ORDERED. The District Court Clerk is directed to enter this

11 Order and provide copies to counsel.

12

DATED February 1, 2021.

13

s/ Rosanna Malouf Peterson

14

ROSANNA MALOUF PETERSON

United States District Judge

15

16

17

18

19

20

21

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION ~ 10