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1 XAVIER BECERRA Attorney General of California
2 MICHAEL L. NEWMAN Senior Assistant Attorney General
3 CHEROKEE D.M. MELTON Supervising Deputy Attorney General
4 JENNIFER C. BONILLA LISA CISNEROS
5 JULIA HARUMI MASS ANITA GARCIA VELASCO
6 BRENDA AYON VERDUZCO ANNA RICH, State Bar No. 230195
7 Deputy Attorneys General 1515 Clay Street, 20th Floor
8 P.O. Box 70550 Oakland, CA 94612-0550
9 Telephone: 510-879-0296 Fax: 510-622-2270
10 E-mail: Anna.Rich@doj.ca.gov Attorneys for Plaintiff State of California
11
Additional Counsel Listed on Signature Page 12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

16

17

STATE OF CALIFORNIA, DISTRICT OF Civil Case No. ____________________ 18 COLUMBIA, STATE OF MAINE,

COMMONWEALTH OF 19 PENNSYLVANIA and STATE OF

OREGON, 20

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

21

Administrative Procedure Act Case

v. 22

23 U.S. DEPARTMENT OF HOMELAND SECURITY; KEVIN MCALEENAN, in his
24 official capacity as Acting Secretary of Homeland Security; U.S. CITIZENSHIP
25 AND IMMIGRATION SERVICES; and KENNETH T. CUCCINELLI, in his official
26 capacity as Acting Director of U.S. Citizenship and Immigration Services,
27
Defendants. 28

Complaint for Declaratory and Injunctive Relief (Case No. TBD)

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1 INTRODUCTION
2 1. The State of California, the District of Columbia, the State of Maine, the
3 Commonwealth of Pennsylvania, and the State of Oregon (hereinafter, Plaintiffs) bring this action
4 to challenge unlawful regulations promulgated by Defendants, the U.S. Department of Homeland
5 Security (DHS), U.S. Citizenship and Immigration Services (USCIS), Acting Secretary of DHS
6 Kevin McAleenan, and Acting Director of USCIS Kenneth Cuccinelli. Inadmissibility on Public
7 Charge Grounds, RIN 1615-AA22, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Public Charge Rule”
8 or “Rule”). In the Rule, Defendants illegally expand the circumstances in which DHS may deny
9 individuals’ admission to the United States on “public charge” grounds, when seeking an
10 extension of stay, change of visa category, or lawful permanent resident status. The Rule stacks
11 the deck against marginalized populations, such as children, students, individuals with
12 disabilities, older adults, and low-wage working families. The Rule uproots the understanding of
13 public charge as primary dependence on the government, creating new bars that have not been
14 authorized by Congress, such as making a low income a “heavily weighted” negative factor in
15 admissibility. The Rule also penalizes immigrants who use common, non-cash federal public
16 benefit programs—community (i.e. non-institutional) Medicaid, Supplemental Nutrition
17 Assistance Program (SNAP), Section 8 Housing Choice Voucher Program, Section 8 Project-
18 Based Rental Assistance, and Section 9 Public Housing—for which they are legally eligible.
19 2. Overall, the Rule represents a radical departure in the treatment of low- and
20 moderate-income immigrants, whom the United States has historically welcomed. “Public
21 charge” is a legal term used first by Congress to exclude “any person unable to take care of
22 himself or herself without becoming a public charge” alongside “convict[s], lunatic[s], and
23 idiot[s].” An Act to Regulate Immigration, ch. 376, 22 Stat. 214, 47th Cong. (1882). For
24 generations, the term has applied to exclude only individuals who are primarily dependent on the
25 government for subsistence, such as by receiving public cash assistance for income maintenance
26 or institutionalization at government expense.
27
28
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1

3. With the Public Charge Rule, Defendants have expanded the law to block vast swaths

2 of our nation’s foreign-born residents from making critical changes in their immigration status,

3 just because they are not wealthy. Indeed, the Rule is so draconian that a substantial proportion

4 of all U.S. citizens could, if subjected to the Rule, be deemed a “public charge.”

5

4. As Defendants themselves acknowledged, the Rule will cause grievous harm to

6 immigrants and their communities. It will increase the prevalence of disease, drive up the costs

7 of medical care, and increase poverty. It will encourage immigrants to disenroll from federal

8 healthcare, supplemental nutrition assistance, and housing programs for which they are otherwise

9 eligible. And it will chill the participation of immigrants and families with mixed immigration-

10 status in public benefit programs generally, even for individuals not directly subject to a public

11 charge test, and even with respect to benefits and services that are not enumerated in the Rule.

12

5. The interests of Plaintiffs will suffer as a result. Plaintiffs will lose federal funds as

13 immigrants disenroll from affected programs. Responding to the Rule will impose substantial

14 administrative costs for Plaintiffs’ agencies that respond to the confusion and fear it will

15 engender, and disrupt health and social services systems that serve as safety nets for Plaintiffs’

16 residents. The negative public health repercussions of reduced access to healthcare and housing

17 and poorer nutrition will ultimately be paid for by Plaintiffs.

18

6. The Rule does not comport with the requirements of the Administrative Procedure

19 Act (APA), 5 U.S.C. §§ 701, et seq. It is contrary to established law regarding what it means to

20 be a public charge. Defendants’ primary purported rationale for the rule—encouraging self-

21 sufficiency—is directly undermined by the Rule itself. The Rule’s new income thresholds target

22 low-and moderate-income individuals and families who have never used public benefits. In

23 addition, the Rule discourages use of publicly funded benefits that are critical to furthering the

24 self-sufficiency of vast numbers of working families—immigrant and native-born U.S. citizens

25 alike.

26

7. Defendants’ true motivations are not difficult to discern. The Rule will

27 disproportionately impact non-White, non-European immigrants from Asia, Latin America, the

28 Caribbean, and Africa, as well as prevent more immigrants of color from changing or extending 2
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1 their visas or becoming lawful permanent residents and, ultimately, citizens. The Rule was

2 motivated by intentional race- and national origin-based animus against individuals from what

3 President Trump has referred to as “shit-hole countries.” For this reason, the Rule violates the

4 equal protection guarantee of the Fifth Amendment of the United States Constitution.

5

8. More than any other jurisdiction, California will bear the brunt of this illegal Rule.

6 California has the largest immigrant population in the United States and is home to more than 10

7 million immigrants from around the world. In fact, nearly 25 percent of the 43.7 million foreign-

8 born immigrants in the U.S. live in California, and almost half of California children have at least

9 one immigrant parent. Of these children, over 4 million are U.S. citizens. Defendants’ Public

10 Charge Rule will disrupt California’s statutory and regulatory interests, cause harm to millions of

11 its residents, and damage its economy.

12

9. The District of Columbia is home to people from more than 170 nations. More than

13 95,000 District residents, who make up approximately 15 percent of the District’s population,

14 were born in another country. Another 10 percent of District residents are native-born U.S.

15 citizens with at least one immigrant parent. Immigrants make up almost a quarter of the District’s

16 civilian workforce. The Public Charge Rule will impair the District’s statutory and regulatory

17 interests, cause harm to thousands of its residents, and damage its economy.

18

10. The State of Oregon is home to approximately 400,000 immigrants, who make up

19 over 14% of the population. Approximately 12 percent of the U.S.-citizen children residing in

20 Oregon have at least one immigrant parent. Nearly 90,000 U.S. citizens living in Oregon have at

21 least one family member who is undocumented. Most importantly, Oregon has more than 10,000

22 Deferred Action for Childhood Arrivals (DACA) recipients. Finally, approximately 260,000

23 workers in Oregon are immigrants, comprising over 12 percent of the workforce generally. The

24 Public Charge Rule will disrupt Oregon’s statutory and regulatory interests, cause harm to

25 thousands of its residents, and damage its economy.

26

11. In the Commonwealth of Pennsylvania, almost 900,000 residents were born in

27 another country, representing seven percent of Pennsylvania’s population. Almost half of these

28 immigrants have not yet become naturalized citizens. Immigrants are an integral part of 3
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1 Pennsylvania’s economy: almost half a million immigrant workers contributed to Pennsylvania

2 communities in 2015. Immigrant-led households in Pennsylvania paid $5 billion in federal taxes

3 and $2.1 billion in state and local taxes in 2014. In addition, more than 342,000 children in

4 Pennsylvania have at least one immigrant parent. Of these children, almost 288,000 are U.S.

5 citizens, over 143,000 are in low-income families, and over 113,000 are under the age of six. As

6 of 2016, nearly 5,000 DACA recipients live in Pennsylvania. The Public Charge Rule will

7 disrupt Pennsylvania’s statutory and regulatory interests, cause harm to thousands of its residents,

8 and damage its economy.

9

12. Therefore, Plaintiffs respectfully request that this Court declare that the Public Charge

10 Rule violates the Administrative Procedure Act, 5 U.S.C. § 706, because it is contrary to law,

11 exceeds Defendants’ statutory authority, is arbitrary, capricious, and an abuse of discretion, and

12 because it violates the Due Process Clause of the Fifth Amendment to the United States

13 Constitution. Plaintiffs further request that this Court enjoin Defendants from implementing or

14 enforcing the Rule.

15

JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT

16

13. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a).

17

14. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1).

18 A substantial part of the events or omissions giving rise to this action occurred in this district,

19 Plaintiff State of California resides in this district, and no real property is involved in the action.

20 This is a civil action in which Defendants are agencies of the United States or officers of such an

21 agency.

22

15. Intradistrict assignment is proper in San Francisco or Oakland pursuant to Local

23 Rules 3-2(c) and (d) because a substantial part of the events or omissions which give rise to the

24 claim occurred in the counties of San Francisco and Alameda.

25

PARTIES

26

PLAINTIFFS

27

16. Plaintiff the State of California, by and through Attorney General Xavier Becerra,

28 brings this action. As California’s Chief Law Officer, the Attorney General has the authority to 4
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1 file civil actions to protect public rights and interests and promote the health and welfare of

2 Californians. Cal. Const. art V, § 13. This challenge is brought pursuant to the Attorney

3 General’s independent constitutional, statutory, and common law authority to represent the public

4 interest.

5

17. Plaintiff the District of Columbia (the District) is a municipal corporation empowered

6 to sue and be sued, and is the local government for the territory constituting the permanent seat of

7 the federal government. The District brings this case through Karl Racine, the Attorney General

8 for the District of Columbia, who is the Chief Legal Officer for the District and possesses all

9 powers afforded the Attorney General by the common and statutory law of the District. The

10 Attorney General is responsible for upholding the public interest and has the authority to file civil

11 actions in order to protect the public interest. D.C. Code § 1-301.81.

12

18. Plaintiff the State of Maine, represented by and through its Attorney General Aaron

13 Frey, is a sovereign state of the United State of America. The Attorney General of Maine is a

14 constitutional officer with the authority to represent the State of Maine in all matters and serves as

15 its chief legal officer with general charge, supervision, and direction of the State’s legal business.

16 Me. Const. art. IX, Sec. 11; Me. Rev. Stat. tit. 5, §§ 191 et seq. The Attorney General’s powers

17 and duties include acting on behalf of the State and the people of Maine in the federal courts on

18 matters of public interest. The Attorney General has the authority to file suit to challenge action

19 by the federal government that threatens the public interest and welfare of Maine residents as a

20 matter of constitutional, statutory, and common law authority.

21

19. Plaintiff the State of Oregon is a sovereign state of the United States of America.

22 Plaintiff the State of Oregon, by and through its Attorney General Ellen Rosenblum, brings this

23 action. Attorney General Rosenblum, is the Chief Law Officer of Oregon and is empowered to

24 bring this action on behalf of the State of Oregon and the affected state agencies. Or. Rev. Stat.

25 §§ 180.060, 180.210, 180.220.

26

20. Plaintiff the Commonwealth of Pennsylvania is a sovereign state of the United States

27 of America. This action is brought on behalf of the Commonwealth by Attorney General Josh

28 Shapiro, the “chief law officer of the Commonwealth.” Pa. Const. art. IV, § 4.1. Attorney 5
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1 General Shapiro brings this action on behalf of the Commonwealth pursuant to his statutory

2 authority. 71 Pa. Stat. § 732-204.

3

21. Plaintiffs are aggrieved by the actions of Defendants and have standing to bring this

4 action because of the injuries to their sovereign, quasi-sovereign, and/or proprietary interests

5 caused by the Public Charge Rule.

6

22. By making receipt of healthcare, nutrition, and housing assistance negative factors in

7 admissibility determinations, the Rule threatens Plaintiffs’ interests in protecting the health,

8 safety, and well-being of its residents, regardless of immigration status. See, e.g., Cal. Civ. Code

9 § 3339(a); Cal. Gov’t. Code § 7285(a); Cal. Health & Safety Code § 24000(a); Cal. Lab. Code

10 § 1171.5(a); D.C. Code §§ 2-1402.01, et seq; Or. Rev. Stat. § 180.805-810; Or. Rev. Stat.

11 § 181A.820; Or. Rev. Stat. § 414.231(3).

12

23. By disproportionately targeting immigrant communities of color, the Rule further

13 threatens Plaintiffs’ interest in prohibiting discrimination and preventing the denial of equal

14 protection on the basis of race, color, national origin, and immigration status. See, e.g., Cal.

15 Const. art. I, §§ 7, 8, 31; D.C. Code §§ 2-1402.01, et seq; Or. Rev. Stat. § 659A.006; 43 P.S.

16 §§ 951–963.

17

24. By placing new barriers to full economic and social participation for low-wage

18 workers and their families, immigrant and non-immigrant alike, the Rule threatens Plaintiffs’

19 economies, in which more than 7.4 million immigrant workers comprise a substantial proportion

20 of the labor force.

21

DEFENDANTS

22

25. Defendant DHS is a federal cabinet agency responsible for implementing and

23 enforcing key aspects of immigration law. DHS is a Department of the Executive Branch of the

24 United States Government, and is an “agency” within the meaning of 5 U.S.C. § 552(f)(1).

25

26. Defendant USCIS is a component agency of DHS. USCIS has primary responsibility

26 implementing, administering, and enforcing federal immigration laws and policies, including

27 processing applications by foreign nationals in the United States for immigrant and nonimmigrant

28 6
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1 visas, extension or change of visa, and adjustment of status to lawful permanent resident status.

2 The Final Rule identifies USCIS as the agency that will implement the Final Rule.

3

27. Defendant Kevin McAleenan is the Acting Secretary of Homeland Security. He is

4 responsible for implementing and enforcing immigration laws, and oversees DHS. He is sued in

5 his official capacity.

6

28. Defendant Kenneth T. Cuccinelli is the Acting Director of USCIS. He is responsible

7 for overseeing USCIS and its administration, implementation, and enforcement of federal

8 immigration law and policy. He is sued in his official capacity.

9

FACTUAL ALLEGATIONS

10 I. BACKGROUND ON PUBLIC CHARGE AND RELATED FEDERAL LAWS

11

29. Noncitizens seeking to be lawfully admitted into the United States must establish that

12 they are not inadmissible. Inadmissibility is determined by Section 212 of the Immigration and

13 Nationality Act (INA), 8 U.S.C. § 1182(a)(4), which contains several categories of

14 inadmissibility, including inadmissibility on the public charge ground.

15

30. The public charge ground of inadmissibility is applicable to noncitizens when

16 applying for a nonimmigrant visa or adjusting to lawful permanent resident status (“LPRs,”

17 commonly known as “green card” holders). Even with a valid visa, such as a student visa, visa

18 holders are subject to an inadmissibility determination by Customs and Border Protection every

19 time they enter the United States at the port of entry. 84 Fed. Reg. 41,331. Under certain

20 circumstances, green card holders returning to the United States after brief trips abroad of more

21 than six months can be considered to be seeking admission. 8 U.S.C. § 1101(a)(13)(C).

22

31. A green card holder can be denied citizenship as well as removed from the United

23 States if the DHS establishes that they were inadmissible at the time of their original entry or

24 adjustment of status under the law existing at the time of their adjustment. 8 U.S.C.

25 § 1227(a)(1)(A); 8 U.S.C. § 1429.

26

32. Immigration officers evaluating a noncitizen’s admissibility make a public charge

27 determination based on the totality of the circumstances, weighing five categories of statutorily

28 defined factors. These factors are: (1) age; (2) health; (3) family status; (4) assets, resources, and 7
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1 financial status; (5) education and skills, and in some circumstances, whether the noncitizen has

2 provided an affidavit of support from a qualifying sponsor. 8 U.S.C. § 1182(a)(4).

3 A. History of Public Charge Law

4

33. In immigration law, the term “public charge” has been used for more than 100 years

5 to refer to a person who is primarily dependent on the government for subsistence. Congress first

6 used the term to provide for the exclusion of “any convict, lunatic, idiot, or any person unable to

7 take care of himself or herself without becoming a public charge.” An Act to Regulate

8 Immigration, ch. 376, 22 Stat. 214, 47th Cong. (1882). The primary purpose of this and similar

9 public charge laws lay in preventing recently-arrived individuals from becoming primarily

10 dependent on accommodations in institutions, such as almshouses, asylums, or charitable

11 hospitals.

12

34. During the late nineteenth and early twentieth centuries, over twenty-four million

13 people immigrated to the United States—most destined for low-wage jobs. During this time, a

14 handful of immigration laws were approved that provided grounds for exclusion or deportation on

15 the basis of poverty, mental and physical health, morality, or political beliefs. While “paupers”

16 and “persons likely to become a public charge” accounted for the majority of exclusions and

17 deportations, the numbers of people excluded on these grounds remained sparingly low relative to

18 the number of immigrants admitted. The vast majority of immigrants, though poor, were

19 welcome.

20

35. In 1952, Congress enacted the INA, collecting various federal provisions and

21 reorganizing them into the modern, codified structure of immigration law. The INA formalized

22 numerous “nonimmigrant” categories of individuals entering the United States on a temporary

23 basis, and enabled some to apply for legal permanent residency (i.e., adjustment of status) without

24 having to leave the country and apply through a U.S. consulate abroad.

25

36. In considering the INA, a congressional subcommittee tasked with investigating the

26 existing immigration system recognized that “the elements constituting the likelihood of

27 becoming a public charge are varied.” Congress ultimately decided to include “public charge” as

28 a basis for inadmissibility in section 212(a)(4) of the INA. 8
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1

37. In 1965, Congress did away with quotas that had severely limited the number of

2 immigrants allowed entry from certain nations of origin, and repudiated the legacy of racial

3 discrimination rooted in enactments such as the Chinese Exclusion Act of 1882 and the

4 Immigration Act of 1924. Congress put in place the system of immigrant admissions that the

5 United States has largely continued to the present. Congress weighted the system in favor of

6 family reunification, allocating 74 percent of all permanent visas granted annually for family

7 reunification categories, and the other 26 percent for employment-based categories.

8

38. Congress began to impose additional restrictions on benefits eligibility for lawful

9 permanent residents in the 1980s. In 1986, the Immigration Reform and Control Act (IRCA)

10 prohibited immigrants with newly gained temporary lawful residency status under the specific

11 “legalization” provisions of that law from receiving public benefits for the first five years. The

12 IRCA provided that an immigrant’s inadmissibility on public charge grounds under Section

13 212(a)(4) could be waived so long as they demonstrated a history of employment in the United

14 States evidencing self-sufficiency without receipt of “public cash assistance.” 8 U.S.C.

15 § 1255a(d)(2)(B)(iii). The implementing regulations defined “public cash assistance” as “income

16 or needs-based monetary assistance…received…through federal, state or local programs designed

17 to meet subsistence levels,” and specifically excluded “assistance in kind such as food stamps,

18 public housing, and other non-cash benefits,” including Medicaid. 8 C.F.R. § 245a.1(i).

19 B. 1996 Welfare Reform Law and Codification of the Public Charge Test

20

39. In 1996, Congress enacted the Personal Responsibility and Work Opportunity

21 Reconciliation Act (PRWORA), setting new limitations on immigrant access to public benefits,

22 and delegating responsibility for implementation of benefits to a greater degree to state

23 governments through block grants. The PRWORA imposed new restrictions on immigrants’

24 eligibility for federal means-tested public benefits. The law created two categories of

25 immigrants: “qualified” and “non-qualified.” Qualified immigrants include, for example, lawful

26 permanent residents, refugees, and asylees. Non-qualified individuals include temporary visitors

27 and undocumented immigrants. Eligibility for federal benefits largely hinged on the category to

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1 which an immigrant was assigned, whether the individual arrived before or after the PRWORA’s

2 enactment, and whether a five-year waiting period applied.

3

40. Congress continued to make certain services available to all people regardless of

4 immigration status, including: emergency medical care, public health programs (immunizations

5 and treatment for communicable diseases); school breakfast and lunch programs; public education

6 for kindergarten through twelfth grade; the Women, Infant and Children nutrition (WIC)

7 program; and short-term, non-cash emergency disaster assistance.

8

41. The PRWORA also preserved states’ authority to extend certain benefits to certain

9 immigrants. States were given the option to use federal funds to extend Medicaid and Temporary

10 Assistance for Needy Families (TANF) benefits to qualified immigrants who arrived before the

11 PRWORA was enacted. States also retained authority to create state-funded programs for

12 immigrants who were no longer eligible for federal benefits under the PRWORA.

13

42. One month after the PRWORA was enacted through bipartisan agreement, Congress

14 approved the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and

15 codified a “totality of the circumstances” test for determining inadmissibility based on the public

16 charge ground.

17

43. Nothing in the PRWORA or the IIRIRA suggested that Congress intended to subject

18 immigrants eligible for state or federally funded non-cash assistance to a public charge

19 determination based on application for or receipt of such congressionally authorized benefits. In

20 fact, Congress considered and rejected a public charge definition that would have included food,

21 healthcare, and housing assistance. IIRIRA, H.R. 104-828 at 138 (1996) (Conf. Rep.).

22 C. Additional Public Charge Guidance and Related Laws

23

44. The 1996 changes in law caused widespread confusion and fear, resulting in serious

24 chilling effects, in which many immigrants declined to apply for or disenrolled from public

25 benefits for which they were legally eligible under federal and state law.

26

45. In order to alleviate the harms caused by immigrants not having healthcare coverage,

27 food assistance, or other work supports, the Immigration and Naturalization Service (INS)

28 proposed a rule confirming long-standing understanding of the term “public charge.” In a Notice 10
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1 of Proposed Rulemaking, the agency confirmed that “public charge” meant only those “likely to

2 become […] primarily dependent on the Government for subsistence, as demonstrated by either

3 the receipt of public cash assistance for income maintenance or institutionalization for long-term

4 care at Government expense.” Inadmissibility and Deportability on Public Charge Grounds, 64

5 Fed. Reg. 28,676, 28,677 (May 26, 1999).

6

46. While this proposed rule was never finalized, its substance was confirmed in the

7 agency’s Field Guidance issued at the same time as the proposed rule and effective on that date,

8 and used by the agencies responsible for assessing inadmissibility on public charge grounds,

9 including Defendants, for more than 20 years. Field Guidance on Deportability and

10 Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999). The Field

11 Guidance was intended to “help alleviate public confusion over the meaning of the term ‘public

12 charge’ in immigration law and its relationship to the receipt of Federal, State, and local public

13 benefits” and to “provide aliens with better guidance as to the types of public benefits that will

14 and will not be considered in public charge determinations.” Id. at 28692. The INS explained

15 that “federal, state, and local benefits are increasingly being made available to families” and that

16 “participation in such non-cash programs is not evidence of poverty or dependence.” Id.

17

47. The IIRIRA established that immigration officials must rely on affidavits of support

18 submitted by sponsors in deciding whether an individual is inadmissible on the public charge

19 ground. Affidavits of support are legally enforceable as contracts, in which the sponsor agrees to

20 support the immigrant financially. 8 U.S.C. § 1183a.

21

48. For decades, DHS considered an affidavit of support as strong evidence that an

22 immigrant will not become primarily dependent on the government. Affidavits of support

23 became a well established, straightforward and efficient process for adjudicators and immigrants

24 to evaluate the public charge ground.

25

49. In addition to sponsor affidavits, the standard surety bond for an individual deemed

26 likely to become a public charge is $1,000. 8 U.S.C. § 1183; 8 C.F.R. § 213.1.

27

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1 D. Congress and States Create New Opportunities for Access to Public Benefit Programs to Promote Public Health and Welfare
2 50. Since the PRWORA, Congress has approved amendments to rollback certain
3 restrictions on federal public benefits for immigrants, particularly pregnant women and children,
4 and all states have exercised their authority to varying degrees to make public benefits available
5 to these immigrant populations. Plaintiffs, in particular, have created robust safety nets that rely
6 upon this public benefits framework to extend program services to immigrant residents as
7 authorized by federal law.
8 51. For example, Medicaid is an essential source of health insurance for underserved
9 population groups, including children, pregnant women, individuals with disabilities, and seniors.
10 Every state except for Wyoming has extended Medicaid to certain noncitizens who arrived before
11 the PRWORA.
12 52. Since 1997, states have had the option to provide 12 months of continuous Medicaid
13 and Children’s Health Insurance Program (CHIP) eligibility for noncitizen children, guaranteeing
14 a full year of coverage regardless of changes in family circumstances, such as income or
15 household size. Guaranteeing ongoing coverage ensures that children and families access critical
16 care needed for healthy child development, supports the development of patient-provider
17 relationships, and reduces the state’s administrative burden.
18 53. Plaintiffs California, Oregon, and the District of Columbia have selected the option
19 provided by federal law for twelve-month continuous certification periods for Medicaid, allowing
20 the states and District to maintain low uninsured rates and healthier communities. Plaintiff
21 Pennsylvania covers children under Medicaid in continuous eligibility up to age three, regardless
22 of citizenship status.
23 54. Medicaid enables states to provide a wide range of federally mandated healthcare
24 services, in addition to various optional services as determined by each state, to individuals who
25 qualify for program eligibility.
26
27
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1

1. California

2

55. California has exercised its authority to expand its Medicaid program (known as

3 Medi-Cal) and SNAP (known as CalFresh) programs to include a broader range of services and

4 beneficiaries.

5

56. In 1998, recognizing the contributions of immigrants to the strength of our economy

6 and communities, and the fundamental importance of nutrition to individual and community

7 wellbeing, California established the California Food Assistance Program. Cal. Welf. & Inst.

8 Code §§ 18930, et seq. The program was established to provide state-funded nutrition services

9 for qualified noncitizens who are not eligible for federal benefits. In doing so, California

10 exercised its discretion and authority as provided for under federal law.

11

57. California has also taken advantage of a number of options for offering additional

12 healthcare services. For example, Medi-Cal’s 250% Working Disabled Program allows certain

13 working individuals with disabilities to become eligible for Medi-Cal by paying low monthly

14 premiums based on their net income.

15

58. California also supports individuals with disabilities through In-Home Supportive

16 Services (IHSS), a Medi-Cal program that provides assistance with activities of daily living for

17 individuals with disabilities who are otherwise at risk of institutionalization.

18

59. In 2014, California implemented Medicaid expansion, made available under the

19 Affordable Care Act (ACA), to extend Medi-Cal eligibility to adults without children as well as

20 parent and caretaker relatives.

21

60. California has significantly invested in outreach and enrollment for affordable health

22 programs. As part of its implementation of the ACA, California established a single, statewide

23 accessible application for all of its affordable health programs. This application is used by all

24 California entities authorized to make eligibility determinations, and all California residents are

25 encouraged to apply. A single automated system, the California Healthcare Eligibility,

26 Enrollment, and Retention System (CalHEERS), serves as a consolidated system support for all

27 eligibility, enrollment, and retention in Covered California (the state’s health insurance exchange)

28 and Medi-Cal.

13
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1

61. To better address the needs of the state’s uninsured population, in 2015, California

2 expanded full-scope Medi-Cal coverage to all low-income children through age 18, including

3 immigrants, consistent with federal law. Building on this expansion and its positive health

4 outcomes, in 2019, California expanded full scope Medi-Cal benefits to individuals from age 19

5 to 25 who meet all other eligibility criteria, including income standards, across all immigration

6 and citizenship categories.

7

2. District of Columbia

8

62. The District of Columbia has implemented programs to ensure that all residents have

9 access to health coverage, regardless of their income, health status, or immigration status. The

10 District’s Medicaid programs fund health care to over 250,000 residents who meet income

11 thresholds established by the District in accordance with federal guidelines.

12

63. In addition, the District makes health care coverage available to DC residents

13 regardless of immigration status through the DC Healthcare Alliance Program, the Immigrant

14 Children’s Program, and Cover All DC.

15

64. The DC Healthcare Alliance Program is a managed care health plan that provides

16 medical assistance to low-income District residents who have no other health insurance and are

17 not eligible for either Medicaid or Medicare. This program is sponsored and paid for by the

18 District government funds.

19

65. The Immigrant Children’s Program (ICP) is a health coverage program that is offered

20 to children under age 21 who are not eligible for Medicaid due to citizenship or immigration

21 status. The ICP provides coverage for residents of the District of Columbia who have no other

22 health insurance and meet a certain income threshold. Services covered under the Immigrant

23 Children Program are very similar to the services covered under Medicaid for children under age

24 twenty-one (21). It is sponsored and paid for by District government funds.

25

66. Cover All DC allows District residents who do not meet the income eligibility

26 requirements for the Alliance and who are also ineligible to purchase private insurance on the DC

27 Health Link (the District’s state health insurance exchange) to enroll in private health insurance.

28 14
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1

67. The District’s Medicaid program and its locally-funded programs have helped reduce

2 the uninsured rate among District residents, including in its immigrant communities.

3

3. Oregon

4

68. Oregon has also exercised various options to expand its Medicaid program (known as

5 the Oregon Health Plan) to include a broad range of services and beneficiaries.

6

69. In 2014, Oregon implemented Medicaid expansion, as authorized under the ACA, to

7 extend Medicaid eligibility to adults without children as well as parent and caretaker relatives.

8

70. As part of its implementation of the ACA, Oregon established a single, statewide

9 accessible application for all affordable health programs. This application is used by all Oregon

10 entities authorized to make eligibility determinations, and all Oregon residents are encouraged to

11 apply. A single automated system, serves as a consolidated system support for all eligibility,

12 enrollment, and retention in the state’s health insurance exchange and in numerous public benefit

13 programs.

14

71. To better address the needs of the state’s uninsured population, Oregon expanded

15 full-scope coverage to all low-income children, including undocumented immigrants.

16

4. Pennsylvania

17

72. The Pennsylvania Department of Human Services (PADHS) administers the

18 Commonwealth’s Medicaid program (known as Medical Assistance). Pennsylvania has

19 maximized the provision of Medical Assistance at the federal level, including implementing the

20 ACA’s Medicaid expansion in 2015. In March 2019, more than 2.8 million Pennsylvania

21 residents received essential health coverage under Medical Assistance, including more than 1.2

22 million children under the age of 21. Of these, approximately 174,580 individuals were non-

23 citizens.

24

73. Pennsylvania provides Medical Assistance to its immigrant residents to the full extent

25 allowed under federal law. For example, non-citizen residents who are pregnant or children

26 under age 21 are eligible for federally funded Medical Assistance if they meet other eligibility

27 requirements.

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1

74. Pennsylvania also provides state-funded Medical Assistance to certain groups of

2 immigrants who do not otherwise qualify. For example, non-citizen residents—both permanent

3 and temporary—who are not pregnant, are not children under age 21, or have not resided in the

4 U.S. for at least five years are eligible for state-funded Medical Assistance if they meet state

5 criteria.

6

75. Pennsylvania residents cannot apply for state-funded Medical Assistance without also

7 applying for federally funded Medical Assistance.

8

76. PADHS also administers Pennsylvania’s SNAP program, which distributed

9 approximately $218 million in food assistance benefits in May 2019 alone. SNAP currently

10 provides essential food assistance to more than 1.75 million Pennsylvanians, including almost

11 80,000 immigrants. Qualified immigrants are eligible for SNAP in Pennsylvania after five years.

12 Some immigrants are exempt from the five-year bar, including immigrants under age 18 and

13 immigrants who are blind or have another disability. Pennsylvania also provides a Special

14 Supplemental Nutrition Program for Women, Infants, and Children (WIC). WIC is available to

15 pregnant, breastfeeding, and postpartum women and to infants and children under five who have

16 an income below 185% of the federal poverty limit and who have a medical or nutritional risk.

17 WIC provides nutrition services, breastfeeding support, health care and social service referrals,

18 and healthy foods. Residents who are eligible for TANF, Medical Assistance, and SNAP are

19 categorically eligible for WIC, but participation in these other programs is not a prerequisite.

20

77. PADHS also administers the Pennsylvania Housing Assistance Program, which

21 provides grants to Pennsylvania counties. These grants are then distributed to Pennsylvania

22 residents to prevent homelessness and assist them in securing permanent housing. Qualified

23 immigrants under the PRWORA are eligible to receive housing assistance. The Pennsylvania

24 Housing Assistance Program is funded by state and federal dollars; for state fiscal year 2019-

25 2020, Pennsylvania has budgeted more than $24 million in grant monies.

26

5. Maine

27

78. The State of Maine has implemented state-funded health service programs to give

28 certain health benefits to individuals who are not eligible for federal programs. 16
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1

79. The Maine Health Insurance Purchase Option provides health benefits similar to the

2 federal CHIP program to certain children who are not eligible for CHIP. 22 M.R.S.A. § 3174-

3 T(2)(E).

4

80. Maine provides state-funded SNAP, a food supplement program for legal aliens. 22

5 M.R.S. § 3104-A.

6

81. Maine has also exercised various options to expand its Medicaid program (known as

7 “MaineCare”) to include a broad range of services and beneficiaries.

8

82. Maine implemented Medicaid expansion, effective July 2018, pursuant to the ACA,

9 to extend MaineCare eligibility to adults without children as well as parent and caretaker

10 relatives.

11

83. In the midsummer of 2019, hundreds of noncitizens arrived in Portland, Maine.

12 These noncitizens are eligible for the following state and municipal benefits: Municipal General

13 Assistance (Me. Rev. Stat. tit. 22, § 4301(3)); food banks; free vaccines provided through a

14 Maine Centers for Disease Control (CDC) program; education; emergency MaineCare only; and

15 general healthcare provided by Greater Portland Health, a health care entity. Once a noncitizen

16 applies for asylum or become paroled, they become eligible for state-funded SNAP and

17 MaineCare if they are pregnant or under age 22.

18 II. THE NEW PUBLIC CHARGE RULE

19

A. Summary of the New Public Charge Rule

20

84. Defendants’ August 14, 2019 Public Charge Rule, 84 Fed. Reg. 41,292, represents a

21 sweeping change in federal immigration policy that transforms a traditionally narrow ground of

22 inadmissibility into a major barrier for thousands of low- and moderate-income immigrants

23 present in the United States, limiting their ability to continue working or attending school, reunite

24 with family, and become lawful permanent residents—thereby impeding their path to citizenship.

25

85. The Public Charge Rule creates a new weighted evaluation system with a multitude

26 of new positive and negative factors. Multiple components of the evaluation system are

27 significant departures from the federal government’s long-standing public charge test. For

28 example, under the Rule, a household income above the 250 percent income threshold, $30,350 17
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1 for an individual or $62,750 for a family of four, is a heavily weighted positive factor, while a

2 household income at the 125 percent income threshold (currently $15,613 for an individual or

3 $32,188 for a family of four) is a negative factor. 84 Fed. Reg. 41,503-41,504; 8 C.F.R.

4 § 212.22(c). Other negative factors include being neither employed nor enrolled in school, not

5 speaking English well or at all, not having a high school diploma, being either under age 18 or

6 over age 61, and having any financial liabilities or a poor credit score. Id.

7

86. The Rule states that when evaluating an immigrant’s health, DHS will consider

8 whether the individual “has any physical or mental condition that […] is significant enough to

9 interfere with the person’s ability to care for himself or herself or to attend school or work, or that

10 is likely to require extensive medical treatment.” 84 Fed. Reg. 41,407. But the Rule additionally

11 includes a “heavily weighted negative factor” that gives significant consideration in a public

12 charge determination to whether the immigrant is “uninsured and has neither the prospect of

13 obtaining private health insurance, or the financial resources to pay for reasonably foreseeable

14 medical costs related to the medical condition.” 84 Fed. Reg. 41,504; 8 C.F.R. §212.22(c)(1)(iii).

15

87. The Rule also imposes two major changes regarding the treatment of public benefits.

16 First, it expands the list of public benefits programs considered in the public charge

17 determination. 84 Fed. Reg. 41,501; 8 C.F.R. §212.21. Previous DHS policy considered only

18 cash assistance for subsistence and institutionalization at public expense to be negative factors.

19 The Rule dramatically expands the types of public benefits considered in the public charge

20 determination to include almost all federally-funded Medicaid healthcare coverage, food

21 assistance through SNAP (known in California as CalFresh, and in Oregon as the Oregon Trail

22 Card), and various types of housing assistance. Second, immigration officials must now consider

23 any current or likely use of these benefits as a “heavily weighted” negative factor, even if the

24 value of the benefit reflects only small share of the immigrant’s total income, if the applicant

25 received any of the enumerated benefits for more than 12 months in the aggregate within a 36-

26 month period (receipt of two benefits in one month counts as two months). 84 Fed. Reg. 41,501;

27 8 C.F.R. §212.21(a).

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88. For the first time in the history of the public charge doctrine, the Rule makes low

2 wages alone a potential basis for a public charge determination. Having a family income below

3 $15,613 for an individual or $32,188 for a family of four—i.e. an income above the official

4 poverty level—is now a negative factor in the public charge determination. 84 Fed. Reg. 41,503;

5 8 C.F.R. §212.22(b)(4). This income threshold is entirely independent from the individual’s past

6 use of—or even application for—public benefits (itself a separate heavily negative factor, as

7 described in the paragraph above). Thus, immigrants who meet the Rule’s ostensible goal of

8 “self-sufficiency” by foregoing public assistance can still be deemed inadmissible on public

9 charge grounds simply because they earn less than an arbitrary amount selected by Defendants.

10

89. The Rule mandates use of household size as a factor in the calculation of household

11 income. The significance the Rule gives household size disfavors families that live together and

12 share resources, compared to single individuals. 84 Fed. Reg. 41,501-41,502; 8 C.F.R.

13 §212.21(d). This negative weight associated with family size is another first in the history of the

14 public charge doctrine and illustrates the Rule’s profound shift in orientation toward negative

15 treatment of immigrant families and the value of family unity.

16

90. The Rule substantially increases the minimum surety bond that an immigrant seeking

17 a green card who is found to be inadmissible on public charge grounds (but is not otherwise

18 inadmissible) may be permitted to submit. Under the current policy, the minimum bond is

19 $1,000. The Rule multiplies this by a factor of eight to a minimum of $8,100. This significant

20 upfront cost imposes a much greater burden than the contractual obligations that immigrants, their

21 families, and sponsors have traditionally agreed to when signing affidavits of support on behalf of

22 intending immigrants. The Rule also severely limits the use of public charge bonds, stating that

23 they “generally will not” be allowed if an immigrant “has one or more heavily weighted negative

24 factors” under the Rule. 84 Fed. Reg. at 41,451.

25

91. In a final major break from historic policy, the Rule calls for a new “condition” on the

26 approval of applications to change or extend visas by requiring applicants to establish that they

27 did not receive public benefits for more than 12 months in the aggregate within any 36-month

28 period from the time they received their visas. This condition creates new circumstances for visa 19
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1 holders to be found a public charge and makes the process for extensions and changes in

2 categories more onerous. 84 Fed. Reg. 41,507; cf. 8 C.F.R. §214.1(a)(3)(iv).

3

92. Altogether, these changes reject the long-standing “primary dependency” test for

4 inadmissibility on public charge grounds. In the words of Acting USCIS Director Ken

5 Cuccinelli, this Rule will rewrite the Emma Lazarus poem affixed to the Statue of Liberty to read,

6 “give me your tired and your poor who can stand on their own two feet and will not become a

7 public charge.”

8

B. Broad Scope and Disparate Impacts of the Rule

9

93. The Rule applies to several categories of people. Individuals currently living and

10 working in the U.S. who seek to adjust status to legal permanent residency, extend their legal

11 status, or change their visa category to reflect relevant life transitions, will potentially be subject

12 to the Rule. People in these scenarios include graduating students, temporary workers, or

13 undocumented persons who have married a U.S. citizen. This includes a vast number of people—

14 already living in the country—who have been waiting patiently in line for a visa through a

15 family-based immigration petition.

16

94. In 2017, approximately 380,000 individuals adjusted to legal permanent resident

17 status through a pathway that likely would have subjected them to a public charge determination

18 under the new Rule. Similarly situated immigrants will now be at risk of being found to be

19 inadmissible under the new Rule.

20

95. The new, bright-line thresholds for income alone will result in DHS finding many

21 more working immigrants likely to become a public charge.

22

96. The incomes of fifty-six percent of recently admitted immigrants—a huge proportion

23 of the workforce—would fall below the 250 percent income threshold, one of the Rule’s “heavily

24 weighed positive” factors. Many immigrant workers have incomes under the 125 percent

25 threshold, which is a “heavily weighted negative factor” under the Rule. The Rule recognized

26 that many people with incomes below the 125 percent income threshold will now receive a public

27 charge finding. 84 Fed. Reg. 41,417.

28 20
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97. For example, California childcare and early education providers’ average annual

2 income is only $30,000, which for a family of four, equates almost exactly to the Rule’s 125

3 percent income cutoff. Farmworkers earn less still, an average of $17,500 per year in seasonal

4 employment. And homecare workers earn just $14,000 in median annual income.

5

98. In the District of Columbia, earnings tend to be slightly more modest for immigrant

6 workers compared with District workers overall. The share of workers earning under $10,000 per

7 year is similar for immigrants and all District workers (13 to 14 percent). But immigrant workers

8 in the District are more likely than the average District worker to have annual earnings between

9 $10,000 and $49,999, and they are less likely to earn $100,000 or more a year than all District

10 workers. Approximately 36 percent of immigrant workers in the District are below 200 percent

11 of the federal poverty level.

12

99. In Oregon, a child day care providers’ average income is only $26,740, which for a

13 family of four, equates almost exactly to the Rule’s 125 percent income cutoff. Similarly, in

14 Oregon, farmworkers earn a median annual income of less than $26,500 per year home health

15 aides earn $26,450.

16

100. In Oregon, one must earn $21.26 an hour to afford a two-bedroom apartment with

17 unsubsidized rent. Workers earning minimum wage would need to work at least 79 hours a week

18 in order to afford rent on that same two-bedroom apartment.

19

101. In Pennsylvania, over 140,000 immigrants (16 percent) live below the federal

20 poverty level and over 300,000 immigrants (34.7 percent) live below 200 percent of the federal

21 poverty level. The median household income in Pennsylvania is $56,951, well below the 250

22 percent income threshold for a family of four ($64,375). There are over 380,000 Pennsylvania

23 residents living in immigrant families with incomes under the 250 percent threshold, but only

24 17,800 individuals living in immigrant families receiving a cash assistance benefit. This means

25 approximately 366,000 Pennsylvania residents have the potential to be subject to heavy scrutiny

26 under the Rule despite not receiving any cash assistance.

27

102. The Rule will have a profound disparate impact on immigrants from countries

28 whose residents are non-White, and who already face significant economic disadvantage. The 21
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1 poverty rate in California for Latinos (14 percent) is twice the poverty rate for Whites (7 percent).

2 For Blacks, the poverty rate is higher still, at 17 percent. In Pennsylvania, the poverty rate for

3 Hispanics (24 percent) and Blacks (23 percent) is more than three times that of Whites (7

4 percent). In Oregon, the poverty rate for Blacks is 25.8%, 19.4% for Latinos, and 12.4% for

5 Whites.

6

103. The gap between Latino and White elders in California is even wider than the

7 overall Latino-White general population gap; the poverty rate for Latinos over age 65 is more

8 than two-and-a-half times that for Whites. Thus, the Rule’s disproportionate effect will be even

9 more pronounced on elderly people of color and the extended families of which they are often a

10 critical part.

11

104. Non-White families in the United States are less likely to have the wealth necessary

12 to post the substantial minimum bonds that may be allowed for family members who are found to

13 be inadmissible on public charge grounds.

14

105. Further, many people of color tend to have considerably larger household sizes than

15 Whites, a function of housing costs, income, family size, culture, and the extended family living

16 arrangements discussed above. Conversely, the percentage of single-person households in

17 California is much higher among White families than Latino families and most other immigrant

18 groups.

19

106. Since the income needed to avoid a negative weight increases with larger household

20 sizes, the incomes of immigrants from communities of color are more likely to fall within the

21 negative band.

22

107. Because of these disparities, the Rule is more likely to prevent immigrants of color

23 in the United States from adjusting their status, or extending or changing their visas, compared to

24 their White immigrant counterparts. Defendants concede that the Rule “may impact in greater

25 numbers communities of color, including Latinos and AAPI [Asian-American, Pacific Islander]

26 […] and therefore may impact the overall composition of immigration with respect to these

27 groups.” 84 Fed. Reg. 41,369.

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1

108. In addition to immigrants directly affected by the Rule because they may be subject

2 to a public charge test, many more of our nation’s immigrants and families with mixed

3 immigration-status will be indirectly affected. The Rule’s inclusion of non-cash benefits as

4 relevant to any public charge determinations will create a chilling effect that will discourage

5 many other immigrants, such as refugees and asylees who are not otherwise subject to the Rule,

6 from accessing benefits that they need and for which they are eligible. See Section IV below.

7

109. Defendants concede that the Rule will have a “potentially outsized impact […] on

8 individuals with disabilities” while claiming that “disability itself would not be the sole basis for

9 an inadmissibility finding,” 84 Fed. Reg. 41,368, 41,410.

10

110. In fact, the Rule’s new criteria are so broad that they will exclude some persons with

11 significant disabilities solely on that basis. In addition to the already-existing health criteria, the

12 Rule now requires immigration officials to consider whether the applicant “has any physical or

13 mental condition […] significant enough to interfere with the person’s ability to care for himself

14 or herself […].” 84 Fed. Reg. 41,407. Medicaid-funded home and community-based services,

15 which can assist individuals with disabilities with self-care and help them attain and retain

16 independence and the ability to work, are treated as independent, heavily weighted negative

17 factors against an immigrant with a disability.

18 III. THE NEW PUBLIC CHARGE RULE IS DEEPLY FLAWED AND CONTRARY TO FEDERAL LAW

19

A. The Rule is Contrary to Law

20

111. A person who merely happens to be of moderate income or poor, or who is likely to

21 receive the types of public benefits that many other working members of society receive, is not a

22 “public charge” within the meaning of Section 212(a)(4) of the INA.

23

112. The Rule’s interpretation of public charge is inconsistent with all prior judicial

24 interpretations of that term to date.

25

113. Nor is the Rule consistent with prior agency interpretations of public charge. Past

26 DHS policy limited the term “public charge” to individuals likely to be “primarily dependent” on

27 cash benefits for income maintenance, or institutionalized in “primarily government-funded”

28 long-term care facilities.

23
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114. While application of the totality of the circumstances test involves some discretion,

2 prior interpretations of the term require a public charge determination to be founded upon an

3 individual’s primary dependence on the government for subsistence.

4

115. Bright-line thresholds for income as a factor in inadmissibility determinations are

5 contrary to the INA and to the IIRIRA’s codification of the “totality of the circumstances” test,

6 and also bear no relationship to the meaning of public charge as established by Congress.

7

116. For example, nothing in federal law supports establishment of an $8,100 minimum

8 surety bond, a significant increase over the current minimum. This amount is prohibitively high

9 and deprives immigrants of the individualized analysis required by the IIRIRA.

10

117. The bond requires low-income individuals to freeze significant assets in

11 government-held bonds for years. And while Defendants acknowledge that bond expenses may

12 further destabilize an applicant’s self-sufficiency, they fail to provide any meaningful explanation

13 why no alternative option would suffice, claiming that the mere likelihood of becoming a public

14 charge requires monetary assurance. 84 Fed. Reg. 41,454. The median American household’s

15 savings balance, regardless of citizenship status, is just $11,700. An $8,100 bond requirement

16 would decimate a typical family’s cash reserves, and require many to go into debt to obtain the

17 funds to post such a bond. The new bond requirement only increases the likelihood that an

18 immigrant will need to access public benefits in case of an emergency.

19

118. Pursuant to the IIRIRA, USCIS has for decades accepted legally enforceable

20 affidavits of support as contracts from sponsors, employers, and relatives, and in certain

21 circumstances, failure to provide such an affidavit renders the applicant inadmissible. Defendants

22 offer no explanation for not treating these affidavits as sufficient assurance that immigrant

23 applicants will not become overly reliant on the social safety net, without requiring immigrants to

24 freeze significant assets in government-held bonds for years. 84 Fed. Reg. 41,454.

25

119. The Rule’s inclusion in the definition of public charge of benefits used for more than

26 12 months in the aggregate within a 36-month period, where receipt of two benefits in one month

27 counts as two months, in supplemental medical, nutritional, or housing assistance, is also contrary

28 to Section 212(a)(4). 84 Fed. Reg. 41,501; 8 C.F.R. §212.21(a). 24
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120. Congress designed the programs enumerated by the Rule (community Medicaid,

2 SNAP, public housing and housing subsidies) to improve health outcomes and economic

3 opportunity for working communities. As the INS concluded twenty years ago, modern public

4 benefit programs reflect “broad public policy decisions about improving general public health and

5 nutrition, promoting education, and assisting working-poor families in the process of becoming

6 self-sufficient.” 64 Fed. Reg. at 28692.

7

121. Congress intended to give states the flexibility to make decisions about whether and

8 in what circumstances to include immigrants in certain federal benefit programs, and gave the

9 states even more flexibility with respect to state-funded programs. But immigrant families may

10 not know or be able to determine whether a program is federally or State-funded, and many will

11 disenroll from all public benefits as a precaution. The chilling effects of the Final Rule will

12 dramatically undercut state flexibility and reduce the ability of states to effectuate their respective

13 policy priorities.

14

122. Moreover, in the years since the original inclusion of the term “public charge” in

15 immigration law, Congress has enacted laws that substantially revise the rights of individuals

16 with disabilities. No longer is a person with a disability assumed to be a burden on society, and

17 receipt of publicly-funded support services—such as Medicaid personal care services to keep

18 individuals in their homes and communities as opposed to hospitals or other institutions—is

19 common. The rights of persons with disabilities to use such home- and community-based

20 services have been codified in the Rehabilitation Act, the Americans with Disabilities Act and the

21 Supreme Court’s landmark Olmstead v. L.C., 527 U.S. 581 (1999) decision, and the ACA.

22 Congress intended that Medicaid services for persons with disabilities help them “attain or retain

23 capability for independence or self-care.” 42 U.S.C. § 1396-1. Congress never intended to attach

24 negative weight to the receipt of such services for purposes of a public charge determination.

25

123. State laws go even further. For example, Pennsylvania has an “Employment First”

26 law designed to “ensure that individuals with a disability be given the opportunity to achieve

27 economic independence through jobs that pay competitive wages in community integrated

28 settings.” 62 Pa. Stat. Ann. § 3402(1). State, county, and other entities receiving public funding 25
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1 must consider competitive integrated employment as the preferred outcome of services and

2 support for individuals with a disability who are eligible to work under state law. 62 Pa. Stat.

3 Ann. § 3404.

4

124. The Public Charge Rule attaches heavily negative weight to a healthcare program,

5 Medicaid, that working individuals with disabilities use to support their independence.

6

125. The Rule’s addition of community-based Medicaid, in addition to heavily weighting

7 those who have been “diagnosed with a medical condition” that will “interfere with the alien’s

8 ability to support him or herself,” 84 Fed. Reg. at 41316, means that some persons with

9 disabilities now face an impossible hurdle to admissibility.

10

126. Defendants’ attempted transformation of long-standing law and policy concerning

11 who may be considered a public charge undermines Congress’ well-established goals of family

12 reunification. Congress did not delegate authority to DHS to make these changes to national

13 immigration policy. Similarly, DHS does not have authority to make substantial changes to

14 impacting immigrant access to healthcare and other congressionally authorized benefit programs.

15

B. Defendants Fail to Offer Adequate Justification for the Rule

16

127. The APA requires reasonable justification for agency action, in particular where

17 long-standing regulations are changed. DHS has not presented evidence or research to justify its

18 profound changes in the Public Charge Rule.

19

128. The Rule’s purported justifications—to “minimize the incentive of aliens to

20 immigrate to the United States because of the availability of public benefits and to promote self-

21 sufficiency of aliens within the United States,” 84 Fed. Reg. 41,309— are not based on the

22 statute, and is not even served by provisions of the Rule itself.

23

129. Those subject to the Rule’s new changes—including immigrants adjusting to LPR

24 status and those seeking to extend or change visa categories—are largely ineligible for any of the

25 newly enumerated federal benefits. Defendants acknowledge that “[noncitizens] who are

26 unlawfully present and nonimmigrants [visa holders] physically present in the United States are

27 generally barred from receiving federal public benefits other than emergency assistance,” and in

28 fact, remain barred once admitted into lawful status for an additional five years. 84 Fed. Reg. 26
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1 41,313. Furthermore, the Rule will primarily impact individuals adjusting status or changing

2 their visa conditions who are generally not seeking to immigrate—they are already living in the

3 United States.

4

130. In light of these narrow direct effects, penalizing the use of congressionally

5 authorized public benefits for individuals already residing in the U.S. in a manner that creates

6 even broader chilling effects is not a proportionate or rational method to minimize incentives for

7 immigration to the U.S.

8

131. The Rule’s design fails to promote self-sufficiency because its income threshold is

9 prohibitive even to low- and moderate-wage workers who do not use public benefits, and instead

10 stifles a noncitizen’s ability to attain upward mobility by creating barriers to medical coverage

11 and lawful employment.

12

132. Nor is self-sufficiency served by a rule that discourages the use of non-cash

13 healthcare, housing, and nutrition assistance. Public benefits such as SNAP, for example, are

14 intended to supplement, not replace, an individual’s ability purchase of basic food. Programs such

15 as SNAP also provide employment services and enable families to afford to work and pay for

16 housing. As the administrative record shows, many workers and their dependents, regardless of

17 immigration status, qualify for, utilize, and rely upon a wide range of public benefits. Nearly

18 three quarters of enrollees in the major federal programs are members of working families.

19 Overall, across immigration and citizenship categories, almost 60 percent of households with

20 workers in the lowest decile of hourly wages (earning less than $7.42 per hour), and over half of

21 those in the next highest decile (between $7.42 and $9.91 per hour), receive one of the public

22 benefits enumerated in the Rule.

23

133. Moreover, low-wage rates of many immigrants are not determinative of their

24 abilities to contribute to and advance in the United States. Immigrants work and contribute far

25 more to the U.S. economy than they ever receive in public benefits. Nevertheless, the Rule

26 irrationally penalizes many immigrants for their low wages.

27

134. Defendants’ stated purpose of promoting self-sufficiency is further undermined by

28 the Rule’s focus on income-earning capacity and age, neglecting the important contributions that 27
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1 non-citizen parents of adult children (themselves often naturalized citizens) make to support

2 households’ economic self-sufficiency and emotional health.

3

135. In many working-class households, grandparents may be caretakers, providing

4 critical support for working parents and their small children, or family members with illnesses or

5 disabilities. The Rule penalizes such arrangements based on the household’s income even when

6 the applicant would add value to, and save costs for, the household, notwithstanding the Rule’s

7 exemptions for caregivers.

8

136. In adopting the Rule, Defendants ignored evidence in the administrative record

9 showing that the Rule would cause serious harm to immigrants, their families, their communities,

10 and Plaintiffs. See 84 Fed. Reg. 41,417. These harms are described in more detail in Sections IV

11 and V below.

12

137. Defendants refused to consider in the design of the Rule substantial evidence that

13 despite the Rule’s various exemptions (e.g., for school-based Medicaid or vaccines), the Rule will

14 have the predictable effect of causing harm to vulnerable populations and the community at large,

15 due to chilling effects.

16

138. In addition, Defendants included an exemption for individuals under the age of 21

17 who receive Medicaid benefits, but did not include a similar exemption for individuals under the

18 age of 21 who receive SNAP benefits. 84 Fed. Reg. 41,501; 8 C.F.R. §212.21(b)(5)(iv). The

19 Rule does not acknowledge or address the harsh results that the Rule will impose on legal

20 permanent resident children who will be subject to the public charge test pursuant to 8 U.S.C.

21 § 1101(a)(13)(C) for reasons not within their control.

22

139. Although Defendants acknowledged when proposing the Rule that it may have the

23 impact of “decreas[ing] disposable income and increas[ing] the poverty of certain families and

24 children, including U.S. citizen children,” 83 Fed. Reg. 51277, it failed to conduct any

25 meaningful assessment of chilling effect impacts on families’ well-being or on the State and local

26 entities that will be impacted.

27

140. The Rule provides an exemption from the public charge test for military service

28 members and their spouses and children. The factors considered in creating the military 28
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1 exemptions also apply to individuals who work in other low-wage sectors, such as agriculture, but

2 Defendants failed to address those considerations.

3

141. Defendants failed to weigh substantial reliance interests, including those associated

4 with Plaintiffs’ integration of the administration of state and federal benefits, and other policies

5 designed to promote broad-based access to healthcare services.

6 IV. THE RULE WILL REDUCE PARTICIPATION IN VALUABLE PUBLIC PROGRAMS

7

142. As Defendants acknowledge, 84 Fed. Reg. 41,312, the Public Charge Rule will have

8 a chilling effect on immigrants’ willingness to avail themselves of critically needed public

9 benefits.

10

143. The mere prospect of a public charge determination under the Rule will cause

11 widespread confusion and fear, discouraging individuals from participating in public benefit

12 programs in which they are eligible and authorized to participate.

13

144. Defendants estimate that this chilling effect will result in a 2.5 percent disenrollment

14 rate in programs that are expressly included in the new public charge test (Medicaid, SNAP, and

15 housing assistance). 84 Fed. Reg. 41,463. According to the Rule’s estimates, over 324,438

16 individuals who are members of households with foreign-born noncitizens and about 9,632

17 households with at least one foreign-born noncitizen may forgo benefits for which they are

18 eligible—an aggregate annual value that Defendants estimated to be over $1.5 billion. Id.; 83

19 Fed. Reg. 51,266-69.

20

145. These estimates grossly understate the likely magnitude of chilling effects. The

21 Rule fails to quantify or weigh the chilling effects that will also impact immigrants who are not

22 subject to the Public Charge Rule, U.S. citizens in mixed-status families, and public benefits, both

23 state and federal, ostensibly exempted from consideration under the Rule.

24

146. History demonstrates the likelihood of even greater chilling effects. The 1996

25 enactment of the PRWORA caused disenrollment rates between 15 percent and 35 percent for all

26 noncitizen immigrants and children in families with mixed immigration status. Chilling effects

27 for refugees have historically been even higher—with up to 60 percent disenrollment found in

28 29
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1 some cases, despite the fact that refugees have been generally exempted from restrictions on

2 access to benefits.

3

147. Plaintiffs operate a number of important programs that serve state residents,

4 including immigrants, and will be negatively affected by the Rule’s chilling effect.

5

148. California’s Medi-Cal provides healthcare coverage for one out of every three

6 Californians, including more than two million noncitizens. Similarly, one-third of the residents of

7 the District of Columbia receive quality health care through the Medicaid program, including

8 eligible noncitizens in accordance with federal law. Over one-fifth of Pennsylvania residents

9 receive health care through Pennsylvania Medical Assistance. Approximately 23% of

10 Oregonians receive quality health care through the Medicaid program, with children making up

11 over half of the recipients. Oregon’s Medicaid program is available to eligible noncitizens.

12

149. Some of the noncitizens in the Plaintiff States who are eligible are enrolled in

13 Medicaid programs that are funded with federal matching funds. Noncitizens in the Plaintiff

14 States who are not eligible to participate in federally-funded Medicaid programs are enrolled in

15 authorized state-funded programs. In practice, however, many participants do not distinguish

16 between different types of publicly-funded healthcare services. Fear that participation will

17 jeopardize immigration status will affect utilization of all services, even those exempt from the

18 Rule.

19

150. Plaintiffs’ Medicaid programs provide comprehensive healthcare benefits to

20 millions of participants. In California, for example, full-scope Medi-Cal gives beneficiaries

21 access to primary and preventive care, oral healthcare, hospitalization, prescription drugs,

22 behavioral healthcare, and other vital services.

23

151. Limited scope healthcare programs offer more targeted services. For example,

24 California’s state-funded Family Planning, Access, Care, and Treatment (Family PACT) program

25 is available to eligible low-income men and women in need of family planning coverage. Family

26 PACT services include a full range of FDA-approved contraceptives and comprehensive

27 education, assistance, and services related to family planning.

28 30
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1

152. CHIP federal funds are used to extend Medicaid funding to children in working

2 families whose parents or guardians exceed the income eligibility threshold for Medicaid, but

3 lack access to affordable private coverage. In California, District of Columbia, and Oregon,

4 CHIP is part of the Medicaid program.

5

153. Hundreds of thousands of Californians are likely to disenroll from Medi-Cal as a

6 result of the Rule. Those likely to disenroll include more than 40,000 children with at least one

7 potentially life-threatening condition, such as asthma, influenza, diabetes, epilepsy, or cancer;

8 27,000 children using prescribed medications; 24,000 newborns; and 17,000 children with

9 musculoskeletal and rheumatologic conditions.

10

154. Medicaid and CHIP provide health coverage to more than 132,000 children in

11 Oregon who are U.S. citizens and have at least one immigrant parent. If the immigrant parents

12 avoid health care coverage, for fear of losing their immigration status, so will their child.

13

155. Thousands of residents in the District of Columbia are also likely to disenroll or

14 forgo enrollment in the District’s Medicaid program, and its other District-funded health care

15 programs for immigrants who do not qualify for federal benefits. Currently, there are 9,800

16 Medicaid enrollees who are asylees, refugees, lawful permanent residents beyond the five-year

17 bar, or have other qualifying immigration status. In addition, more than 18,000 District residents

18 are currently enrolled in the District-funded Alliance and ICP. Many of these individuals will

19 choose to opt out of coverage out of concern for their immigration status, or that of their family

20 members.

21

156. Thousands of residents in Oregon are also likely to disenroll or forgo enrollment in

22 Oregon’s Medicaid program, and its other state-funded health care programs for immigrants who

23 do not qualify for federal benefits. Oregon DHS’s call center has already had a surge in calls

24 from concerned immigrants.

25

157. Pennsylvania Medical Assistance provides health coverage to almost 330,000

26 individuals with a household member who is a non-citizen. The total number of these non-

27 citizens is nearly 175,000. Pennsylvania-funded Medical Assistance currently covers nearly

28 1,800 immigrant children and pregnant women who not otherwise qualify for federally funded 31
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1 Medical Assistance. If 35 percent of immigrant families disenrolled from Medical Assistance,

2 almost 37,500 Pennsylvania families would lose health insurance.

3

158. As commenters on the proposed rule noted, some of the chilling effects began

4 occurring before the Rule was even finalized. For example, the District of Columbia’s

5 Department of Health Care Finance noted in its comment letter that it had already seen a 3.5

6 percent average decline in participation in local health care programs that extend coverage to

7 immigrant adults and children. Local health providers in the District of Columbia reported that

8 this decline was directly attributable to fear and confusion about the application of a new public

9 charge rule and its effect on the immigration status of immigrant families.

10

159. SNAP helped more than 39 million people avoid food insecurity in 2018. In

11 providing SNAP benefits for the nation’s most vulnerable immigrants, Congress recognized the

12 critical nature of nutrition for healthy families and communities.

13

160. In 2017, in California alone, SNAP served over four million California residents,

14 including more than a million people at risk of chilling effects due to the Rule. More than 74

15 percent of SNAP participants are in families with children, and almost 9 percent were in families

16 with members who are elderly or have disabilities. In addition, the California Food Assistance

17 Program provides state-funded nutrition services for certain noncitizens who are not eligible for

18 federal benefits.

19

161. SNAP provides critical nutrition support to more than 64,000 households

20 comprising more than 100,000 residents of the District of Columbia. SNAP provides eligible

21 individuals and families, including qualified immigrants and their families, non-cash benefits to

22 support the health and well-being of low-wage workers, families, and elders. In addition, many

23 children in the District are directly certified for free or reduced-price school meals as a result of

24 their families’ participation in SNAP. The Public Charge Rule will chill participation of these

25 eligible individuals and families in SNAP.

26

162. In March 2019, there were more than 1.75 million Pennsylvania residents receiving

27 essential food access via SNAP. There are almost 150,000 individuals receiving SNAP who live

28 in a household with a non-citizen. The total number of these non-citizens is nearly 80,000. 32
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1 Pennsylvania has already witnessed a decrease in the number of SNAP cases since the Rule was

2 first proposed in 2018. If 35% of immigrant families disenrolled from SNAP, more than 17,600

3 Pennsylvania families would lose access to basic nutrition.

4

163. DHS has conceded the Rule will lead to disenrollment of children from SNAP, a

5 critical nutritional support. 84 Fed. Reg. 41,477.

6

164. More than one hundred thousand Californians are likely to disenroll from CalFresh

7 as a result of the Rule.

8

165. In Oregon, SNAP or food stamp benefits are administered under a program called

9 the Oregon Trail Card. Approximately 597,000 Oregonians are using SNAP benefits in 2019,

10 which benefits around 351,000 households. Of those, approximately 25,000 children on

11 Oregon’s SNAP caseload in the past year have an immigrant family member. Oregon is already

12 experiencing a decrease in applications for benefits due to fears that participation could affect a

13 family member’s immigration status. Children living in households who choose not to participate

14 in SNAP or Medicaid, for fear of impacting their immigration status, will not automatically

15 qualify for free or reduced-price school meals.

16

166. In 2017, more than 58,000 District residents received housing assistance that will be

17 included as a “public benefit” under the Rule. More than 1,000 noncitizens in the District,

18 including more than 400 noncitizens above the age of 62 received these benefits in 2017. Up to

19 1,000 District households could be negatively impacted by the Rule.

20

167. In 2017, more than one million Californians received a type of housing assistance

21 that is now included as a public benefit under the Rule, including Section 8 housing vouchers or

22 rental assistance, public housing, or other federal subsidies.

23

168. Oregon Housing and Community Services has approximately 400 children in HUD-

24 project housing with a head or co-head/spouse who is an immigrant. The proposed rule change is

25 likely to negatively impact these families and children. If immigrant children become homeless,

26 this will be a significant negative impact. With regard to health outcomes, young children who

27 experienced homelessness for more than six months were significantly more likely to have

28 developmental delays, fair or poor health, and be hospitalized, than children who never 33
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1 experienced homelessness or did so for less than six months. Thus, Oregon children who are U.S.

2 citizens, but have immigrant parents, have much more to lose than just their homes because of

3 this Rule.

4

169. In Pennsylvania, 175,600 residents in 78,200 households use Section 8 Housing

5 Choice Vouchers to afford decent, privately owned housing. There are an additional 406,700

6 people in 217,000 Pennsylvania households using Section 8 Rental Assistance.

7 V. THE RULE WILL CAUSE IMMEDIATE, IRREPARABLE HARM TO PLAINTIFFS’ COMMUNITIES, ECONOMIES AND PUBLIC SYSTEMS
8
A. The Rule Will Harm the Administration of Public Programs and Services 9
1. Loss of Federal Funds to Support State Public Benefit Programs 10
170. The Rule’s chilling effects will harm Plaintiffs by reducing the number of eligible 11
individuals who choose to participate in public benefits programs, thereby causing loss of federal 12
funding associated with all individuals who were otherwise eligible for federally funded 13
programs. 14
171. For example, Plaintiffs receive 50 percent or more in federal matching funds for 15
qualified Medicaid expenditures. Noncitizens who are eligible for federally funded Medicaid but 16
choose not to apply for such benefits reduces the amount of federal funding with which Plaintiffs 17
can ensure that their residents have access to healthcare. 18
172. Families with mixed immigration-status, i.e., families that include both U.S. citizen 19
children and noncitizen parents, are particularly at risk of disenrollment due to chilling effects. 20
When parents perceive enrollment in public programs to place their own immigration status at 21
risk, they are less likely to enroll their children in those programs as well, even if their children 22
are U.S. citizens. For this reason, even though Defendants excluded CHIP from the list of 23
programs considered in a public charge determination, enrollment in CHIP is threatened by the 24
Rule. 25
2. Harm to State Programs’ Reliance Interests 26
173. Plaintiffs’ efforts to ensure broad-based access to health and nutrition programs 27
have engendered significant reliance interests that will be harmed by the Rule. 28
34
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1

174. Plaintiffs have made deep investments in human services and public healthcare

2 infrastructure, and encouraged broad-based participation in healthcare and nutrition programs.

3

175. Plaintiffs have succeeded in reducing rates of individuals without health insurance

4 to historic lows. In California, for example, 96 percent of children currently have private or

5 public health insurance. In Pennsylvania, 94.5% of residents and 95.6% of children have health

6 insurance. In Oregon, 97.1% of children are insured.

7

176. As part of these efforts, Plaintiffs have developed complex systems to implement

8 public benefit programs in a timely, efficient, and accurate manner. They have designed

9 streamlined processes for benefits applications, eligibility determinations, and benefits

10 distribution, as well as communications with applicants, beneficiaries, and the general public.

11

177. California has heavily invested time and monetary resources in outreach and

12 enrollment in public benefit programs. For example, as part of its implementation of the ACA,

13 CalHEERS, a central automation system jointly administered by Covered California (the state’s

14 health insurance Exchange) and the Department of Health Care Services, that consolidates state

15 eligibility enrollment and retention for both Covered California and Medi-Cal. CalHEERS is

16 designed to integrate federal and state-funded health programs and to provide beneficiaries with

17 timely and clear eligibility notices regarding coverage.

18

178. Also in connection with the ACA, California established a single, accessible

19 statewide application for all affordable health programs. This application is used by all California

20 entities authorized to make eligibility determinations, and all California residents are encouraged

21 to apply.

22

179. In designing CalHEERS and the single statewide application, California

23 substantially relied upon longstanding federal agency guidance that limited benefits relevant to

24 public charge determinations to a discrete, easily understood list that included only direct cash

25 assistance programs and institutionalization at government expense.

26

180. Similarly, the District of Columbia has implemented a “no wrong door”

27 environment for District residents seeking help with insurance coverage and costs. The District’s

28 Health Benefits Exchange Authority (HBX) created and operates DC Health Link, where District 35
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1 residents and employees, including qualified immigrants, can apply for Medicaid and purchase

2 private health insurance.

3

181. DC Health Link also provides information and links to more information about the

4 District-funded programs that are available to immigrants who do not qualify for Medicaid and

5 those who are not eligible to the use the Health Benefits Exchange. The District provides a

6 Combined Application for the Alliance Program and the ICP, which is also used to apply for

7 other public benefits, including SNAP.

8

182. In Pennsylvania, COMPASS is central online tool for Pennsylvanians to apply for

9 many health and human service programs and manage benefit information. Pennsylvania

10 implemented COMPASS with the approval of the federal Centers for Medicare and Medicaid

11 Services as part of Pennsylvania’s implementation of the ACA. COMPASS serves as a single

12 access point for Medical Assistance, SNAP, free or reduced price school meals, subsidized

13 childcare, and cash assistance. COMPASS allows Pennsylvania residents to see if they or their

14 household members qualify for benefits, apply for and renew benefits, save and submit

15 applications, check the status of applications, submit documents electronically, view their case

16 benefit information, report changes to their cases, receive notices electronically, and manage

17 other aspects of their cases online.

18

183. Pennsylvania has also created a single paper application for Medical Assistance and

19 SNAP, among others.

20

184. In connection with the implementation of the Affordable Care Act (ACA), Maine

21 modified its automated eligibility system, ACES, that consolidates state eligibility enrollment and

22 retention for the federal health insurance exchange and MaineCare. Also in connection with the

23 ACA, Maine has established a single, accessible statewide application for all affordable health

24 programs.

25

185. If immigrants and their family members become confused or fearful about the

26 possibility of a public charge determination, and decide to stop using statewide application and

27 enrollment systems, then those systems will not operate as effectively as they do now. The

28 State’s ability to provide broad-based access will be compromised. 36
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1

186. Another policy that will be undermined by the Rule is Plaintiffs’ election of the

2 option provided under federal law for twelve-month continuous certification periods for

3 Medicaid.

4

187. The Rule puts a strict twelve-month limit on overall time spent receiving public

5 benefits for public charge purposes, regardless of whether services are used during that period of

6 time. In doing so, the Rule incentivizes “churn,” the phenomenon of otherwise eligible

7 immigrants dropping in and out of Medicaid enrollment based on their perceived or actual

8 medical needs, in order to reduce risks to their immigration status.

9

188. Churn creates undesirable gaps in coverage that can disrupt the continuity of

10 healthcare services, leading to worse patient outcomes and higher administrative costs. The Rule

11 thus undermines the efficacy of twelve-month continuous enrollment periods.

12

189. In these and other healthcare and nutrition policy choices, Plaintiffs’ legislatures

13 and/or state agencies relied upon federal immigration authorities’ long-standing guidance on

14 immigrant inadmissibility in order to encourage immigrants’ participation in congressionally

15 authorized benefit programs for which they are eligible.

16

3. Additional Administrative Burdens Caused by the Rule

17

190. Implementation of the Rule will cause additional administrative and fiscal burdens

18 for Plaintiffs.

19

191. State agencies will need to divert outreach and education funds in order to explain

20 the Rule to affected communities.

21

192. Plaintiffs already engage in extensive outreach efforts to inform and educate the

22 public about availability of healthcare and nutrition programs. For example, since the ACA’s

23 initial open enrollment in 2013, Covered California has spent approximately $91,575,000 on

24 targeted marketing campaigns designed to educate communities with high populations of eligible

25 immigrants about the benefits of enrolling in health insurance coverage, including Spanish-

26 speaking and Asian communities. The State’s FFY 2019-2021 CalFresh outreach plan has an

27 annual budget of over $44 million for each of those three years, and funds 145 contractors and

28 subcontractors and works with local government agencies, local schools, community-based 37
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1 organizations, the California State University system, and many others to encourage CalFresh

2 enrollment.

3

193. The Oregon Department of Human Services (“ODHS”) provides refugee assistance

4 services, coordinating with Refugee Resettlement Agencies to provide assistance for refugee

5 families in applying for social services, medical benefits, vocational training, employments

6 supports and language training.

7

194. Pennsylvania has allocated almost $500,000 for SNAP outreach.

8

195. Portions of these budgets will have to be diverted in order to evaluate the Rule’s

9 impact, train employees and volunteers, and develop new outreach materials and applications.

10

196. Plaintiffs’ outreach programs specifically includes outreach to immigrant or non-

11 English-speaking communities. State agencies have developed outreach materials and training

12 guidelines that make clear that nutrition benefits have not been considered part of a public charge

13 determination.

14

197. The Rule will necessitate the diversion of resources toward revising materials that

15 provide technical support and advice to community members and stakeholders confused by the

16 Rule.

17

B. The Rule Will Harm Health and Well-Being of Plaintiffs’ Residents

18

198.The Public Charge Rule will cause harm to the intended beneficiaries of public

19 benefit programs, leading to deterioration of public health and well-being. These irreparable

20 harms are abundantly demonstrated throughout the administrative record. Ultimately, Plaintiffs

21 will bear costs associated with many of these harms.

22

1. Impact on Health

23

199. Healthcare coverage makes a real difference to its recipients. Medicaid coverage

24 has proven positive impacts on health; improves access to prescriptions; reduces financial

25 hardship; helps women plan their pregnancies; and reduces preventable mortality.

26

200. In addition to benefits to the individual, healthcare services help Plaintiffs prevent

27 the spread of communicable diseases; prevent, prepare for and respond to public health threats

28 and emergencies; and achieve numerous other health-related goals. Conversely, reductions in 38
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1 utilization of publicly-funded healthcare services due to immigrants’ decisions to avoid or

2 minimize potential risks to their immigration status will have a direct, long-term negative effect

3 on Plaintiffs’ ability to protect the public health.

4

201. For instance, California’s Department of Public Health works to promote healthy

5 communities by providing for the control and prevention of infectious diseases like the Zika

6 virus, HIV/AIDS and other sexually transmitted diseases, tuberculosis, and viral hepatitis, and the

7 prevention of unintended pregnancies. California invests about $7 million annually so that local

8 health departments can administer half a million doses of influenza vaccine that protect

9 vulnerable populations, such as pregnant woman, children under five, adults over 65, and people

10 with chronic conditions who are at high-risk for flu-related complications.

11

202. The District of Columbia’s Vaccines for Children (VFC) Program provides

12 qualifying health care practices with free vaccines for persons under the age of 19 who are

13 eligible for Medicaid, uninsured, or underinsured. It is a federally-funded program that provides

14 vaccines free of charge to enrolled providers that serve eligible patients. VFC helps ensure that

15 all children have a better chance of getting their recommended vaccinations on schedule.

16

203. The Pennsylvania Department of Health (PADOH) works to promote healthy

17 lifestyles, prevent injury and disease, and to assure the safe delivery of quality health care for all

18 Commonwealth residents. PADOH programs facilitate, among many other things: breast and

19 cervical cancer screenings; immunizations to children who cannot easily afford childhood

20 immunizations; HIV treatment and care; prescription drug monitoring; research, education,

21 prevention, and intervention activities regarding cancer, tobacco use, and lead hazards; and

22 operational support for public health emergencies and emerging diseases such as measles, Ebola,

23 influenza, Lyme disease, Zika, sexually transmitted diseases, and Hepatitis A, B, and C.

24

204. The Maine Center for Disease Control offers free vaccines to individuals who are

25 uninsured or underinsured, including noncitizens.

26

205. Public health efforts are most effective when they encompass the States’ entire

27 population, including immigrants. Protection of population health depends on broad-based access

28 to healthcare services.

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1

206. The Rule’s restrictions on receipt of federally funded Medicaid and its chilling

2 effects on all public healthcare benefits will make it harder for state agencies to reach populations

3 in need.

4

207. Defendants acknowledge that the Rule does not assure access to vaccinations to an

5 extent that mirrors the PRWORA-defined exceptions for immunizations and testing and treatment

6 of communicable diseases. 84 Fed. Reg. 41,384 (“[T]his final rule does not consider receipt of

7 Medicaid by a child under age 21, or during a person’s pregnancy . . . This should address a

8 substantial portion, though not all of the vaccination issue.”). Under the Rule, if a person “enrolls

9 in Medicaid for the purpose of obtaining vaccines, the Medicaid itself qualifies as a public

10 benefit.” Defendants are aware of the concerns that the Rule will increase the prevalence of

11 disease and put at risk the health of vulnerable populations, even those not directly subject to the

12 rule, 84 Fed. Reg. 41,311, but instead of quantifying these costs, DHS simply opines that such

13 actions would be “unwarranted choices.” 84 Fed. Reg. 41,313.

14

208. Rates of vaccinations and other preventive public health services make a difference

15 not just to those who are unvaccinated, but to the overall health of the community at large.

16 Community immunity, also known as “herd immunity,” is achieved only when a sufficient

17 proportion of a population is immune to an infectious disease, making the disease’s spread from

18 person to person unlikely. Community immunity helps protect individuals who cannot be

19 vaccinated due to compromised immune systems, such as newborns and persons with chronic

20 illnesses.

21

209. The Rule will severely undermine access to all public healthcare services—from

22 preventative screenings for sexually transmitted diseases to childhood immunizations—and in

23 doing so place the entire community’s health at risk.

24

2. Impact on Hunger

25

210. The Rule’s chilling of eligible immigrants from seeking both federally and state-

26 funded nutrition assistance will thwart Plaintiffs’ programs addressing hunger and food

27 insecurity.

28 40
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1

211. Annually, between 2009 and 2012, SNAP kept an average of 806,000 people out of

2 poverty in California, including 417,000 children. In Pennsylvania, SNAP currently provides

3 essential food assistance to more than 1.75 million Pennsylvanians, including almost 80,000

4 immigrants.

5

212. Reduced access to SNAP benefits leads to food insecurity, which is associated with

6 numerous negative health outcomes in children, such as depression, fatigue, poor self-efficacy,

7 and behavioral problems. Low-income children who go without nutritious food will struggle to

8 learn in classrooms, impacting their educational advancement and that of their peers.

9

213. Conversely, food security translates to better health outcomes and lower public

10 healthcare expenditures. Low-income adults participating in SNAP incur about $1,400 less in

11 medical care costs in a year than low-income non-participants. When immigrants forego SNAP,

12 these benefits will be lost.

13

214. The Census Bureau also uses receipt of SNAP benefits to calculate the Supplemental

14 Poverty Measure, which “serve[s] as an additional indicator of economic well-being and will

15 provide a deeper understanding of economic conditions and policy effects.” Disenrollment from

16 SNAP will undermine the accuracy of this measure and therefore misrepresent national and

17 statewide economic conditions.

18

215. In addition to harming individual SNAP recipients, the Rule will have a broader

19 negative impact on the National School Lunch Program and School Breakfast Program

20 (collectively “school meals” programs), despite the fact that those benefits are not included in the

21 Rule’s new public charge determination.

22

216. School meals programs help to fight hunger and obesity by assisting schools in

23 providing healthy meals to children.

24

217. Although the Rule exempts these programs from its definition of “public benefits,”

25 the Rule will still indirectly undermine school meals programs and their goal of ensuring

26 adequate nutrition for America’s schoolchildren because the school meal programs’ automatic

27 enrollment process is linked to participation in SNAP and Medicaid. DHS notes the importance

28 of these processes to school meals, but merely states, without explanation, that the Rule “will not 41
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1 stop the child from accessing these programs through existing enrollment process other than

2 direct certification.” 84 Fed. Reg. 41,374.

3

218. California currently certifies over 730,000 children for free meals and over 310,000

4 children for reduced price meals due to their households’ participation in Medicaid, as well as

5 almost 1.6 million children for free meals due to their households’ participation in SNAP.

6

219.Oregon automatically certifies approximately 47% of its children for free and reduced

7 lunches, many due to the households’ participation in Medicaid or SNAP.

8

220. In the 2017-2018 school year, Pennsylvania served more than 167 million school

9 lunches, enabling children from low-income households to focus on learning, not hunger.

10 Pennsylvania families that qualify for Medical Assistance, SNAP, or TANF are automatically

11 eligible for free school lunches. Pennsylvania is one of only a few states that provide direct

12 certification based on Medical Assistance.

13

221. In Maine, for the 2018 year, SNAP helped to keep on average 167,000 people out of

14 poverty in Maine, including 60,000 children.

15

222. Maine currently certifies approximately 60,000 children for free meals due to their

16 household’s participation in SNAP.

17

223. Without these automatic certifications, many eligible children in Plaintiffs’

18 jurisdictions will go without free or reduced-price school meals.

19

224. The community eligibility provision of the school meals program allows all students

20 in eligible communities to obtain free school meals without a showing of individual eligibility.

21 For example, where at least 40 percent of students in a particular school are directly certified for

22 free meals through programs like SNAP, all students receive free school lunch. If the percentage

23 of eligible students dips below that mark, however, the school can no longer offer free schools

24 meals to all.

25

225. Thus, the Rule will cause some students in lower-income areas who are not

26 themselves eligible for nutritional assistance based on higher household income—but may

27 nevertheless be struggling with hunger—to lose access to healthy meals provided by their local

28 school to all children.

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1

3. Impact on Housing

2

226. Loss of housing assistance will also seriously harm affected families.

3

227. Housing vouchers have been repeatedly shown to improve children’s educational

4 and health outcomes, and to help pull their families out of poverty.

5

228. Children whose families were able to move to higher opportunity neighborhoods

6 due to their receipt of housing assistance experienced long-term improvements in their income

7 and educational attainment. Children in these families also experienced reduced homelessness,

8 housing instability, and overcrowding.

9

229. A study conducted by the U.S. Housing and Urban Development Department

10 (HUD) showed that youth who live in public housing improved their self-sufficiency long term.

11

230. In contrast, if immigrant children become homeless, this will cause significant

12 negative impacts. Young children who experience homelessness for more than six months are

13 significantly more likely to have developmental delays, fair or poor health, and be hospitalized,

14 than children who never experienced homelessness or did so for less than six months.

15

231. In addition, many housing authorities provide a suite of “wraparound” services to

16 public housing residents, including employment, clinical, health, and financial literacy services.

17 In San Francisco, for example, an innovative program aimed at families involved with the child 18 welfare system and at risk of homelessness offers housing vouchers along with intensive case 19 management services, including mental and behavioral healthcare, parenting classes, and peer 20 support.

21

232. All of these will be lost to eligible families who withdraw from public housing

22 assistance programs or fail to apply due to fear of impact on their immigration status, harming 23 families and their communities, and undermining program effectiveness.

24

C. The Rule Will Cause Economic Harms to States

25

1. Impact on Healthcare Providers and Insurers

26

233. The Public Charge Rule will cause direct economic harm to Plaintiffs in the form of

27 increased uncompensated costs for hospital care.

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1

234. Since passage of the ACA, which Congress enacted to increase access to care and

2 improve healthcare affordability, in part, by increasing the insured proportion of the population,

3 Plaintiffs have experienced a considerable decrease in the number of uninsured residents. This is

4 predominantly attributable to the expansion of eligibility in Medicaid programs and the newfound

5 availability of health coverage through exchanges.

6

235. Participation of eligible immigrants without fear of negative impacts on their ability

7 to naturalize is a meaningful part of that improvement. But now, hundreds of thousands of

8 immigrants who have purchased health insurance through state exchanges, like Covered

9 California, or who have taken advantage of Medicaid coverage for which they are eligible, may

10 be impacted or chilled by the Public Charge Rule.

11

236. Immigrants, on average, use fewer healthcare services than similarly situated native-

12 born U.S. residents, and their participation in health care systems lowers costs for all participants

13 in the insurance pool.

14

237. The Public Charge Rule reverses these achievements and undoes the virtuous circle

15 of more healthcare coverage, improved health outcomes, and lower costs.

16

238. Defendants admit that the proposed regulation could lead to “increased use of

17 emergency rooms and emergent care as a method of primary health care due to delayed

18 treatment” and “increases in uncompensated care in which a treatment or service is not paid for

19 by an insurer or patient.” 84 Fed. Reg. 41,384. However, Defendants fail to acknowledge and

20 weigh the full ramifications of these harms.

21

239. Higher rates of uninsured residents have a negative financial impact on hospital

22 systems—which are charged with providing care in emergency situations regardless of insurance

23 coverage—and therefore adversely impact community access to quality healthcare for all local

24 residents.

25

240. The Rule will have a particularly harmful effect on hospitals that serve a

26 disproportionate share of low-income individuals. These facilities already operate on thin

27 margins. If public funding drops and uncompensated care rises, these hospitals will be less able

28 to serve all patients in need.

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1

241. Immigrants who are chilled from accessing publicly funded health insurance

2 programs for which they are eligible will be more likely to defer primary or preventive

3 healthcare. Deferred care leads to more complex medical conditions later on that are more

4 expensive to treat.

5

242. As the California Hospital Association warned in its opposition to the Rule,

6 “Increased emergency room use by the uninsured leads to an increased financial burden on

7 hospitals, which are required to provide care to all patients—regardless of their ability to pay.

8 This increase in uncompensated care causes financial strain, particularly for hospitals in

9 communities with large immigrant populations.”

10

243. The Rule will undermine the efficacy of Plaintiffs’ established presumptive

11 eligibility Medicaid programs designed to maximize the likelihood of coverage for people with

12 emergency health conditions.

13

244. The Rule will also increase administrative costs and burdens on healthcare

14 providers, as they will need to devote considerable time and resources to educating their frontline

15 and clinical staff about the various ways patients might be impacted by the Rule.

16

245. As the primary funder for all their low-income residents’ healthcare services,

17 Plaintiffs’ publicly funded healthcare programs will ultimately bear the cost of both financial

18 pressure on safety net providers and the increased public health harms described in Section

19 V(B)(1) above.

20

246. For example, if those chilled from participating in Medicaid programs experience an

21 unintended pregnancy as a result of reduced access to contraceptives and other family planning

22 services, then many of the costs of that unintended pregnancy will be borne by Plaintiffs.

23

247. Unintended pregnancy is likely to result in relatively higher health costs, because

24 shorter inter-pregnancy intervals are more likely to result in premature births, low birth weight

25 infants, and congenital defects, all of which produce considerable harm to Plaintiffs, in addition to

26 the worse health outcomes for the child and mother. The average medical cost to Plaintiffs in the

27 first year of life of a premature or low birth weight baby is up to 10 times higher than the cost of a

28 full term baby.

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1

248. Medicaid programs are also likely to bear a portion of the costs associated with any

2 delays in diagnosis and treatment of serious medical conditions such as cancer, unintended

3 pregnancy, preventable diseases such as sexually transmitted diseases, and other serious health

4 problems.

5

249. Overall, the Public Charge Rule’s effect of pushing more people into the ranks of

6 the uninsured will introduce financial strain on state, local, and private health systems and

7 programs.

8

2. Impact on Other Safety Net Providers

9

250. In addition to healthcare provider impacts, discouraging immigrants from accessing

10 public benefits for which they are eligible will ultimately transfer costs to state and local

11 governments and community organizations, as families increasingly rely on emergency services

12 and public safety net programs, such as local shelters, homeless services, and food pantries.

13

251. Food banks, for example, are already struggling to fill a growing nutrition gap that

14 has arisen, in part, by immigrants avoiding public food assistance programs due to rumors of the

15 Rule’s implications. In Oregon, 552,900 people are facing food insecurity, of those, 194,070 are

16 children.

17

252. Implementation of the Rule will worsen the burden on food banks that already

18 provide for 4.6 million Californians (including 1.7 million children) facing food insecurity. In

19 Maine, hundreds of food banks and pantries around the state provide food to 14.4 percent of

20 Maine households, which face food insecurity.

21

3. Impact on Consumer Spending

22

253. Reduced participation in public benefit programs causes additional economic harm

23 to the Plaintiffs.

24

254. Decreased participation in SNAP and state nutrition programs has economic

25 consequences beyond hunger and public health.

26

255. Fewer Californians using CalFresh will harm the 26,599 grocers, farmers’ markets,

27 and other merchants in California that accept SNAP benefits for food purchases. SNAP benefits

28 generate secondary economic effects that increase overall spending and production; the United 46
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1 States Department of Agriculture estimates that in a slowing economy, every $1 in SNAP benefits

2 generates $1.54 in economic activity. Decisions by immigrant families (an estimated 1.5 million

3 in California) to forgo critical nutritional benefits will also result in loss of economic activity.

4

256. In Alameda County, 41 percent of noncitizens live in families that use at least one

5 means-tested benefit, and the County estimated in its comment on the Rule that its immigrant

6 population could miss out on millions of dollars of benefits due to the chilling effect generated by

7 the Rule. If half of the county’s households with noncitizens who use relevant benefits—over

8 8,000—disenrolled from programs for which they are eligible, the direct annual economic impact

9 would be approximately $39 million.

10

257. In Pennsylvania, there are 10,257 retailers that accept SNAP, including grocers and

11 farmer’s markets. If 35% of immigrant families disenrolled from SNAP (i.e., more than 17,600

12 Pennsylvania families), the direct annual economic impact from lack of food purchase alone

13 would be nearly $4 million.

14

4. Impact on Workforce

15

258. Limiting the ability of immigrants to adjust their status, extend, or change the basis

16 for their legal presence will also harm the economy by reducing important parts of the workforce.

17

259. Any diminution of the immigrant labor force and lost productivity will be especially

18 pronounced in sectors that are critical to the economy. Sectors that will be impacted include

19 agriculture, construction, healthcare, childcare and early childhood education, food services, and

20 janitorial and maintenance services.

21

260. In California, for example, immigrants are a major share of all California workers in

22 farming, fishing, and forestry (77.1 percent); building and grounds cleaning and maintenance

23 (61.7 percent); and construction and extraction (43 percent). Thirty-nine percent of child care and

24 early education providers in California—81,000 people—are immigrants. These impacted

25 occupations and industries are known to pay workers low wages, making them particularly

26 vulnerable to public charge determinations under the Rule.

27

261. Immigrants make up about 24 percent of the District’s civilian labor force. The top

28 job categories for immigrant workers in the District include management, business, science, and 47
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1 the arts, building and grounds cleaning and maintenance, construction, and food preparation and

2 serving. Immigrant workers also provide office and administrative support, and education,

3 training, and library services. As noted above, earnings tend to be slightly more modest for

4 immigrant workers compared with District workers overall.

5

262. With current immigration trends and birth rates, almost all of the growth in the

6 nation’s working-age population between now and 2050 will take place among immigrants and

7 their U.S.-born children. In Pennsylvania, which has an aging population, a reduction in the

8 number of immigrants to the U.S. along with declining birth rates could cause serious economic

9 consequences, as the number of workers needed to support older adults continues to increase.

10

263. Maine had over 25,000 immigrant workers in 2015.

11

264. Approximately 260,000 workers in Oregon are immigrants, comprising over 12% of

12 the workforce generally. The top categories for immigrant workers in Oregon include

13 manufacturing, accommodation and food services, health care and social assistance, retail trade,

14 and agriculture, forestry, fishing and hunting.

15

265. In an era of tight labor supplies, the Rule threatens to further reduce availability of

16 workers in these occupational categories and industries. Workers lost across these sectors cannot

17 be replaced without significant economic disruption.

18

266. The Rule creates particularly steep barriers for immigrant students in public colleges

19 and universities. These students, many of whom live for a period of time on sparse incomes and

20 thus are particularly susceptible to a public charge determination under the Rule, are critical

21 components of the emergent workforce.

22

267. The Rule’s new public charge condition will make it more difficult for

23 nonimmigrant visa holders such as graduate students and specialized workers to extend or change

24 their statuses. These valued members of our schools, workplaces, and communities may be

25 excluded or discouraged from seeking extended or changed statuses due to the Rule.

26

268. Graduating students’ understandably low incomes are no indicator of their future

27 earnings. Working students are frequently poor, but by no means unproductive. Yet students

28 who seek to become legal permanent residents, or extend or otherwise adjust their status, face the 48
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1 Rule’s punitive public charge test. As a result, Plaintiffs are likely to be deprived of the benefits

2 of this skilled nascent workforce.

3

D. The Rule Will Harm the Integrity of Immigrant Families and Plaintiffs’

Communities 4

269. The Rule will undermine the integrity, stability, and financial health of working

5

immigrant families by discouraging immigration to the United States, including adjustment of

6

status for persons already residing in the United States.

7

270. The Rule’s definition of “household,” combined with its arbitrary income and asset

8

standards, will pressure extended families to live in separate households and to refrain from

9

supporting each other financially. See 8 C.F.R. § 212.21(d), 84 Fed. Reg. 41,501 (including in

10

“household” any individuals to whom the immigrant provides at least 50 percent of the

11

individual’s financial support).

12

271. This perverse incentive created by the Rule will discourage noncitizen members of

13

mixed immigration-status families from living with and providing support to U.S.-citizen family

14

members in order to avoid adverse immigration consequences.

15

272. In addition, the Rule will prevent permanent unification of grandparents, parents,

16

and siblings who have been living in the United States patiently waiting for available visas

17

through family-based immigration petitions.

18

273. Thousands of immigrant families have taken significant measures to come out of the

19

shadows. In the last three years, California has been the state with the highest number of

20

individuals obtaining lawful permanent resident status. The Rule will reverse this trend, to the

21

detriment of Plaintiffs and their residents.

22

274. For many applicants, denial of the requested adjustment, extension, or change of

23

status under the Rule would leave them without permission to remain in the United States. In

24

fact, under a recent DHS policy memorandum, those who are denied adjustment of status could

25

be placed in removal proceedings if they do not have a valid status, heightening the risk of

26

deportation after the application. The Rule will thus lead to immigrants either declining to apply

27

28 49
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1 for lawful status out of fear—forcing them into unauthorized status, relegated to the margins of

2 society—or risking deportation.

3

275. For example, a DACA recipient who is a student and has a U.S. citizen child may be

4 afraid to seek a visa through marriage with a U.S. citizen spouse if their household income could

5 put them at risk of an adverse public charge determination, or if they have disabilities that may

6 make them likely to receive Medicaid.

7

276. Similar fears could also prevent vulnerable populations that are exempted from

8 public charge considerations, such as Temporary Protected Status (TPS) holders or Violence

9 Against Women Act (VAWA) petitioners, from adjusting their status through family-based

10 petitions.

11

277. The Rule will also subject individuals with ongoing lawful nonimmigrant status

12 (such as long-term, multiple-entry visas like student visas) to the more expansive public charge

13 inadmissibility standards every time they return to the United States. 84 Fed. Reg. 41,507; 8

14 C.F.R. §214.1(a)(3)(iv).

15

278. If DHS (acting through CBP) determines that, after a visit outside of the United

16 States longer than six months, a green card holder is seeking admission they could be subject to

17 the expanded public charge inadmissibility ground. This individual may have been receiving

18 benefits for which they have long been eligible, and yet still be subject in the expanded

19 inadmissibility ground. 84 Fed. Reg. 41,326.

20

279. This will discourage immigrant communities from remaining in contact with their

21 families abroad, leading to unnecessary separation of family members during times of joy and

22 hardship, such as a period of serious illness.

23

280. By subjecting derivative family members of visa holders, such as the spouses and

24 children of those on employment-based visas, to the public charge condition when they request to

25 extend or change their status, the Rule could result family separations and denials.

26

27

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1 VI. THE RULE IS MOTIVATED BY RACIAL AND ETHNIC ANIMUS TOWARD NON-WHITE, NONEUROPEAN IMMIGRANTS
2 281. Defendants ignored thousands of comments describing the harm the Rule would
3 cause. They also ignored thousands of comments submitted in the public record opposing the
4 Rule on the ground that it would disproportionately impact immigrants of color, especially Latino
5 and Black immigrants. These commenters highlighted the fact that the public charge
6 determination is being hijacked by Defendants and converted into a vehicle for discrimination.
7 See 84 Fed. Reg. 41,401.
8 282. The federal government’s decision to adopt the Public Charge Rule is motivated by
9 improper discriminatory intent and animus toward non-White, non-European immigrants, who
10 account for the vast majority of people who will be adversely affected by the Rule. The Rule
11 violates the Equal Protection Clause, pursuant to Arlington Heights v. Metropolitan Housing
12 Development Corporation, 429 U.S. 252 (1977).
13 283. As described in Section II(B) above, the Rule disproportionately impacts non-White,
14 non-European immigrants because they are substantially more likely than their White, European
15 counterparts to be treated disfavorably under the Rule.
16 284. Numerous statements and actions by President Trump and high-ranking officials in
17 his administration reflect a pattern of bias against Mexicans, Latinos, Africans, Haitians, and
18 other non-White, non-European immigrants.
19 285. Prior to his election, and during his campaign, President Trump voiced his disdain
20 for non-White, non-European immigrants, and in particular, Mexicans. For example, on June 16,
21 2015, during his speech launching his presidential campaign, Donald Trump characterized
22 immigrants from Mexico as criminals, “rapists,” and “people that have lots of problems.” In June
23 2018, President Trump asserted that these remarks were “100 percent right.”
24 286. On September 25, 2015, then-candidate Trump suggested that the United States
25 would “no longer take care” of “anchor babies” from Mexico.
26
27
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1

287. In October 2016, during a presidential debate, then-candidate Trump responded to a

2 question about immigration by stating: “We have some bad hombres here and we’re going to get

3 them out.”

4

288. This pattern of racist animosity continued into his presidency. President Trump

5 repeated incendiary language at rallies and in social media conflating the issue of immigration

6 with criminality, and raising the specter of invasion at the Southern border by individuals from

7 Mexico and Central America.

8

289. Against this backdrop of vitriol towards immigrants, in August 2017, President

9 Trump endorsed the RAISE Act, introduced by Senators Tom Cotton and David Perdue. The

10 RAISE Act proposed substantial cuts to family-based immigration, which comprises

11 approximately two-thirds of the annual total number of green cards. The bill sought to eliminate

12 several categories of relatives eligible for family-sponsored immigration, and lower the caps for

13 other categories of family-sponsors from 226,000 green cards to 88,000. The bill’s design

14 resulted in the deepest prospective cuts to immigration from Mexico, the Dominican Republic,

15 the Philippines, China, India, and Vietnam.

16

290. The bill faced bipartisan resistance, and gained only one additional co-sponsor,

17 Senator Wicker of Mississippi, in November 2017.

18

291. Frustrated with the lack of progress on this legislation, in early January 2018, at a

19 Camp David meeting with congressional leaders, the President demanded the end to so-called

20 “chain migration,” his preferred term for describing family-based immigration.

21

292. Days later, on January 11, 2018, during a White House meeting with several U.S.

22 Senators, the President is widely reported to have disparaged a draft immigration plan that

23 protected people from El Salvador, Haiti, and some African countries, asking, “Why are we

24 having all these people from shithole countries come here?” In this meeting, the President is also

25 widely reported to have expressed his preference for more immigrants from places like Norway,

26 where the population is over 90 percent white. Senator Dick Durbin, who attended the White

27 House meeting, confirmed that Trump used “vile, vulgar” language, including repeatedly using

28 the word “shithole” when speaking about African countries. 52
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1

293. In February 2018, President Trump gave a speech at the annual Conservative

2 Political Action Conference where he used MS-13 – a gang with many members having ties to

3 Mexico and Central America – to disparage immigrants, indicating that all immigrants from

4 Mexico and Central America are criminals and comparing them to snakes.

5

294. In May 2018, President Trump again lashed out at immigrants, branding them as

6 “animals” during a public White House meeting in which he aired his frustrations related to

7 immigration.

8

295. In addition to this pattern of conduct, procedural irregularities in the rulemaking

9 process underscore the animus that has driven the Rule’s adoption. The manipulation of agency

10 leadership in 2019 that was required to institute it. This included the ouster of key DHS officials,

11 and the selection of their replacements without Senate approval.

12

296. In April 2019, after then-Secretary Kristjen Nielson announced her departure,

13 President Trump promptly tweeted that then-U.S. Customs and Border Protection Commissioner

14 Kevin McAleenan would take over DHS on an acting basis. Representative Bennie Thompson

15 implored the President to follow the law of succession, specifically 6 U.S.C. § 113, under which

16 Acting Deputy Secretary Claire Grady would be statutorily required to serve as Acting Secretary.

17 Within a day, Grady, a career civil servant, offered her resignation, clearing the pathway for

18 Defendant Acting Secretary McAleenan.

19

297. On May 24, 2019, L. Francis Cissna, USCIS Director announced in an email to his

20 staff that, at the request of the President, he was stepping down. After it became clear that Senate

21 Republicans intended to reject Trump’s preferred replacement, Ken Cuccinelli, the

22 Administration circumvented the Senate. On June 10, 2019, Defendant Acting Secretary

23 McAleenan created a brand new position, Principal Deputy Director of USCIS, and installed Mr.

24 Cuccinelli in that role. This decision effectively demoted Mark Koumans, who was already

25 serving as Acting Director, and replaced him with Mr. Cuccinelli.

26

298. These maneuvers deviated from the customary practices of Presidents with regard to

27 the appointment of acting officials, and are contrary to the typical requirements for Senate

28 approval.

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1

299. Furthermore, President Trump installed an acting USCIS Director with a record of

2 animus and disregard towards immigrants consistent with his own views. In his prior role as a

3 state legislator, Mr. Cuccinelli advocated for extreme restrictions on immigration, including

4 limitations on birth right citizenship. Mr. Cuccinelli later likened immigration policy to animal

5 control measures, complaining that Washington D.C.’s animal control policies were worse than

6 U.S. immigration policies because, “You can’t break up rat families.”

7

300. This leadership turnover served to fast-track a pre-ordained Rule sought by the

8 President, regardless of its lawfulness. This manipulation of agency leadership has occurred

9 alongside undue White House meddling in the rulemaking process.

10

301. The process has been driven by White House political calculations and a strategy

11 focused on inflaming racial animosities within the electorate and reducing the political influence

12 of historically underrepresented minorities, rather than adhering to established law and sound

13 rulemaking.

14

302. According to emails from senior federal officials obtained via the Freedom of

15 Information Act, the Public Charge Rule originated directly from the White House. Trump

16 administration senior advisor Stephen Miller reportedly maintained a “singular obsession” with

17 the Rule. According to these emails, Mr. Miller urged DHS to rush to release the rule,

18 complaining that the agency’s deliberative process timeline was “unacceptable,” and stating, “I

19 don’t care what you need to do to finish it on time.”

20

303. The end result is a flawed Rule that radically upends the longstanding definition of

21 public charge and weaponizes it against non-wealthy minorities of color.

22

304. The Rule resulting from this improper process violates the Equal Protection Clause

23 under United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

24

305. The Administration has identified a politically unpopular minority, namely non-

25 White, Non-European immigrants, and has instituted a Public Charge Rule that punishes this class

26 of individuals without advancing its stated purposes—i.e., ensuring that immigrants are

27 productive and capable of self-sufficiency and minimizing incentives for immigrating to the

28 United States because of the availability of public benefits. As discussed earlier, the Rule will 54
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1 impact a substantial number of immigrants who are capable of working and contributing

2 meaningfully to the economy; indeed, in many cases, the impacted individuals already have been

3 productive participants in the Plaintiffs’ economies and communities. Furthermore, the Rule’s

4 chilling effect will harm a larger class of predominantly non-White, non-European immigrants

5 who work in critical sectors and—like many low- and moderate-income U.S.-born citizens—rely

6 on non-cash public benefits programs designed to safeguard the health and well-being of the

7 general population.

8

306. Various factors in the Rule do not rationally operate to further the purpose of the

9 INA’s public charge test. In combination with evidence of improper manipulation of agency

10 processes, this suggests that the Rule’s rationale is pretextual. See Dep’t. of Commerce v. New

11 York, 139 S.Ct. 2551 (2019).

12

307. For example, the bright-line income thresholds do not meaningfully identify

13 individuals who are productive and capable of self-sufficiency. This is particularly true given the

14 evidence of immigrants’ upward mobility, and how the Rule would impact immigrant students in

15 colleges and universities.

16

308. Additionally, the manner in which the Rule treats public benefits is not reasonably

17 connected with the purpose of the public charge test. The Rule penalizes the mere application for

18 benefits. The Rule also penalizes receipt of public benefits even if they represent a small

19 percentage of a worker’s income or were needed for a material reason, such as to facilitate the

20 treatment of an acute medical condition or following a loss of a job until starting a new one.

21

309. For these reasons, the Rule does not rationally advance the purpose of the public

22 charge test, as enacted by Congress.

23

FIRST CLAIM FOR RELIEF

(VIOLATION OF APA; 5 U.S.C. § 706—CONTRARY TO LAW, INA AND IIRIRA) 24

310. Plaintiffs re-allege and incorporate by reference the allegations set forth in each of

25

the preceding paragraphs of this Complaint.

26

311. The APA requires courts to “hold unlawful and set aside” agency action that is “not

27

in accordance with law.” 5 U.S.C. § 706(2)(A).

28

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1

312. The Rule’s broad and novel interpretation of the term “public charge” is contrary to

2 the meaning of the statutory term, and will exclude immigrants on public charge grounds in a

3 manner that is inconsistent with the public charge statute, 8 U.S.C. § 1182(a)(4), and 8 U.S.C.

4 § 1183a.

5

313. By heavily weighting factors such as an immigrant’s likelihood of receiving public

6 benefits and imposing strict income thresholds, Defendants exceeded their statutory authority

7 under the IIRIRA, making some factors effectively determinative in isolation, contrary to the

8 IIRIRA’s clear requirement that multiple factors be considered.

9

314. By changing the weight traditionally given to legally enforceable affidavits of

10 support filed by qualifying sponsors on behalf of intending immigrants, as required under the

11 IIRIRA, Defendants have improperly reduced the significance of what Congress deemed

12 substantial assurances that avert a finding of inadmissibility.

13

315. Applying a public charge condition, which is essentially a public charge

14 determination, to non-immigrant visa holders who are seeking to change or extend their visas is

15 not grounded in any statutory authority.

16

316. By promulgating this Rule, Defendants have acted contrary to the INA and the

17 IIRIRA. In doing so, Defendants have taken action in violation of the APA. The Rule is

18 therefore invalid.

19

SECOND CLAIM FOR RELIEF

(VIOLATION OF APA; 5 U.S.C. § 706—CONTRARY TO LAW, SECTION 504 OF THE

20

REHABILITATION ACT)

21

317. Plaintiffs re-allege and incorporate by reference the allegations set forth in each of

22 the preceding paragraphs of this Complaint.

23

318. The Public Charge Rule conflicts with Section 504 of the Rehabilitation Act of

24 1973, which prohibits “any program or activity receiving federal financial assistance” or any

25 “program or activity conducted by any Executive agency,” from excluding, denying benefits to,

26 or discriminating against persons with disabilities. 29 U.S.C. § 794. This includes programs and

27 activities conducted by DHS or receiving Federal financial assistance from DHS. 6 C.F.R.

28 § 15.30.

56
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1

319. In relevant part, Section 504 requires DHS to refrain from disability discrimination,

2 ensure program access, provide applicants with reasonable accommodations, and refrain from

3 utilizing discriminatory criteria or methods of administration in its programs and activities or in

4 any contractual licensing, or other arrangement. 6 C.F.R. §§ 15.30(b), 15.49.

5

320. The Public Charge Rule’s new criteria will discriminatorily screen out applicants on

6 the basis of disability and deny them an equal opportunity to participate in admission and

7 naturalization processes.

8

321. By promulgating this new Rule, Defendants have acted contrary to the Section 504

9 of the Rehabilitation Act, and in doing so, violate the APA. The Rule is therefore invalid.

10

THIRD CLAIM FOR RELIEF

(VIOLATION OF APA; 5 U.S.C. § 706—CONTRARY TO LAW, STATE HEALTHCARE

11

DISCRETION)

12

322. Plaintiffs re-allege and incorporate by reference the allegations set forth in each of

13 the preceding paragraphs of this Complaint.

14

323. Congress has given states the option to cover, with regular federal matching dollars,

15 lawfully residing children and pregnant women under Medicaid and CHIP during their first five

16 years in the U.S. Section 214 of the Children’s Health Insurance Program Reauthorization Act of

17 2009 (CHIPRA), Pub. L. No. 111-3, 123 Stat. 8.

18

324. The Public Charge Rule will effectively deprive Plaintiffs of their statutory option to

19 extend program eligibility to this group.

20

325. Congress also specifically authorized Plaintiffs to make their own eligibility

21 determinations for state public benefits for qualified aliens, nonimmigrants, and aliens paroled

22 into the United States for less than a year. 8 U.S.C. §§ 1612, 1613, 1621(d), 1622(a); 7 U.S.C.

23 § 2016(i).

24

326. The Public Charge Rule will effectively deprive Plaintiffs of their statutory option to

25 provide healthcare and nutrition benefits to these immigrants.

26

327. Defendants’ improper attempt to reinterpret the INA disrupts the cooperative

27 federalism that characterizes the Medicaid program and interferes with Plaintiffs’ authority to

28 regulate their internal public welfare administration. 57

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1

328. By promulgating this new Rule, Defendants have acted contrary to federal laws, and

2 in doing so, violate the APA. The Rule is therefore invalid.

3

FOURTH CLAIM FOR RELIEF

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

4

(VIOLATION OF APA; 5 U.S.C. § 706—ARBITRARY AND CAPRICIOUS)

5

329. Plaintiffs re-allege and incorporate by reference the allegations set forth in each of

6 the preceding paragraphs of this Complaint.

7

330. The APA requires courts to “hold unlawful and set aside” agency action that is

8 “arbitrary,” “capricious,” or an “abuse of discretion.” 5 U.S.C. § 706(2)(A)

9

331. The Public Charge Rule is arbitrary and capricious and an abuse of discretion

10 because Defendants have relied on factors that Congress did not intend, failed to consider

11 important aspects of the problem the agency is addressing, and has offered no explanation for the

12 Rule that is consistent with the evidence that is before the agency. See Motor Vehicle Mfrs. Ass’n

13 of the U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

14

332. Although DHS may change its policies within statutory limits, the agency must

15 “provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 136 S. Ct.

16 2117, 2125 (2016). Even if the Rule were consistent with the INA—and it is not—Defendants

17 fail to provide the necessary “satisfactory explanation” for their proposed changes to the public

18 charge determination. See State Farm, 463 U.S. at 43.

19

333. Further, if an agency relies on contradictory factual findings, the justification for the

20 changed policy must be “more detailed.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,

21 515 (2009). The Rule contains numerous contrary factual findings, but lacks sufficient detail in a

22 number of respects to justify the massive changes in the Rule.

23

334. Defendants failed to comply with Executive Orders 12866 and 13563, which require

24 agencies to “assess the costs and benefits of available regulatory alternatives and, if regulation is

25 necessary, to select regulatory approaches that maximize net benefits.”

26

335. Defendants failed to adequately assess, among other things, the actual costs to the

27 Nation, its States, and communities from increasing the poverty of families and U.S. citizen

28 children, in violation of the APA.

58
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1

336. The government departed significantly from its normal procedures in adopting the

2 Public Charge Rule.

3

337. Because Defendants’ new Rule is arbitrary, capricious, and an abuse of discretion,

4 the Rule is invalid.

5

FIFTH CLAIM FOR RELIEF

VIOLATION OF FIFTH AMENDMENT

6

(DUE PROCESS—EQUAL PROTECTION BASED ON RACE)

7

338. Plaintiffs re-allege and incorporate by reference the allegations set forth in each of

8 the preceding paragraphs of this Complaint.

9

339. The Due Process Clause of the Fifth Amendment of the U.S. Constitution prohibits

10 the federal government from denying equal protection of the laws.

11

340. The Fifth Amendment also prohibits federal officials from acting with a

12 discriminatory intent or purpose.

13

341. As set forth above, the Public Charge Rule was motivated by improper

14 discriminatory intent and bias against non-White immigrants. Accordingly, judicial deference to

15 Defendants’ decision to adopt the Rule is not justified.

16

342. The government departed significantly from its normal procedures in adopting the

17 Public Charge Rule.

18

343. The history, procedure, substance, context, and impact of the decision to adopt the

19 Public Charge Rule all demonstrate that the decision was motivated by discriminatory animus

20 against non-White immigrants. Because it was motivated by a discriminatory purpose, the

21 adoption of the Rule violates the equal protection guarantee of the Due Process Clause of the

22 Fifth Amendment.

23

SIXTH CLAIM FOR RELIEF

VIOLATION OF FIFTH AMENDMENT

24

(DUE PROCESS—EQUAL PROTECTION BASED ON UNCONSTITUTIONAL

ANIMUS) 25

344. Plaintiffs re-allege and incorporate by reference the allegations set forth in each of

26

the preceding paragraphs of this Complaint.

27

28 59
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1

345. The classification here further violates equal protection principles because

2 defendants adopted it to harm a politically unpopular group and advance unconstitutional animus,

3 and therefore, it is without a permissible, rational basis.

4

346. The reasons offered by Defendants in the preamble of the Rule are unfounded and

5 pretextual.

6

347. Defendants’ equal protection violation causes ongoing harm to Plaintiffs and their

7 residents, as discussed above.

8

PRAYER FOR RELIEF

9

WHEREFORE, Plaintiffs respectfully requests that this Court enter judgment in its favor,

10 and grant the following relief:

11

1. Issue a declaratory judgment that the Rule is contrary to the law;

12

2. Issue a declaratory judgment that the Rule exceeds Defendants’ statutory authority;

13

3. Issue a declaratory judgment that the Rule is arbitrary, capricious, and an abuse of

14

discretion, in violation of the Administrative Procedures Act;

15

4. Issue a declaratory judgment that the Rule violates the Equal Protection Clause;

16

5. Postpone the effective date of the Rule, pending judicial review, pursuant to 5 U.S.C.

17

§ 705;

18

6. Hold unlawful and set aside the Rule, pursuant to 5 U.S.C. § 706(2);

19

7. Permanently enjoin implementation of the Rule;

20

8. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees;

21

9. Award such other relief as the Court deems just and proper.

22

23

24

25

26 ///

27 ///

28 ///

60
Complaint for Declaratory and Injunctive Relief

Case 4:19-cv-04975-PJH Document 1 Filed 08/16/19 Page 62 of 63

1

2 Dated: August 16, 2019

Respectfully Submitted,

3 KARL A. RACINE Attorney General for the District of Columbia
4 JIMMY ROCK Acting Deputy Attorney General
5 /s/ Valerie M. Nannery_______
6 VALERIE M. NANNERY Assistant Attorney General
7 441 4th Street, N.W., Suite 630 South Washington, DC 20001
8 Tel (202) 442-9596 Fax (202) 730-1465
9 jimmy.rock@dc.gov valerie.nannery@dc.gov
10 Attorneys for Plaintiff District of Columbia
11 JOSH SHAPIRO
12 Attorney General for the Commonwealth of Pennsylvania
13 MICHAEL J. FISCHER Chief Deputy Attorney General
14 /s/ Aimee D. Thomson_______
15 AIMEE D. THOMSON* Deputy Attorney General
16 1600 Arch St., Suite 300 Philadelphia, PA 19103
17 Tel (267) 940-6696 athomson@attorneygeneral.gov
18 Attorneys for Plaintiff Commonwealth of Pennsylvania
19 * Application for admission pro hac vice
20 forthcoming
21 AARON M. FREY
22 Attorney General of Maine

XAVIER BECERRA Attorney General of California MICHAEL L. NEWMAN Senior Assistant Attorney General CHEROKEE D.M. MELTON Supervising Deputy Attorney General JENNIFER C. BONILLA LISA CISNEROS WILLIAM DOWNER REBEKAH FRETZ KATHERINE LEHE MARISSA MALOUFF JULIA HARUMI MASS ERANDI ZAMORA ANITA GARCIA VELASCO BRENDA AYON VERDUZCO
/s/Anna Rich_______ Anna Rich Deputy Attorneys General Attorneys for Plaintiff State of California
ELLEN ROSENBLUM Attorney General of Oregon
/s/Nicole DeFever_______ NICOLE DEFEVER MICHAEL KRON Assistant Attorney General Oregon Department of Justice 100 SW Market Street Phone: (971) 673-1880 Fax: (971) 673-5000 Scott.Kaplan@doj.state.or.us Attorneys for Plaintiff State of Oregon

23 /s/ Susan P. Herman_______ SUSAN P. HERMAN*
24 Deputy Attorney General 6 State House Station
25 Augusta, Maine 04333-0006 Telephone: (207) 626-8814
26 Email: susan.herman@maine.gov Attorneys for Plaintiff State of Maine
27 *pro hac vice pending
28

1
Complaint for Declaratory and Injunctive Relief

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1 OK2019200893
91142062.docx
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2
Complaint for Declaratory and Injunctive Relief

 
 ADRMOPTERM,APPEAL,RELATE
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:19-cv-04975-PJH

State of California et al v. U.S. Department of Homeland Date Filed: 08/16/2019

Security et al

Jury Demand: None

Assigned to: Judge Phyllis J. Hamilton

Nature of Suit: 899 Other Statutes:

Relate Case Case: 4:19-cv-04717-PJH

Administrative Procedures

Case in other court: Ninth Circuit Court of Appeals, 19- Act/Review or Appeal of Agency

17214

Decision

Cause: 05:702 Administrative Procedure Act

Jurisdiction: Federal Question

Plaintiff State of California

represented by Cherokee Dawn-Marie Melton California Department of Justice Office of the Attorney General 300 S. Spring Street, Suite 1702 Los Angeles, CA 90013 213-269-6405 Email: Cherokee.Melton@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brenda Ayon Verduzco Department of Justice Office of the Attorney General 1515 Clay Street Oakland, CA 94612-1499 (510) 879-0981 Email: brenda.ayonverduzco@doj.ca.gov ATTORNEY TO BE NOTICED

Julia Harumi Mass California Department of Justice California Department of Justice 1515 Clay Street, Suite 2000 Oakland Oakland, CA 94612 510-879-3300 Fax: 510-622-2270 Email: Julia.Mass@doj.ca.gov

Plaintiff District of Columbia

ATTORNEY TO BE NOTICED
Katherine M Lehe California Department of Justice Office of the Attorney General 1515 Clay St., 20th Floor Oakland, CA 94612-0550 510-879-0001 Email: Katherine.Lehe@doj.ca.gov ATTORNEY TO BE NOTICED
Lisa Janine Cisneros California Department of Justice Office of the Attorney General - Civil Rights Enforcement 455 Golden Gate Ave. Ste. 11000 San Francisco, CA 94102-7004 4155103438 Email: lisa.cisneros@doj.ca.gov ATTORNEY TO BE NOTICED
William Hawthorne Downer Department of Justice Civil Rights 1300 I Street Sacramento, CA 95814 916-210-6120 Fax: 916-327-2319 Email: william.downer@doj.ca.gov ATTORNEY TO BE NOTICED
Anna Margaret Rich California Department of Justice 1515 Clay St. Suite 2000 Oakland Oakland, CA 94612-1499 510-879-0296 Fax: 510-622-2270 Email: Anna.Rich@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Alacoque Hinga Nevitt Office of the Attorney General for the

Plaintiff State of Maine

District of Columbia 400 6th Street NW Washington, DC 20001 202-717-1368 Email: alacoque.nevitt@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Harumi Mass (See above for address) ATTORNEY TO BE NOTICED
Valerie Maria Nannery 2208 Good Hope Road SE Washington, DC 20020 202-577-4436 Email: valerie@nannery.info TERMINATED: 10/10/2019
represented by Julia Harumi Mass (See above for address) ATTORNEY TO BE NOTICED
Kimberly L. Patwardhan Office of the Maine Attorney General Litigation Division 6 State House Station Augusta, ME 04333 Kennebec 207-626-8800 Fax: 207-287-3145 Email: kimberly.patwardhan@maine.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Susan P. Herman Office of the Attorney General Litigation Division 6 State House Station Augusta, ME 04333-0006 207-626-8814 Fax: 207-287-3145 Email: susan.herman@maine.gov TERMINATED: 01/21/2021

Plaintiff Commonwealth of Pennsylvania
Plaintiff State of Oregon
V. Defendant U.S. Department of Homeland Security

PRO HAC VICE
represented by Aimee Diane Thomson Pennsylvania Office of Attorney General Impact Litigation Section 1600 Arch St. Suite 300 Philadelphia, PA 19103 267-940-6696 Email: athomson@attorneygeneral.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Julia Harumi Mass (See above for address) ATTORNEY TO BE NOTICED
represented by Jeanne Nicole DeFever Oregon Dept of Justice Trial Division 100 SW Market Street Portland, OR 97201 971-673-1880 Fax: 971-673-5000 Email: nicole.defever@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Harumi Mass (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Michael Kolsky Department of Justice Civil Division -- Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 305-7664

Defendant Secretary USDHS Kevin McAleenan
Defendant U.S. Citizenship and Immigration Services
Defendant Kenneth T. Cuccinelli
V.

Fax: (202) 616-8470 Email: joshua.kolsky@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan Price Davis U.S. Department of Justice Civil Division 950 Pennsylvania Ave NW Room 3133 Washington, DC 20530 202-616-4171 Email: ethan.p.davis@usdoj.gov TERMINATED: 09/04/2020
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) TERMINATED: 09/04/2020
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) TERMINATED: 09/04/2020
represented by Joshua Michael Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) TERMINATED: 09/04/2020

Movant
Arab Community Center for Economic and Social Services

represented by Andrew Paul Cohen Health Law Advocates, Inc. Health Law Advocates, Inc. 1 Federal St., 5th Floor Boston, MA 02135 617-275-2891 Fax: 617-338-5242 Email: acohen@hla-inc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe healthlawadvocates One Federal Street Boston, MA 02110 617-275-2981 Fax: 617-338-5242 Email: jlowe@hla-inc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 415-956-1000 Fax: 415-956-1008 Email: kdermody@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit Lieff Cabraser et al 275 Battery St Fl 29 San Francisco, CA 94111-3339 415-956-1000 Fax: 415-956-1008 Email: mlevin@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet Health Law Advocates, Inc.

Movant
California Immigrant Policy Center

416 Huntington Ave. Boston, MA 02116 617-373-2019 Email: w.parmet@northeastern.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 617-832-1737 Email: alondon@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210-2600 617-832-1000 Email: enash@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 617-832-1000 Email: kbuncedefilipp@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY

Movant
California Pan-Ethnic Health Network

ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sadik Harry Huseny Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 415-391-0600 Fax: 415-395-8095 Email: sadik.huseny@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address)

Movant
Charlotte Center for Legal Advocacy

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Community Catalyst

Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address)

Movant Community Healthcare Network

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Families USA

Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE

Movant Florida Health Justice Project

ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London

Movant Health Care For All

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Health in Justice Action Lab

Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address)

Movant Health Law Advocates, Inc.

PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer Foley Hoag LLP 1717 K St NW Suite 1200 Washington, DC 20006

Movant Kentucky Equal Justice Center

United Sta 303-642-6391 Email: cspringer@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address)

Movant
Korean Community Center of the East Bay

PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant
Latino Coalition for a Healthy California

Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE

Movant Maine Immigrant Rights Coalition

ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp

Movant
Massachusetts Law Reform Institute

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Michigan Immigrant Rights Center
Movant New York Immigration Coalition

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address)

Movant
Northeastern University Center for Health Policy and Law

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Northwest Health Law Advocates

Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address)

Movant Public Health Law Watch

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Treatment Action Group

Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY

Movant UMass Memorial Health Care, Inc.

ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit

Movant Welcome Project

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant American Hospital Association
Movant America's Essential Hospitals

Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales Hogan Lovells US LLP 1999 Avenue of the Stars Ste. 1400 Los Angeles, CA 90067 310-785-4670 Email: michelle.roberts@hoganlovells.com ATTORNEY TO BE NOTICED
Sean Michael Marotta Hogan Lovells US LLP 555 Thirteenth Street, N.W. Washington, DC 20004 202-637-4881 Email: sean.marotta@hoganlovells.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address)

Movant Association of American Medical Colleges
Movant Catholic Health Association of the United States
Movant The Children's Hospital Association
Movant The Federation of American Hospitals

ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant American Civil Liberties Union
Movant Center for Public Representation
Movant American Association of People with Disabilities
Movant Association of University Centers on Disabilities
Movant Autistic Self Advocacy Network
Movant Coelho Center for Disability Law, Policy and Innovation
Movant Disability Rights Education and Defense Fund

represented by Sarah Meyers Ray Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 415-395-8029 Fax: 415-395-8095 Email: sarah.ray@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Disability Rights California
Movant Judge David L. Bazelon Center for Mental Health Law
Movant Little Lobbyists
Movant Mental Health America
Movant National Association of Councils on Developmental Disabilities
Movant National Council on Independent Living
Movant National Disability Rights Network
Movant National Federation of the Blind

represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY

Movant The Arc of the United States
Movant United Spinal Association
Movant American Public Health Association

ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward Todd Waters Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: ewaters@ftlf.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Ellen Doi Hanson Bridgett LLP 500 Capitol Mall, Suite 1500 Sacramento, CA 95814 (916) 491-3024 Fax: (916) 491-3079 Email: KDoi@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Frisina Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: cj.frisina@gmail.com TERMINATED: 10/17/2019
Phillip Anselm Escoriaza

Movant American Academy of Nursing
Movant NHLP; FRAC; CLASP, et al.

Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: pescoriaza@ftlf.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Edward Todd Waters (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Ellen Doi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Frisina (See above for address) TERMINATED: 10/17/2019
Phillip Anselm Escoriaza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Victor H. Yu Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 (415) 391-5400 Fax: (415) 397-7188 Email: vyu@keker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frances Cheston Thacher Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111 (415) 391-5400

Movant American Academy of Pediatrics
Movant American Medical Association
Movant American College of Physicians

Fax: (415) 397-7188 Email: cthacher@keker.com ATTORNEY TO BE NOTICED
Robert Adam Lauridsen Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 415-391-5400 Fax: 415-397-7188 Email: alauridsen@keker.com ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch Cooley LLP 3175 Hanover Street Palo Alto, CA 94304 650-843-500 Fax: 650-849-7400 Email: skrumplitsch@cooley.com TERMINATED: 05/29/2020 LEAD ATTORNEY
Priyamvada Arora Cooley LLP 3175 Hanover Street Palo Alto, Ca 94304 650-843-5244 Email: parora@cooley.com ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/29/2020 LEAD ATTORNEY
Priyamvada Arora (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/29/2020

Movant American Academy of Pediatrics, California
Movant Fiscal Policy Institute
Movant Presidents' Alliance on Higher Education and Immigration
Movant Economic Progress Institute
Movant Community Action Marin
Movant Child Care Law Center
Movant

LEAD ATTORNEY
Priyamvada Arora (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/29/2020 LEAD ATTORNEY
Priyamvada Arora (See above for address) ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Boundless Immigration
Movant National Center for Law and Economic Justice
Movant Virginia Interfaith Center for Public Policy
Movant Kids Forward
Amicus Justice in Aging

represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christina Maria Assi Proskauer Rose LLP 2029 Century Park East Suite 2400 Los Angeles, CA 90067 310-284-4570 Fax: 3105572193 Email: cassi@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn Proskauer Rose LLP Eleven Times Square New York, NY 10036 (212) 969-3286 Fax: (212) 969-2900 Email: rhirschhorn@proskauer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus American Society on Aging

Denny W Chan Justice in Aging 3660 Wilshire Blvd Ste 718 Los Angeles, CA 90010 213-375-3559 Email: dchan@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean Justice in Aging 1444 EYE ST. NW, SUITE 1100 WASHINGTON, DC 20005 United Sta 202-621-1038 Email: nkean@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters Proskauer Rose LLP 1001 PENNSYLVANIA AVE N.W. SUITE 600 SOUTH Washington, DC 20004 (202) 416-6828 Fax: (202) 416-6899 Email: omasters@proskauer.com TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey Justice In Aging 1114 I St. NW Suite 1100 Washington, DC 20005 202-683-1990 Email: rbailey@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Caring Across Generations

Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address)

Amicus Jewish Family Service of Los Angeles
Amicus

PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

The National Asian Pacific Center on Aging
Amicus National Council on Aging

represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE

Amicus
National Hispanic Council on Aging

ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address)

Amicus MAZON
Amicus PHI

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 58 other amici curiae TERMINATED: 09/11/2019

Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara Crowell and Moring LLP 515 S. Flower Street 40th Floor Los Angeles, CA 90067 213-622-4750 Fax: 213-622-2690 Email: ekuwahara@crowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Austin Joan Sutta Crowell and Moring LLP 3 Embarcadero Center 26th Fl. San Francisco, CA 94111 415-986-2800 Email: asutta@crowell.com ATTORNEY TO BE NOTICED
Christopher Cadena 515 S. Flower St. 40th Floor Los Angeles, CA 90071

Amicus Members of the Congressional Black Caucus
Amicus Members of the Congressional Hispanic Caucus
Amicus Members of the Congressional Asian Pacific American Caucus
Amicus Civil Rights Education and Enforcement Center
Amicus Disability Rights Advocates
Amicus Deans, Chairs, and Scholars

213-310-7956 Email: ccadena@crowell.com ATTORNEY TO BE NOTICED
represented by Nicholas A. Reider Goodwin Procter LLP Three Embarcadero Center San Francisco, CA 94111 (415) 733-6000 Fax: (415) 677-9041 Email: nreider@goodwinlaw.com ATTORNEY TO BE NOTICED
represented by Nicholas A. Reider (See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas A. Reider (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah Meyers Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward Todd Waters (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Ellen Doi (See above for address) LEAD ATTORNEY

Amicus Asian Pacific Development Center
Amicus Association of Asian Pacific Community Health Organizations
Amicus 9to5, National Association of Working Women
Amicus Anti-Defamation League
Amicus Apna Ghar, Inc.
Amicus Asian American Advancing Justice - Asian Law Caucus

ATTORNEY TO BE NOTICED
Christopher John Frisina (See above for address) TERMINATED: 10/17/2019
Phillip Anselm Escoriaza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Asian Americans Advancing Justice-Atlanta
Amicus Asian & Latino Solidarity Alliance of Central Virginia
Amicus Asian Law Alliance
Amicus Asian Pacific American Legal Resource Center
Amicus Asian Pacific Community in Action
Amicus Asian Pacific Development Center
Amicus Association of Asian Pacific Community Health Organizations
Amicus California Asian Pacific Islander Legislative Caucus

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

Amicus Center on Reproductive Rights and Justice at Berkeley School of Law
Amicus Chicago Alliance Against Sexual Exploitation
Amicus Chinese-American Planning Council
Amicus Chinese for Affirmative Action
Amicus Coalition on Human Needs
Amicus Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR)
Amicus Connecticut Women's Education and Legal Fund
Amicus EMBARC

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

Amicus End Rape on Campus
Amicus Equal Rights Advocates
Amicus Fred T. Korematsu Center for Law and Equality
Amicus Girls Inc.
Amicus GLBTQ Legal Advocates & Defenders (GLAD)
Amicus If When How: Lawyering for Reproductive Justice
Amicus In Our Own Voice: National Black Womens Reproductive Justice Agenda
Amicus

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

In the Public Interest
Amicus Japanese American Citizens League (JACL)
Amicus KWH Law Center for Social Justice and Change
Amicus LatinoJustice PRLDEF
Amicus MinKwon Center for Community Action
Amicus National Advocates for Pregnant Women
Amicus National Korean American Service & Education Consortium (NAKASEC)
Amicus National Asian Pacific American Women's Forum (NAPAWF)

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

Amicus National Coalition for Asian Pacific American Community Development (National CAPACD) Amicus National Crittenton
Amicus National Immigrant Justice Center
Amicus National Immigrant Women's Advocacy Project
Amicus National Partnership for Women & Families
Amicus Oasis Legal Services
Amicus OCA - Asian Pacific American Advocates

represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emily Tomoko Kuwahara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Oklahoma Call for Reproductive Justice
Amicus OneAmerica
Amicus Planned Parenthood Federation of America
Amicus Population Connection
Amicus Reproductive Health Access Project
Amicus Services, Immigrant Rights & Education Network (SIREN)
Amicus Sexuality Information and Education Council of the United States (SIECUS)
Amicus Sikh American Legal Defense and Education Fund (SALDEF)

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

Amicus South Asian Americans Leading Together (SAALT)
Amicus Southeast Asia Resource Action Center (SEARAC)
Amicus Transgender Law Center
Amicus Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, and Men of Reform Judaism Amicus Washington Lawyers' Committee for Civil Rights and Urban Affairs
Amicus Women's Bar Association of the State of New York
Amicus Women's Law Center of Maryland
Amicus Women Lawyers on Guard Inc.

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

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/16/2019 08/16/2019 08/16/2019
08/16/2019 08/19/2019 08/19/2019
08/19/2019 08/19/2019 08/19/2019

# Docket Text
1 COMPLAINT For Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400, receipt number 0971-13617881.). Filed byState of California. (Rich, Anna) (Filed on 8/16/2019) (Entered: 08/16/2019)
2 Civil Cover Sheet by State of California . (Rich, Anna) (Filed on 8/16/2019) (Entered: 08/16/2019)
3 Case assigned to Magistrate Judge Jacqueline Scott Corley.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 8/30/2019. (as, COURT STAFF) (Filed on 8/16/2019) (Entered: 08/16/2019)
4 Proposed Summons. (Rich, Anna) (Filed on 8/16/2019) (Entered: 08/16/2019)
5 NOTICE of Appearance by Valerie Maria Nannery (Nannery, Valerie) (Filed on 8/19/2019) (Entered: 08/19/2019)
6 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 11/7/2019. Initial Case Management Conference set for 11/14/2019 01:30 PM in San Francisco, Courtroom F, 15th Floor. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
7 Summons Issued as to Kevin McAleenan. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
8 Summons Issued as to U.S. Citizenship and Immigration Services. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
9 Summons Issued as to U.S. Department of Homeland Security. (msrS,

08/19/2019 08/19/2019 08/19/2019 08/19/2019 08/20/2019 08/20/2019 08/21/2019 08/26/2019
08/26/2019
08/26/2019

COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
10 Summons Issued as to Kenneth T. Cuccinelli. (msrS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
11 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13624677.) filed by Commonwealth of Pennsylvania. (Thomson, Aimee) (Filed on 8/19/2019) (Entered: 08/19/2019)
12 NOTICE of Appearance by Brenda Ayon Verduzco (Ayon Verduzco, Brenda) (Filed on 8/19/2019) (Entered: 08/19/2019)
13 NOTICE of Appearance by Lisa Janine Cisneros FOR THE STATE OF CALIFORNIA (Cisneros, Lisa) (Filed on 8/19/2019) (Entered: 08/19/2019)
14 NOTICE of Appearance by Jeanne Nicole DeFever on behalf of State of Oregon (DeFever, Jeanne) (Filed on 8/20/2019) (Entered: 08/20/2019)
15 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-13629711.) filed by State of Maine. (Herman, Susan) (Filed on 8/20/2019) (Entered: 08/20/2019)
16 NOTICE of Appearance by William Hawthorne Downer (Downer, William) (Filed on 8/21/2019) (Entered: 08/21/2019)
17 MOTION for Preliminary Injunction filed by State of California. Motion Hearing set for 10/3/2019 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 9/9/2019. Replies due by 9/16/2019. (Attachments: # 1 Proposed Order)(Rich, Anna) (Filed on 8/26/2019) (Entered: 08/26/2019)
18 Appendix re 17 MOTION for Preliminary Injunction filed byState of California. (Attachments: # 1 Declaration Declaration of Jennifer Van Hook, Declaration of Ninez Ponce, Declaration of Laurel Lucia, and Declaration of Tom K. Wong, # 2 Declaration Declarations of Sarah Neville-Morgan, Susan Fanelli, Charity Dean, Doug McKeever, Kevin Kish, Mari Cantwell, Alexis Carmen Fernandez, Debbi Thomson, M. Marcela Ruiz, Sasha R. Kergan, Jennifer Hernandez, John D. Stobo, # 3 Declaration Declarations of Wilma Chan, Colleen Chawla, Carmela Coyle, David H. Aizuss, Antonia Jimenez, Barbara Ferrer, Pia Escudero, Lori Medina, Gary Gray, and Jodi Hicks, # 4 Declaration Declarations of Cathy Buhrig, Colt Gill, Fariborz Pakseresht, Margaret Solle Salazar, Patrick Allen, Michelle Probert, Anthony Pelotte, Mila Kofman, Melisa Byrd, and Lindsey Palmer)(Related document(s) 17 ) (Rich, Anna) (Filed on 8/26/2019) (Entered: 08/26/2019)
19 ADMINISTRATIVE MOTION Administrative Motion to Exceed Applicable Page Limits re 17 MOTION for Preliminary Injunction filed by State of California. Responses due by 8/30/2019. (Attachments: # 1 Declaration, # 2 Proposed Order)(Rich, Anna) (Filed on 8/26/2019)

08/27/2019
08/27/2019 08/27/2019 08/27/2019
08/27/2019 08/27/2019

(Entered: 08/26/2019)
20 Declaration of Lisa Cisneros in Support of 17 MOTION for Preliminary Injunction filed byState of California. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB)(Related document(s) 17 ) (Cisneros, Lisa) (Filed on 8/27/2019) (Entered: 08/27/2019)
21 CLERK'S NOTICE Re: Consent or Declination: Plaintiffs shall file a consent or declination to proceed before a magistrate judge by 9/10/2019. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. ((ahm, COURT STAFF) (Filed on 8/27/2019) (Entered: 08/27/2019)
22 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by State of California.. (Rich, Anna) (Filed on 8/27/2019) (Entered: 08/27/2019)
23 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ahm, COURT STAFF) (Filed on 8/27/2019) (Entered: 08/27/2019)
24 ORDER RELATING CASE. Case C-19-4975 is related to case C-194717-PJH. Case reassigned to Judge Phyllis J. Hamilton for all further proceedings. Magistrate Judge Jacqueline Scott Corley no longer assigned to the case. Signed by Judge Phyllis J. Hamilton on 8/27/19. (kcS, COURT STAFF) (Filed on 8/27/2019) (Entered: 08/27/2019)
25 MOTION for leave to appear in Pro Hac Vice re: Michael Kron ( Filing fee $ 310, receipt number 0971-13653724.) filed by State of Oregon.

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

(DeFever, Jeanne) (Filed on 8/27/2019) Modified on 8/28/2019 (ajsS, COURT STAFF). (Entered: 08/27/2019)
26 CERTIFICATE OF SERVICE by State of California re 1 Complaint (Rich, Anna) (Filed on 8/27/2019) (Entered: 08/27/2019)
27 ORDER by Judge Phyllis J. Hamilton granting 11 Motion for Pro Hac Vice as to Aimee Diane Thomson. (kcS, COURT STAFF) (Filed on 8/28/2019) (Entered: 08/28/2019)
28 ORDER by Judge Phyllis J. Hamilton granting 15 Motion for Pro Hac Vice Susan P. Herman. (kcS, COURT STAFF) (Filed on 8/28/2019) (Entered: 08/28/2019)
Electronic filing error. First page requires case number regarding 26 Certificate of Service filed by State of California. Please review Local Rule 3-4 for first page require ments. The document does not been to be refiled, but counsel should comply for all future filings. No further action is necessary. (ajsS, COURT STAFF) (Filed on 8/28/2019) (Entered: 08/28/2019)
29 NOTICE by State of California re 17 MOTION for Preliminary Injunction (Rich, Anna) (Filed on 8/28/2019) (Entered: 08/28/2019)
30 CERTIFICATE OF SERVICE by State of California re 17 MOTION for Preliminary Injunction (Rich, Anna) (Filed on 8/28/2019) (Entered: 08/28/2019)
31 NOTICE of Appearance by Cherokee Dawn-Marie Melton for Plaintiff State of California (Melton, Cherokee) (Filed on 8/28/2019) (Entered: 08/28/2019)
Set/Reset Deadlines as to 17 MOTION for Preliminary Injunction. Motion Hearing set for 10/2/2019 at 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. (kcS, COURT STAFF) (Filed on 8/28/2019) (Entered: 08/29/2019)
32 ORDER SETTING CASE MANAGEMENT CONFERENCE. Joint Case Management Statement due by 11/7/2019. Initial Case Management Conference set for 11/14/2019 at 02:00 PM in Oakland, Courtroom 3, 3rd Floor. Signed by Judge Phyllis J. Hamilton on 8/29/19. (kcS, COURT STAFF) (Filed on 8/29/2019) (Entered: 08/29/2019)
33 RESPONSE in Support of Judicial Referral for Purpose of Determining Relationship of Cases by La Clinica De La Raza, California Primary Care Association, Maternal and Child Health Access, Farmworker Justice, Council on American Islamic Relations-California, AFRICAN COMMUNITIES TOGETHER, Legal Aid Society of San Mateo County, Central American Resource Center, Korean Resource Center.

08/30/2019 08/30/2019 08/30/2019
09/03/2019 09/04/2019 09/04/2019
09/04/2019 09/04/2019 09/09/2019 09/09/2019

(Attachments: # 1 Exhibit Referral for Purpose of Determining Relationship, # 2 Exhibit Order Directing Parties to File Response, # 3 Exhibit As filed Response iso Judicial Referral for Purposes of Determ Relationship of Cases)(Espiritu, Nicholas) (Filed on 8/29/2019) (Entered: 08/29/2019)
34 Notice of Withdrawal of Motion For Leave to Appear Pro Hac Vice (DeFever, Jeanne) (Filed on 8/30/2019) (Entered: 08/30/2019)
35 Application for Refund, Receipt Number 26JPGHUO for Pro Hac Vice Application Fee by State of Oregon. (DeFever, Jeanne) (Filed on 8/30/2019) (Entered: 08/30/2019)
36 ORDER GRANTING PLAINTIFF STATES' ADMINSTRATIVE MOTION TO EXCEED APPLICABLE PAGE LIMITS FOR PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION by Judge Phyllis J. Hamilton granting 19 Administrative Motion. (kcS, COURT STAFF) (Filed on 8/30/2019) (Entered: 08/30/2019)
37 NOTICE of Appearance by Julia Harumi Mass (Mass, Julia) (Filed on 9/3/2019) (Entered: 09/03/2019)
38 NOTICE of Appearance by Joshua Michael Kolsky (Kolsky, Joshua) (Filed on 9/4/2019) (Entered: 09/04/2019)
39 STIPULATION WITH PROPOSED ORDER for Order Setting Briefing Schedule) filed by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, La Clinica De La Raza, California Primary Care Association, Maternal and Child Health Access, Farmworker Justice, Council on American Islamic Relations-California, AFRICAN COMMUNITIES TOGETHER, Legal Aid Society of San Mateo County, Central American Resource Center, Korean Resource Center, Commonwelath of Pennsylvania, District of Columbia, Stae of California, State of Maine, State of Oregon. (Attachments: # 1 Declaration, # 2 Proposed Order)(Kolsky, Joshua) (Filed on 9/4/2019) Modified on 9/5/2019 (ajsS, COURT STAFF). (Entered: 09/04/2019)
40 ORDER SETTING BRIEFING SCHEDULE.(pjhlc1S, COURT STAFF) (Filed on 9/4/2019) (Entered: 09/04/2019)
Reset Deadlines as to 17 MOTION for Preliminary Injunction. Opposition due by 9/13/2019. Reply due by 9/20/2019. (kcS, COURT STAFF) (Filed on 9/4/2019) (Entered: 09/04/2019)
41 Refund Status re 35 Application for Refund APPROVED. (rghS, COURT STAFF) (Filed on 9/9/2019) (Entered: 09/09/2019)
42 NOTICE of Appearance by Christina Maria Assi (Assi, Christina) (Filed on 9/9/2019) (Entered: 09/09/2019)

09/09/2019 09/09/2019 09/09/2019 09/09/2019 09/09/2019 09/09/2019 09/10/2019 09/10/2019

43 MOTION for leave to appear in Pro Hac Vice by Russell Hirschhorn ( Filing fee $ 310, receipt number 0971-13686855.) filed 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. (Hirschhorn, Russell) (Filed on 9/9/2019) (Entered: 09/09/2019)
44 MOTION for leave to appear in Pro Hac Vice by Owen Masters ( Filing fee $ 310, receipt number 0971-13687036.) filed 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. (Masters, Owen) (Filed on 9/9/2019) (Entered: 09/09/2019)
45 MOTION for leave to appear in Pro Hac Vice by Denny Chan ( Filing fee $ 310, receipt number 0971-13687329.) filed 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. (Chan, Denny) (Filed on 9/9/2019) (Entered: 09/09/2019)
46 MOTION for leave to appear in Pro Hac Vice by Regan Bailey ( Filing fee $ 310, receipt number 0971-13687524.) filed 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. (Bailey, Regan) (Filed on 9/9/2019) (Entered: 09/09/2019)
47 MOTION for leave to appear in Pro Hac Vice by Natalie Kean ( Filing fee $ 310, receipt number 0971-13687676.) filed 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. (Kean, Natalie) (Filed on 9/9/2019) (Entered: 09/09/2019)
48 MOTION for Leave to File Brief of Amici Curiae filed 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. (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Curiae Brief)(Assi, Christina) (Filed on 9/9/2019) (Entered: 09/09/2019)
49 ORDER by Judge Phyllis J. Hamilton granting 43 Motion for Pro Hac Vice as to Russell L. Hirshhorn. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
50 ORDER by Judge Phyllis J. Hamilton granting 44 Motion for Pro Hac Vice as to Owen T. Masters. (kcS, COURT STAFF) (Filed on

09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019
09/10/2019

9/10/2019) (Entered: 09/10/2019)
51 ORDER by Judge Phyllis J. Hamilton granting 45 Motion for Pro Hac Vice as to Denny Chan. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
52 ORDER by Judge Phyllis J. Hamilton granting 46 Motion for Pro Hac Vice as to Regan Bailey. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
53 ORDER by Judge Phyllis J. Hamilton granting 47 Motion for Pro Hac Vice as to Natalie Kean. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
54 Amicus Curiae APPEARANCE entered by Emily Tomoko Kuwahara on behalf of Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 58 other amici curiae. (Kuwahara, Emily) (Filed on 9/10/2019) (Entered: 09/10/2019)
55 Amicus Curiae APPEARANCE entered by Christopher Cadena on behalf of Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 58 other amici curiae. (Cadena, Christopher) (Filed on 9/10/2019) (Entered: 09/10/2019)
56 Amicus Curiae APPEARANCE entered by Austin Joan Sutta on behalf of Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 58 other amici curiae. (Sutta, Austin) (Filed on 9/10/2019) (Entered: 09/10/2019)
57 Unopposed MOTION for Leave to File Brief of Amici Curiae filed by Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 58 other amici curiae. (Attachments: # 1 Exhibit A - Memorandum of Law of Amici Curiae Asian Americans Advancing Justice | AAJC, Asian American Legal Defense and Education Fund, and National Womens Law Center, and 58 other amici ISO Plaintiffs' Motion for Preliminary Injunction, # 2 Proposed Order)(Kuwahara, Emily) (Filed on 9/10/2019) Modified on 9/11/2019 (kcS, COURT STAFF). (Entered: 09/10/2019)
58 MOTION for Leave to File Brief of Amici Curiae filed by Members of the Congressional Black Caucus CBC (Rep. Karen Bass, Rep. Yvette D. Clarke, Rep. Emanuel Cleaver, Rep. Bonnie Watson Coleman, Rep. Danny K. Davis, Rep. Val Demings, Rep. Steven Horsford, Rep. Henry C. Hank Johnson, Jr., Rep. Eleanor Holmes Norton, Rep. Lisa Blunt Rochester, Rep. Robert C. Bobby Scott, Rep. Bennie Thompson) Members of the Congressional Hispanic Caucus - CHC (Rep. Nanette Diaz Barragn, Rep.

09/11/2019 09/11/2019 09/11/2019 09/11/2019
09/11/2019 09/11/2019
09/11/2019

Salud O. Carbajal, Rep. Joaquin Castro, Rep. J. Luis Correa, Rep. Veronica Escobar, Rep. Adriano Espaillat, Rep. Ruben Gallego, Rep. Jess G. Chuy Garca, Rep. Jimmy Gomez, Rep. Sylvia R. Garcia, Rep. Ral M. Grijalva, Rep. Debbie Mucarsel-Powell, Rep. Grace F. Napolitano, Rep. Alexandria Ocasio-Cortez, Rep. Lucille Roybal-Allard, Rep. Gregorio Kilili Camacho Sablan, Rep. Linda T. Snchez, Rep. Jos E. Serrano, Rep. Albio Sires, Rep. Darren Soto, Rep. Norma J. Torres, Rep. Juan Vargas, Rep. Nydia M. Velzquez), Members of the Congressional Asian Pacific American Caucus - CAPAC (Rep. Judy Chu, Rep. Bonnie Watson Coleman, Rep. TJ Cox, Rep. Anna G. Eshoo, Rep. Al Green, Rep. Deb Haaland, Rep. Pramila Jayapal, Rep. Barbara Lee, Rep. Ted W. Lieu, Rep. Grace Meng, Rep. Grace F. Napolitano, Rep. Gregorio Kilili Camacho Sablan, Rep. Mark Takano, Rep. Juan Vargas, Rep. Linda T. Sanchez, Rep. Nydia M. Velzquez). (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Curiae Brief)(Reider, Nicholas) (Filed on 9/10/2019) Modified on 9/26/2019 (kcS, COURT STAFF). (Entered: 09/10/2019)
59 ORDER GRANTING MOTIONS FOR LEAVE TO FILE AMICI BRIEFS. (pjhlc1S, COURT STAFF) (Filed on 9/11/2019) (Entered: 09/11/2019)
60 NOTICE of Appearance by Kelly M. Dermody (Dermody, Kelly) (Filed on 9/11/2019) (Entered: 09/11/2019)
61 NOTICE of Appearance by Michael Ian Levin-Gesundheit (LevinGesundheit, Michael) (Filed on 9/11/2019) (Entered: 09/11/2019)
62 STIPULATION WITH PROPOSED ORDER Re: Extension of Page Limits filed by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security and the State of Califnoria(Attachments: # 1 Proposed Order)(Kolsky, Joshua) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
63 NOTICE of Appearance by Justin Jonathan Lowe (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
64 MOTION to File Amicus Curiae Brief filed by American Hospital Association, America's Essential Hospitals, Association of American Medical Colleges, Catholic Health Association of the United States, The Children's Hospital Association, The Federation of American Hospitals. Responses due by 9/25/2019. Replies due by 10/2/2019. (Attachments: # 1 [Proposed] Amici Curiae Brief, # 2 [Proposed] Order)(Gonzales, Michelle) (Filed on 9/11/2019) (Entered: 09/11/2019)
65 MOTION for leave to appear in Pro Hac Vice Sean Marotta ( Filing fee $ 310, receipt number 0971-13695201.) filed by America's Essential Hospitals, American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, The

09/11/2019
09/11/2019
09/11/2019 09/11/2019

Children's Hospital Association, The Federation of American Hospitals. (Marotta, Sean) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
66 MOTION for leave to appear in Pro Hac Vice of Wendy Parmet ( Filing fee $ 310, receipt number 0971-13695329.) filed 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, Inc., 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 Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
67 MOTION for leave to appear in Pro Hac Vice of Andrew Cohen ( Filing fee $ 310, receipt number 0971-13695367.) filed 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, Inc., 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 Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
68 MOTION for leave to appear in Pro Hac Vice re: Christian Springer ( Filing fee $ 310, receipt number 0971-13696213.) filed by Health Law Advocates, Inc.. (Springer, Christian) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
69 MOTION for leave to appear in Pro Hac Vice Kristyn DeFilipp ( Filing fee $ 310, receipt number 0971-13696272.) filed 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, Inc., 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

09/11/2019 09/11/2019 09/12/2019

Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (DeFilipp, Kristyn) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
70 MOTION for Leave to File Brief of Amici Curiae Health Law Advocates, Inc. and 23 Other Organizations Interested in Public Health in Support of Plaintiffs' Motion for Preliminary Injunction filed 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, Inc., 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 Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
71 ADMINISTRATIVE MOTION for Leave to File as Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed 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, Civil Rights Education and Enforcement Center, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights California, 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 the United States, United Spinal Association. Responses due by 9/16/2019. (Attachments: # 1 Declaration of Sarah M. Ray, # 2 Proposed Brief of Amici Curiae, # 3 Proposed Order)(Ray, Sarah) (Filed on 9/11/2019) (Entered: 09/11/2019)
72 MOTION for leave to appear in Pro Hac Vice re: Andrew London ( Filing fee $ 310, receipt number 0971-13696641.) filed 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

09/12/2019
09/12/2019 09/12/2019 09/12/2019 09/12/2019 09/12/2019

Law Advocates, Inc., 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 Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (London, Andrew) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
73 MOTION for leave to appear in Pro Hac Vice re: Emily Nash ( Filing fee $ 310, receipt number 0971-13696656.) filed 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, Inc., 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 Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Nash, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
74 ORDER EXTENDING PAGE LIMITATION APPLICABLE TO DEFENDANTS OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION by Judge Phyllis J. Hamilton granting 62 Stipulation. (kcS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
75 NOTICE of Appearance by Christopher John Frisina for Kathryn E. Doi (Frisina, Christopher) (Filed on 9/12/2019) (Entered: 09/12/2019)
76 MOTION for leave to appear in Pro Hac Vice re: Christopher J. Frisina ( Filing fee $ 310, receipt number 0971-13687023.) Filing fee previously paid on 9/9/2019 filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Frisina, Christopher) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
77 MOTION for leave to appear in Pro Hac Vice re: Phillip A. Escoriaza ( Filing fee $ 310, receipt number 0971-13687099.) Filing fee previously paid on 9/9/2019 filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Escoriaza, Phillip) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
78 MOTION for leave to appear in Pro Hac Vice re: Edward T. Waters

09/12/2019 09/12/2019
09/12/2019

( Filing fee $ 310, receipt number 0971-13687118.) Filing fee previously paid on 9/9/2019 filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Waters, Edward) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
79 Certificate of Interested Entities by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars (Waters, Edward) (Filed on 9/12/2019) (Entered: 09/12/2019)
80 MOTION to File Amicus Curiae Brief filed by American Academy of Nursing, American Public Health Association, Deans - Ayman ElMohandes, MBBCh, MD, MPH, Barbara K. Rimer, DrPH, MPH, Boris Lushniak, MD, MPH, David B. Allison, PhD, Edith A. Parker, MPH, DrPH, G. Thomas Chandler, MS, PhD, Hilary Godwin, PhD, Karen Drenkard, PhD, RN, NEA-BC, FAAN, Laura A. Siminoff, PhD, Linda P. Fried, MD, MPH, Lynn R. Goldman, MD, MPH, MS, Mark A. Schuster, MD, PhD, Michael C. Lu, MD, MS, MPH, Pamela R. Jeffries, PhD, RN, FAAN, ANEF, FSSH, Paula Lantz, PhD, Sandro Galea, MD, DrPH, Sherry Glied, PhD, MA, Sten H. Vermund, MD, PhD, Thomas E. Burroughs, PhD, MS, MA; Chairs - Alan G. Wasserman, MD, MACP, Becky Slifkin, PhD, Claire D. Brindis, DrPH, David M. Keepnews, PhD, JD, RN, NEA-BC, FAAN, Jane Thorpe, JD, Karen A. McDonnell, PhD; Scholars - Alan B. Cohen, Sc.D., Allison K. Hoffman, JD, Amita N. Vyas, PhD, MHS, Andy Schneider, JD, Benjamin D. Sommers, MD, PhD, Colleen M. Grogan, PhD, Daniel Skinner, PhD, David M. Frankford, JD, David Michaels, PhD, MPH, Diana J. Mason, RN, PhD, FAAN, Dora L. Hughes, MD, MPH, Harold Pollark, PhD, Janet Heinrich, DrPH, RN, FAAN, Jeffrey Levi, PhD, Jillian Catalanotti, MD, MPH, FACP, Joan Alker, Jonathan Oberlander, PhD, Julia Zoe Beckerman, JD, MPH, Katherine Horton, RN, MPH, JD, Katherine Swartz, PhD, Krista M. Perreira, PhD, Lynn A. Blewett, PhD, MA, Mark A. Peterson, PhD, Maureen Byrnes, MPA, Melissa M. Goldstein, JD, Michael K. Gusmano, PhD, Naomi Seiler, JD, Neal Halfon, MD, MPH, Nicole Huberfeld, JD, Pam Silberman, JD, DrPH, Rand E. Rosenblatt, JD, Sara Rosenbaum, JD, Sylvia A. Law, JD, Timothy Stoltzfus Jost, JD, Timothy M. Westmoreland, JD, Wendy K. Mariner, JD, LLM, MPH, William B. Borden, MD, FACC, FAHA. Responses due by 9/26/2019. Replies due by 10/3/2019. (Attachments: # 1 Exhibit Proposed Amici Brief, # 2 Proposed Order)(Waters, Edward) (Filed on 9/12/2019) Modified on 9/26/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
81 Notice of Additional Parties: the following parties are listed on 57 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: Asian Pacific Development Center, Association of Asian Pacific Community Health Organizations, 9to5, National Association of Working Women, Anti-Defamation League, Apna

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Ghar, Inc., Asian American Advancing Justice - Asian Law Caucus, Asian Americans Advancing Justice-Atlanta, Asian & Latino Solidarity Alliance of Central Virginia, Asian Law Alliance, Asian Pacific American Legal Resource Center, Asian Pacific Community in Action, Asian Pacific Development Center and Association of Asian Pacific Community Health Organizations. (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
82 Notice of Additional Parties: the following parties are listed on 57 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: California Asian Pacific Islander Legislative Caucus, Center on Reproductive Rights and Justice at Berkeley School of Law, Chicago Alliance Against Sexual Exploitation, Chinese-American Planning Council, Chinese for Affirmative Action, Coalition on Human Needs, Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR), Connecticut Women's Education and Legal Fund, EMBARC, End Rape on Campus, Equal Rights Advocates, Fred T. Korematsu Center for Law and Equality, Girls Inc. and GLBTQ Legal Advocates & Defenders (GLAD). (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
83 Notice of Additional Parties: the following parties are listed on 57 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: If When How: Lawyering for Reproductive Justice, In Our Own Voice: National Black Womens Reproductive Justice Agenda, In the Public Interest, Japanese American Citizens League (JACL), KWH Law Center for Social Justice and Change, LatinoJustice PRLDEF, MinKwon Center for Community Action, National Advocates for Pregnant Women, National Korean American Service & Education Consortium (NAKASEC), National Asian Pacific American Women's Forum (NAPAWF), National Coalition for Asian Pacific American Community Development (National CAPACD), National Crittenton, National Immigrant Justice Center, National Immigrant Women's Advocacy Project and National Partnership for Women & Families. (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
84 Notice of Additional Parties: the following parties are listed on 57 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: Oasis Legal Services, OCA - Asian Pacific American Advocates, Oklahoma Call for Reproductive Justice, OneAmerica, Planned Parenthood Federation of America, Population Connection, Reproductive Health Access Project, Services, Immigrant Rights & Education Network (SIREN), Sexuality Information and Education Council of the United States (SIECUS) and Sikh American

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09/12/2019
09/13/2019 09/13/2019 09/13/2019 09/13/2019

Legal Defense and Education Fund (SALDEF). (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
85 Notice of Additional Parties: the following parties are listed on 57 Unopposed MOTION for Leave to File Brief of Amici Curiae and have been added to this case: South Asian Americans Leading Together (SAALT), Southeast Asia Resource Action Center (SEARAC), Transgender Law Center, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, and Men of Reform Judaism, Washington Lawyers' Committee for Civil Rights and Urban Affairs, Women's Bar Association of the State of New York, Women's Law Center of Maryland and Women Lawyers on Guard Inc.. (This is a text-only entry.) (Kuwahara, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
86 MOTION to File Amicus Curiae Brief filed by NHLP; FRAC; CLASP, California Food Policy Advocates, California League of United Latin American Citizens, Center for the Study of Social Policy, Childrens Defense Fund-New York, Childrens HealthWatch, The Childrens Partnership, Citizens Committee for Children of New York, Comunidades Unidas, First Focus on Children, Kansas Appleseed Center for Law and Justice, Inc., Los Angeles Regional Food Bank, Michigan Immigrant Rights Center, Mississippi Center for Justice, National Law Center on Homelessness & Poverty, National Low Income Housing Coalition, National WIC Association, Oregon Food Bank, Prevention Institute, Sant La, Haitian Neighborhood Center, Inc., South Carolina Appleseed Legal Justice Center, Utahns Against Hunger, Virginia Poverty Law Center. Responses due by 9/26/2019. Replies due by 10/3/2019. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Thacher, Frances Cheston) (Filed on 9/12/2019) Modified on 9/26/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
87 ORDER by Judge Phyllis J. Hamilton granting 65 Motion for Pro Hac Vice as to Sean Marotta. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
88 ORDER by Judge Phyllis J. Hamilton granting 66 Motion for Pro Hac Vice as to Wendy Parmet. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
89 ORDER by Judge Phyllis J. Hamilton granting 67 Motion for Pro Hac Vice as to Andrew Cohen. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
90 ORDER by Judge Phyllis J. Hamilton granting 68 Motion for Pro Hac Vice as to Christian Springer. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)

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09/14/2019

91 ORDER by Judge Phyllis J. Hamilton granting 69 Motion for Pro Hac Vice as to Kristyn DeFilipp. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
92 ORDER by Judge Phyllis J. Hamilton granting 72 Motion for Pro Hac Vice as to Andrew London. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
93 ORDER by Judge Phyllis J. Hamilton granting 73 Motion for Pro Hac Vice as to Emily Nash. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
94 ORDER by Judge Phyllis J. Hamilton granting 76 Motion for Pro Hac Vice as to Christopher J. Frisina. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
95 ORDER by Judge Phyllis J. Hamilton granting 77 Motion for Pro Hac Vice as to Phillip A. Escoriaza. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
96 ORDER by Judge Phyllis J. Hamilton granting 78 Motion for Pro Hac Vice as to Edward T. Waters. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
97 OPPOSITION/RESPONSE (re 17 MOTION for Preliminary Injunction ) filed byKenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Kolsky, Joshua) (Filed on 9/13/2019) (Entered: 09/13/2019)
98 MOTION for Leave to File Brief of Amici Curiae filed by American Academy of Pediatrics, American Medical Association, American College of Physicians, American Academy of Pediatrics, California. (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Curiae Brief)(Krumplitsch, Susan) (Filed on 9/13/2019) (Entered: 09/13/2019)
99 MOTION to File Amicus Curiae Brief filed by California Immigrant Policy Center, Oasis Legal Services, Fiscal Policy Institute, Presidents' Alliance on Higher Education and Immigration, Economic Progress Institute, Community Action Marin, Child Care Law Center, Boundless Immigration, National Center for Law and Economic Justice, Virginia Interfaith Center for Public Policy, Kids Forward. Responses due by 9/30/2019. Replies due by 10/7/2019. (Attachments: # 1 Declaration of Brittany N. Lovejoy, # 2 [Proposed] Brief of Amici Curiae, # 3 Proposed Order)(Huseny, Sadik) (Filed on 9/14/2019) (Entered: 09/14/2019)
100 Appendix to 99 Proposed Brief of Amici Curiae the Fiscal Policy Institute, Presidents' Alliance on Higher Education, et al. in Support of Plaintiffs' Motion for Preliminary Injunction filed byBoundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute, Kids

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Forward, National Center for Law and Economic Justice, Oasis Legal Services, Presidents' Alliance on Higher Education and Immigration, Virginia Interfaith Center for Public Policy. (Huseny, Sadik) (Filed on 9/14/2019) Modified on 9/16/2019 (ajsS, COURT STAFF). (Entered: 09/14/2019)
101 ORDER DENYING MOTIONS FOR LEAVE TO FILE AMICI BRIEFS (pjhlc1S, COURT STAFF) (Filed on 9/16/2019) (Entered: 09/16/2019)
102 NOTICE of Amended Declaration of Jennifer Van Hook by State of California re 18 Appendix (Attachments: # 1 Declaration Supplemental Declaration of Jennifer Van Hook, # 2 Declaration Amended Declaration of Jennifer Van Hook)(Ayon Verduzco, Brenda) (Filed on 9/18/2019) Modified on 9/18/2019 (ajsS, COURT STAFF). (Entered: 09/18/2019)
103 ***SEE DOCKET ENTRY 104 FOR CORRECTED DOCUMENT*** REPLY (re 17 MOTION for Preliminary Injunction) filed by State of California. (Rich, Anna) (Filed on 9/20/2019) Modified on 9/23/2019 (cjlS, COURT STAFF). (Entered: 09/20/2019)
104 REPLY (re 17 MOTION for Preliminary Injunction ) CORRECTION OF DOCKET # 103 filed byState of California. (Rich, Anna) (Filed on 9/20/2019) (Entered: 09/20/2019)
105 NOTICE of Appearance by Katherine M Lehe (Lehe, Katherine) (Filed on 9/24/2019) (Entered: 09/24/2019)
106 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byState of California. (Related document(s) 17 ) (Rich, Anna) (Filed on 9/24/2019) (Entered: 09/24/2019)
107 NOTICE of Appearance by Ethan Price Davis (Attachments: # 1 Certificate/Proof of Service)(Davis, Ethan) (Filed on 9/28/2019) (Entered: 09/28/2019)
108 NOTICE by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Exhibit (Correction))(Kolsky, Joshua) (Filed on 10/1/2019) (Entered: 10/01/2019)
109 Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Preliminary Injunction Hearing held on 10/2/2019. Court Reporter: Pamela Batalo Hebel. (kcS, COURT STAFF) (Date Filed: 10/2/2019) (Entered: 10/02/2019)
110 TRANSCRIPT ORDER for proceedings held on 10/2/2019 before Judge Phyllis J. Hamilton by State of California, for Court Reporter Pam Batalo. (Cisneros, Lisa) (Filed on 10/2/2019) (Entered: 10/02/2019)
111 TRANSCRIPT ORDER for proceedings held on 10/2/2019 before Judge

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Phyllis J. Hamilton for Court Reporter Pam Batalo. (oh, COURT STAFF) (Filed on 10/3/2019) (Entered: 10/03/2019)
112 NOTICE of Appearance by Alacoque Hinga Nevitt (Nevitt, Alacoque) (Filed on 10/3/2019) (Entered: 10/03/2019)
113 Transcript of Proceedings held on 10/02/19, before Judge Hamilton. Court Reporter Pamela Batalo Hebel, telephone number 626-688-7509; pamela_batalo-hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (111 in 4:19-cv-04975-PJH, 124 in 4:19-cv-04980-PJH, 108 in 4:19-cv-04717-PJH) Transcript Order, (110 in 4:19-cv-04975-PJH) Transcript Order, (109 in 4:19-cv-04717-PJH) Transcript Order ) Redaction Request due 10/24/2019. Redacted Transcript Deadline set for 11/4/2019. Release of Transcript Restriction set for 1/2/2020. (Batalo, Pam) (Filed on 10/3/2019) (Entered: 10/03/2019)
114 Supplemental Brief of Record Citations In Support of Plaintiffs' Motion for Preliminary Injunction filed byState of California. (Ayon Verduzco, Brenda) (Filed on 10/4/2019) (Entered: 10/04/2019)
115 Letter from Plaintiffs in All Related Cases . (Attachments: # 1 Proposed Order)(Rich, Anna) (Filed on 10/7/2019) (Entered: 10/07/2019)
116 NOTICE of Draft Injunction by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Kolsky, Joshua) (Filed on 10/7/2019) Modified on 10/8/2019 (ajsS, COURT STAFF). (Entered: 10/07/2019)
117 NOTICE of Attorney Withdrawal by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars (Frisina, Christopher) (Filed on 10/10/2019) Modified on 10/11/2019 (ajsS, COURT STAFF). (Entered: 10/10/2019)
118 ***DISREGARD, ENTERED INTO THIS CASE IN ERROR*** MOTION to Withdraw as Attorney filed by District of Columbia. Responses due by 10/24/2019. Replies due by 10/31/2019. (Attachments: # 1 Proposed Order)(Nannery, Valerie) (Filed on 10/10/2019) Modified on 10/10/2019 (kcS, COURT STAFF). (Entered: 10/10/2019)
119 MOTION to Withdraw as Attorney filed by District of Columbia. Responses due by 10/24/2019. Replies due by 10/31/2019. (Attachments: # 1 Proposed Order)(Nannery, Valerie) (Filed on 10/10/2019) (Entered: 10/10/2019)
120 PRELIMINARY INJUNCTIONAssociated Cases: 4:19-cv-04717-PJH,

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4:19-cv-04975-PJH, 4:19-cv-04980-PJH(pjhlc1S, COURT STAFF) (Filed on 10/11/2019) (Entered: 10/11/2019)
121 MOTION to Withdraw as Attorney filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. Responses due by 10/30/2019. Replies due by 11/6/2019. (Frisina, Christopher) (Filed on 10/16/2019) (Entered: 10/16/2019)
Electronic filing error. Missing Proposed Order Re: 121 MOTION to Withdraw as Attorney . A proposed order required in accordance with L.R. 5-1(g). Please file a p roposed order ONLY and link it to the Motion. The event is: Civil Events > Other Filings > Other Documents > Proposed Order (ajsS, COURT STAFF) (Filed on 10/17/2019) (Entered: 10/17/2019)
122 MOTION to Withdraw 121 MOTION to Withdraw as Attorney filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. Responses due by 10/31/2019. Replies due by 11/7/2019. (Frisina, Christopher) (Filed on 10/17/2019) (Entered: 10/17/2019)
123 JOINT ADMINISTRATIVE MOTION for Relief from Automatic Referral to the ADR Multi-Option Program filed by State of California. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Rich, Anna) (Filed on 10/24/2019) Modified on 10/25/2019 (ajsS, COURT STAFF). (Entered: 10/24/2019)
124 Order by Judge Phyllis J. Hamilton granting 123 Joint Motion for Relief from Referral to ADR Multi-Option Program.(dtmS, COURT STAFF) (Filed on 10/25/2019) (Entered: 10/25/2019)
125 MOTION to Stay Preliminary Injunction filed by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. Motion Hearing set for 12/4/2019 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 11/8/2019. Replies due by 11/15/2019. (Kolsky, Joshua) (Filed on 10/25/2019) (Entered: 10/25/2019)
126 Declaration of Daniel Renaud in Support of 125 MOTION to Stay Preliminary Injunction filed byKenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Related document(s) 125 ) (Kolsky, Joshua) (Filed on 10/25/2019) (Entered: 10/25/2019)
127 Proposed Order re 125 MOTION to Stay Preliminary Injunction by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Kolsky, Joshua) (Filed on 10/25/2019) (Entered: 10/25/2019)
Electronic filing error. No Title Page Re: 126 Declaration in Support, filed

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by U.S. Department of Homeland Security, Kevin McAleenan, Kenneth T. Cuccinelli, U.S. Citizens hip and Immigration Services. Declarations e-filed separately and not as an attachment, requires a title page. Please refer to Civil Local Rules 3-4 regarding first page requirement. This filing will not be processed by the clerks office. Please re-file in its entirety. (ajsS, COURT STAFF) (Filed on 10/28/2019) (Entered: 10/28/2019)
128 Declaration of Daniel Renaud in Support of 125 MOTION to Stay Preliminary Injunction filed byKenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Related document(s) 125 ) (Kolsky, Joshua) (Filed on 10/28/2019) (Entered: 10/28/2019)
129 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. Appeal of Order on Motion for Preliminary Injunction 120 (Appeal fee FEE WAIVED.) (Kolsky, Joshua) (Filed on 10/30/2019) (Entered: 10/30/2019)
130 USCA Case Number 19-17214 Ninth Circuit Court of Appeals for 129 Notice of Appeal, filed by U.S. Department of Homeland Security, Kevin McAleenan, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services. (cjlS, COURT STAFF) (Filed on 10/31/2019) (Entered: 11/01/2019)
131 ORDER of USCA as to 129 Notice of Appeal, filed by U.S. Department of Homeland Security, Kevin McAleenan, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services. (ajsS, COURT STAFF) (Filed on 11/1/2019) (Entered: 11/01/2019)
132 JOINT CASE MANAGEMENT STATEMENT filed by State of California, U.S. Citizenship and Immigration Services, Department of Homeland Security, Kevin McAleenen, and Kenneth T. Cuccinelli. (Rich, Anna) (Filed on 11/7/2019) Modified on 11/8/2019 (ajsS, COURT STAFF). (Entered: 11/07/2019)
133 OPPOSITION/RESPONSE (re 125 MOTION to Stay Preliminary Injunction ) filed byState of California. (Rich, Anna) (Filed on 11/8/2019) (Entered: 11/08/2019)
134 NOTICE of Waiver of Reply and Hearing by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security re 125 MOTION to Stay Preliminary Injunction (Kolsky, Joshua) (Filed on 11/8/2019) Modified on 11/12/2019 (ajsS, COURT STAFF). (Entered: 11/08/2019)
135 CLERK'S NOTICE VACATING MOTION HEARING. YOU ARE

11/14/2019 11/15/2019 11/22/2019
12/03/2019 12/05/2019 12/06/2019 12/09/2019

HEREBY NOTIFIED that the hearing on 125 MOTION to Stay Preliminary Injunction set for 12/4/2019 at 9:00 a.m. is VACATED. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kcS, COURT STAFF) (Filed on 11/14/2019) (Entered: 11/14/2019)
136 Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Initial Case Management Conference held on 11/14/2019. Parties shall submit stipulated proposed briefing schedule by 12/9/2019. Court Reporter: Pamela Batalo Hebel. (kcS, COURT STAFF) (Date Filed: 11/14/2019) (Entered: 11/14/2019)
137 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byState of California. (Attachments: # 1 Order Denying Stay, # 2 Corrected Memorandum Opinion and Order)(Related document(s) 133 ) (Cisneros, Lisa) (Filed on 11/15/2019) (Entered: 11/15/2019)
138 Transcript of Proceedings held on 11/14/19, before Judge Hamilton. Court Reporter Pamela Batalo Hebel, telephone number 626-688-7509; pamela_batalo-hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (132 in 4:19-cv-04717-PJH) Transcript Order ) Redaction Request due 12/13/2019. Redacted Transcript Deadline set for 12/23/2019. Release of Transcript Restriction set for 2/20/2020. (Batalo, Pam) (Filed on 11/22/2019) (Entered: 11/22/2019)
139 Statement of Recent Decisions pursuant to Civil Local Rule 7-3.d by State of California. (Ayon Verduzco, Brenda) (Filed on 12/3/2019) (Entered: 12/03/2019)
141 ORDER of USCA as to 129 Notice of Appeal, filed by U.S. Department of Homeland Security, Kevin McAleenan, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services (ajsS, COURT STAFF) (Filed on 12/5/2019) (Entered: 12/06/2019)
140 Order by Judge Phyllis J. Hamilton terminating (120) Motion to Stay in case 19-cv-04717-PJH and (125) Motion to Stay in case 19-cv-04975PJH Associated Cases: 4:19-cv-04717-PJH, 4:19-cv-04975PJH(pjhlc1S, COURT STAFF) (Filed on 12/6/2019) (Entered: 12/06/2019)
142 STIPULATION WITH PROPOSED ORDER Pursuant to Civil Local Rule 6-2 Requesting Order Changing Time filed by State of California, U.S. Department of Homeland Security, Kevin McAleenan, U.S. Citizenship

12/11/2019 12/20/2019 12/20/2019 12/20/2019 01/02/2020 01/10/2020 01/29/2020
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and Immigration Services, and Kenneth T. Cuccinelli. (Attachments: # 1 Declaration, # 2 Proposed Order)(Cisneros, Lisa) (Filed on 12/9/2019) Modified on 12/10/2019 (ajsS, COURT STAFF). (Entered: 12/09/2019)
143 ORDER APPROVING THE PARTIES' STIPULATION TO CHANGE TIME by Judge Phyllis J. Hamilton granting 142 Stipulation. (kcS, COURT STAFF) (Filed on 12/11/2019) (Entered: 12/11/2019)
144 STIPULATION WITH PROPOSED ORDER re Case Management Schedule per minute entry 136 filed by State of California and U.S. Deparment of Homeland Security, Kevin McAleenan, U.S Citizenship and Immigration Services, and Kenneth T. Cuccinelli. (Mass, Julia) (Filed on 12/20/2019) Modified on 12/23/2019 (ajsS, COURT STAFF). Modified on 12/23/2019 (ajsS, COURT STAFF). (Entered: 12/20/2019)
145 STIPULATION RE CASE MANAGEMENT SCHEDULE; ORDER by Judge Phyllis J. Hamilton granting 144 Stipulation. Motions related to discovery and completeness of administrative record due by 1/29/2020. Response due 2/12/2020. Reply due 2/19/2020. Hearing set for 3/4/2020 at 9:00 a.m. (kcS, COURT STAFF) (Filed on 12/20/2019) (Entered: 12/20/2019)
146 ORDER of USCA as to 129 Notice of Appeal, filed by U.S. Department of Homeland Security, Kevin McAleenan, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services (ajsS, COURT STAFF) (Filed on 12/20/2019) (Entered: 12/23/2019)
147 ADMINISTRATIVE MOTION for Leave to Manually File Administrative Record filed by Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. Responses due by 1/6/2020. (Attachments: # 1 Declaration (Kolsky Declaration), # 2 Proposed Order)(Kolsky, Joshua) (Filed on 1/2/2020) (Entered: 01/02/2020)
148 Order by Judge Phyllis J. Hamilton regarding Administrative Motions to Manually File Administrative Record.Associated Cases: 4:19-cv04717-PJH, 4:19-cv-04975-PJH, 4:19-cv-04980-PJH(pjhlc1S, COURT STAFF) (Filed on 1/10/2020) (Entered: 01/10/2020)
149 MOTION to Compel Completion of Administrative Record and Request for Leave to Serve Discovery filed by State of California. Motion Hearing set for 3/4/2020 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 2/12/2020. Replies due by 2/19/2020. (Attachments: # 1 Declaration of Lisa Cisneros, # 2 Exhibit 125, # 3 Exhibit 26-55, # 4 Proposed Order)(Mass, Julia) (Filed on 1/29/2020) (Entered: 01/29/2020)
150 ERRATA re 149 MOTION to Compel Completion of Administrative

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Record and Request for Leave to Serve Discovery Declaration of Lisa Cisneros by State of California. (Mass, Julia) (Filed on 1/30/2020) (Entered: 01/30/2020)
151 OPPOSITION/RESPONSE (re 149 MOTION to Compel Completion of Administrative Record and Request for Leave to Serve Discovery ) filed byKenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Kolsky, Joshua) (Filed on 2/12/2020) (Entered: 02/12/2020)
153 ORDER of USCA as to 129 Notice of Appeal, filed by U.S. Department of Homeland Security, Kevin McAleenan, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services (ajsS, COURT STAFF) (Filed on 2/18/2020) (Entered: 02/20/2020)
152 REPLY (re 149 MOTION to Compel Completion of Administrative Record and Request for Leave to Serve Discovery ) filed byCommonwealth of Pennsylvania, District of Columbia, State of California, State of Maine, State of Oregon. (Attachments: # 1 Declaration Supplemental Declaration of Lisa Cisneros, # 2 Exhibit Exhibits 56-72 of Supplemental Declaration of Lisa Cisneros, # 3 Proposed Order Revised [Proposed] Order)(Mass, Julia) (Filed on 2/19/2020) (Entered: 02/19/2020)
154 Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Motion Hearing held on 3/4/2020 re 149 MOTION to Compel Completion of Administrative Record and Request for Leave to Serve Discovery filed by State of California. Court Reporter: Raynee Mercado. (kcS, COURT STAFF) (Date Filed: 3/4/2020) (Entered: 03/04/2020)
155 TRANSCRIPT ORDER for proceedings held on 03/04/2020 before Judge Phyllis J. Hamilton by State of California, for Court Reporter Raynee Mercado. (Cisneros, Lisa) (Filed on 3/6/2020) (Entered: 03/06/2020)
156 NOTICE of Supplemental Authority by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security re 151 Opposition/Response to Motion, (Kolsky, Joshua) (Filed on 3/25/2020) Modified on 3/26/2020 (ajsS, COURT STAFF). (Entered: 03/25/2020)
157 JOINT STATUS REPORT by State of California re 149 MOTION to Compel Completion of Administrative Record and Request for Leave to Serve Discovery filed by Stat of California, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kevin McAleenan and Kenneth T. Cuccinelli. (Mass, Julia) (Filed on 3/27/2020) Modified on 3/30/2020 (ajsS, COURT STAFF). (Entered: 03/27/2020)
158 Transcript of Proceedings held on March 4, 2020, before Judge Phyllis J. Hamilton. Court Reporter Raynee H. Mercado, CSR, telephone number

03/30/2020

510-565-7228, cacsr8258@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (155 in 4:19-cv-04975-PJH) Transcript Order ) Release of Transcript Restriction set for 6/23/2020. (rhm) (Filed on 3/27/2020) (Entered: 03/27/2020)
Electronic filing error Re: 157 Notice (Other) filed by State of California.

Incorrect event used [err101]. The correct event is: Civil Events > Other Filings > Other Documents > Status Report.

04/01/2020 04/22/2020
05/06/2020 05/06/2020 05/12/2020
05/13/2020

Corrected by Clerk's Office. No further action is necessary. (ajsS, COURT STAFF) (Filed on 3/30/2020) (Entered: 03/30/2020)
159 ORDER by Judge Phyllis J. Hamilton granting in part and denying in part (149) Motion to Compel in case 4:19-cv-04975-PJH; granting in part and denying in part (150) Motion to Compel in case 4:19-cv04980-PJH. (pjhlc1S, COURT STAFF) (Filed on 4/1/2020) (Entered: 04/01/2020)
160 MOTION to Dismiss filed by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. Motion Hearing set for 6/10/2020 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 5/6/2020. Replies due by 5/13/2020. (Attachments: # 1 Proposed Order)(Kolsky, Joshua) (Filed on 4/22/2020) (Entered: 04/22/2020)
161 OPPOSITION/RESPONSE (re 160 MOTION to Dismiss ) filed byState of California. (Rich, Anna) (Filed on 5/6/2020) (Entered: 05/06/2020)
162 Request for Judicial Notice re 161 Opposition/Response to Motion filed byState of California. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 161 ) (Rich, Anna) (Filed on 5/6/2020) (Entered: 05/06/2020)
163 ADMINISTRATIVE MOTION Extend Time and Reschedule Hearing filed by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. Responses due by 5/18/2020. (Attachments: # 1 Declaration, # 2 Proposed Order)(Kolsky, Joshua) (Filed on 5/12/2020) (Entered: 05/12/2020)
164 Statement of Non-Opposition re 163 ADMINISTRATIVE MOTION Extend Time and Reschedule Hearing filed byState of California. (Related document(s) 163 ) (Rich, Anna) (Filed on 5/13/2020) (Entered: 05/13/2020)

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165 ORDER EXTENDING TIME FOR DEFENDANTS TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS AND RESCHEDULING HEARING AS MODIFIED BY THE COURT by Judge Phyllis J. Hamilton granting 163 Administrative Motion. (kcS, COURT STAFF) (Filed on 5/13/2020) (Entered: 05/13/2020)
Reset Deadlines as to 160 MOTION to Dismiss. Reply due by 6/3/2020. Motion Hearing set for 6/29/2020 at 09:00 AM before Judge Phyllis J. Hamilton. (kcS, COURT STAFF) (Filed on 5/13/2020) (Entered: 05/13/2020)
166 AMENDED ORDER EXTENDING TIME FOR DEFENDANTS TO FILE REPLY IN SUPPORT OF MOTION TO DISMISS AND RESCHEDULING HEARING granting 163 ADMINISTRATIVE MOTION. Signed by Judge Phyllis J. Hamilton on 5/13/2020. Reset Deadlines/Hearings re 160 MOTION to Dismiss . Reply due by 6/3/2020. Motion Hearing set for 6/17/2020 at 09:00 AM before Judge Phyllis J. Hamilton. (kcS, COURT STAFF) (Filed on 5/13/2020) (Entered: 05/13/2020)
167 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byState of California. (Related document(s) 161 ) (Rich, Anna) (Filed on 5/21/2020) (Entered: 05/21/2020)
168 CLERK'S NOTICE VACATING MOTION HEARING. You are hereby notified that the hearing re 160 Motion to Dismiss is VACATED. The matter is taken under submission on the papers. In the event that the court determines that oral argument is necessary, the court will issue a notice to the parties with instructions on the hearing procedure at a future date. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kcS, COURT STAFF) (Filed on 5/22/2020) (Entered: 05/22/2020)
169 NOTICE of Change In Counsel by Owen Masters (Masters, Owen) (Filed on 5/29/2020) (Entered: 05/29/2020)
170 NOTICE of Appearance by Priyamvada Arora (Arora, Priyamvada) (Filed on 5/29/2020) (Entered: 05/29/2020)
171 NOTICE of Change In Counsel by Priyamvada Arora (Arora, Priyamvada) (Filed on 5/29/2020) (Entered: 05/29/2020)
172 REPLY (re 160 MOTION to Dismiss ) filed byKenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Kolsky, Joshua) (Filed on 6/3/2020) (Entered: 06/03/2020)
173 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byState of California. (Related document(s) 161 ) (Rich, Anna) (Filed on 6/8/2020) (Entered: 06/08/2020)

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174 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byState of California. (Related document(s) 161 ) (Rich, Anna) (Filed on 6/15/2020) (Entered: 06/15/2020)
175 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byKenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Related document(s) 160 ) (Kolsky, Joshua) (Filed on 6/22/2020) (Entered: 06/22/2020)
176 ORDER Requesting Supplemental Briefing re 160 MOTION to Dismiss by Judge Phyllis J. Hamilton. (pjhlc1S, COURT STAFF) (Filed on 7/9/2020) (Entered: 07/09/2020)
177 Supplemental Memorandum in Support of 160 Motion to Dsimiss filed byKenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Related document(s) 176 ) (Kolsky, Joshua) (Filed on 7/16/2020) Modified on 7/17/2020 (ajsS, COURT STAFF). (Entered: 07/16/2020)
178 Supplemental Brief re 176 Order filed byState of California. (Related document(s) 176 ) (Rich, Anna) (Filed on 7/23/2020) (Entered: 07/23/2020)
179 JOINT STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d, filed by State of California, District of Columbia, State of Maine, State of Oregon, Commonwealth of Pennsylvania. (Related document(s) 161 ) (Rich, Anna) (Filed on 7/30/2020) Modified on 7/31/2020 (jlmS, COURT STAFF). (Entered: 07/30/2020)
180 ORDER by Judge Phyllis J. Hamilton granting in part, denying in part, and deferring ruling in part on 160 Motion to Dismiss. (pjhlc1S, COURT STAFF) (Filed on 8/3/2020) (Entered: 08/03/2020)
181 NOTICE of Change In Counsel by Ethan Price Davis (Davis, Ethan) (Filed on 9/4/2020) (Entered: 09/04/2020)
182 USCA Memorandum: Affirming the decision of the district court. Costs are awarded to the plaintiffs as to (124 in 4:19-cv-04717-PJH) Notice of Appeal; USCA No. 19-17213 and (129 in 4:19-cv-04975-PJH) Notice of Appeal; USCA No. 19-17214 (jlmS, COURT STAFF) (Filed on 12/2/2020) (Entered: 12/02/2020)
183 MOTION for leave to appear in Pro Hac Vice for Kimberly L. Patwardhan ( Filing fee $ 317, receipt number 0971-15327033.) filed by State of Maine. (Attachments: # 1 Certificate of Good Standing)(Patwardhan, Kimberly) (Filed on 12/16/2020) Modified on 12/17/2020 (jlmS, COURT STAFF). (Entered: 12/16/2020)
184 ORDER by Judge Phyllis J. Hamilton granting 183 Motion for Pro

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Hac Vice as to Kimberly L. Patwardhan. (kcS, COURT STAFF) (Filed on 12/16/2020) (Entered: 12/16/2020)
185 NOTICE of Substitution of Counsel, filed by NHLP; FRAC; CLASP, et al. (Thacher, Frances Cheston) (Filed on 12/21/2020) Modified on 12/22/2020 (jlmS, COURT STAFF). (Entered: 12/21/2020)
186 MOTION to Withdraw Appearance of Susan P. Herman as Attorney, filed by State of Maine. Responses due by 1/5/2021. Replies due by 1/12/2021. (Attachments: # 1 Proposed Order)(Herman, Susan) (Filed on 12/22/2020) Modified on 12/23/2020 (jlmS, COURT STAFF). (Entered: 12/22/2020)
187 ORDER of USCA: That appellant's motion to stay mandate is granted. The mandate is stayed pending the Supreme Court's final disposition of Wolf v. Cook County, Illinois, petition for cert. pending, No. 20-450 (filed Oct. 7, 2020) and Department of Homeland Security v. New York, petition for cert. pending, No. 20-449 (filed Oct. 7, 2020). Fed. R. App.P.41., as to (124 in 4:19-cv-04717-PJH) Notice of Appeal to the Ninth Circuit, (129 in 4:19-cv-04975-PJH) Notice of Appeal to the Ninth Circuit. (jlmS, COURT STAFF) (Filed on 1/20/2021) (Entered: 01/21/2021)
188 ORDER by Judge Phyllis J. Hamilton granting 186 Motion to Withdraw as Attorney. (kcS, COURT STAFF) (Filed on 1/21/2021) (Entered: 01/21/2021)
189 NOTICE Regarding Executive Order by Kenneth T. Cuccinelli, Kevin McAleenan, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security (Kolsky, Joshua) (Filed on 2/3/2021) Modified on 2/3/2021 (jlmS, COURT STAFF). (Entered: 02/03/2021)

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 Case 4:19-cv-04975-PJH Document 120 Filed 10/11/19 Page 1 of 93

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

8 CITY AND COUNTY OF SAN FRANCISCO, et al.,
9
Plaintiffs, 10
v. 11

Case No. 19-cv-04717-PJH Case No. 19-cv-04975-PJH Case No. 19-cv-04980-PJH
Related Cases

U.S. CITIZENSHIP AND IMMIGRATION PRELIMINARY INJUNCTION 12 SERVICES, et al.,

13

Defendants.

14 STATE OF CALIFORNIA, et al.,

15

Plaintiffs,

16

v.

17 U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
18 Defendants.
19
LA CLINICA DE LA RAZA, et al., 20
Plaintiffs, 21
v. 22
DONALD J. TRUMP, et al., 23
Defendants. 24

25

This order concerns three motions for a preliminary injunction filed in three related

26 actions. Each of the plaintiffs in those actions moved for preliminary injunctive relief. The

27 motions came on for hearing before this court on October 2, 2019.

28

Plaintiff the City and County of San Francisco (“San Francisco”) appeared through

Case 4:19-cv-04975-PJH Document 120 Filed 10/11/19 Page 2 of 93

United States District Court Northern District of California

1 its counsel, Matthew Goldberg, Sara Eisenberg, and Yvonne Mere. Plaintiff the County

2 of Santa Clara (“Santa Clara” and together with San Francisco, the “Counties”) appeared

3 through its counsel, Ravi Rajendra, Laura Trice, and Luke Edwards. Plaintiffs the State

4 of California, District of Columbia, State of Maine, Commonwealth of Pennsylvania, and

5 State of Oregon (together, including D.C., the “States”) appeared through their counsel,

6 Anna Rich, Lisa Cisneros, and Brenda Ayon Verduzco. Plaintiffs La Clinica De La Raza

7 and California Primary Care Association (the two together are the “Healthcare

8 Organizations”), Maternal and Child Health Access, Farmworker Justice, Council on

9 American Islamic Relations-California, African Communities Together, Legal Aid Society

10 of San Mateo County, Central American Resource Center, and Korean Resource Center

11 (the “Legal Organizations”) (the Legal Organizations and the Healthcare Organizations

12 together are the “Organizations”) appeared through their counsel, Alvaro Huerta,

13 Nicholas Espiritu, Joanna Cuevas Ingram, Kevin Herrera, Tanya Broder, Max Wolsen,

14 and Mayra Joachin.

15

Defendants U.S. Citizenship and Immigration Services (“USCIS”), Department of

16 Homeland Security (“DHS”), Kevin McAleenen as Acting Secretary of DHS, Kenneth T.

17 Cuccinelli as Acting Director of USCIS, and Donald J. Trump, as President of the United

18 States appeared through their counsel, Ethan Davis, Eric Soskin, and Kuntal Cholera.

19

Additionally, papers submitted by numerous amici curiae were before the court.

20 Prior to the hearing, the court granted motions to file amicus briefs on behalf of the

21 following non-parties, all of which the court considered in its analysis: American Public

22 Health Association, et al.; Asian Americans Advancing Justice, et al.; City of Los Angeles,

23 et al.; Justice in Aging, et al.; and Members of Congress. A number of other requests to

24 file amici briefs were denied due to the court’s insufficient time to consider them on this

25 particular motion, given the already-voluminous filings from the parties, the briefing

26 schedule, and the time-sensitive nature of plaintiffs’ request for preliminary relief.

27

Having read the papers filed by the parties and carefully considered their

28 arguments and the relevant legal authority, and good cause appearing, the court hereby

2

Case 4:19-cv-04975-PJH Document 120 Filed 10/11/19 Page 3 of 93

United States District Court Northern District of California

1 GRANTS CERTAIN PLAINTIFFS’ MOTIONS AND ISSUES A PRELIMINARILY

2 INJUNCTION, the scope of which is discussed below, for the following reasons.

3

EXECUTIVE SUMMARY

4

In 1883, Emma Lazarus penned the now-famous sonnet, The New Colossus.

5 Later affixed to the Statue of Liberty in New York Harbor, the poem has been

6 incorporated into the national consciousness as a representation of the country’s promise

7 to would-be immigrants:

8

Not like the brazen giant of Greek fame,

9

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

10

A mighty woman with a torch, whose flame

11

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

12

Glows world-wide welcome; her mild eyes command

13

The air-bridged harbor that twin cities frame.

14

"Keep, ancient lands, your storied pomp!" cries she

15

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

16

The wretched refuse of your teeming shore.

17

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!" 18

19

But whether one would prefer to see America’s borders opened wide and

20 welcoming, or closed because the nation is full, laws—not poetry—govern who may

21 enter. And the year before Lazarus wrote The New Colossus, Congress had enacted its

22 first comprehensive immigration law, barring entry to “any convict, lunatic, idiot, or any

23 person unable to take care of himself or herself without becoming a public charge,”

24 among others. An Act to Regulate Immigration, 22 Stat. 214, Chap. 376 § 2. (1882).

25 Although various iterations of similar laws have since come and gone (the operative

26 statute no longer refers to “lunatics” or “idiots”), since the very first immigration law in

27 1882, this country has consistently excluded those who are likely to become a “public

28 charge.” 3

Case 4:19-cv-04975-PJH Document 120 Filed 10/11/19 Page 4 of 93

United States District Court Northern District of California

1

Although Congress has never authored an explicit definition of the term, courts

2 and the executive branch have been considering its meaning as used in the statute for

3 over one hundred and twenty years. As interpretations from those two branches

4 accreted toward a consistent understanding, Congress repeatedly enacted statutes

5 adopting the identical phrase.

6

In 1999, the executive branch reviewed its historical application of the term and

7 issued formal guidance to executive employees, explaining that the public charge

8 determination has historically, and should continue to, focus on whether an individual is

9 primarily dependent on the government for subsistence.

10

In 2018, DHS published a new rule (scheduled to take effect October 15, 2019)

11 that proposed to dramatically expand the definition of “public charge.” Rather than

12 include only those who primarily depend on the government for subsistence, DHS now

13 proposes for the first time to categorize as a public charge every person who receives 12

14 months of public benefits (including many in-kind benefits, like Medicaid and SNAP/Food

15 Stamps) over any 36-month period, regardless of how valuable those benefits are, or

16 how much they cost the government to provide (receiving two types of benefits in one

17 month would count as receiving benefits for two months).

18

Today, the court is presented with a challenge to DHS’s new definition. The

19 plaintiffs seek to prevent defendants from implementing it before this court can consider

20 this case on the merits. The plaintiffs argue that the new definition will lead to

21 widespread disenrollment1 from public benefits by those who fear being labeled a public

22 charge (and by those confused that they may be swept up in the rule), which will cause

23 plaintiffs to lose a substantial amount funding (for example, the federal government

24 heavily subsidizes state expenses for those enrolled in Medicaid).

25

The court finds that the plaintiffs are likely to prevail on the merits, for numerous

26

27 1 When plaintiffs refer to harms caused by those who will disenroll from public benefits in

28

addition to those who will forego enrollment. This order considers the two categories together, and refers to them interchangeably.

4

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1 reasons. DHS’s new definition of “public charge” is likely to be outside the bounds of a

2 reasonable interpretation of the statute. Moreover, plaintiffs are likely to prevail on their

3 entirely independent arguments that defendants acted arbitrarily and capriciously during

4 the legally-required process to implement the changes they propose. Because plaintiffs

5 are likely to prevail and will be irreparably harmed if defendants are permitted to

6 implement the rule as planned on October 15, this court will enjoin implementation of the

7 rule in the plaintiff states until this case is resolved on the merits, as discussed in more

8 detail below.

9

BACKGROUND

10

In each of the actions before the court, the plaintiffs challenge and seek to

11 preliminarily enjoin implementation of a proposed rule entitled “Inadmissibility on Public

12 Charge Grounds,” proposed by DHS and published in the Federal Register on August 14,

13 2019. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (August 14,

14 2019) (“the Rule”). The Rule is scheduled to take effect nationwide on October 15, 2019.

15 A. The Three Actions

16

In City and County of San Francisco v. U.S. Citizenship and Immigration Services,

17 Case No. 19-cv-04717-PJH, San Francisco and Santa Clara (together, the “Counties”)

18 filed a complaint naming as defendants USCIS; DHS; McAleenen as Acting Secretary of

19 DHS; and Cuccinelli as Acting Director of USCIS. The complaint asserts two causes of

20 action under the Administrative Procedure Act (“APA”): (1) Violation of APA, 5 U.S.C.

21 § 706(2)(A)—Not in Accordance with Law; and (2) Violation of APA, 5 U.S.C.

22 § 706(2)(A)—Arbitrary, Capricious, and Abuse of Discretion. The Counties filed the

23 present motion for preliminary injunction on August 28, 2019.

24

In State of California v. U.S. Department of Homeland Security, Case No. 19-cv-

25 04975-PJH, the States filed a complaint naming the same defendants as the Counties:

26 USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting Director

27 of USCIS. The complaint asserts six causes of action: (1) Violation of APA, 5 U.S.C.

28 § 706—Contrary to Law, the Immigration and Nationality Act and the Illegal Immigration

5

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1 Reform and Immigrant Responsibility Act; (2) Violation of APA, 5 U.S.C. § 706—Contrary

2 to Law, Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794 (the

3 “Rehabilitation Act”); (3) Violation of APA, 5 U.S.C. § 706—Contrary to Law, State

4 Healthcare Discretion; (4) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious;

5 (5) Violation of the Fifth Amendment’s Due Process clause requiring Equal Protection

6 based on race; (6) Violation of the Fifth Amendment’s Due Process clause, based on a

7 violation of Equal Protection principles based on unconstitutional animus. The States

8 filed the present motion for preliminary injunction on August 26, 2019. On August 27,

9 2019, this court ordered the action brought by the States related to the action brought by

10 the Counties.

11

In La Clinica De La Raza v. Trump, Case No. 19-cv-04980-PJH, the Organizations

12 filed a complaint naming the same defendants as the Counties, and also added Donald J.

13 Trump: USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting

14 Director of USCIS; and Donald J. Trump, as President of the United States. The

15 complaint asserts four causes of action: (1) Violation of APA, 5 U.S.C. § 706—Contrary

16 to the Statutory Scheme; (2) Violation of APA, 5 U.S.C. § 706—Arbitrary, Capricious, or

17 otherwise not in accordance with law; (3) Violation of the Fifth Amendment based on

18 Equal Protection for discriminating against non-white immigrants; (4) under the

19 Declaratory Judgment Act, seeking a determination that the Rule is invalid because it

20 was issued by an unlawfully-appointed agency director. On August 30, 2019, this court

21 ordered the action brought by the Organizations related to the action brought by the

22 Counties. The Organizations filed the present motion for preliminary injunction on

23 September 4, 2019.

24 B. The Dispute

25

The Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq. (“INA”), requires

26 that all noncitizens seeking to be lawfully admitted into the United States or to become

27 lawful permanent residents (“LPRs”) prove they are not inadmissible. 8 U.S.C. § 1361; 8

28 U.S.C. § 1225(a). A noncitizen may be deemed inadmissible on any number of grounds,

6

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1 including that they are “likely at any time to become a public charge.” 8 U.S.C.

2 § 1182(a)(4)(A).

3

The specific INA provision relating to whether an alien is likely to become a “public

4 charge” at issue in this litigation provides, in relevant part:

5

Except as otherwise provided in this chapter, aliens who are

inadmissible under the following paragraphs are ineligible to

6

receive visas and ineligible to be admitted to the United States:

. . . .

7

(4) Public charge

8

(A) In general

9

Any alien who, in the opinion of the consular

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

10

the opinion of the Attorney General at the time of

application for admission or adjustment of status,

11

is likely at any time to become a public charge is

inadmissible. 12

(B) Factors to be taken into account 13

(i) In determining whether an alien is

14

inadmissible under this paragraph, the

consular officer or the Attorney General

15

shall at a minimum consider the alien’s—

(I) age;

16

(II) health;

(III) family status;

17

(IV) assets, resources, and

financial status; and

18

(V) education and skills.

19

(ii) In addition to the factors under clause

(i), the consular officer or the Attorney

20

General may also consider any affidavit of

support under section 1183a[2] of this title

21

for purposes of exclusion under this

paragraph. 22

23 8 U.S.C. § 1182(a)(4).

24

The statute directs a “consular officer” or “the Attorney General” to form an opinion

25 as to whether the applicant “is likely at any time to become a public charge.” Id. In

26

27 2 Section 1183a is titled “Requirements for sponsor’s affidavit of support” and sets forth

28

the requirements of an “affidavit of support . . . to establish that an alien is not excludable as a public charge under section 1182(a)(4) of this title[.]” 8 U.S.C. § 1183a(a)(1).

7

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1 forming that opinion, immigration officers must consider “at a minimum” five statutorily-

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

3 status; (5) education and skills. 8 U.S.C. § 1182(a)(4)(B)(i).

4

An officer may additionally consider an affidavit of support, which is a legally-

5 enforceable contract between the sponsor of the applicant and the Federal Government.

6 See 8 U.S.C. § 1182(a)(4)(B)(ii); 8 U.S.C. § 1183a(a). The sponsor pledges to accept

7 financial responsibility for the applicant and to maintain the applicant at an income of “not

8 less than 125 percent of the Federal poverty line during the period in which the affidavit is

9 enforceable[.]” 8 U.S.C. § 1183a(a)(1)(A).

10

Certain groups of noncitizens, such as asylum seekers and refugees, are not

11 subject to exclusion based on an assessment that they are likely to become a public

12 charge. See 8 U.S.C. § 1157 (refugee); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1159(c)

13 (refugee).

14

An alien found to be inadmissible as a public charge may “be admitted in the

15 discretion of the Attorney General . . . upon the giving of a suitable and proper bond or

16 undertaking approved by the Attorney General, in such amount and containing such

17 conditions as he may prescribe . . . holding the United States and all States . . . harmless

18 against such alien becoming a public charge.” 8 U.S.C. § 1183.

19

The public charge ground may arise when, inter alia, an alien seeks LPR status, or

20 when noncitizens apply for visas. 8 U.S.C. § 1182(a); 8 U.S.C. § 1255(a). Aliens “to

21 whom a permit to enter the United States has been issued to enter the United States” are

22 also subject to an inadmissibility determination by DHS at ports of entry when they enter

23 and re-enter the United States. 8 U.S.C. § 1185(d).

24

Immigrants with LPR status may also be subject to the public charge analysis. For

25 example, an LPR is considered to be “seeking admission” under various circumstances,

26 for example when returning to the United States after being “absent from the United

27 States for a continuous period in excess of 180 days” or after engaging in any “illegal

28 activity after having departed the United States[.]” 8 U.S.C. § 1101(a)(13)(C)(ii)–(iii).

8

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1 LPRs can also be denied citizenship and/or placed in removal proceedings if DHS

2 determines retrospectively that they were inadmissible as a public charge at the time of

3 their adjustment. 8 U.S.C. § 1227(a)(1)(A); 84 Fed. Reg. at 41,328 & n.176 (discussing

4 possible impact on naturalizations).

5

Under a separate provision in the INA, an alien can be deported upon a

6 determination that he has in fact become a public charge since his admission, from

7 causes “not affirmatively shown to have arisen since entry[.]” 8 U.S.C. 1227(a)(5).3

8

On October 10, 2018, DHS began the rule-making process to create a new

9 framework for the public charge assessment by publishing a Notice of Proposed

10 Rulemaking. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct.

11 10, 2018) (the notice of proposed rulemaking is the “NPRM”). The NPRM provided a 60-

12 day public comment period, during which 266,077 comments were collected. See 84

13 Fed. Reg. at 41,297. On August 14, 2019, DHS published the Rule in the Federal

14 Register. Id. at 41,292. It is set to become effective on October 15, 2019. On October 2,

15 2019—the morning of the hearing on the pending motions for preliminary injunction—

16 DHS published a 25-page list of “corrections” to the proposed final rule.4 See Case No.

17 19-cv-04717-PJH, Dkt. 106, Ex. A. DHS stated that its October 2 amendments to the

18 rule would not delay its planned implementation on October 15.

19

The Rule sets out what the parties have referred to as the “12/36 standard.” That

20 is, the Rule “redefines the term ‘public charge’ to mean an alien who receives one or

21 more designated public benefits for more than 12 months in the aggregate within any 36-

22

23 3 Confusingly, DHS’s Rule would use completely distinct definitions for the term “public

24

charge” when assessing whether an alien “has become a public charge” (8 U.S.C. 1227(a)(5)) and whether an alien “is likely at any time to become a public charge” (8

25 U.S.C. 1182(a)(4)(A).

26

4 Although defendants described the changes as fixes to “technical and typographical errors” (Case No. 19-cv-04717-PJH, Dkt. 106, Ex. A at 2), the States argued at the

27

hearing that upon their limited review of the corrections (a review that was necessarily limited given the eleventh-hour disclosure of DHS’s changes to the rule), the

28

amendments mooted at least one issue underlying the States’ motion, regarding treatment of military families.

9

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1 month period (such that, for instance, receipt of two benefits in one month counts as two

2 months). This Rule defines the term ‘public benefit’ to include cash benefits for income

3 maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the

4 Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance,

5 and certain other forms of subsidized housing.” 84 Fed. Reg. at 41,295.

6

Because the INS directs immigration officers to opine as to whether an alien “is

7 likely at any time to become a public charge,” the Rule’s new definition requires

8 immigration officers to opine as to whether an alien is likely to receive certain public

9 benefits for more than 12 months in the aggregate within any future 36-month period to

10 determine whether he is likely to become a public charge. The rule sets out a number of

11 positive, negative, heavily-weighted, and normally-weighted factors to assist in making

12 that determination, and those factors are considered as part of a “totality of the

13 circumstances” assessment of whether an alien is likely to use more than 12 months’

14 worth of benefits in any future 36-month period.

15

DISCUSSION

16 A. Legal Standard

17

Federal Rule of Civil Procedure 65 provides federal courts with the authority to

18 issue preliminary injunctions. Fed. R. Civ. P. 65(a). Generally, the purpose of a

19 preliminary injunction is to preserve the status quo and the rights of the parties until a

20 final judgment on the merits can be rendered. See U.S. Philips Corp. v. KBC Bank N.V.,

21 590 F.3d 1091, 1094 (9th Cir. 2010).

22

An injunction is a matter of equitable discretion and is “an extraordinary remedy

23 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

24 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf v. Geren,

25 553 U.S. 674, 689–90 (2008). A preliminary injunction “should not be granted unless the

26 movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,

27 520 U.S. 968, 972 (1997) (per curiam).

28

“A plaintiff seeking a preliminary injunction must establish that [1] he is likely to

10

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1 succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of

2 preliminary relief, that [3] the balance of equities tips in his favor, and that [4] an

3 injunction is in the public interest.” Winter, 555 U.S. at 20.

4

Alternatively, “‘serious questions going to the merits’ and a hardship balance that

5 tips sharply toward the plaintiff can support issuance of an injunction, assuming the other

6 two elements of the Winter test are also met.” All. for the Wild Rockies v. Cottrell, 632

7 F.3d 1127, 1132 (9th Cir. 2011). “That is, ‘serious questions going to the merits’ and a

8 balance of hardships that tips sharply towards the plaintiff can support issuance of a

9 preliminary injunction, so long as the plaintiff also shows that there is a likelihood of

10 irreparable injury and that the injunction is in the public interest.” Id. at 1135; see also

11 Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017).

12

If a plaintiff satisfies its burden to demonstrate that a preliminary injunction should

13 issue, “injunctive relief should be no more burdensome to the defendant than necessary

14 to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702

15 (1979).

16

Separately, the APA permits this court to “postpone the effective date of action . . .

17 pending judicial review.” 5 U.S.C. § 705; Bakersfield City Sch. Dist. of Kern Cty. v.

18 Boyer, 610 F.2d 621, 624 (9th Cir. 1979) (“The agency or the court may postpone or stay

19 agency action pending such judicial review.”) (citing 5 U.S.C. § 705). Any such

20 postponement must be made “[o]n such conditions as may be required and to the extent

21 necessary to prevent irreparable injury[.]” 5 U.S.C. § 705. The factors considered when

22 issuing such a stay substantially overlap with the Winter factors for a preliminary

23 injunction. See, e.g., Bauer v. DeVos, 325 F. Supp. 3d 74, 104–07 (D.D.C. 2018).

24 B. Analysis

25

In considering plaintiffs’ motions for preliminary injunction, the court considers the

26 Winter factors (and the alternative All. for the Wild Rockies) factors in turn. First, the

27 court considers whether plaintiffs have demonstrated they are likely to succeed on the

28 merits of their claims, or alternatively whether they have demonstrated serious questions

11

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1 going to the merits. Because a plaintiff must be within a statute’s “zone of interest” to

2 succeed on an APA challenge based on the underlying statute, the court considers

3 whether each plaintiff is within the relevant statute’s zone of interests when assessing its

4 likelihood of success on the merits.

5

Second, the court considers whether plaintiffs have demonstrated they are likely to

6 suffer irreparable harm in the absence of preliminary relief. Because plaintiffs’ alleged

7 irreparable harms are also their alleged bases for standing, the court considers whether

8 each plaintiff has standing to bring a ripe claim when assessing its irreparable harms.

9

Third, the court considers whether plaintiffs have demonstrated that the balance of

10 equities tip in their favor, and whether the balance of hardships tip sharply in their favor.

11

Fourth, the court considers whether plaintiffs have demonstrated that an injunction

12 is in the public interest.

13

Fifth, the court addresses the scope of injunctive relief necessary and capable of

14 providing complete relief to the harms plaintiffs have demonstrated they are likely to

15 suffer prior to a determination on the merits, absent such relief.

16

1. The State and County Plaintiffs Are Likely to Succeed on the Merits

17

and Have Raised Serious Questions

18

Plaintiffs argue that they are likely to succeed on three of their causes of action,

19 each alleging a violation of the APA: (1) that the Rule violates the APA because it is not

20 in accordance with the term “public charge” as used in the INA; (2) that the Rule violates

21 the APA because it is not in accordance with the Rehabilitation Act § 504; and (3) that the

22 Rule violates the APA because it is arbitrary, capricious, and an abuse of discretion.5

23

Under the APA, “the reviewing court shall decide all relevant questions of law,

24 interpret constitutional and statutory provisions, and determine the meaning or

25

26

5 Although some of the arguments supporting these claims are likely to overlap with other claims plaintiffs assert, plaintiffs have made clear that they are not moving for a

27

preliminarily injunction based on any other claim, including, inter alia, the claim that the Rule violates the APA because it is contrary to laws giving the States discretion with

28

respect to the provision of healthcare, the claim under the declaratory judgment act that Cuccinelli was unlawfully appointed, or any of the asserted Constitutional claims.

12

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1 applicability of the terms of an agency action. The reviewing court shall . . . hold unlawful

2 and set aside agency action, findings, and conclusions found to be . . . arbitrary,

3 capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C.

4 § 706.

5

“In the usual course, when an agency is authorized by Congress to issue

6 regulations and promulgates a regulation interpreting a statute it enforces, the

7 interpretation receives deference if the statute is ambiguous and if the agency’s

8 interpretation is reasonable. This principle is implemented by the two-step analysis set

9 forth in Chevron.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016)

10 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

11 “At the first step, a court must determine whether Congress has ‘directly spoken to the

12 precise question at issue.’ If so, ‘that is the end of the matter; for the court, as well as the

13 agency, must give effect to the unambiguously expressed intent of Congress.’ If not,

14 then at the second step the court must defer to the agency's interpretation if it is

15 ‘reasonable.’” Encino Motorcars, 136 S. Ct. at 2124–25 (citations omitted) (quoting

16 Chevron, 467 U.S. at 842–44).

17

“[I]f the statute is silent or ambiguous with respect to the specific issue, the

18 question for the court is whether the agency's answer is based on a permissible

19 construction of the statute.” Chevron, 467 U.S. at 843; see also Michigan v. E.P.A., 135

20 S. Ct. 2699, 2707 (2015) (“Even under this deferential standard, however, agencies must

21 operate within the bounds of reasonable interpretation.”) (internal quotation marks

22 omitted).

23

The Chevron analysis calls upon the court to “employ[] traditional tools of statutory

24 construction” to fulfill its role as “the final authority on issues of statutory construction[.]”

25 Chevron, 467 U.S. at 843 n.9; accord Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630

26 (2018).

27

“Chevron deference, however, is not accorded merely because the statute is

28 ambiguous and an administrative official is involved. To begin with, the rule must be

13

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1 promulgated pursuant to authority Congress has delegated to the official.” Gonzales v.

2 Oregon, 546 U.S. 243, 258 (2006). “The starting point for this inquiry is, of course, the

3 language of the delegation provision itself. In many cases authority is clear because the

4 statute gives an agency broad power to enforce all provisions of the statute.” Id. (drawing

5 a distinction between delegation of authority to carry out the act generally, and authority

6 to execute the functions assigned to the agency).

7

First, the court assesses whether plaintiffs are likely to succeed on their claims

8 under the APA that the Rule is not in accordance with law, as provided in 8 U.S.C.

9 § 1182(a)(4). Second, the court assesses whether plaintiffs are likely to succeed on their

10 claims under the APA that the Rule is not in accordance with law, as provided in the

11 Rehabilitation Act § 504. Third, the court assess whether plaintiffs are likely to succeed

12 on their claims under the APA, that the Rule is arbitrary and capricious. Fourth, the court

13 assesses whether each plaintiff is within the relevant zone of interests, which is required

14 to succeed on an APA claim.

15

a. Not in Accordance with Law—8 U.S. Code § 1182(a)(4)

16

Plaintiffs argue that the Rule is not in accordance with the definition of “public

17 charge” as used in 8 U.S. Code § 1182(a)(4) for three reasons: (1) DHS’s interpretation

18 should not be accorded any deference, and the Rule’s definition is inconsistent with the

19 statute; (2) even if the term is accorded deference, the term plainly and unambiguously

20 means “primarily dependent on the government for subsistence,” and the Rule conflicts

21 with that definition; and (3) the Rule’s definition of “public charge” is not reasonable or

22 based on a permissible construction of the statute.

23

The court did not understand plaintiffs to have raised the first argument in their

24 moving papers, although the Counties may have raised it obliquely in their reply. But the

25 court and defendants were surprised to learn at the hearing that plaintiffs were advancing

26 an argument that DHS’s promulgation of the Rule was wholly outside of Congressionally-

27 delegated authority. Cf. Counties’ Reply at 8–9 (“Counties do not contest DHS’s

28 authority to issue rational regulations governing the case-by-case application of the

14

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1 statutory standard, so long as they do not misconstrue the term ‘public charge.’”); States’

2 Reply at 9–10 (“the States have never disputed the commonsense point that Congress in

3 8 U.S.C. § 1182(a)(4)(A) assigned responsibility to Defendants to make individual public

4 charge determinations”); Organizations’ Reply at 9 (“even if Defendants were correct,

5 Congress could delegate to DHS the power only to adopt reasonable interpretations of

6 the statute”). Nevertheless, plaintiffs have not sufficiently supported, or even explained,

7 their argument to satisfy their burden to show likelihood of success on the merits based

8 on it.6 Accordingly, the court analyzes the Rule pursuant to the framework set out by

9 Chevron.

10

The second and third arguments concern a challenge under Chevron’s framework

11 to the meaning of “public charge” as used in § 1182(a)(4). Plaintiffs’ second argument

12 requires the court to determine whether the Rule contravenes the statute’s unambiguous

13 meaning, and their third argument requires the court to determine whether defendants’

14 chosen definition is reasonable and based on a permissible construction of the statute.

15 Both questions require a discussion of the long usage of the term by Congress, as well

16 as the expansive evaluation of the term by courts and executive agencies.

17

As preface to that discussion, a brief outline helps set the stage. The phrase

18 “public charge” was used in this country’s first-ever general immigration statute in 1882.

19 The immigration statutes have been interpreted and modified many time since then, and

20 although many other excluded categories of persons came and went, with each

21 modification through today the phrase “public charge” remained intact. As a result, the

22 meaning that the persistent term had when first used is relevant to understanding the

23 meaning Congress ascribed to it with each subsequent statutory revision, including the

24 now-operative statute, which most recently saw changes to the relevant provisions in

25 1990 and 1996.

26

27 6 However, the court notes that whether DHS’s promulgation of the Rule falls within the

28

rulemaking authority delegated to it by Congress may benefit from more attention in the parties’ future briefing on the merits. See generally 8 U.S.C. § 1103(a).

15

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1

Ultimately, this dispute concerns the meaning of a statutory term passed in 1990—

2 with clarifying language passed in 1996. As such, the court considers the meaning

3 ascribed to the term by Congress at that time, but in doing so it must afford due

4 consideration to Congress’s understanding of the term given the long historical context it

5 was operating within, which the court presently endeavors to describe. See Forest Grove

6 Sch. Dist. v. T.A., 557 U.S. 230, 239–40 (2009) (“Congress is presumed to be aware of

7 an administrative or judicial interpretation of a statute and to adopt that interpretation

8 when it re-enacts a statute without change.”) (quoting Lorillard v. Pons, 434 U.S. 575,

9 580 (1978)); United States v. Argueta-Rosales, 819 F.3d 1149, 1159 (9th Cir. 2016)

10 (same); J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir. 2010) (Congress

11 does no “abrogate[] sub silentio the Supreme Court’s decision[s]”); Bob Jones Univ. v.

12 United States, 461 U.S. 574, 600–01 (1983) (interpretation informed by the fact that

13 Congress had a “prolonged and acute awareness” of an established agency

14 interpretation of a statute, considered the precise issue, and rejected bills to overturn the

15 prevailing interpretation); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S.

16 353, 381–82 (1982) (Congress is aware “of the ‘contemporary legal context’ in which” it

17 legislates, and amending a statute while leaving certain statutory provisions intact “is

18 itself evidence that Congress affirmatively intended to preserve that” context); see also

19 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (“Few principles of statutory

20 construction are more compelling than the proposition that Congress does not intend sub

21 silentio to enact statutory language that it has earlier discarded in favor of other

22 language.”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975) (rejecting

23 construction of statute that would implement substance of provision that Conference

24 Committee rejected).

25

1. 1882 Act

26

In 1882, Congress enacted the country’s first general immigration statute. See

27 An Act to Regulate Immigration, 22 Stat. 214 (1882) (the “1882 Act”). That statute

28 provided, in part:

16

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1

That the Secretary of the Treasury . . . shall have power to . . .

provide for the support and relief of such immigrants therein

2

landing as may fall into distress or need public aid . . . and it

shall be the duty of such State . . . to examine into the condition

3

of passengers arriving at the ports . . . and if on such

examination there shall be found among such passengers any

4

convict, lunatic, idiot, or any person unable to take care of

himself or herself without becoming a public charge . . . such

5

persons shall not be permitted to land.

6 22 Stat. 214, Chap. 376 § 2.

7

Legislative debate on the 1882 Act shows that at least one member of Congress

8 sought to prevent foreign nations from “‘send[ing] to this country blind, crippled, lunatic,

9 and other infirm paupers, who ultimately become life-long dependents on our public

10 charities.’” 13 Cong. Rec. 5108-10 (June 19, 1882) (statement of Rep. Van Voorhis).

11

The 1882 Act also imposed on each noncitizen who entered the United States a

12 50-cent head tax for the purpose of creating an “immigrant fund”:

13

That there shall be levied, collected, and paid a duty of fifty

14

cents for each and every passenger not a citizen of the United

States who shall come by steam or sail vessel from a foreign

15

port to any port within the United States. . . . The money thus

collected shall . . . constitute a fund to be called the immigrant

16

fund, and shall be used . . . to defray the expense of regulating

immigration under this act, and for the care of immigrants

17

arriving in the United States, for the relief of such as are in

distress[.] 18

19 22 Stat. 214, Chap. 376, § 1; see also Edye v. Robertson, 112 U.S. 580, 590–91 (1884)

20 (“This act of congress is similar, in its essential features, to many statutes enacted by

21 states of the Union for the protection of their own citizens, and for the good of the

22 immigrants who land at sea-ports within their borders. That the purpose of these statutes

23 is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the

24 protection of the people in whose midst they are deposited by the steam-ships, is beyond

25 dispute.”).

26

Nineteenth-century dictionaries defined “charge” as “That which is enjoined,

27 committed, entrusted or delivered to another, implying care, custody, oversight, or duty to

28 be performed by the person entrusted” and “The person or thing committed to anothers 17

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1 [sic] custody, care or management; a trust. Thus the people of a parish are called the

2 ministers charge.” Charge, Webster’s Dictionary (1828 Online Edition),

3 http://webstersdictionary1828.com/Dictionary/charge; Charge, Webster’s Dictionary

4 (1886 Edition), https://archive.org/details/websterscomplete00webs/page/218 (“person or

5 thing committed or intrusted [sic] to the care, custody, or management of another; a trust;

6 as, to abandon a charge”).7

7

Another contemporary source defines charge “In its general sense, a charge is an

8 obligation or liability. Thus we speak of . . . a pauper being chargeable to the parish or

9 town.” Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law,

10 with Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.

11

Prior to the 1882 Act’s enactment, states had played a larger role in immigration

12 than they do today, and state governments had used and interpreted the term “public

13 charge,” although of course not in relation to any Congressional act.

14

For example, the New Jersey Supreme Court, when interpreting a statute

15 concerning the procedures to remove an individual from a township in New Jersey,

16 considered whether a pauper was “either chargeable, or likely to become chargeable, to

17 the township of Princeton.” Overseers of Princeton Twp. v. Overseers of S. Brunswick

18 Twp., 23 N.J.L. 169, 170 (Sup. Ct. 1851). Although the case does not make clear what

19 precise relief is necessary to qualify as a public charge, it contemplated that one became

20 a public charge upon seeking such relief from “the church wardens or overseers of the

21 poor[.]” Id. at 173. The concurrence clarified that an “application for relief” is distinct from

22 being “chargeable,” although “[t]he probability of his becoming chargeable is sufficiently

23 shown by his application for relief.” Id. at 179 (Carpenter, J. concurring). The case does

24

25

7 Defendants cite Frederic Jesup Stimson, Glossary of Technical Terms, Phrases, and Maxims of the Common Law (1881), but that source does not provide a relevant

26

definition. The first-listed definition is the most plausibly-relevant: “A burden, incumbrance, or lien; as when land is charged with a debt.” Id. at 56. But that definition

27

concerns how the word charge relates to real property, which makes sense because at the time, “[m]ore frequently, however, charge is applied to property” as “a general term[.]”

28

Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law, with Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.

18

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1 not explain the type or quantum of relief necessary to constitute one’s status as a

2 “charge.”

3

Another state court opinion, People ex rel. Durfee v. Commissioners of Emigration,

4 27 Barb. 562, 1858 WL 7084 (N.Y. Sup. Ct. 1858), addressed a statute which

5 contemplated bonds being paid on behalf of immigrants, and required the commissioners

6 of immigration who held those bonds to “indemnify so far as may be the several cities,

7 towns and counties of the state, for any expense or charge which may be incurred for the

8 maintenance and support of the” immigrants. 27 Barb. at 570. The court held that the

9 statute required indemnification of all expenses made on behalf of the immigrants—

10 whether temporary or permanent—so long as the expenses were lawfully made. Id.

11 However, the case did not draw a clean line holding that any expense spent on an

12 individual makes him a public charge. Rather, an equally-plausible reading of the opinion

13 is that the statute requires immunity of all expenses paid to support immigrants for whom

14 bonds have been paid, regardless of whether they are formally considered public

15 charges.8

16

City of Bos. v. Capen, 61 Mass. 116, 121 (1851) concerned a statute which

17 required a bond for someone likely to become a public charge. The court explained that

18 the statute described various categories of people identified as being at risk of becoming

19 a public charge, and for whom bond may be required. However, what assistance or

20 payment qualified one as a "public charge” was not addressed.9

21

As a whole, the statutory language and authority underlying the 1882 Act provide

22

23

8 The latter reading would be in accordance with the current interpretation of “public charge” as used elsewhere in the INA, which requires an alien to be presented with a bill

24

and prove unable or unwilling to pay it to be deemed a public charge. E.g., Matter of B-, 3 I. & N. Dec. 323 (A.G. 1948); Field Guidance on Deportability and Inadmissibility on

25 Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999); 84 Fed. Reg. at 41,295.

26

9 The opinion also suggested that those who were “paupers in a foreign land” must have been “a public charge in another country,” and then stated without explanation that “the

27

word ‘paupers’ being used in this connection in its legal, technical sense.” Capen, 61 Mass. at 121. Even looking past the confusion, the court might be interpreted as finding

28

that all paupers have been public charges, but from that the conclusion cannot be drawn that all public charges must have been paupers.

19

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1 some clear guidance as to the definition of public charge. For example, the 1882 Act

2 contemplated that admitted aliens (not excluded on public charge grounds) would receive

3 some assistance from the state. That is made clear by the same statute’s establishment

4 of a fund “for the care of immigrants arriving in the United States, for the relief of such as

5 are in distress[.]” 22 Stat. 214, Chap. 376, § 1. Although the quantum of state support

6 necessary to render one a public charge is less clear, the 1882 Act did not consider an

7 alien a public charge for simply receiving some assistance from the state. Also, it

8 appears that contemporary uses of the term would deem one a public charge after taking

9 on a particular, chargeable debt from the state and failing to repay it.

10

2. 1891

11

In 1891, Congress amended the 1882 Act. That amended statute provided, in

12 part:

13

That the following classes of aliens shall be excluded from

admission into the United States . . . : All idiots, insane persons,

14

paupers or persons likely to become a public charge, persons

suffering from a loathsome or a dangerous contagious disease,

15

persons who have been convicted of a felony or other infamous

crime or misdemeanor involving moral turpitude, polygamists,

16

and . . . .

17 An Act in Amendment to the Various Acts Relative to Immigration and the Importation of

18 Aliens Under Contract or Agreement to Perform Labor, 26 Stat. 1084, Chap. 551 (“1891

19 Act”) § 1 (1891).

20

The 1891 amendment also provided that “any alien who becomes a public charge

21 within one year after his arrival in the United States from causes existing prior to his

22 landing therein shall be deemed to have come in violation of law and shall be returned”

23 pursuant to the procedures outline in the statute regarding aliens entering unlawfully.

24 1891 Act § 11. So, the 1891 Act set out the now-familiar practice of subjecting aliens to

25 two “public charge” assessments—one in which the government is called on to make a

26 forward-looking prediction, and another in which the government is called on to make a

27 backward-looking assessment. The first asks at the time of entry whether the alien is

28 likely to become a public charge. The second asks whether, after some period of time, 20

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1 the alien has in fact become a public charge due to causes existing before he arrived.

2 Although the relevant time periods of the assessments have grown, this scheme

3 generally remains in place today.

4

The 1891 Act made a notable change to the law by adding the category “pauper,”

5 and including the term pauper with “persons likely to become a public charge” to form a

6 single entry in an expanded list of excluded categories of people.

7

An early case interpreting the act considered whether “the act of 1891 confers

8 upon the inspection officer power to detain and send back an alien immigrant as being a

9 person liable to become a public charge, in the absence of any evidence whatever

10 tending to establish that fact.” In re Feinknopf, 47 F. 447, 448 (E.D.N.Y. 1891). Although

11 it did not define the term “public charge” in the abstract, the court provided an explanation

12 given the facts before it that essentially laid out a totality-of-the-circumstances test. It

13 held that “[o]f course” the following facts, “if believed, would not warrant the conclusion

14 that the petitioner was a person likely to become a public charge,” and that the case is

15 “devoid of any evidence whatever of any fact upon which to base a determination that the

16 petitioner is likely to become a public charge”:

17

the petitioner is 40 years old; that he is a native of Austria; that

he is a cabinet-maker by trade, and has exercised that trade for

18

25 years; that he has no family; that he has baggage with him,

worth $20, and 50 cents in cash; that he is a man who can find

19

employment in his trade, and is willing to exercise the same. . . .

[I]n addition, that the immigrant has not been an inmate of an

20

almshouse, and has not received public aid or support, and has

not been convicted of crime.

21

22 Id. at 447–48. A fair reading suggests that each of the enumerated facts could be

23 relevant to predicting whether someone is likely to become a public charge.

24

A subsequent court provided even more guidance. In United States v. Lipkis, 56

25 F. 427 (S.D.N.Y. 1893), a man had arrived in America before his wife and child. The wife

26 and child were required to pay a bond because the superintendent of immigration

27 deemed them “likely to become a public charge” based on “the poverty and character of

28 the husband,” whose residence gave the appearance of “extreme poverty.” Id. at 427. 21

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1 However, that poverty alone did not mean he or the family was a public charge—rather, it

2 meant the family was likely to become a public charge. “About six months after the

3 arrival of the mother she became insane, and was sent to the public insane asylum of the

4 city under the direction of the commissioners of charities and correction, where only poor

5 persons unable to pay for treatment are received, and she was there attended to for a

6 considerable period at the expense of the municipality.” Id. at 428. Thus, the mother

7 became a public charge only when she was committed to the public insane asylum with

8 “no effort to provide for her at his [the husband’s] own expense[.]” Id.

9

But the court did not require commitment to an institution to make one a public

10 charge. It reasoned in dicta that the family’s financial condition generally subjected the

11 family to the risk of becoming “a public charge under the ordinary liabilities to sickness, or

12 as soon as any other additional charges arose beyond the barest needs of existence. . . .

13 The liability of his family to become a public charge through any of the ordinary

14 contingencies of life existed when the bond was taken, because of his poverty and

15 inefficiency.” Id. So, a number of different financial shocks could have rendered the

16 family a public charge.

17

The court’s analysis drew a distinction between being a public charge (in this case,

18 someone committed to an insane asylum with no effort to cover the expense), and

19 someone likely to become a public charge (in this case, someone who can pay for “the

20 barest needs of existence,” yet whom an extreme illness could ruin).

21

The parties cite to state court decisions published during this time using the term

22 public charge, which are informative of what the term generally meant at the time. Those

23 opinions address the duration of benefits that render one a public charge rather than the

24 quantum, and they tend to suggest that temporary relief did not make one a public charge

25 as the term was understood at the time. However, they do not address whether longer-

26 term receipt of a small amount of public benefits qualifies one as a public charge (as the

27 Rule would do). See Yeatman v. King, 2 N.D. 421 (1892) (state loaning seed grain to

28 farmer using the general tax fund, with obligation of repayment, is designed to prevent

22

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1 farmers “from becoming a public charge by affording them temporary relief”); Cicero v.

2 Falconberry, 14 Ind. App. 237 (1895) (“The mere fact that a person may occasionally

3 obtain assistance from the county does not necessarily make such person a pauper or a

4 public charge.”).10

5

Following the 1891 Act, two points are relatively clear. First, reaffirming the best

6 interpretation of the 1882 Act, the term was not used at the time to include short-term or

7 temporary relief from the state, as the case law continued to demonstrate. Second,

8 Lipkis could be read to support either of two non-controversial points: either state-funded

9 institutionalization constitutes becoming a public charge, or state-funded

10 institutionalization with “no effort” to pay the expense after being billed does so. Simply

11 being able to pay for the barest needs of existence and nothing more does not render

12 one a public charge (although it may make one likely to become a public charge). A third

13 point begins to materialize in the case law, which is that absent some particularly-

14 identified negative factor, an employable individual is not a public charge. E.g., In re

15 Feinknopf, 47 F. at 447–48 (40-year-old man willing to exercise his trade); Lipkis, 56 F. at

16 428 (notwithstanding poverty, working man’s family is not a public charge until financial

17 calamity strikes); Yeatman, 2 N.D. at 421 (public aid to working farmer).

18

3. 1903

19

In 1903, Congress passed a revised version of the act. That amended statute

20 provided, in part:

21

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, insane persons,

22

epileptics, and persons who have been insane within five years

previous; persons who have had two or more attacks of insanity

23

at any time previously; paupers; persons likely to become a

public charge; professional beggars; persons afflicted with a

24

loathsome or with a dangerous contagious disease; persons

who have been convicted of a felony or other crime or

25

26 10 The parties also cite Edenburg Borough Poor Dist. v. Strattanville Borough Poor Dist.,

27

5 Pa. Super. 516, 528 (1897), but that case concerns an individual who appears to have formally registered as a pauper by seeking public assistance under state or local law. It

28

does not concern any immigration statutes, nor does the opinion use the word “charge” or the phrase “public charge.”

23

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misdemeanor involving moral turpitude; polygamists;

1

anarchists, or . . . .”

2 An Act to Regulate the Immigration of Aliens Into the United States, 32 Stat. 1213,

3 Chap. 1012 § 2 (1903).

4

This change separated out “paupers” from “persons likely to become a public

5 charge,” which the previous act had grouped together as a single item in the list.

6

The 1903 amendment also provided that any alien who “shall be found a public

7 charge . . . from causes existing prior to landing, shall be deported . . . at any time within

8 two years after arrival[.]” Id. § 20.

9

4. 1907

10

In 1907, Congress passed a revised version of the act. That amended statute

11 provided, in part:

12

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, imbeciles, feeble-

13

minded persons, epileptics, insane persons, and persons who

have been insane within five years previous; persons who have

14

had two or more attacks of insanity at any time previously;

paupers; persons likely to become a public charge;

15

professional beggars; persons afflicted with tuberculosis or with

a loathsome or dangerous contagious disease; persons not

16

comprehended within any of the foregoing excluded classes

who are . . . mentally or physically defective, such mental or

17

physical defect being of a nature which may affect the ability of

such alien to earn a living; persons who have been convicted

18

of or admit having committed a felony or other crime or

misdemeanor involving moral turpitude; polygamists, or . . . .” 19

An Act to Regulate the Immigration of Aliens Into the United States, 34 Stat. 898, Chap.

20

1134 § 2 (1907).

21

Nothing relevant to the present action appears to have been changed by this

22

revision.11

23

5. 1910

24

In 1910, Congress amended the 1907 act. The new statute provided, in part:

25

26

27

11 The only notable change is the introduction of an exclusion for individuals not otherwise captured by the categories who cannot earn a living based on mental or physical defect.

28

That suggests that earlier-listed categories also include such people, but not all such people.

24

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That the following classes of aliens shall be excluded from

1

admission into the United States: All idiots, imbeciles, feeble-

minded persons, epileptics, insane persons, and persons who

2

have been insane within five years previous; persons who have

had two or more attacks of insanity at any time previously;

3

paupers; persons likely to become a public charge;

professional beggars; persons afflicted with tuberculosis or with

4

a loathsome or dangerous contagious disease; persons not

comprehended within any of the foregoing excluded classes

5

who are . . . mentally or physically defective, such mental or

physical defect being of a nature which may affect the ability of

6

such alien to earn a living; persons who have been convicted

of or admit having committed a felony or other crime or

7

misdemeanor involving moral turpitude; polygamists, or . . . .”

8 An Act to Amend an Act entitled An Act to Regulate the Immigration of Aliens Into the

9 United States, 36 Stat. 263, Chap. 128 § 2 (1910).

10

Nothing relevant to the present action appears to have been changed by this

11 revision.

12

In 1915, the Supreme Court addressed the 1910 act in Gegiow v. Uhl, 239 U.S. 3

13 (1915). “The single question” in that case was “whether an alien can be declared likely to

14 become a public charge on the ground that the labor market in the city of his

15 immediate destination is overstocked.” Id. at 9–10. The immigration commissioners in

16 that action determined that the immigrants were “bound for Portland, Oregon, where the

17 reports of industrial conditions show that it would be impossible for these aliens to obtain

18 employment[.]” Id. at 8.

19

The court held that “[t]he statute deals with admission to the United States, not to

20 Portland . . . . It would be an amazing claim of power if commissioners decided not to

21 admit aliens because the labor market of the United States was overstocked.” Id. at 10.

22 Because the immigration authorities could not consider labor conditions in a single

23 location to determine whether immigrants would be able to obtain employment, the

24 factual findings that the immigrants could not find work in Portland was insufficient to

25 support a determination that they were likely to become public charges.

26

The court also reasoned that, because the “public charge” ground for exclusion

27 was “mentioned between paupers and professional beggars, and along with idiots,

28 persons dangerously diseased, persons certified by the examining surgeon to have a

25

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1 mental or physical defect of a nature to affect their ability to earn a living,” the term should

2 be construed as similar with the rest. Id. Under that construction, the court held that

3 those likely to become public charges “are to be excluded on the ground of permanent

4 personal objections accompanying them irrespective of local conditions[.]” Id.12 That

5 is, the court focused on an alien’s general ability and willingness to work and earn a

6 living, rather than the particular wages or labor conditions that existed in the alien’s

7 destination.

8

A court in 1916 considered “whether the fact that petitioner entered the United

9 States as a gambler, and as one having no other permanent means of support, actual or

10 contemplated, makes him a person ‘likely to become a public charge’ within the meaning

11 of the Immigration Act.” Lam Fung Yen v. Frick, 233 F. 393, 396 (6th Cir. 1916):

12

It seems clear that the term ‘persons likely to become a public

charge’ is not limited to paupers or those liable to become such;

13

‘paupers‘ are mentioned as in a separate class. In United

States v. Williams (D.C.) 175 Fed. 274, 275, the term ‘persons

14

likely to become a public charge‘ is construed as including, ‘not

only those persons who through misfortune cannot be

15

self-supporting, but also those who will not undertake

honest pursuits, and who are likely to become periodically

16

the inmates of prisons.’ We think this a reasonable

construction. . . . Inmates of jails and prisons are for the time

17

being public charges, and we think it open to conclusion by

reasonable minds that those who will not work for a living, but

18

rely for that purpose upon gambling, are more likely than

citizens following the ordinary pursuits of industry to become,

19

at least intermittently, public charges.

20 Id. at 396–97 (emphasis added).

21

The court reasoned that because the alien was a gambler and gambling is

22 regarded “within the domain of police supervision and public security,” the petitioner is

23 reasonably likely to become periodically an inmate of a prison. Id. at 397. Under the

24 court’s reasoning, someone in a prison is a public charge, akin to someone in an

25 almshouse or insane asylum. Id.; see also United States v. Williams, 175 F. 274, 275

26

27

12 The Gegiow opinion was subject to some skepticism following a later amendment to the statute, but the Ninth Circuit subsequently held that its reasoning remained

28

controlling. See Ex parte Hosaye Sakaguchi, 277 F. 913 (9th Cir. 1922); see also Ex parte Mitchell, 256 F. 229 (N.D.N.Y. 1919).

26

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1 (S.D.N.Y. 1910) (“They are surely public charges, at least during the term of their

2 incarceration.”).

3

In 1917, the Second Circuit relied on Gegiow’s statutory analysis when deciding a

4 case under the 1910 statute. Howe v. United States, 247 F. 292 (2d Cir. 1917). In

5 Howe, a Canadian who had allegedly “drawn a check . . . which proved bad,” among

6 other things, entered the United States, and an immigration inspector “believed him guilty

7 of dishonest practice in Canada.” Id. at 293–94. Because the plaintiff had not admitted

8 to or been convicted of a felony, the provision excluding criminals did not apply to him.

9 The court reasoned that (1) the term “public charge” needed to be read in context of its

10 position in the statute’s list, and (2) it cannot be interpreted to overlap with other items in

11 the list (e.g., idiots, imbeciles, insane persons, criminals). As such, “[i]f the words

12 covered jails, hospitals, and insane asylums, several of the other categories of exclusion

13 would seem to be unnecessary.” Id. at 294. Instead, “Congress meant the act to exclude

14 persons who were likely to become occupants of almshouses for want of means with

15 which to support themselves in the future.” Id. The Howe court provided a very specific,

16 restrictive, and clear definition of the term. This also demonstrates an early split in the

17 case law as to whether prison inmates are considered public charges.

18

By 1917, the Supreme Court, the Second Circuit, and the Sixth Circuit had all

19 published opinions construing the term as used in the 1910 act. These are precisely the

20 sorts of constructions Congress is presumed knowledgeable of when reenacting statutory

21 language. See Forest Grove, 557 U.S. at 239–40. The Supreme Court held that

22 predicting whether someone will become a public charge requires consideration of

23 “permanent personal objections accompanying them irrespective of local conditions[.]”

24 Gegiow, 239 U.S. at 10. The two Circuit decisions are more difficult to reconcile. First,

25 they directly contradicted one another with respect to whether jail inmates were public

26 charges. Second, Howe broke with the weight of prior authority in holding that the term

27 was limited to those occupying almshouses for want of a means of support.

28

6. 1917

27

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1

In 1917, Congress amended the Act. That amended statute provided, in part:

2

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, imbeciles, feeble-

3

minded persons, epileptics, insane persons; persons who have

had one or more attacks of insanity at any time previously;

4

persons of constitutional psychopathic inferiority; persons with

chronic alcoholism; paupers; professional beggars; vagrants;

5

persons afflicted with tuberculosis in any form or with a

loathsome or dangerous contagious disease; persons not

6

comprehended within any of the foregoing excluded classes

who are . . . mentally or physically defective, such physical

7

defect being of a nature which may affect the ability of such

alien to earn a living; persons who have been convicted of or

8

admit having committed a felony or other crime or

misdemeanor involving moral turpitude; polygamists, or . . . . ;

9

persons likely to become a public charge . . . .”

10 An Act to Regulate the Immigration of Aliens to, and the Residence of Aliens in, the

11 United States, 39 Stat. 874, Chap. 29 § 3 (1917).

12

The statute also provided for the deportability of “any alien who within five years

13 after entry becomes a public charge from causes not affirmatively shown to have arisen

14 subsequent to landing[.]” Id. § 19.

15

The “public charge” language remains unchanged, although moved within the list.

16 The Congressional Record suggests that Congress intentionally moved the category of

17 “persons likely to become a public charge” later in the list in response to Gegiow. See 70

18 Cong. Rec. 3560 (1929) (“persons likely to become a public charge (this clause excluding

19 aliens on the ground likely to become a public charge has been shifted from its position in

20 section 2 of the immigration act of 1907 to its present position in section 3 of this act in

21 order to indicate the intention of Congress that aliens shall be excluded upon said ground

22 for economic as well as other reasons and with a view to overcoming the decision of the

23 Supreme Court in Gegiow v. Uhl, 239 U. S. 3”); see also 80 Cong. Rec. 5829 (1936)

24 (same).

25

A district court in 1919 reasoned that although the exact same phrase was shifted

26 within the list, “I am unable to see that this change of location of these words in the act

27 changes the meaning that is to be given them. A ‘person likely to become a public

28 charge’ is one who for some cause or reason appears to be about to become a charge 28

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1 on the public, one who is to be supported at public expense, by reason of poverty,

2 insanity and poverty, disease and poverty, idiocy and poverty, or, it might be, by reason

3 of having committed a crime which, on conviction, would be followed by imprisonment.”

4 Ex parte Mitchell, 256 F. 229, 230 (N.D.N.Y. 1919). In that case, there was “no evidence

5 whatever that the alien at any time has relied in any degree on the charity of others,” but

6 rather the alien “is able to earn her own living and always has done so[.]” Id.

7

The court then stated that mere speculation about the possibility of becoming a

8 public charge does not make one likely to become a public charge: “The alien may

9 become sick; she may lose her house by fire; she may lose her personal property by bad

10 investments. All this is possible, but not probable. There is no claim that this alien is

11 suffering, or that she has suffered at any time, from any mental or physical defect. It is

12 not claimed this alien has been convicted, or even charged with the commission, of any

13 crime, or that she came to the United States, or is in the United States, for any immoral or

14 improper purpose.” Id. at 231.

15

The Ninth Circuit agreed in 1922, holding that the 1917 Amendment’s movement

16 of the “public charge” exclusion “does not change the meaning that should be given” the

17 exclusion. Ex parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). The court

18 recognized the legislative change and that Gegiow’s reliance on the phrase’s relative

19 position in the statute was compromised, yet it held:

20

Although in the act of February 5, 1917, under which the

present case is to be determined, the location of the words

21

‘persons likely to become a public charge‘ is changed, we agree

with Judge Ray in Ex parte Mitchell (D.C.) 256 Fed. 229, that

22

this change of location of the words does not change the

meaning that should be given them, and that it is still to be held

23

that a person ‘likely to become a public charge’ is one who,

by reason of poverty, insanity, or disease or disability, will

24

probably become a charge on the public.

25 Id. (emphasis added).13

26

27

13 In 1923 a district court in Washington state did not cite these precedents and held instead that Congress’s shift was an effective modification in response to Gegiow. Ex

28

parte Horn, 292 F. 455 (W.D. Wash. 1923). Interpreting the phrase anew based on its plain meaning, the court reasoned that “a public charge” is “a person committed to the

29

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1

A 1921 Second Circuit opinion relying on Howe and Ex parte Mitchell held that “A

2 person likely to become a public charge is one whom it may be necessary to support at

3 public expense by reason of poverty, insanity and poverty, disease and poverty, idiocy

4 and poverty. We think that the finding by the administrative authorities, showing a

5 physical defect of a nature that may affect the ability of the relator and appellee to earn a

6 living, is sufficient ground for exclusion. His physical condition, together with his financial

7 condition, having but $100 with him, justified the conclusion of the administrative

8 authorities in finding that he and his children were aliens likely to become public

9 charges.” Wallis v. U.S. ex rel. Mannara, 273 F. 509, 511 (2d Cir. 1921) (citation

10 omitted).

11

A number of courts around this time also held that imprisonment was one way to

12 become a public charge. E.g., Ex parte Fragoso, 11 F.2d 988, 989 (S.D. Cal. 1926)

13 (“The fact is this petitioner did become a public charge. He was confined in a jail for a

14 period of nine months.”); U.S. ex rel. Lehtola v. Magie, 47 F.2d 768, 770 (D. Minn. 1931)

15 (noting a circuit split as to whether “dependency rather than imprisonment” is grounds for

16 finding a public charge); Ex parte Horn, 292 F. 455, 458 (W.D. Wash. 1923).

17

In 1933, the third edition of Black’s Law Dictionary was the first to define “public

18 charge.” The definition relied upon many of the above-cited cases, so for that reason it is

19 derivative of and less probative than those cases themselves. Nevertheless, the

20 definition is instructive. It defined the term as: “A person whom it is necessary to support

21 at public expense by reason of poverty, insanity and poverty, disease and poverty, or

22 idiocy and poverty. . . . As used in [the 1917 Act], one who produces a money charge on,

23 or an expense to, the public for support and care.” See Black’s Law Dictionary 311 (3d

24 Ed. 1933). The term includes paupers as well as those who will not undertake honest

25 pursuits or who are likely to go to prison.

26

In 1948, the Board of Immigration Appeals (“BIA”) issued an order, which the

27

28

custody of a department of the government by due course of law,” and that committing someone to prison makes him a public charge. Id. at 457.

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1 acting Attorney General thereafter issued an order approving. The order set out a very

2 explicit test for the term “public charge” as used elsewhere in the act, which concerned

3 deportation proceedings of aliens who are later determined to have actually become a

4 public charge during their time in the country. Matter of B-, 3 I. & N. Dec. 323 (A.G.

5 1948).

6

When interpreting the term as used in the deportation context, the BIA set out a 3-

7 part test requiring (1) an individualized bill for charges incurred, that is (2) presented to

8 the alien (or a family member) by the government, and (3) which the alien (or family

9 member) fails to pay.

10

the following test must be applied to determine whether an alien

has become a public charge within the reach of the 1917 act:

11

(1) The State or other governing body must, by appropriate law,

impose a charge for the services rendered to the alien. In other

12

words, the State must have a cause of action in contract against

either the person taking advantage of the State services or

13

other designated relatives or friends. If there is no charge

made, and if the State does not have a cause of action, the

14

alien cannot be said to be a public charge. (2) The authorities

must make demand for payment of the charges upon those

15

persons made liable under State law. And (3) there must be a

failure to pay for the charges. If there is a failure to pay either

16

because of lack of demand or because the State authorities do

not perform their duty to collect the charges, the alien cannot

17

be said to have become a public charge.

18 Id. at 326 (footnote omitted).

19

The BIA also reasoned that the same definition would apply to the identical term

20 used earlier in the statute with respect to predicting whether an alien is likely to become a

21 public charge—i.e., the provision at issue in the present action:

22

First, we wish to make the following preliminary observation for

the purpose of clarifying the issue. The acceptance by an alien

23

of services provided by a State or by a subdivision of a State to

its residents, services for which no specific charge is made,

24

does not in and of itself make the alien a public charge within

the meaning of the 1917 act. To illustrate, an alien who

25

participates, without cost to him, in an adult education program

sponsored by the State does not become a public charge.

26

Similiarly [sic] with respect to an alien child who attends public

school, or alien child who takes advantage of the free-lunch

27

program offered by schools. We could go on ad

infinitum setting forth the countless municipal and State

28

services which are provided to all residents, alien and citizen

31

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alike, without specific charge of the municipality or the State,

1

and which are paid out of the general tax fund. The fact that

the State or the municipality pays for the services accepted by

2

the alien is not, then, by itself, the test of whether the alien has

become a public charge. . . . [I]f it were to be held that all aliens

3

became public charges by accepting such services, such a

holding would necessarily result in making aliens seeking

4

admission to the United States excludable under that clause of

section 3 of the act of February 5, 1917, which bars aliens likely

5

to become public charges from entering the United States,

provided it were shown the alien would accept the free

6

municipal and State services.

7 Id. at 324–25 & n.1.

8

District courts had independently adopted the same meaning under the 1917 Act.

9 E.g., Ex parte Orzechowska, 23 F. Supp. 428, 429 (D. Or. 1938) (individual not a public

10 charge so long as they will “pay the full amount of the cost of keeping the girl at the

11 Oregon State Hospital”); Ex parte Kichmiriantz, 283 F. 697, 698 (N.D. Cal. 1922) (same).

12

This three-part test is still used for determining whether to deport those who in fact

13 become public charges currently, and DHS proposes to continue doing is in the Rule.

14

Prior to the 1952 Act’s passage, at least one principle had seemingly coalesced in

15 the case law. The reasoning in Gegiow was reaffirmed, and multiple circuits (also

16 recognized by Black’s Law Dictionary) agreed that someone likely to become a public

17 charge is one whom it may be necessary to support at public expense by reason of

18 poverty, insanity and poverty, disease and poverty, or idiocy and poverty. Although that

19 oft-used definition (or a close derivative) is not particularly descriptive as to what quantum

20 of support qualifies as “necessary to support” someone at public expense, it reaffirms the

21 principle expressed in Gegiow and prior cases that the inquiry is focused on the

22 individual’s inherent ability to support himself. This definition also accords with prior

23 interpretations generally finding that, absent some particularly-identified negative factor,

24 those who appear generally capable and willing to work are not likely to become public

25 charges. And unlike the Howe case, it allows reading the definition of public charge in

26 light of the surrounding categories of excluded persons, such that someone who is

27 excluded due to his disease alone may also be excluded because his disease, in

28 combination with another factor like poverty, is likely to render him a public charge. This

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1 remains in line with other historically-supported, consistent principles described above,

2 namely that temporary assistance does not render one a public charge and that actual

3 incursion of debt to the state and refusal to pay could render one a public charge.

4

The Attorney General’s order in 1948 for the first time offered a single, clear

5 definition of the term “public charge” to be applied consistently throughout the Act. And it

6 also specifically ruled that acceptance of publicly-funded services “for which no specific

7 charge is made” does not make one a public charge. The three-part test requiring

8 presentation of a bill and inability or refusal to pay was certainly in accordance with a line

9 of precedential caselaw, but it was by no means the only or even dominant line at that

10 time. Nevertheless, this Attorney-General-issued order was controlling as administrative

11 law between its issuance in 1948 and at least Congress’s next codification of the

12 immigration statutes in 1952.

13

7. 1952

14

In 1952, Congress again revised the laws relating to immigration. That revised

15 statute provided, in part:

16

Except as otherwise provided in this Act, the following classes

of aliens shall be ineligible to receive visas and shall be

17

excluded from admission into the United States:

(1) Aliens who are feeble-minded;

18

(2) Aliens who are insane;

(3) Aliens who have had one or more attacks of insanity;

19

. . .

(7) Aliens not comprehended within any of the foregoing

20

classes . . . having a physical defect, disease, or disability . . .

to be of such a nature that it may affect the ability of the alien

21

to earn a living, unless the alien affirmatively establishes that

he will not have to earn a living;

22

(8) Aliens who are paupers, professional beggars, or vagrants;

. . .

23

(15) Aliens who, in the opinion of the consular officer at the time

of application for a visa, or in the opinion of the Attorney

24

General at the time of application for admission, are likely at

any time to become public charges”

25

26 An Act to Revise the Laws Relating to Immigration, Naturalization, and Nationality; and

27 for Other Purposes, 66 Stat. 163, 183, Title 2, Chap. 2 (“1952 Act”) § 212 (1952).

28

The 1952 Act also provided for deportation of any alien who, “in the opinion of the

33

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1 Attorney General, has within five years after entry become a public charge from causes

2 not affirmatively shown to have arisen after entry[.]” Id., Chap. 5 § 241(a)(8).

3

The changes appear to be relatively minor for the purposes of this dispute.

4 Notably, Congress added the phrase “at any time” to specify the scope of time the public

5 charge determination is meant to consider. But no alteration to the phrase “public

6 charge” appears in the statute.

7

The 1951 edition of Black’s Law Dictionary, like the 3rd edition in 1933, assembled

8 its definition based on precedent discussed above:

9

A person whom it is necessary to support at public expense by

reason of poverty, insanity and poverty, or idiocy and poverty.

10

As used in [the 1917 Act] . . ., one who produces a money

charge on, or an expense to, the public for support and care.

11

As so used, the term is not limited to paupers or those liable to

become such, but includes those who will not undertake honest

12

pursuits, or who are likely to become periodically the inmates

of prison.

13

14 Charge, Public Charge, Black’s Law Dictionary (4th ed. 1951) (citations omitted).

15

BIA dispositions following the passage of the 1952 Act addressed the term. One

16 such disposition surveyed caselaw interpreting the term and held “the statute requires

17 more than a showing of a possibility that the alien will require public support. Some

18 specific circumstance, such as mental or physical disability, advanced age, or other fact

19 reasonably tending to show that the burden of supporting the alien is likely to be cast on

20 the public, must be present. A healthy person in the prime of life cannot ordinarily

21 be considered likely to become a public charge, especially where he has friends or

22 relatives in the United States who have indicated their ability and willingness to

23 come to his assistance in case of emergency.” Matter of Martinez-Lopez, 10 I. & N.

24 Dec. 409, 421–22 (BIA 1962) (emphasis added) (collecting cases).

25

In that case, the agency held that the individual at issue was not likely to become a

26 public charge given his characteristics, which essentially showed he was able to perform

27 honest work:

28

When respondent applied for a visa he was 22 years of age.

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He was sound of body and had about ten years of farming

1

experience. He had no specialized training, but had five years

of schooling and apparently planned to seek work for which he

2

was qualified. He spoke no English, but this was no handicap

for he would work among people who spoke Spanish. He had

3

about $50 in assets. He had a brother gainfully employed in the

United States and he had other close relations who were

4

interested in his welfare and who worked to bring him to the

United States. The brother was making $85 a week in

5

permanent employment; he was unmarried; he had been

sending money to his family in Mexico, and he was interested

6

in helping his brother. Respondent had previous experience in

the United States, having spent about three months here as a

7

contract worker. At that time he worked both in the fields and in

a cannery. His services appear to have been satisfactory for he

8

was retained here until his contract was completed.

Respondent had no criminal record.

9

10 Id. at 411.

11

A 1974 BIA decision emphasized that the public charge determination must

12 consider the totality of the circumstances, and that prior welfare use alone cannot be

13 determinative. Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (“The respondent's

14 reliance on welfare for support is a condition which she herself can remedy.”).

15

Another 1974 BIA decision confused matters. Matter of Harutunian, 14 I. & N.

16 Dec. 583, 584 (BIA 1974). The decision outlined “[t]he stages in decisional

17 interpretations of the deportation statute, culminating in Matter of B-":

18

1. The words “public charge” had their ordinary meaning, that

is to say, a money charge upon or an expense to the public for

19

support and care, the alien being destitute.

20

2. The alien had not yet become a public charge, even though

he personally was destitute and his care and support were

21

being paid for by public funds, if there existed close relatives,

ready, willing and able to pay the bill, but the appropriate

22

government agency had failed to submit any bill.

23

3. The alien had not become a public charge where the alien's

mother had offered to make reimbursement, but under state

24

law payment could not be accepted for maintenance and

treatment of the institutionalized alien. 25

4. The alien had not become a public charge where the

26

circumstances were like those described in 3, above, except

that no one had offered reimbursement. 27

28 Id. at 586 (citations omitted). 35

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1

However, it reasoned that the Attorney General’s opinion in Matter of B- “is not

2 necessarily controlling in relation to the provisions for exclusion.” Id. at 585. The BIA

3 reasoned that “[w]hile it may normally be assumed that identical words used in different

4 parts of the same statute are intended to have an identical meaning, this assumption

5 readily yields when the legislative intent requires variant meanings in different contexts.”

6 Id. at 586. The BIA then discussed legislative history in search of congressional intent.

7 Id. The decision notes that the Senate Judiciary Committee discussed that courts had

8 given different definitions to the term, and ultimately it decided not to define the term, “but

9 rather [decided] to establish the specific qualification that the determination of whether an

10 alien falls into that category rests within the discretion of the consular officers or the

11 Commissioner.” Id. at 588 (citing S. Rep. 1515, 81st Cong., 2d Sess., April 20, 1950, p.

12 349).

13

The BIA stated that the phrase “public charge” must be “strictly construed” in the

14 deportation context, but not in the exclusion context. Id. It then reasoned that the old-

15 age benefits at issue in the case were “individualized public support to the needy, as

16 distinguished from essentially supplementary benefits, directed to the general welfare of

17 the public as a whole.” Id. at 589. Even though the state would never ask for repayment

18 of those old-age benefits—and therefore they could not constitute assistance qualifying

19 one as a public charge under the Matter of B- test—the court reasoned that it would not

20 consider “the element of reimbursement” when determining whether someone is likely to

21 become a public charge. Id.

22

So, the BIA rejected the Matter of B- test and constructed alternate definitions for

23 the same term depending on whether the executive is predicting whether someone is

24 likely to become a public charge or deciding whether someone has already become a

25 public charge. “Therefore, in our opinion any alien who is incapable of earning a

26 livelihood, who does not have sufficient funds in the United States for his support, and

27 has no person in the United States willing and able to assure that he will not need public

28 support is excludable as likely to become a public charge whether or not the public

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1 support which will be available to him is reimbursable to the state.” Id. at 589–90.

2

These BIA decisions are useful to understand the administrative practices and

3 interpretations operating when Congress reenacted the same language. Although this

4 period saw confusion within the agency about the proper way to interpret the phrase as

5 used in different contexts, each of the discussed decisions support the now-consistent

6 theme that a healthy person in the prime of life who can work cannot be considered likely

7 to become a public charge, absent some particularly-identified circumstance evaluated

8 under a totality of the circumstances. E.g., Matter of Martinez-Lopez, 10 I. & N. Dec. at

9 422 (collecting cases); Matter of Harutunian, 14 I. & N. Dec. at 589 (“alien who is

10 incapable of earning a livelihood”); Matter of Perez, 15 I. & N. Dec. at 137 (totality of

11 circumstances).

12

8. 1987

13

In 1987, the INS issued a final rule, effective May 1, 1987, following notice and

14 comment. See Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205 (May 1,

15 1987). The rule implemented section 245A of the Immigration and Nationality Act as

16 amended by section 201 of the Immigration Reform and Control Act of 1986. Id. at

17 16,205. So, the 1987 rule concerned the term “public charge” as used elsewhere in the

18 INA, specifically for aliens adjusting their status to that of aliens lawfully admitted for

19 temporary residence. The “key issues” subject to comments “were the public charge and

20 special rule for determination of public charge[.]” 52 Fed. Reg. at 16,206.

21

That rule provided: “An applicant . . . is subject to the provisions of section

22 212(a)(15) of the Act relating to excludability of aliens likely to become public charges

23 unless the applicant demonstrates a history of employment in the United States

24 evidencing self-support without receipt of public cash assistance. . . . If the alien's

25 period(s) of residence in the United States include significant gaps in employment or if

26 there is reason to believe that the alien may have received public assistance while

27 employed, the alien may be required to provide proof that he or she has not received

28 public cash assistance.” 52 Fed. Reg. at 16,211.

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1

Essentially, this provision exempted aliens who had been working domestically

2 from the normal public charge analysis, so long as they could prove a work history and

3 that they had not relied on public cash assistance. The rule defined cash assistance to

4 exclude in-kind benefits. 52 Fed. Reg. at 16,209 (“‘Public cash assistance’ means

5 income or needs-based monetary assistance, to include but not limited to supplemental

6 security income, received by the alien or his or her immediate family members through

7 federal, state, or local programs designed to meet subsistence levels. It does not include

8 assistance in kind, such as food stamps, public housing, or other non-cash benefits, nor

9 does it include work-related compensation or certain types of medical assistance

10 (Medicare, Medicaid, emergency treatment, services to pregnant women or children

11 under 18 years of age, or treatment in the interest of public health).”).

12

This use of the term is somewhat of an aberration given that it essentially

13 concerned an exception to the statute at issue here—and it did not define the term.

14 However, it did reinforce the long-standing principle underlying the construction of the

15 term that, when considering whether someone should be admitted to the country, the

16 concept of “public charge” concerns primarily the prospect of gainful employment or

17 some other private source of support.

18

9. 1990

19

In 1990, Congress revised the laws relating to immigration. That revised statute

20 provided, in part:

21

Except as otherwise provided in this Act, the following

describes classes of excludable aliens who are ineligible to

22

receive visas and who shall be excluded from admission into

the United States: 23

(1) Health-Related Grounds

24

. . .

(2) Criminal and Related Grounds

25

. . .

(3) Security and Related Grounds

26

. . .

(4) Public Charge.—Any alien who, in the opinion of the

27

consular officer at the time of application for a visa, or in the

opinion of the Attorney General at the time of application for

28

admission or adjustment of status, is likely at any time to

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become a public charge is excludable. 1

2 Immigration Act of 1990, 104 Stat. 4978, Title 6 § 601 (1990).

3

This version of the bill removed language referring to the feeble-minded, paupers,

4 professional beggars, and vagrants. There is a suggestion in the Congressional Record

5 that the removed terms were meant to be consolidated within the public charge category:

6

The bill removes some of the antiquated and unused

exclusions that have been in our law since the early 1900's,

7

such as the exclusions based on illiteracy, and the exclusions

for aliens who are "paupers, professional beggars, or

8

vagrants." These relics have been replaced by one generic

standard which exclude aliens who are "likely to become a

9

public charge."

10 136 Cong. Rec. 36797, 36844 (1990).

11

In 1990, Black’s Law Dictionary defined “public charge” as “an indigent. A person

12 whom it is necessary to support at public expense by reason of poverty alone or illness

13 and poverty.” Charge, Public Charge, Black’s Law Dictionary (6th ed. 1990).

14

Although a statutory term is not defined by reference to one preferred

15 interpretation memorialized in the Congressional Record, that interpretation is consistent

16 with the courts’ and executive’s general treatment of the term since Gegiow. That is,

17 following Gegiow and later cases applying it to the 1917 Act, courts had read the term

18 public charge in context of those surrounding terms rather than in exclusion of them, and

19 focused on the alien’s ability to work or otherwise provide for himself, which each of the

20 omitted surrounding terms also ultimately spoke to. But see Howe, 247 F. at 294.

21

10. 1996

22

In 1996, Congress again revised the laws relating to immigration. That revised

23 statute provided, in part:

24

(4) PUBLIC CHARGE.—

25

(A) IN GENERAL.—Any alien who, in the opinion of the

consular officer at the time of application for a visa, or in

26

the opinion of the Attorney General at the time of

application for admission or adjustment of status, is

27

likely at any time to become a public charge is

excludable.

28

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(B) FACTORS TO BE TAKEN INTO ACCOUNT.— 1

(i) In determining whether an alien is excludable

2

under this paragraph, the consular officer or the

Attorney General shall at a minimum consider the

3

alien's—

4

(I) age;

(II) health;

5

(III) family status;

(IV) assets, resources, and financial

6

status; and

(V) education and skills. 7

(ii) In addition to the factors under clause (i), the

8

consular officer or the Attorney General may also

consider any affidavit of support under section

9

213A for purposes of exclusion under this

paragraph. 10

11 Omnibus Consolidated Appropriations Act, 110 Stat. 3009, Title 5 § 531 (1996). This act

12 is often referred to as the Illegal Immigration Reform and Immigrant Responsibility Act

13 (“IIRIRA”). Elsewhere, the Act provided that “Any alien who, within five years after the

14 date of entry, has become a public charge from causes not affirmatively shown to have

15 arisen since entry is deportable.” 8 U.S.C. § 1251(a)(5) (effective April 24, 1996).

16

The revised law used the same relevant language as all previous versions—public

17 charge. However, the statute then listed five factors that Congress instructed must be

18 considered when determining whether an alien is likely to become a public charge, and it

19 identified another factor that “may also” be considered.

20

Contemporaneously, the Personal Responsibility and Work Opportunity

21 Reconciliation Act (“PRWORA”), Pub. L. 104-193, restricted most aliens from accessing

22 many public support programs for a period of time.

23

During legislative efforts that ultimately resulted in the IIRIRA, a group of

24 legislators proposed to define “public charge” with particularity in the statute to include

25 “any alien who receives benefits described in subparagraph (D) for an aggregate period

26 of at least 12 months” (or 36 months in the case of a battered spouse or child). 142

27 Cong. Rec. 24313, 24425 (1996). The benefits listed in subparagraph D (that would

28 qualify an alien as a public charge) included “means-tested public benefits,” but it’s not

40

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1 entirely clear what specific benefits that section refers to.14 That definition was not

2 enacted into law.

3

11. 1999

4

The INS attempted in 1999 to engage in rulemaking to guide immigration officers,

5 aliens, and the public in understanding the public charge determinations. No final rule

6 was ever issued. Instead, the agency published Field Guidance addressing the issue.

7 See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64

8 Fed. Reg. 28,689 (May 26, 1999) (the “1999 Field Guidance”).

9

The notice was published prior to final rulemaking because it was deemed

10 “necessary to help alleviate public confusion over the meaning of the term ‘public charge’

11 in immigration law and its relationship to the receipt of Federal, State, and local public

12 benefits.” 64 Fed. Reg. at 28,689. “The Department decided to publish a proposed rule

13 defining ‘public charge’ in order to reduce the negative public health consequences

14 generated by the existing confusion and to provide aliens with better guidance as to the

15 types of public benefits that will and will not be considered in public charge

16 determinations.” Id. The notice “both summarizes longstanding law with respect to

17 public charge and provides new guidance on public charge determinations in light of the

18 recent changes in law,” notably the “Illegal Immigration Reform and Immigrant

19 Responsibility Act of 1996 (IIRIRA) and welfare reform laws.” Id.

20

The notice proposed “that ‘public charge’ means an alien who has become (for

21 deportation purposes) or who is likely to become (for admission/adjustment purposes)

22 ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the

23 receipt of public cash assistance for income maintenance or (ii) institutionalization for

24 long-term care at government expense.’ Institutionalization for short periods of

25 rehabilitation does not constitute such primary dependence.” Id.

26

27

14 The record refers to Section 213A(e)(1), which appears to have been codified at 8 U.S.C § 1183a(e), but that does not describe means-tested benefits. The currently-

28

operative version of 8 U.S. Code § 1183a(a)(1)(B) also appears to errantly refer to subsection (e) for a list of means-tested benefits, so this error is not unique.

41

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1

Following the implementation of that interpretation, “officers should not place any

2 weight on the receipt of non-cash public benefits (other than institutionalization) or the

3 receipt of cash benefits for purposes other than for income maintenance with respect to

4 determinations of admissibility or eligibility for adjustment on public charge grounds.” Id.

5

Summarizing current agency practice, the memo explained:

6

The standard for adjudicating inadmissibility under section

212(a)(4) has been developed in several Service, BIA, and

7

Attorney General decisions and has been codified in the

Service regulations implementing the legalization provisions of

8

the Immigration Reform and Control Act of 1986. These

decisions and regulations, and section 212(a)(4) itself, create a

9

“totality of the circumstances” test.

10

In determining whether an alien is likely to become a public

charge, Service officers should assess the financial

11

responsibility of the alien by examining the “totality of the alien's

circumstances at the time of his or her application * * * The

12

existence or absence of a particular factor should never be the

sole criterion for determining if an alien is likely to become a

13

public charge. The determination of financial responsibility

should be a prospective evaluation based on the alien's age,

14

health, family status, assets, resources and financial status,

education, and skills, among other factors. An alien may be

15

considered likely to become a public charge even if there is no

legal obligation to reimburse the benefit-granting agency for the

16

benefits or services received, in contrast to the standards for

deportation, discussed below.

17

18 Id. at 28,690 (footnotes omitted).

19

The 1999 Field Guidance then explained that the three-part test for paying back

20 public debt continues to apply, but only as an additional test on top of the totality of the

21 circumstances test for deportation decisions:

22

Repayment is relevant to the public charge inadmissibility

determination only in very limited circumstances. If at the time

23

of application for admission or adjustment of status the alien is

deportable on public charge grounds under section 237(a)(5)

24

of the INA due to an outstanding public debt for a cash benefit

or the costs of institutionalization, then the alien is inadmissible.

25

Only a debt that satisfies the three-part [Matter of B-] test under

section 237(a)(5), described below, will render an alien

26

deportable as a public charge and therefore ineligible for

admission or adjustment. If the debt is paid, then the alien will

27

no longer be inadmissible based on the debt, and the usual

totality of the circumstances test would apply.

28

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1 Id.

2

The Feld Guidance explained that a compelling reason to limit the public charge

3 definition to those receiving cash is that “certain federal, state, and local benefits are

4 increasingly being made available to families with incomes far above the poverty level,

5 reflecting broad public policy decisions about improving general public health and

6 nutrition, promoting education, and assisting working-poor families in the process of

7 becoming self-sufficient. Thus, participation in such non-cash programs is not evidence

8 of poverty or dependence.” Id. at 28,692

9

12. 2013

10

In 2013, the Senate voted down two amendments to a never-passed bill regarding

11 immigration. The first amendment proposed “expanding the criteria for ‘public charge,’

12 such that applicants would have to show they were not likely to qualify even for non-cash

13 employment supports such as Medicaid, the SNAP program, or the Children's Health

14 Insurance Program (CHIP). . . . [T]he amendment was rejected by voice vote.” S. Rep.

15 No. 113-40, at 42 (2013).

16

The second amendment “would have expanded the definition of ‘public charge’

17 such that people who received non-cash health benefits could not become legal

18 permanent residents. This amendment would also have denied entry to individuals

19 whom the Department of Homeland Security determines are likely to receive these types

20 of benefits in the future. The amendment was not agreed to by a voice vote.” S. Rep.

21 No. 113-40, at 63 (2013).

22

13. 2019—The Rule

23

On October 10, 2018, DHS published a Notice of Proposed Rulemaking in the

24 Federal Register. See 83 Fed. Reg. 51,114. The NPRM provided a 60-day public

25 comment period, during which 266,077 comments were collected. See 84 Fed. Reg. at

26 41,297. On August 14, 2019, DHS published the Rule in the Federal Register.

27

The Rule supersedes the 1999 Field Guidance’s definition of “public charge,”

28 establishing a new definition based on a minimum time threshold for the receipt of public

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1 benefits. Under the newly-proposed “12/36 standard,” a public charge is defined as an

2 individual who receives designated public benefits for more than 12 months in the

3 aggregate within a 36-month period, although a single month where multiple types of

4 benefits are received is counted as multiple months of receiving aid. 84 Fed. Reg. at

5 41,295. The “public benefits” included are extended by the Rule to include many non-

6 cash benefits, for example Supplemental Nutrition Assistance Program (“SNAP”), Section

7 8 Housing Programs, Medicaid, and Public Housing. Id. at 41,501. Receipt of two

8 categories of benefits in the same months counts as two months of receipt for benefits,

9 so some will qualify as public charges without receiving benefits for 12 months.

10 Moreover, the rule is agnostic to the value (or cost to the government) of the benefits. To

11 take a plausible example, someone receiving $182 over 36 months—or an average of

12 less than 17 cents a day—in SNAP benefits is a public charge under the Rule. See

13 Shing Decl. ¶ 17.

14

The Rule does not change the definition of public charge in the context of

15 deportability, described elsewhere in the INA. 84 Fed. Reg. at 41,295 (“This rule does

16 not interpret or change DHS’s implementation of the public charge ground of

17 deportability.”). Rather, DHS will continue to enforce the 1999 Field Guidance in the

18 deportation context. Id. at 41,304 (“DHS currently makes public charge determinations in

19 accordance with the 1999 Interim Field Guidance. . . . This guidance explains how the

20 agency determines . . . whether a person has become a public charge within five years of

21 entry”). The 1999 Field Guidance, which will continue to govern, provided that “the

22 definition of public charge is the same for both admission/adjustment and deportation,”

23 although “the standards applied to public charge adjudications in each context are

24 significantly different” because one is forward-looking and one is backward-looking. 64

25 Fed. Reg. at 28,689. As such, following the implementation of the Rule, “public charge”

26 will continue to be defined in the deportation context as “an alien who has become . . .

27 ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the

28 receipt of public cash assistance for income maintenance or (ii) institutionalization for

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1 long-term care at government expense.’” Id. To assess whether an alien qualifies under

2 that definition in the deportability context, the 1999 Field Guidance prescribes the 3-part

3 test established in Matter of B-, 3 I. & N. Dec. 323.

4

So, the Rule proposes to simultaneously apply multiple definitions for the term

5 public charge. First, its new definition will be used to predict whether an alien is likely at

6 any time to become a public charge. Second, the 1999 Field Guidance’s “primary

7 dependence” definition is left unaltered in the deportation context, and it is evaluated

8 pursuant to the well-known 3-part Matter of B- test.

9

Each step in the Chevron analysis requires the court to consider the terms of the

10 statute in context. The court first looks to the statutory text, in light of prior agency and

11 judicial interpretation—as explained at length above, although the court notes that judicial

12 and agency interpretation following the most-recent 1996 revision is not particularly

13 relevant to understanding the meaning of the text as enacted in 1996. Cf. Sec'y of the

14 Interior v. California, 464 U.S. 312, 375 n.36 (1984) (the “view of a subsequent Congress

15 . . . is not without persuasive value”).

16

The analysis is also informed to some degree by what Congress decided not to

17 pass, in addition to what it specifically rejected. “Congress does not intend sub silentio to

18 enact statutory language that it has earlier discarded in favor of other language.”

19 Cardoza-Fonseca, 480 U.S. at 442–43; Albemarle Paper Co., 422 U.S. at 414 n.8

20 (rejecting construction of statute that would implement provision Conference Committee

21 rejected); Bob Jones Univ., 461 U.S. at 600–01 (interpretation of statute informed by the

22 fact that Congress had a “prolonged and acute awareness” of an established agency

23 interpretation of a statute, considered the precise issue, and rejected bills to overturn the

24 prevailing interpretation); see also Merrill Lynch, 456 U.S. at 381–82 (interpretation of

25 statute informed by the fact that Congress amended large portions of statute, but not

26 provision at issue).

27

Of particular relevance here, parts of Congress have explicitly and repeatedly

28 rejected efforts to define “public charge” to include those who receive certain in-kind

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1 benefits for a period of 12 months—efforts that are strikingly similar to the definition now

2 adopted for the first time by the executive in the Rule. E.g., 142 Cong. Rec. 24313,

3 24425 (1996); S. Rep. No. 113-40, at 42 (2013); S. Rep. No. 113-40, at 63 (2013).

4 Congress’s rejection in 1996 is particularly instructive. As described above, Congress at

5 that time considered a scheme similar to the Rule, wherein use of means-tested benefits

6 for 12 months would qualify one as a public charge. On September 24, 1996, the

7 conference committee recommended passage of a version of the bill with that definition.

8 See 142 Cong. Rec. 24389 (conference committee recommendation), 24425 (public

9 charge definition). President Clinton had previously praised the legislation generally, but

10 specifically criticized that bill’s disincentive to obtain public benefits. He called for

11 revision of the statute. He said “it still goes too far in denying legal immigrants access to

12 vital safety net programs which could jeopardize public health and safety. Some work

13 still needs to be done. I urge the Congress to move quickly to finalize and send me this

14 key legislation.” Statement on Senate Action on the “Immigration Control and Financial

15 Responsibility Act of 1996”, President William J. Clinton, Weekly Compilation of

16 Presidential Documents Volume 32, Issue 18 (May 6, 1996) at p. 783. On September 30,

17 1996, the bill was signed into law, following the removal of the definition of public charge

18 that included use of means-tested public benefits. This exchange, which deals with the

19 precise issue presented by this litigation, is particularly instructive not because of the

20 president’s words but because of Congress’s response to those words—it intentionally

21 considered and rejected a definition similar to what the Rule now proposes. Afterall it is

22 Congress, not the President, who is responsible for writing legislation.

23

Given the term’s long-standing focus on the individual’s ability and willingness to

24 work or otherwise support himself, and its longstanding allowance for short-term aid, and

25 the legislative history of the 1996 revision, it is likely that the Rule’s interpretation defining

26 anyone who receives any quantity of benefits for 12 months (or fewer) out of a floating

27 36-month window as a public charge is not a permissible or reasonable construction of

28 the statute. For example, defendants do not contest that someone receiving less than 50

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1 cents per day—which is a standard SNAP benefit amount for recipients at the higher end

2 of income eligibility, Shing Decl. ¶ 17—would be deemed a public charge under the Rule.

3 That could also be calculated as $182 over 36 months—or an average of less than 17

4 cents a day. At no point over the long history described above could that have qualified

5 one as a public charge, unless the bill for those charges was presented to the recipient

6 and he refused to pay. Moreover, the Rule’s double-counting of months where multiple

7 benefits are received raises serious questions with respect to whether the Rule

8 impermissibly considers temporary or short-term relief, receipt of which has never been

9 sufficient to qualify someone as a public charge (absent repayment, following

10 presentation of an invoice).

11

Deciding otherwise would put this court at odds with persuasive Supreme Court

12 and Ninth Circuit precedent. The Supreme Court has defined the term to allow exclusion

13 only “on the ground of permanent personal objections accompanying them [the excluded

14 aliens] irrespective of local conditions[.]” Gegiow, 239 U.S. at 10. In that case, “the

15 aliens came from a remote province of Russia. They knew no trade. They knew no

16 language but their own. Only one could read or write in his own language. They had

17 sums aggregating slightly more than $25 each. They were not employed, and had no

18 promise of employment. They were ticketed through to Portland, Or., where, owing to

19 depressed labor conditions, the prospect of their obtaining work ‘was most unfavorable.’”

20 Ex parte Hosaye Sakaguchi, 277 F. at 916 (citing Gegiow, 239 U.S. at 10). Still, they

21 were not likely to become public charges within the meaning of the statute. The Ninth

22 Circuit reaffirmed that definition following reorganization of the statute. Id. (“change of

23 location of the words does not change the meaning that should be given them”). Since

24 Gegiow and Ex parte Hosaye Sakaguchi, Congress has not altered the term “public

25 charge,” which the Ninth Circuit has defined standing alone, irrespective of its placement

26 or context within the list of excluded persons in the statute. The court therefore sees no

27 good reason to depart from those precedential opinions, which suggest that an able-

28 bodied, working-age individual who is willing to engage in honest work is not excludable

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1 based on a prediction that he will become a public charge unless a particular reason can

2 be articulated to exclude him. This reasoning does not allow for exclusion based on the

3 increasing generosity of society’s public assistance to provide for more than the barest

4 requirements of subsistence. Gegiow, in fact, explicitly precludes consideration of local

5 labor conditions.

6

The likely unreasonableness of the rule is further demonstrated by just how

7 expansive the definition is. The history of the term, evidenced by its repeated verbatim

8 reenactment, excluded those who were likely to become public charges based on

9 poverty, or idiocy and poverty, or disease and poverty, etc. But plaintiffs demonstrate

10 that in a single year, roughly a quarter U.S.-born citizens receive one or more benefits

11 used to define who is a public charge under the Rule. And plaintiffs demonstrate that,

12 over the course of their lifetimes, about 40% of U.S.-born citizens are expected to receive

13 one or more of those benefits. Although these figures do not indicate what percent of

14 U.S.-born citizens would actually be deemed public charges under the Rule (that would

15 require determining how many individuals receive multiple benefits per month, in addition

16 to how many months benefits are received over any 3-year period), it suggests that the

17 Rule is substantially outside the bounds of a reasonable interpretation of the statute.

18

With regard to plaintiffs’ claim that the Rule is not in accordance with law, for the

19 foregoing reasons, and given the above discussion of the term’s long-standing use and

20 evolution in the immigration statutes, this court finds that plaintiffs are likely to succeed on

21 the merits with respect to their claim that the Rule’s definition of public charge is

22 unreasonable and not based on a permissible construction of the statute, under the

23 second prong of the Chevron analysis.15 Alternatively, plaintiffs have raised at least

24 serious questions with respect to whether “the statute, read in context, unambiguously

25 forecloses” the precise question at issue, namely DHS’s expansive interpretation of the

26 term to include individuals willing and able work productively in the national economy,

27

28

15 For the same reasons that plaintiffs are likely to succeed on this question, they have undoubtedly raised serious questions with respect to it.

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1 under the first prong of the Chevron analysis. See Esquivel-Quintana v. Sessions, 137 S.

2 Ct. 1562, 1572 (2017); see also Whitman v. Am. Trucking Associations, 531 U.S. 457,

3 471 (2001) (finding a particular construction “unambiguously bar[red]” when “interpreted

4 in its statutory and historical context”).

5

b. Not in Accordance with Law—Rehabilitation Act

6

The Rehabilitation Act prohibits “any program or activity receiving federal financial

7 assistance” or “any program or activity conducted by any Executive agency,” from

8 excluding, denying benefits to, or discriminating against persons with disabilities. 29

9 U.S.C. § 794(a).

10

“To establish a violation of § 504 of the RA [Rehabilitation Act], a plaintiff must

11 show that (1) she is handicapped within the meaning of the RA; (2) she is otherwise

12 qualified for the benefit or services sought; (3) she was denied the benefit or services

13 solely by reason of her handicap; and (4) the program providing the benefit or services

14 receives federal financial assistance.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.

15 2002); 29 U.S.C. § 794(a) (“[n]o otherwise qualified individual with a disability . . . shall,

16 solely by reason of her or his disability, be . . . subjected to discrimination under . . . any

17 program or activity conducted by any Executive agency”).

18

The States argue that the Rule will exclude some individuals solely based on

19 disability because a disability will predictably be responsible for a number of negative

20 factors in some individuals: (1) a negative health factor because the Rule adopts a

21 definition of “health” that strongly overlaps with disability; (2) a negative factor if the

22 applicant lacks private insurance; and (3) a negative factor if the applicant has received

23 Medicaid for 12 of the last 36 months, even though use of Medicaid is common for the

24 disabled because it covers services that no other insurer provides.

25

Defendants first argue that the Rule’s multi-factor test means the Rehabilitation

26 Act is not violated because disability cannot be the “sole” determinative factor. Second,

27 they argue that even if the statutes are in conflict, a specific, later statutory command—

28 such as the INA’s requirement that the agency consider health—supersedes section

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1 504’s general proscription.

2

First, the Rehabilitation Act requires that a plaintiff show that a disabled person

3 was denied services “solely” by reason of her disability. The Rule does not deny any

4 alien admission into the United States, or adjustment of status, “solely by reason of”

5 disability. All covered aliens, disabled or not, are subject to the same inquiry: whether

6 they are likely to use one or more covered federal benefits for the specified period of

7 time. Even though a disability is likely to be an underlying cause of some individuals

8 qualifying for additional negative factors, it will not be the sole cause. As such, disability

9 is one non-dispositive factor.16

10

Second, the INA explicitly lists “health” as a factor that an officer “shall . . .

11 consider” in making a public charge determination. 8 U.S.C. § 1182(a)(4)(B)(i). “Health”

12 includes an alien’s disability and whatever impact the disability may have on the alien’s

13 expenses and ability to work. Congress, not the Rule, requires DHS to take this factor

14 into account, and the caselaw has long considered this factor. See, e.g., Knutzen v.

15 Eben Ezer Lutheran Hous. Ctr., 815 F.2d 1343, 1353 (10th Cir. 1987) (section 504 may

16 not “revoke or repeal . . . a much more specific statute . . . absent express language by

17 Congress”).

18

As such, plaintiffs have not demonstrated even serious questions going the merits

19 with respect to this claim.

20

c. Arbitrary and Capricious

21

Section 4 of the APA, 5 U.S.C. § 553, prescribes a three-step

procedure for so-called “notice-and-comment rulemaking.”

22

First, the agency must issue a “[g]eneral notice of proposed rule

making,” ordinarily by publication in the Federal

23

Register. § 553(b). Second, if “notice [is] required,” the agency

must “give interested persons an opportunity to participate in

24

25 16 Plaintiffs’ citation to Lovell is unavailing. They claim the case found a multi-factor test

26

violated the Act, “notwithstanding other factors” unrelated to disability. But in Lovell, defendants asked the court to look at a multifactored system, but the court declined and

27

instead looked at treatment of the disabled under a single program. It was “undisputed that disabled people who, but for their disability, were eligible for healthcare benefits from

28

the State under” that single program “were denied coverage because of the categorical exclusion of the disabled from” that program. Lovell, 303 F.3d at 1053.

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the rule making through submission of written data, views, or

1

arguments.” § 553(c). An agency must consider and respond

to significant comments received during the period for public

2

comment. Third, when the agency promulgates the final rule,

it must include in the rule's text “a concise general statement of

3

[its] basis and purpose.” § 553(c). Rules issued through the

notice-and-comment process are often referred to as

4

“legislative rules” because they have the “force and effect of

law.” Chrysler Corp. v. Brown, 441 U.S. 281 (1979). 5

Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015) (citations omitted).

6

“‘[A]rbitrary and capricious’ review under the APA focuses on the reasonableness

7

of an agency’s decision-making processes.” CHW W. Bay v. Thompson, 246 F.3d 1218,

8

1223 (9th Cir. 2001). Agency action is invalid if the agency fails to give adequate

9

reasons for its decisions, fails to examine the relevant data, or offers no “rational

10

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of

11

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Encino

12

Motorcars, 136 S. Ct. at 2125. A rule is arbitrary and capricious if the agency has

13

“entirely failed to consider an important aspect of the problem, offered an explanation for

14

its decision that runs counter to the evidence before the agency, or is so implausible that

15

it could not be ascribed to a difference in view or the product of agency expertise.” Id.

16

Agencies are required to “reflect upon the information contained in the record and

17

grapple with contrary evidence.” Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638

18

(D.C. Cir. 2017). Where “the agency has failed to ‘examine the relevant data’ or failed to

19

‘articulate a rational explanation for its actions,’” its decision is arbitrary and capricious.

20

Genuine Parts Co. v. EPA, 890 F.3d 304, 311–12 (D.C. Cir. 2018). And where an

21

agency is uncertain about the effects of agency action, it may not rely on “‘substantial

22

uncertainty’ as a justification for its actions.” Greater Yellowstone Coal., Inc. v. Servheen,

23

665 F.3d 1015, 1028 (9th Cir. 2011). Instead, it must “rationally explain why the

24

uncertainty” supports the chosen approach. Id. (“Otherwise, we might as well be

25

deferring to a coin flip.”). “[A]n internally inconsistent analysis is arbitrary and capricious.”

26

Nat'l Parks Conservation Ass'n v. E.P.A., 788 F.3d 1134, 1141 (9th Cir. 2015).

27

But “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow

28

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1 and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.

2 Ass’n, 463 U.S. at 43; San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,

3 601 (9th Cir. 2014) (“Although our inquiry must be thorough, the standard of review is

4 highly deferential; the agency's decision is ‘entitled to a presumption of regularity,’ and

5 we may not substitute our judgment for that of the agency.”). An agency’s obligation to

6 respond to comments on a proposed rulemaking is “not ‘particularly demanding.’” Ass’n

7 of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 441–42 (D.C. Cir. 2012).

8 “[T]he agency’s response to public comments need only ‘enable [courts] to see what

9 major issues of policy were ventilated . . . and why the agency reacted to them as it did.’”

10 Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993).

11

Rule changes face a higher burden when departing from prior policy:

12

Agencies are free to change their existing policies as long as

they provide a reasoned explanation for the change. When an

13

agency changes its existing position, it need not always provide

a more detailed justification than what would suffice for a new

14

policy created on a blank slate. But the agency must at least

display awareness that it is changing position and show that

15

there are good reasons for the new policy. In explaining its

changed position, an agency must also be cognizant that

16

longstanding policies may have engendered serious reliance

interests that must be taken into account. In such cases it is

17

not that further justification is demanded by the mere fact of

policy change; but that a reasoned explanation is needed for

18

disregarding facts and circumstances that underlay or were

engendered by the prior policy. It follows that an unexplained

19

inconsistency in agency policy is a reason for holding an

interpretation to be an arbitrary and capricious change from

20

agency practice. An arbitrary and capricious regulation of this

sort is itself unlawful and receives no Chevron deference.

21

22 Encino Motorcars, 136 S. Ct. at 2125–26 (internal quotation marks and citations omitted);

23 accord F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (agency must

24 “provide a more detailed justification than what would suffice for a new policy created on

25 a blank slate . . . when, for example, its new policy rests upon factual findings that

26 contradict those which underlay its prior policy; or when its prior policy has engendered

27 serious reliance interests that must be taken into account”).

28

Plaintiffs raise numerous procedural challenges to the Rule. The court addresses

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1 them in two general categories. First, the court considers plaintiffs arguments that DHS

2 failed to adequately consider and address the Rule’s costs and benefits. Second, the

3 court considers plaintiffs’ remaining procedural challenges.

4

i. DHS Failed to Adequately Consider Costs and Benefits

5

Plaintiffs argue that DHS failed to consider costs and benefits in three ways. First,

6 DHS failed to adequately consider significant costs to local and state governments raised

7 in comments, as well as the related issue of DHS’s failure to consider evidence when

8 estimating disenrollment figures. Second, DHS failed to consider concerns about health

9 effects like disease outbreaks. Third, DHS acted impermissibly with respect to the

10 burden the I-944 form would impose.

11

Based on plaintiffs’ first and second arguments, discussed presently, this court

12 finds that they are likely to succeed on the merits with respect to their claim that the Rule

13 is arbitrary and capricious.17

14

A. Local and State Government Costs and

15

Disenrollment Rates

16

Plaintiffs argue that commenters documented the dangers to individuals and public

17 health generally that stem from disenrollment in public benefits, and explained that local

18 and state governments will face higher costs because of this disenrollment. See 84 Fed.

19 Reg. at 41,310-12 (explaining that “[m]any commenters particularly emphasized that

20 disenrollment or foregoing enrollment would be detrimental to the financial stability and

21 economy of communities, States, local organizations, hospitals, safety net providers,

22 foundations, and healthcare centers”); id. at 41,469–70; Case No. 19-cv-04717-PJH,

23 Dkt. 44, Exs. C–E (letters submitted in response to NPRM). Numerous comments

24 included specific cost calculations. See, e.g., 84 Fed. Reg. at 41,475 (citing specific cost

25 estimates from comments); Cho Decl., Ex. C at 22–23 (estimating losses to California at

26 $1.76 billion in revenue from federal government and 17,700 jobs), Ex. J at 11

27

28

17 For the same reasons that plaintiffs are likely to succeed on this claim, they have undoubtedly raised serious questions with respect to it.

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1 (estimating that the Rule would cost hospitals more than $17 billion in uncompensated

2 care), Ex. K at 5–7 (detailing expected costs to hospitals).

3

Plaintiffs relatedly argue that DHS under-estimated disenrollment figures and the

4 accompanying effects, including the effects on state and local governments.18 For

5 example, despite its concession that the Rule will cause members of mixed-status

6 households (i.e., those including U.S. citizens) to disenroll from benefits, 84 Fed. Reg. at

7 41,300, DHS refused to consider the costs associated with such disenrollment, stating:

8 “DHS believes that it would be unwarranted for U.S. citizens and aliens exempt from

9 public charge inadmissibility to disenroll from a public benefit program or forego

10 enrollment in response to this rule when such individuals are not subject to this rule.

11 DHS will not alter this rule to account for such unwarranted choices.” Id. at 41,313.

12

Defendants correctly argue that they are not required to quantify every potential

13 cost and benefit and precisely weigh them out. They respond to these challenges both in

14 the Rule and before the court with three essential points. First, DHS read the comments,

15 but the forward-looking economic impact to states, cities, hospitals, and others was too

16 difficult to assess. Second, with respect to the disenrollment of those who will not be

17 subject to a public charge assessment in the future, the Rule’s effect was too difficult to

18 assess. Third, even if DHS had assessed those costs, they would be outweighed by the

19 benefits of excluding aliens who would rely on public assistance, and of promoting self-

20 sufficiency of aliens already in the United States. Those benefits are in line with

21 Congressional statements of policy.

22

DHS was required to a certain extent to grapple with estimates and credible data

23

24 18 DHS argues that it’s 2.5% figure is not part of the regulatory analysis and cannot be

25

challenged because it was calculated pursuant to an executive order. The court disagrees. See Council of Parent Attorneys & Advocates, Inc. v. DeVos, 365 F. Supp. 3d

26

28, 54 n.11 (D.D.C. 2019) (“The government contended . . . that because its regulatory impact analysis was conducted pursuant to Executive Orders, it is not subject to judicial

27

review. . . . These arguments are contrary to D.C. Circuit precedent. Because the government relied on its cost-benefit analysis . . . a flaw in that analysis can render the

28 regulation arbitrary and capricious.”).

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1 explained in the comments, and in turn explain why DHS chose not to credit them. See

2 Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1068–69 (9th Cir. 2018) (finding

3 agency action arbitrary and capricious where the agency did not explain why it did not

4 credit available data that did not support its action). Defendants are correct that DHS

5 was not required to parse costs and benefits precisely. But to the extent the exact harms

6 are unknown or difficult to predict, that does not justify “disregarding the effect entirely.”

7 Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1219 (D.C. Cir. 2004).

8

Here, even under the deferential APA analysis, DHS appears to have wholly failed

9 to engage with this entire category of comments. DHS failed to grapple with the Rule’s

10 predictable effects on local governments, and instead concluded that the harms—

11 whatever they may be—are an acceptable price to pay. At minimum, the APA requires

12 more than reading public comments and responding with a general statement that,

13 however correct the comments may be, the agency declines to consider the issues and

14 costs identified because doing so would contravene the government’s favored policy.

15

For example, under the heading “Increased Costs to Health Care Providers,

16 States, and Localities,” the government summarized the comments it was responding to:

17

Many commenters particularly emphasized that disenrollment

or foregoing enrollment would be detrimental to the financial

18

stability and economy of communities, States, local

organizations, hospitals, safety net providers, foundations, and

19

healthcare centers. Commenters offering estimates on the

number of people who would disenroll from Medicaid under the

20

proposed rule warned that the costs associated with the

resultant rise in uncompensated care would be borne by health

21

systems, hospitals, and insured patients.

22 84 Fed. Reg. at 41,312.

23 The government’s response, in part, was:

24

Response: With respect to the rule's potential “chilling effects”

or disenrollment impacts, DHS notes that (1) the rule's

25

overriding consideration, i.e., the Government's interest as set

forth in PRWORA, is a sufficient basis to move forward; (2) it is

26

difficult to predict the rule's disenrollment impacts with respect

to the regulated population, although DHS has attempted to do

27

so in the accompanying Final Regulatory Impact Analysis; and

(3) it is also difficult to predict the rule's disenrollment impacts

28

with respect to people who are not regulated by this rule,

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although, again, DHS has attempted to do so in the

1

accompanying Final Regulatory Impact Analysis.

2

First, as discussed above, this rule is rationally related to the

Government's interest, as set forth in PRWORA, to: (1)

3

Minimize the incentive of aliens who attempt to immigrate to, or

adjust status in the United States due to the availability of public

4

benefits; and (2) Promote the self-sufficiency of aliens within

the United States. DHS has defined public benefits by focusing

5

on cash assistance programs for income maintenance, and an

exhaustive list of non-cash food, housing, and healthcare,

6

designed to meet basic living needs. This definition does not

include benefits related exclusively to emergency response,

7

immunization, education, or social services, nor does it include

exclusively state and local non-cash aid programs. DHS

8

acknowledges that individuals subject to this rule may decline

to enroll in, or may choose to disenroll from, public benefits for

9

which they may be eligible under PRWORA, in order to avoid

negative consequences as a result of this final rule. However,

10

DHS has authority to take past, current, and likely future receipt

of public benefits into account, even where it may ultimately

11

result in discouraging aliens from receiving public benefits.

12

Although individuals may reconsider their receipt of public

benefits as defined by this rule in light of future immigration

13

consequences, this rule does not prohibit an alien from

obtaining a public benefit for which he or she is eligible. DHS

14

expects that aliens seeking lawful permanent resident status or

nonimmigrant status in the United States will make purposeful

15

and well-informed decisions commensurate with the

immigration status they are seeking. But regardless, DHS

16

declines to limit the effect of the rulemaking to avoid the

possibility that individuals subject to this rule may disenroll or

17

choose not to enroll, as self-sufficiency is the rule's ultimate

aim. 18

Second, DHS finds it difficult to predict how this rule will affect

19

aliens subject to the public charge ground of inadmissibility,

because data limitations provide neither a precise count nor

20

reasonable estimate of the number of aliens who are both

subject to the public charge ground of inadmissibility and are

21

eligible for public benefits in the United States. This difficulty is

compounded by the fact that most applicants subject to the

22

public charge ground of inadmissibility and therefore this rule

are generally unlikely to suffer negative consequences

23

resulting from past receipt of public benefits because they will

have been residing outside of the United States and therefore,

24

ineligible to have ever received public benefits.

25

. . . .

26

Third, DHS finds it difficult to predict the rule's disenrollment

impacts with respect to people who are not regulated by this

27

rule, such as people who erroneously believe themselves to be

affected. . . . This rule does not prohibit or otherwise discourage

28

individuals who are not subject to the public charge

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inadmissibility from receiving any public benefits for which they

1

are eligible.

2

. . . .

3

Because DHS will not consider the receipt of public benefits by

U.S. citizens and aliens not subject to public charge

4

inadmissibility, the receipt of public benefits by these

individuals will not be counted against or made attributable to

5

immigrant family members who are subject to this rule.

Accordingly, DHS believes that it would be unwarranted for

6

U.S. citizens and aliens exempt from public charge

inadmissibility to disenroll from a public benefit program or

7

forego enrollment in response to this rule when such individuals

are not subject to this rule. DHS will not alter this rule to account

8

for such unwarranted choices.

9

DHS appreciates the potential effects of confusion regarding

the rule's scope and effect, as well as the potential nexus

10

between public benefit enrollment reduction and food

insecurity, housing scarcity, public health and vaccinations,

11

education health-based services, reimbursement to health

providers, and increased costs to states and localities. In

12

response to comments, DHS will also issue clear guidance that

identifies the groups of individuals who are not subject to this

13

rule, including, but not limited to, U.S. citizens, lawful

permanent residents returning from a trip abroad who are not

14

considered applicants for admission, and refugees.

15

. . . .

16

In sum, DHS does not believe that it is sound policy to ignore

the longstanding self-sufficiency goals set forth by Congress or

17

to admit or grant adjustment of status applications of aliens who

are likely to receive public benefits designated in this rule to

18

meet their basic living needs in an [sic] the hope that doing so

might alleviate food and housing insecurity, improve public

19

health, decrease costs to states and localities, or better

guarantee health care provider reimbursements. . . . DHS

20

believes that it will ultimately strengthen public safety, health,

and nutrition through this rule by denying admission or

21

adjustment of status to aliens who are not likely to be self-

sufficient.

22

23 84 Fed. Reg. at 41,312–14 (footnotes omitted).

24

That answer entirely fails to discuss costs being borne by the states, hospitals, or

25 others, other than to say DHS will issue guidance in an effort to mitigate confusion. The

26 answer discusses disenrollment rates being difficult to measure, but flatly refuses to

27 account for certain types of disenrollment (for example those who “erroneously believe

28 themselves to be affected” and make “unwarranted choices”). DHS’s response

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1 constitutes a thinly-veiled abdication of the responsibility to consider the issue. Rather

2 than engage, the response simply elides the issue that the APA requires consideration of.

3

Ending the analysis with the conclusion that “DHS believes that it will ultimately

4 strengthen public safety, health, and nutrition through this rule” fails to show that DHS

5 “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action

6 including a rational connection between the facts found and the choice made.” Encino

7 Motorcars, 136 S. Ct. at 2125 (quoting Motor Vehicle Mfrs. Assn., 463 U.S. at 43);

8 Sorenson Commc’ns Inc. v. F.C.C., 755 F.3d 702, 708 (D.C. Cir. 2014) (“Though an

9 agency’s predictive judgments about the likely economic effects of a rule are entitled to

10 deference, deference to such judgments must be based on some logic and evidence, not

11 sheer speculation.”) (internal quotation marks and citations omitted). DHS fails to explain

12 how those benefits will come about with any evidentiary support. In fact, ample evidence

13 cited in the comments shows exactly the opposite—that use of public benefits improves

14 public health and welfare. DHS’s bare assertion to the contrary simply is not enough to

15 satisfy its obligations. Even ignoring the fact that the conclusion lacks a reasoned

16 explanation of how it was reached, DHS also fails to address why the supposed benefits

17 will outweigh the likely costs (DHS had at this point already declined to discuss what the

18 likely costs are in fact are). Plaintiffs have shown it is likely that, with respect to

19 consideration of costs imposed on states and localities by the Rule, DHS offers no “path

20 [that] may reasonably be discerned” in its reasoning. Motor Vehicle Mfrs. Ass'n, 463 U.S.

21 at 43.

22

Moreover, DHS may not discount an undisputed impact of the Rule simply

23 because DHS believes it is “unwarranted.” See Michigan, 135 S. Ct. at 2707

24 (“reasonable regulation ordinarily requires paying attention to the advantages and the

25 disadvantages of agency decisions”). DHS flatly refused to consider the costs associated

26 with predicted, likely disenrollment of those not subject to the public charge determination

27 by stating: “DHS believes that it would be unwarranted for U.S. citizens and aliens

28 exempt from public charge inadmissibility to disenroll from a public benefit program or

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1 forgo enrollment in response to this rule when such individuals are not subject to this rule.

2 DHS will not alter this rule to account for such unwarranted choices.” 84 Fed. Reg. at

3 41,313. But DHS’s disagreement with the source of a cost does not make it go away,

4 and it does not discharge DHS’s obligation to consider it. DHS must consider the costs

5 of widespread disenrollment that it anticipates—it cannot ignore costs by calling their

6 causes “unwarranted.” Plaintiffs have shown it is likely that DHS understood that

7 individuals would disenroll even though they are not subject to the public charge

8 determination, yet DHS refused to consider that cost entirely. Doing so would have been

9 arbitrary and capricious. Michigan, 135 S. Ct. at 2707 (“‘cost’ includes more than the

10 expense of complying with regulations; any disadvantage could be termed a cost. . . .

11 Consideration of cost reflects the understanding that reasonable regulation ordinarily

12 requires paying attention to the advantages and the disadvantages of agency

13 decisions.”); accord Metlife, Inc. v. Fin. Stability Oversight Council, 177 F. Supp. 3d 219,

14 223 (D.D.C. 2016) (“focus[ing] exclusively on the presumed benefits . . . and ignor[ing]

15 the attendant costs . . . is itself unreasonable under the teachings of Michigan v.

16 Environmental Protection Agency”); Regents of Univ. of California v. United States Dep't

17 of Homeland Sec., 279 F. Supp. 3d 1011, 1046 (N.D. Cal.), aff'd sub nom. Regents of the

18 Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476 (9th Cir. 2018), cert.

19 granted sub nom. Dep't of Homeland Sec. v. Regents of the Univ. of California, 139 S.

20 Ct. 2779 (2019) (same).

21

B. Health Effects

22

Plaintiffs argue that DHS ignored comments describing how loss of benefits would

23 trigger negative health consequences, including the spread of disease and aggravation of

24 chronic illness. DHS received ample commentary regarding this issue. See, e.g., 84

25 Fed. Reg. at 41,384 (summarizing certain comments); Cho Decl., Ex. M at 4 (Kaiser

26 Permanente comment linking the rule’s impacts on prescription adherence with increased

27 chance of outbreaks of communicable disease), Ex. N at 9 (Pub. Health Inst. Comment:

28 “We cannot achieve universally agreed upon public health goals, such as reducing

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1 chronic diseases throughout the U.S., when we directly or indirectly deny large segments

2 of our population the very building blocks they need for good health”), Ex. O at 4 (Nat’l

3 Assoc. Ped. Nurse Practitioners comment discussing “worse health outcomes”), P at 7

4 (Children’s HealthWatch comment warning of “increased prevalence of communicable

5 diseases”).

6

Defendants offer the same general defenses in response. First, DHS read the

7 comments, but the forward-looking impact to health was too difficult to assess. Second,

8 even if DHS had assessed those costs, they would be outweighed by the benefits of

9 excluding aliens who would rely on public benefits and promoting self-sufficiency of aliens

10 already in the United States. Those benefits are in line with Congressional statements of

11 policy.

12

Relevantly here, similar negative health outcomes were a key rationale for prior

13 agency action. When issuing the 1999 guidance, INS described its primary motivation “to

14 reduce the negative public health consequences generated by the existing confusion.”

15 64 Fed. Reg. at 28,689; see also id. at 28,692 (adopting regulation on an interim basis

16 because “confusion . . . has deterred eligible [immigrants] and their families, including

17 U.S. citizen children, from seeking important health and nutrition benefits,” and that

18 “reluctance to access benefits has an adverse impact not just on the potential recipients,

19 but on public health and the general welfare”). In reversing the 1999 guidance,

20 defendants must “‘display awareness that it is changing position’ and ‘show that there are

21 good reasons for the new policy.’” Encino Motorcars, 136 S. Ct. at 2126 (quoting FCC v.

22 Fox, 556 U.S. at 515). Moreover, where the prior policy engendered reliance, “a

23 reasoned explanation is needed for disregarding facts and circumstances that underlay

24 or were engendered by the prior policy.” Id.

25

Under the heading “Vaccinations,” the government summarized the comments it

26 was responding to:

27

Commenters indicated that the public charge rule would make

immigrant families afraid to seek health-care, including

28

vaccinations against communicable diseases, and therefore,

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endanger the U.S. population. . . . . The commenter indicated

1

that engaging with the public health system was critical to

ensuring robust immunization to protect the population overall;

2

if a subset of the community were fearful to access government

healthcare services, regardless of whether a specific type of

3

service qualified for a narrow exception, it would have a

significant impact on the country's ability to protect and promote

4

the public health. Another commenter indicated that its health

department anticipated that promulgation of the rule, as written

5

in the NPRM, will result in decreased utilization of children's

healthcare, including vaccinations, which will increase the risk

6

for vaccine preventable diseases . . . increasing the likelihood

of an outbreak. 7

Some commenters stated that since many immigrants live in

8

communities alongside people of the same national origin,

reduced vaccinations could result in unvaccinated or under-

9

vaccinated clusters of individuals. Commenters warned that

research shows that uninsured individuals are much less likely

10

to be vaccinated. One commenter stated that a recent study

found that even a five percent reduction in vaccine coverage

11

could trigger a significant measles outbreak. . . . Another

commenter stated that the rule would increase the incidence of

12

childhood diseases like chickenpox, measles, mumps and

rubella and deter parents from vaccinating their children. 13

14 84 Fed. Reg. at 41,384.

15 The government’s response was:

16

With this rulemaking, DHS does not intend to restrict the access

of vaccines for children or adults or intend to discourage

17

individuals from obtaining the necessary vaccines to prevent

vaccine-preventable diseases. The purpose of this rulemaking

18

is to ensure that those seeking admission to the United States

are self-sufficient and rely on themselves or family and friends

19

for support instead of relying on the government for

subsistence. As noted above, this final rule does not consider

20

receipt of Medicaid by a child under age 21, or during a person's

pregnancy, to constitute receipt of public benefits. This should

21

address a substantial portion, though not all, of the vaccinations

issue. 22

Vaccinations obtained through public benefits programs are not

23

considered public benefits under 8 CFR 212.21(b), although if

an alien enrolls in Medicaid for the purpose of obtaining

24

vaccines, the Medicaid itself qualifies as a public benefit. DHS

also notes that free or low cost vaccines are available to

25

children who are not insured or underinsured through the

Vaccines for Children (VFC) Program. In addition, local health

26

centers and state health departments provide preventive

services that include vaccines that may be offered on a sliding

27

scale fee based on income. Therefore, DHS believes that

vaccines would still be available for children and adults even if

28

they disenroll from Medicaid.

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1 84 Fed. Reg. at 41,384–85 (footnotes omitted).

2

DHS’s response to the comments was essentially that it understood that fewer

3 people would get vaccines following the Rule, which would present a risk, but there are

4 ways to get vaccines without Medicaid. As a result, DHS acknowledged that fewer

5 people will get vaccines, but it failed engage at all in the consequences of that fact.

6

Plaintiffs have demonstrated a likelihood of success based upon this argument.

7 This change departs from a longstanding prior policy, as explained in the 1999 Field

8 Guidance, that is likely to have engendered reliance. That guide explained that certain

9 rules were needed because uncertainty had “deterred eligible aliens and their families,

10 including U.S. citizen children, from seeking important health and nutrition benefits[,

11 which] . . . has an adverse impact not just on the potential recipients, but on public

12 health and the general welfare.” 64 Fed. Reg. at 28,692 (emphasis added). Given that

13 the 1999 Field Guidance was both longstanding precedent and specifically concerned

14 benefits supporting general public health (not simple health of the aliens—e.g., vaccines),

15 DHS must provide “a reasoned explanation . . . for disregarding facts and circumstances

16 that underlay or were engendered by the prior policy.” FCC v. Fox, 556 U.S. at 515–16;

17 accord Encino Motorcars, 136 S. Ct. at 2126 (“an unexplained inconsistency in agency

18 policy is a reason for holding an interpretation to be an arbitrary and capricious change

19 from agency practice”) (internal quotation marks omitted).

20

Although DHS acknowledged departure from the 1999 Field Guidance as a

21 general matter (e.g., 84 Fed. Reg. at 41,307–08), DHS simply declined to engage with

22 certain, identified public-health consequences of the Rule. It made no attempt,

23 whatsoever, to investigate the type or magnitude of harm that would flow from the reality

24 which it admittedly recognized would result—fewer people would be vaccinated. Instead,

25 and just as with its refusal to consider “unwarranted” choices to disenroll from Medicaid

26 discussed above, DHS responded only that it “believes that vaccines would still be

27 available” through some other channels. The response is devoid of rationale, but

28 additionally it fails entirely to provide a reasoned explanation for disregarding the facts

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1 and circumstances underlying the prior policy.

2

C. Form I-944

3

Plaintiffs argue that defendants’ estimate of the time and cost burden that the new

4 Form I-944, entitled Declaration of Self Sufficiency, will have on applicants is implausible.

5 They argue that the Rule provides too-low of an estimate for the time required to fill out

6 the form, based on its estimate about the time it takes to fill out another related form.

7 They argue that DHS did not adequately consider the differences between the forms

8 when arriving at their estimate. Yet DHS considered and responded to comments

9 regarding the time commitment required by Form I-944. In response DHS modified the

10 form, removed some duplicative questions, and explained that it is important to be filed

11 separately because it is filed by the immigrant himself. 84 Fed. Reg. at 41,484. Plaintiffs

12 have not demonstrated a likelihood of success or serious questions with respect to this

13 argument.

14

ii. Other Challenges

15

Plaintiffs raise a number of other procedural challenges under the APA. The court

16 finds that plaintiffs have not demonstrated a likelihood of success on the merits or serious

17 questions with respect to any, and it will address some of them briefly.

18

Plaintiffs argue that the Rule stops treating sponsors’ affidavits of support as

19 sufficient assurance that immigrant applicants will not become overly dependent on

20 public benefits, yet Congress specified in 8 U.S.C. § 1182(a)(4)(B)(ii) that the executive

21 simply “may also” consider such affidavits. Although plaintiffs argue that in practice

22 USCIS has accepted affidavits of support as conclusive, the controlling statute and 1999

23 Field Guidance make clear that this is not a change in policy. See 64 Fed. Reg. at

24 28,690 (“Where such an AOS has been filed on an alien's behalf, it should be considered

25 along with the statutory factors in the public charge determination.”).

26

Plaintiffs argue the Rule is inconsistent because DHS included an exemption for

27 individuals under the age of 21 who receive Medicaid benefits, but did not include a

28 similar exemption for individuals under the age of 21 who receive SNAP benefits. DHS

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1 considered this issue and provided a reasoned explanation for providing Medicaid to

2 children, including that it can provide funding for “in-school health services and serve as

3 an important way to ensure that children receive the vaccines needed to protect public

4 health and welfare.” 84 Fed. Reg. at 41,380.

5

Plaintiffs argue the Rule is inconsistent because the statute requires consideration

6 of “education and skills” and “health,” but the Rule requires a much more searching

7 inquiry into health than education and skills. For example, the Rule considers details

8 about an individual’s health insurance, benefits receipt, and financial status of household

9 members, but inconsistently fails to take into account admission or attendance in a

10 college or trade school. But the Rule in fact allows for consideration of admission or

11 attendance in a college or trade school, and DHS adequately addressed these issues in

12 response to comments. See 84 Fed. Reg. at 41,436 (“the exact nature of the education

13 (or lack thereof) and employment would have to be considered”).

14

Plaintiffs argue the Rule is inconsistent because it considers past immigration-

15 related fee waivers, which may be submitted before a noncitizen is legally eligible to work

16 and as a result punish that individual for applying to work legally. DHS adequately

17 responded, noting that “[s]ince fee waivers are based on an inability to pay, seeking or

18 obtaining a fee waiver for an immigration benefit suggests an inability to be self-

19 sufficient.” 84 Fed. Reg. at 41,424–25.

20

Plaintiffs argue the Rule is inconsistent because Medicaid use by pregnant women

21 or children (who are not penalized for using Medicaid under the rule) is counted against

22 them, because Medicaid is not counted as an asset that could offset the negative factor

23 of their illness that Medicaid is paying to treat. Plaintiffs argue that is not consistent,

24 because private insurance is considered an asset. Defendants argue that the Rule does

25 not count a severe medical condition as a heavily weighed negative factor if the alien has

26 “the financial resources to pay for reasonably foreseeable medical costs related to such

27 medical condition,” and such “financial resources” can include Medicaid benefits for those

28 pregnant or under 21. See 84 Fed. Reg. at 41,504 (“resources . . . to pay for reasonably

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1 foreseeable medical costs” includes “health insurance not designated as a public benefit

2 under 8 CFR 212.21(b)”).

3

Plaintiffs argue the Rule is irrational because an income of 125% of the federal

4 poverty guideline rate counts as a positive factor, yet individuals whose incomes exceed

5 that qualify for non-cash benefits considered under the Rule. But not all factors in a

6 multifactor test are required to align in outcome to be rational.

7

Plaintiffs argue the Rule is irrational because while it considers large family size as

8 a negative factor in a public charge assessment, DHS’s own data indicates that non-cash

9 benefit is higher among families of three than families of four, and that noncitizens’ use of

10 cash benefits decreases as family size grows. 84 Fed. Reg. at 41,395. The parties

11 appear to disagree about which studies are “good studies” here, but DHS’s response

12 explained its interpretation of the studies and concluded that “the data properly reflects

13 that receipt of noncash benefits generally increases with an increase in family size.” Id.

14

Plaintiffs argue the Rule is irrational because it considers the mere application for

15 benefits in the public charge determination. Plaintiffs argue that an application for

16 benefits does not indicate a noncitizen is actually financially and otherwise eligible for the

17 benefit or will decide to use the benefit. DHS reasonably explained that an “application

18 for a public benefit is not the same as receipt but is indicative of an alien's intent to

19 receive such a benefit.” 84 Fed. Reg. at 41,422.

20

Plaintiffs argue the Rule is irrational because it is ultimately a vague and entirely

21 unpredictable framework for weighing the statutorily-authorized and newly-added factors,

22 which results in limitless discretion. The precise nature of the procedural challenge is

23 unclear here, but the underlying statute requires consideration of “at minimum” five

24 factors, and then specifically mentions another factor that “may” be considered.

25 Moreover, the statute specifically targets those who are likely to be a public charge “in the

26 opinion of the Attorney General,” who as DHS recognized has long been given discretion

27 to make such determinations under the statute. 84 Fed. Reg. at 41,398 (“DHS notes that

28 officer discretion is not a new concept in USCIS immigration benefits adjudications.”).

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1

Plaintiffs argue the Rule is irrational because some factors are actually

2 determinative, and impossible to overcome because the factors significantly overlap. As

3 a result, the Rule funnels officials’ decision-making towards favoring high-income

4 individuals at the expense of the poor and other marginalized groups. To the extent

5 plaintiffs challenge the Rule favoring admission of the wealthy over the poor, the plaintiffs’

6 appropriate target is the underlying statute rather than the Rule implementing it. The

7 statute itself calls for consideration of a number of factors, ultimately aimed at excluding

8 from the country a group comprised of those who are more likely to be poor than rich.

9

d. Zone of Interests

10

In order to succeed on the merits, plaintiffs must be within the zone of interests of

11 the statute that forms the basis of their challenge. The zone of interests analysis asks

12 “whether Congress created a private cause of action in legislation” (Organized Vill. of

13 Kake v. U.S. Dep't of Agric., 795 F.3d 956, 964 (9th Cir. 2015)), such that “this particular

14 class of persons has a right to sue under this substantive statute” (Lexmark Int'l, Inc. v.

15 Static Control Components, Inc., 572 U.S. 118, 127 (2014)). It is “not a question of

16 Article III standing” (Organized Vill. of Kake, 795 F.3d at 964), but rather is more

17 appropriately assessed with plaintiffs’ likelihood of success.19

18

“[A] person suing under the APA must satisfy not only Article III's standing

19 requirements, but an additional test: The interest he asserts must be ‘arguably within the

20 zone of interests to be protected or regulated by the statute’ that he says was

21 violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567

22 U.S. 209, 224 (2012) (quoting Ass'n of Data Processing Serv. Organizations, Inc. v.

23 Camp, 397 U.S. 150, 153 (1970)). In the APA context, “[t]he ‘zone of interest’ test is a

24 guide for deciding whether, in view of Congress’ evident intent [when enacting the APA]

25 to make agency action presumptively reviewable, a particular plaintiff should be heard to

26

27

19 The “zone of interests” requirement was formerly referred to as an assessment of “prudential standing,” but “prudential standing is a misnomer as applied to the zone-of-

28

interests analysis[.]” Lexmark, 572 U.S. at 127 (internal quotation marks omitted); accord Organized Vill. of Kake, 795 F.3d at 964 (9th Cir. 2015).

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1 complain of a particular agency decision. In cases where the plaintiff is not itself the

2 subject of the contested regulatory action, the test denies a right of review if the plaintiff’s

3 interests are so marginally related to or inconsistent with the purposes implicit in the

4 statute that it cannot reasonably be assumed that Congress intended to permit the suit.

5 The test is not meant to be especially demanding; in particular, there need be no

6 indication of congressional purpose to benefit the would-be plaintiff.” Clarke v. Sec.

7 Indus. Ass'n, 479 U.S. 388, 399–400 (1987) (footnote omitted); see also Pottawatomi

8 Indians, 567 U.S. at 225–26 (2012).

9

“Whether a plaintiff comes within the ‘zone of interests’ is an issue that requires us

10 to determine, using traditional tools of statutory interpretation, whether a legislatively

11 conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark, 572 U.S.

12 at 127. “In answering this question, we recognize that ‘the breadth of the [applicable]

13 zone of interests varies according to the provisions of law at issue.’” Sierra Club v.

14 Trump, 929 F.3d 670, 700 (9th Cir. 2019) (quoting Lexmark, 572 U.S. at 130). “When the

15 [Supreme] Court has applied the zone of interests test in APA actions, however, it has

16 analyzed the zone of interests of the statute the agency is alleged to have violated, not

17 any zone of interests of the APA itself.” Id. at 702; accord Mendoza v. Perez, 754 F.3d

18 1002, 1016 (D.C. Cir. 2014). Nevertheless, “when analyzing whether a plaintiff falls

19 within the zone of interests of a particular statute, courts should be particularly lenient if a

20 violation of that statute is being asserted through an APA claim.” Id. at 703 n.26; accord

21 Pottawatomi Indians, 567 U.S. at 225 (“we have always conspicuously included the word

22 ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff”); Pit

23 River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155–56 (9th Cir. 2015) (“The

24 zone-of-interests test should be applied consistent with Congress's intent ‘to make

25 agency action presumptively reviewable’ under the APA.”).

26

Procedural and substantive challenges under the APA are subject to the same

27 analysis, because “a party within the zone of interests of any substantive authority

28 generally will be within the zone of interests of any procedural requirement governing

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1 exercise of that authority[.]” Int'l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1484 (D.C.

2 Cir. 1994).

3

“Whether a plaintiff's interest is ‘arguably ... protected ... by the statute’ within the

4 meaning of the zone-of-interests test is to be determined not by reference to the overall

5 purpose of the Act in question (here [in the context of the Endangered Species Act],

6 species preservation), but by reference to the particular provision of law upon which the

7 plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175–76 (1997). Put differently, “the

8 plaintiff must establish that the injury he complains of ... falls within the ‘zone of interests'

9 sought to be protected by the statutory provision whose violation forms the legal basis for

10 his complaint.” Id. at 176 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883 (1990))

11 (citing Air Courier Conference v. Postal Workers, 498 U.S. 517, 523–24 (1991)). For

12 example, an allegation that § 4 of the Bank Service Corporation Act was violated

13 considers whether plaintiffs are within the zone of interests of § 4 itself, not “the overall

14 purpose of the Bank Service Corporation Act of 1962[.]” Id. (citing Data Processing, 397

15 U.S. at 155–156); accord Air Courier Conference, 498 U.S. at 529–30 (The “relevant

16 statute” is generally not the entire act, because “to accept this level of generality in

17 defining the ‘relevant statute’ could deprive the zone-of-interests test of virtually all

18 meaning.”); Pit River Tribe, 793 F.3d at 1157 (“ability to challenge . . . cannot be

19 determined by looking to the broad objectives of the” act); but see E. Bay Sanctuary

20 Covenant v. Trump, 932 F.3d 742, 768 n.9 (9th Cir. 2018) (“E. Bay Sanctuary I”) (“‘[W]e

21 are not limited to considering the [specific] statute under which [plaintiffs] sued, but may

22 consider any provision that helps us to understand Congress' overall purposes in the

23 [INA].’”) (quoting Clarke, 479 U.S. at 401).

24

Although the relevant statute “is the statute whose violation is the gravamen of the

25 complaint” and not the entire act, the court may also look to provisions that “have any

26 integral relationship” with the relevant statute. Air Courier Conference, 498 U.S. at 529–

27 30 (quoting Lujan, 497 U.S. at 886) (citing Clarke, 479 U.S. at 388). For example, when

28 the challenged statutory section operates as an enumerated exception to another

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1 section, the court may consider both sections when determining whether a plaintiff falls

2 within the zone of interests of the challenged section. Clarke, 479 U.S. at 401

3 (considering related statutory section to which challenged statute was an exception);

4 accord Air Courier Conference, 498 U.S. at 529 (recognizing the exception in Clarke as

5 limited: “This statement [that the court may look beyond the specific challenged section],

6 like all others in our opinions, must be taken in the context in which it was made. In the

7 next paragraph of the opinion, the Court pointed out that 12 U.S.C. § 36, which the

8 plaintiffs in that case claimed had been misinterpreted by the Comptroller, was itself ‘a

9 limited exception to the otherwise applicable requirement of [12 U.S.C.] § 81,’ . . . . Thus

10 the zone-of-interests test was to be applied not merely in the light of § 36, which was the

11 basis of the plaintiffs' claim on the merits, but also in the light of § 81, to which § 36 was

12 an exception.”).

13

i. The County and State Plaintiffs

14

The County and State plaintiffs’ interests are squarely within the challenged

15 statute’s zone of interests. For example, that statute allows the Attorney General to

16 consider an affidavit of support under 8 U.S. Code § 1183a when determining whether to

17 exclude an alien as a likely public charge. See 8 U.S.C. §§ 1182(a)(4)(B)(ii). Although

18 distinct, Section 1183a is specifically referred to and incorporated into the public charge

19 analysis set out in the challenged statute. As a result, § 1183a has an integral

20 relationship with § 1182(a)(4), such that it should be considered when determining

21 whether plaintiffs are within the zone of interests of the challenged statute.

22

Section 1183a explains that someone can sponsor an alien by guaranteeing to

23 financially support him, and thereby alleviate the concern that he may become a public

24 charge. That statute also provides that any such sponsorship can only be considered in

25 the public charge analysis if it is supported by an affidavit that is “legally enforceable

26 against the sponsor by . . . any State (or any political subdivision of such State), or by any

27 other entity that provides any means-tested public benefit[.]” § 1183a(a)(1)(B); see also

28 § 1183a(b)(1)(A) (“Upon notification that a sponsored alien has received any means-

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1 tested public benefit, the . . . appropriate entity of the Federal Government, a State, or

2 any political subdivision of a State shall request reimbursement by the sponsor in an

3 amount which is equal to the unreimbursed costs of such benefit.”). Moreover, the

4 sponsor must agree to submit to jurisdiction in state courts for actions to compel

5 reimbursement of benefits those states paid to the alien. §§ 1183a(a)(1)(C), (e)(2).

6

By recognizing that states (and political subdivisions of states) would be paying

7 means-tested public benefits to those subject to a public charge analysis, requiring that

8 states and their subdivisions have legally-enforceable rights to recover those expenses

9 when an alien is admitted based on consideration of an affidavit of support, and

10 guaranteeing state-court jurisdiction for such enforcement actions, Congress clearly

11 intended to protect states and their political subdivisions with the challenged statute.

12

Moreover, given the attention paid to states’ rights to recover payment of “any

13 means-tested public benefit” from affiants in § 1183a, it is also more than arguable that

14 Congress intended to protect states and their political subdivisions’ coffers when

15 providing for the exclusion of any alien “likely at any time to become a public charge” in

16 the first place. 8 U.S.C. §§ 1182(a)(4)(A). So, the State and County plaintiffs’ financial

17 interests are also at least arguably protected by the statute for this independent reason.

18

Therefore, the States’ and Counties’ interests are more than arguably related to

19 the challenged statute’s purpose, and they satisfy the zone-of-interests requirement.

20

ii. The Organizations

21

The Organizations move for an injunction based on one claim that the Rule

22 violates the APA because it is substantively contrary to the term “public charge” as used

23 in 8 U.S.C. § 1182(a)(4), and a related procedural APA claim based on the same

24 underlying statute. As such, the Organizations must be within that statute’s zone of

25 interest.

26

Their papers argue that they are within the statute’s zone of interests for three

27 reasons. First, the Rule itself counts health care providers and nonprofit organizations

28 among those who will be affected by it. Second, plaintiffs’ interests in serving low-

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1 income, immigrant communities by providing medical or legal services and advice are

2 related to and consistent with the statute’s purpose to provide procedures and policies for

3 immigration relief. Third, and relatedly, the Ninth Circuit has recently held that similar

4 plaintiffs are within the INA’s zone of interests.

5

First, the Organizations argue the Rule itself contemplates that organizations like

6 them will be adversely affected by it. But being negatively affected by a rule

7 implementing a statute is not sufficient to establish that the statute conferred a cause of

8 action encompassing that plaintiff’s claim. The Organizations’ argument that they will be

9 hurt by the Rule speaks to their standing to challenge it, rather than whether they are

10 within the statute’s zone of interest. See Air Courier Conference, 498 U.S. at 524 (“injury

11 in fact does not necessarily mean one is within the zone of interests to be protected by a

12 given statute”); see also Lujan, 497 U.S. at 883 (“for example, the failure of an agency to

13 comply with a statutory provision requiring ‘on the record’ hearings would assuredly have

14 an adverse effect upon the company that has the contract to record and transcribe the

15 agency's proceedings; but since the provision was obviously enacted to protect the

16 interests of the parties to the proceedings and not those of the reporters, that company

17 would not be ‘adversely affected within the meaning’ of the statute”).

18

Second, the Organizations argue that their interests align with the statute. Yet

19 their briefing failed to identify or explain what statutory provisions support their argument.

20 That failure is fatal given the Supreme Court’s direction that the zone of interests analysis

21 “requires us to determine, using traditional tools of statutory interpretation, whether a

22 legislatively conferred cause of action encompasses a particular plaintiff’s claim.”

23 Lexmark, 572 U.S. at 127. When asked at the hearing what specific statutory provisions

24 they are relying upon, the Organizations for the first time identified 8 U.S.C. § 1611. That

25 section outlines the federal public benefits for which aliens are eligible. But the

26 Organizations do not assert a challenge based on a violation of § 1611, and it is not at all

27 clear that § 1611 has “any integral relationship with” 8 U.S.C. § 1182(a)(4) such that it is

28 proper for the court to consider it in the zone of interests inquiry. See Air Courier

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1 Conference, 498 U.S. at 529 (without a particular reason to suggest otherwise, sections

2 within the same act are not sufficiently related); cf. Clarke, 479 U.S. at 401 (considering

3 related statutory section to which challenged statute was an exception).

4

Even if the court were to consider § 1611, the Organizations leave the court to

5 guess at what connection those statutory provisions share, much less how 8 U.S.C.

6 § 1182(a)(4) is related to the Organizations’ purposes in light of § 1611. Finally, the

7 Organizations do not even explain how their interests are more than marginally related to

8 § 1611 itself—which does not even “give institutions like the Organizations a role[.]” E.

9 Bay Sanctuary I, 932 F.3d at 769.

10

At this stage of litigation, the Organizations have not met their burden to

11 demonstrate that there are serious questions concerning whether they are within the

12 challenged statute’s zone of interest, and certainly they have failed to demonstrate a

13 likelihood that they are able to bring the APA actions underlying their present motion.

14

Taking a step back, the Organizations simply fail to explain how their interests

15 relate to § 1182(a)(4)’s purpose of excluding immigrants likely to become public charges.

16 This may be because the Organizations identify, without explanation, the statute’s

17 purpose as providing “procedures and policies for immigration relief.” That may be based

18 on an argument about the INA’s overall statutory purpose, untethered to the statutory

19 challenge underlying this motion. In support of that argument, the Organizations rely on

20 E. Bay Sanctuary I, 932 F.3d at 771. But the statute at issue in that action concerned

21 asylum seekers, and the very statute underlying that challenge contained a provision

22 requiring the Attorney General to refer asylum seekers to pro bono legal aid

23 organizations, such as the plaintiff entities in that action. The court identified specific

24 references to the role of pro bono legal organizations within the challenged statute itself,

25 and it found that was sufficient. That is very different from the facts presented here. See

26 E. Bay Sanctuary I, 932 F.3d at 768 (“Within the asylum statute [underlying the

27 preliminary injunction, 8 U.S.C. § 1158(a)(1)], Congress took steps to ensure that pro

28 bono legal services of the type that the Organizations provide are available to asylum

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1 seekers. See 8 U.S.C. § 1158(d)(4)(A)–(B)”).20

2

2. Plaintiffs are Likely to Suffer Irreparable Harm

3

The three distinct issues of (i) standing, (ii) ripeness, and (iii) irreparable harm in

4 the absence of an injunction are supported by the same factual analysis for each plaintiff.

5 Although each of the three requirements is independent for plaintiffs to succeed on this

6 motion, a finding that plaintiffs are likely to suffer irreparable harm in the absence of an

7 injunction here is sufficient to establish standing and ripeness. For the Organizations, the

8 court assesses only standing and ripeness.

9

The court first addresses the legal standards, and then assesses each plaintiff’s

10 demonstrated harms.

11

a. Legal Standards

12

i. Standing

13

Federal courts may adjudicate only actual cases or controversies, see U.S. Const.

14 Art. III, § 2, and may not render advisory opinions as to what the law ought to be or

15 affecting a dispute that has not yet arisen. Aetna Life Ins. Co. of Hartford, Conn. v.

16 Haworth, 300 U.S. 227, 240 (1937). Article III's “standing” requirements limit the court’s

17 subject matter jurisdiction. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir.

18 2004). The burden of establishing standing rests on the party asserting the claim.

19 Renne v. Geary, 501 U.S. 312, 316 (1991).

20

The “irreducible constitutional minimum of standing contains three elements. First,

21 the plaintiff must have suffered an injury in fact—an invasion of a legally protected

22 interest which is (a) concrete and particularized, and (b) actual or imminent, not

23 conjectural or hypothetical. Second, there must be a causal connection between the

24 injury and the conduct complained of—the injury has to be fairly traceable to the

25

26

20 To the extent the Organizations argue that E. Bay Sanctuary I, 932 F.3d at 771 allows this court to look to unrelated provisions in the INA for a section justifying their interest in

27

the action, the court is at a loss as how to how reconcile that interpretation with Bennett, 520 U.S. at 175–76, Air Courier Conference, 498 U.S. at 529, and Pit River Tribe, 793

28

F.3d at 1157. Absent clarity from an en banc determination of this issue, the court hews to Supreme Court and prior panel authority on the question.

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1 challenged action of the defendant, and not the result of the independent action of some

2 third party not before the court. Third, it must be likely, as opposed to merely speculative,

3 that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504

4 U.S. 555, 560–61 (1992) (citations and internal quotation marks omitted); see also

5 Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

6

“At least one plaintiff must have standing to seek each form of relief

7 requested, and that party bears the burden of establishing the elements of standing with

8 the manner and degree of evidence required at the successive stages of the litigation.”

9 E. Bay Sanctuary I, 932 F.3d at 763–64 (internal quotation marks and citations omitted).

10 At this preliminary stage, plaintiffs “may rely on the allegations in their Complaint and

11 whatever other evidence they submitted in support of their” motion to meet their

12 burden. Id. at 764. They “need only establish a risk or threat of injury to satisfy the

13 actual injury requirement.” Id.

14

Organizations can establish standing two different ways.

15

First, “Organizations can demonstrate organizational standing by showing that the

16 challenged ‘practices have perceptibly impaired [their] ability to provide the services [they

17 were] formed to provide.’” Id. at 765. “[A] diversion-of-resources injury is sufficient to

18 establish organizational standing for purposes of Article III if the organization shows that,

19 independent of the litigation, the challenged policy frustrates the organization's goals and

20 requires the organization to expend resources in representing clients they otherwise

21 would spend in other ways.” Id. (internal quotation marks and citations omitted) (citing

22 inter alia, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d

23 936, 943 (9th Cir. 2011) (en banc) (advocacy groups had organizational standing to

24 challenge an anti-solicitation ordinance that targeted day laborers based on the

25 resources spent by the groups in assisting day laborers during their arrests and meetings

26 with workers about the status of the ordinance); Nat'l Council of La Raza v. Cegavske,

27 800 F.3d 1032, 1039–40 (9th Cir. 2015) (civil rights groups had organizational standing to

28 challenge alleged voter registration violations where the groups had to “expend additional

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1 resources” to counteract those violations that “they would have spent on some other

2 aspect of their organizational purpose”); El Rescate Legal Servs., Inc. v. Exec. Office of

3 Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991) (legal services groups had

4 organizational standing to challenge a policy of providing only partial interpretation of

5 immigration court proceedings, noting that the policy “frustrate[d]” the group's “efforts to

6 obtain asylum and withholding of deportation in immigration court proceedings” and

7 required them “to expend resources in representing clients they otherwise would spend in

8 other ways.”); Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (finding

9 organizational standing where the plaintiffs “had to divert resources to educational

10 programs to address its members’ and volunteers’ concerns about the [challenged] law's

11 effect”)).

12

In E. Bay Sanctuary I, the Ninth Circuit held that plaintiffs established

13 organizational standing by declaring that enforcement of a regulation “frustrated their

14 mission of providing legal aid” to asylum applicants by “significantly discourage[ing] a

15 large number of those individuals from seeking asylum given their ineligibility.” 932 F.3d

16 at 766. That regulation would require plaintiffs “to partially convert their affirmative

17 asylum practice into a removal defense program, an overhaul that would require

18 ‘developing new training materials’ and ‘significant training of existing staff.’” Id. “Finally,

19 the [plaintiff] Organizations have each undertaken, and will continue to undertake,

20 education and outreach initiatives regarding the new rule, efforts that require the

21 diversion of resources away from other efforts to provide legal services to their local

22 immigrant communities.” Id.

23

Second, “Organizations can demonstrate organizational standing by showing that

24 the Rule will cause them to lose a substantial amount of funding. For standing purposes,

25 a loss of even a small amount of money is ordinarily an ‘injury.’ We have held that an

26 organization that suffers a decreased amount of business and lost revenues due to a

27 government policy easily satisfies the ‘injury in fact’ standing requirement.” Id. at 766–67

28 (internal quotation marks and citations omitted).

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1

In E. Bay Sanctuary I, the Ninth Circuit held that plaintiffs established

2 organizational standing by declaring that they received a large portion of their funding

3 based on the number of asylum applications they pursue, and that if their prospective

4 clients “became categorically ineligible for asylum, East Bay would lose a significant

5 amount of business and suffer a concomitant loss of funding.” Id. at 767.

6

ii. Ripeness

7

“Ripeness is an Article III doctrine designed to ensure that courts adjudicate live

8 cases or controversies and do not ‘issue advisory opinions [or] declare rights in

9 hypothetical cases.’ A proper ripeness inquiry contains a constitutional and a prudential

10 component.” Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017)

11 (citations omitted).

12

“For a case to be ripe, it must present issues that are definite and concrete, not

13 hypothetical or abstract. Constitutional ripeness is often treated under the rubric of

14 standing because ripeness coincides squarely with standing’s injury in fact prong.” Id.

15 (internal quotation marks and citations omitted); Thomas v. Anchorage Equal Rights

16 Comm'n, 220 F.3d 1134, 1138–39 (9th Cir. 2000) (“Sorting out where standing ends and

17 ripeness begins is not an easy task. . . . . [I]n ‘measuring whether the litigant has

18 asserted an injury that is real and concrete rather than speculative and hypothetical, the

19 ripeness inquiry merges almost completely with standing.’”). Allegations that a “threat” to

20 a “concrete interest is actual and imminent” are sufficient to allege “an injury in fact that

21 meets the requirements of constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at

22 1154. Therefore, if plaintiffs satisfy the Article III standing requirements under Lujan v.

23 Defs. of Wildlife, addressed above, the action here is ripe. In this case, the analysis for

24 both requirements is the same. See, e.g., Thomas, 220 F.3d at 1139 (“Whether the

25 question is viewed as one of standing or ripeness, the Constitution mandates that prior to

26 our exercise of jurisdiction there exist a constitutional ‘case or controversy,’ that the

27 issues presented are ‘definite and concrete, not hypothetical or abstract.’ . . . We need

28 not delve into the nuances of the distinction between the injury in fact prong of standing

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1 and the constitutional component of ripeness: in this case, the analysis is the same.”).

2

“In evaluating the prudential aspects of ripeness, our analysis is guided by two

3 overarching considerations: ‘the fitness of the issues for judicial decision and the

4 hardship to the parties of withholding court consideration.’” Thomas, 220 F.3d at 1141.

5 When the question presented “is ‘a purely legal one’” that “constitutes ‘final agency

6 action’ within the meaning of § 10 of the APA,” that suggests the issue is fit for judicial

7 decision. Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 812 (2003). However,

8 an issue may not be ripe for review if “further factual development would ‘significantly

9 advance our ability to deal with the legal issues presented.’” Id.

10

iii. Irreparable Harm

11

“A plaintiff seeking preliminary relief must ‘demonstrate that irreparable injury is

12 likely in the absence of an injunction.’” California v. Azar, 911 F.3d 558, 581 (9th Cir.

13 2018) (quoting Winter, 555 U.S. at 22); Boardman v. Pac. Seafood Grp., 822 F.3d 1011,

14 1023 (9th Cir. 2016) (“A threat of irreparable harm is sufficiently immediate to warrant

15 preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a

16 decision on the merits can be rendered.’”) (quoting Winter, 555 U.S. at 22)).

17

“There must be a ‘sufficient causal connection’ between the alleged irreparable

18 harm and the activity to be enjoined, and showing that ‘the requested injunction would

19 forestall’ the irreparable harm qualifies as such a connection.” Nat'l Wildlife Fed'n v. Nat'l

20 Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (citing Perfect 10, Inc. v.

21 Google, Inc., 653 F.3d 976, 981–82 (9th Cir. 2011)). “However, a plaintiff ‘need not

22 further show that the action sought to be enjoined is the exclusive cause of the injury.’” Id.

23 (quoting M.R. v. Dreyfus, 697 F.3d 706, 728 (9th Cir. 2012)).

24

The irreparable harm “analysis focuses on irreparability, ‘irrespective of the

25 magnitude of the injury.’” Azar, 911 F.3d at 581 (quoting Simula, Inc. v. Autoliv, Inc., 175

26 F.3d 716, 725 (9th Cir. 1999)). “[T]he temporary loss of income, ultimately to be

27 recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S.

28 61, 90 (1974). But the general rule that “[e]conomic harm is not normally considered

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1 irreparable” does not apply where there is no adequate remedy to recover those

2 damages, such as in APA cases. Azar, 911 F.3d at 581 (citing 5 U.S.C. § 702).

3

b. The Plaintiffs’ Harms

4

First, the court assesses the Counties’ and States’ standing, the ripeness of their

5 claims, and whether they have demonstrated irreparable harm in absence of an

6 injunction. Second, the court assesses the Organizations’ standing and the ripeness of

7 their claims.

8

i. The States and Counties

9

The States and Counties argue that they will suffer five categories of irreparable

10 harm: (A) loss of federal funds, mostly in Medicaid reimbursement; (B) increased

11 operational costs; (C) increased costs to their own healthcare operations (D) public

12 health problems and resulting increased costs; and (E) reduced economic activity due to

13 a decrease in federal funds in the community.

14

A. Loss of Federal Funds

15

The Counties argue that they will lose millions of dollars in federal Medicaid

16 reimbursement funds. Each provides a broad array of health services to low-income

17 residents, many of which are at least partially reimbursed with federal Medicaid dollars.

18 DHS itself estimates that 2.5% of individuals in households with a noncitizen will disenroll

19 from Medicaid, which would translate to a roughly $7.5 million loss in Medicaid

20 reimbursement funds.

21

The States similarly argue that DHS itself estimates that the Rule will cause a

22 reduction in payments from the federal government due to disenrollment or foregone

23 enrollment by eligible individuals to be over $1.5 billion, nationwide. 83 Fed. Reg. at

24 51,267–69.

25

Defendants argue the harm is too speculative, caused only by third-party actions,

26 and not imminent because the merits can be resolved quickly on summary judgment.

27 Defendants argue that even assuming a 2.5% rate of disenrollment, plaintiffs fail to show

28 that the States and Counties will be harmed, rather than individuals residing within their

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1 boundaries. Defendants argue that harm individual citizens will suffer cannot support the

2 States and Counties claims of irreparable harm. Finally, defendants argue that any

3 financial harms the States and Counties identify are not sufficiently large to establish

4 irreparable harm.

5

First, regarding the speculative nature of the harm, defendants themselves predict

6 a 2.5% disenrollment rate when assessing the Rule, subject to the procedural

7 requirements of the APA. 84 Fed. Reg. at 41,463. The Rule itself also estimated that it

8 will cause a reduction in payments from the federal government due to disenrollment or

9 foregone enrollment by eligible individuals of over $1.5 billion. 83 Fed. Reg. at 51,267–

10 69; see also Cisneros Decl. A at 98-99, Table 18 (annual estimates of $1.46 billion to

11 $4.37 billion in reduced payments). Those figures, which underlie DHS’s analysis in

12 support of the Rule pursuant to the APA’s requirements, are not speculative conjectures

13 as to what might possibly occur. They are meant to be serious efforts by an agency to

14 assess the impact of a proposed rule, and it is difficult to fathom how defendants can

15 argue otherwise. And plaintiffs offer sufficient evidence to demonstrate that disenrollment

16 or non-enrollments will reach at least that level. See 84 Fed. Reg. at 41,463; Wong Decl.

17 ¶¶ 18-45; Shing Decl. ¶ 30; Weisberg Decl. ¶12; Ponce Decl. ¶¶ 4–11, 25. This type of

18 predictable result from a broad policy, although not precise to the level of the individual

19 actor, is sufficiently-specific to allege irreparable harm. See Dep’t of Commerce v. New

20 York, 139 S. Ct. 2551, 2565 (2019). Moreover, plaintiffs offer evidence showing that

21 disenrollment due to the public charge rulemaking has already begun. See, e.g., Cody

22 Decl. ¶ 8; Newstrom Decl. ¶ 43; Weisberg Decl. ¶¶ 12–14; Shing Decl. ¶¶ 23–24; Chawla

23 Decl. ¶ 13; Fanelli Decl. ¶ 38; Neville-Morgan Decl. ¶ 16; Ruiz Decl. ¶¶ 10, 12; Kofman

24 Decl. ¶ 6; Medina Decl. ¶¶ 18–22. Plaintiffs offer strong evidence that disenrollment is

25 likely to continue between now and the resolution of this issue on the merits, absent an

26 injunction.

27

Plaintiffs also adequately demonstrate that the loss of Medicaid reimbursement is

28 sure to be immediate, once individuals disenroll. That is apparent from the very

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1 mechanics of the harm. Today, the States and Counties are partially reimbursed by the

2 federal government for care provided to Medicaid enrollees. As individuals disenroll, the

3 plaintiffs will no longer be reimbursed for treating them. This will have obvious adverse

4 budgetary consequences. For one, there will indisputably be fewer individuals covered

5 by Medicaid seeking treatment. So, the States and Counties will not be reimbursed for

6 treating those disenrolled individuals (whether they treat them or not). The States and

7 Counties would experience this terminated revenue stream even if they turned away

8 patients without medical insurance (which they will not). Put differently, there will be

9 fewer people on Medicaid to treat and get reimbursed for.

10

To the extent defendants argue that the mechanics will work out as a budgetary

11 boon to plaintiffs, the argument is not plausible in the context of this preliminary injunction

12 motion. Although it could potentially work out as a total budgetary savings for the plaintiff

13 entities if they reconfigured their operations, reduced staff, reduced provision of services,

14 and undertook other cost-savings measures, such savings could not plausibly be realized

15 prior to the determination of this action’s merits. See, e.g., Lorenz Decl. ¶¶ 19–22.

16 Instead, the plaintiffs will be continuing to operate with most of the costs and expectations

17 associated with the status quo, with one change—no reimbursements.

18

Second, the States and Counties’ argument regarding loss of Medicaid funding

19 does not rely on harms to their citizens. Rather, the arguments concern the plaintiffs’

20 own loss of funds.

21

Third, plaintiffs must demonstrate that they are likely to suffer irreparable harm, but

22 they need not establish a particular quantum of harm to satisfy the requirement. Azar,

23 911 F.3d at 581 (irreparable harm “analysis focuses on irreparability, ‘irrespective of the

24 magnitude of the injury’”). Nor do defendants explain why San Francisco’s likely loss of

25 $7.5 million in Medicaid reimbursements (based on a 2.5% disenrollment rate) is not

26 sufficiently large even under their theory of the requirement. See Wagner Decl. ¶ 5.

27 Santa Clara similarly estimates $4.6 million in foregone Medicaid funds due to more

28 conservative 1.9% decline in enrollment. Shing Decl. ¶ 32 (estimating $4.6 million in

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1 Medicaid fund losses due to 1.9% decline in enrollment). The States similarly

2 demonstrate the harms they are likely to suffer from the loss of Medicaid

3 reimbursements. See Cantwell Decl. ¶¶ 6, 14 (2.5 million noncitizen Medicaid

4 beneficiaries in California); Ferrer Decl. ¶ 19 (predicted disenrollment figures in L.A.

5 County); Lucia Decl. ¶ 23 (estimates of $957 million in lost funding in California,

6 assuming 15% disenrollment rate); Buhrig I Decl. ¶¶ 4, 8, 10, 27 (330,000 Pennsylvania

7 Medicaid beneficiaries are part of a household with a noncitizen); Allen Decl. ¶¶ 10, 18,

8 36-40 (63,000 noncitizens participate in the Oregon Health Plan system, a federal/state

9 partnership program; other participants are citizen children part of a household with a

10 noncitizen); Byrd Decl. ¶¶ 18–20 & Ex. A at 2, 4 (16,000 children in the District of

11 Columbia receive Medicaid assistance, and 28% of the District’s children are part of a

12 household with a noncitizen; 9,800 immigrants enrolled in Medicaid reside in the District);

13 Probert Decl. ¶¶ 4–8, 15 (13,918 noncitizens enrolled in Medicaid in Maine).

14

B. Increased Operational Costs

15

The States argue that the Rule will impose burdens on their ongoing operations.

16 Defendants argue that such costs are self-imposed and not cognizable.

17

Governmental administrative costs caused by changes in federal policy are

18 cognizable injuries. See Cal. v. Trump, 267 F. Supp. 3d 1119, 1126 (N.D. Cal. 2017)

19 (states’ “administrative costs” caused by a disruption to healthcare exchanges they

20 administer were sufficient to demonstrate standing) (collecting cases); see also Azar, 911

21 F.3d at 573–74.21

22

The Counties have submitted evidence of cognizable, irreparable costs. Santa

23 Clara explains that they have already spent over 1,000 hours answering questions about

24 the Rule, processing disenrollment, analyzing the impact of the rule on their services and

25 undertaking community education and outreach—and these activities are likely to

26

27

21 The government relies on inapposite case law, most notably Crane v. Johnson, 783 F.3d 244, 253-54 (5th Cir. 2015), which addressed individual public employee claims (not

28

claims by the public entity itself) that they might have to change their job practices because of a policy change.

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1 continue to be necessary. E.g., Shing Decl. ¶¶ 8, 11–12; see also Lorenz Decl. ¶ 19;

2 Márquez Decl. ¶¶ 9–10. San Francisco has submitted evidence of similar measures it

3 has already taken and will continue to take in direct response to the Rule. See Pon Decl.

4 ¶¶ 13–16; Rhorer Decl. ¶ 11; Smith Decl. ¶¶ 4–9. California and Oregon have submitted

5 evidence showing they are likely to imminently suffer similar harms absent an injunction.

6 Ruiz Decl. ¶ 19 (California); Fernandez Decl. ¶¶ 34–36 (California); Fanelli Decl. ¶ 40

7 (California); Salazar Decl. ¶ 37 (Oregon). Other states submit declarations regarding

8 these issues, but they are too vague or speculative to support issuance of an injunction.

9 E.g., Byrd Decl. ¶¶ 22–23 (discussing past efforts in D.C., and stating the District will

10 generally “need to train staff” on the issue); Probert Decl. ¶ 16 (speculation concerning

11 costs Maine may face).

12

Additionally, certain plaintiff states use Medicaid and SNAP enrollment to

13 automatically certify children into school lunch programs, meaning that those states

14 would face higher administrative costs to certify student eligibility for free lunch following

15 disenrollment caused by the Rule. To the extent states’ administrative costs increase to

16 assess eligibility for free lunch as children disenroll from the federal programs (as

17 opposed to merely an increased burden on the applicants), that administrative cost

18 increase is cognizable harm. California and D.C. submit competent evidence

19 demonstrating that their costs in administering school lunch programs will increase. See

20 Palmer Decl. ¶ 16 (declaring D.C.’s costs would go up to process school lunch

21 applications); Fernandez Decl. ¶ 30 (declaring California’s “administrative streamlining

22 and efficiency” will suffer when enrolling students for free lunch); see generally Neville-

23 Morgan Decl. ¶ 22 (in California, “paperwork is more burdensome for those without an

24 automatic qualification through Medi-Cal or SNAP, and immigrant eligible families are

25 less likely to obtain school lunch benefits in this way”).

26

These costs that the States and Counties have identified are predictable, likely,

27 and imminent. In fact, DHS specifically contemplated certain of these costs when

28 formulating the Rule. E.g., 83 Fed. Reg. at 51,260 (“The primary sources of the

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1 consequences and indirect impacts of the proposed rule would be costs to various

2 entities that the rule does not directly regulate, such as hospital systems, state agencies,

3 and other organizations that provide public assistance to aliens and their households.

4 Indirect costs associated with this rule include familiarization with the rule for those

5 entities that are not directly regulated but still want to understand the changes in federal

6 and state transfer payments due to this rule.”) (emphasis added); see also 84 Fed. Reg.

7 at 41,389 (“DHS agrees that some entities, such as State and local governments or other

8 businesses and organizations would incur costs related to the changes commenters

9 identify.”).

10

Because the States and Counties have each demonstrated sufficient likely

11 irreparable injury in the form of loss of federal funds to support a preliminary injunction,

12 and the Counties, California, D.C., and Oregon have demonstrated additional irreparable

13 injury in the form of operational costs, the court need not address the remaining three

14 categories of irreparable harm plaintiffs argue they will imminently suffer.

15

ii. The Organizations

16

“[C]ourts have an ‘independent obligation’ to police their own subject matter

17 jurisdiction, including the parties' standing. Accordingly, we must assure ourselves that

18 Plaintiffs have alleged an injury in fact, fairly traceable to the defendant's conduct, and

19 likely to be redressed by a favorable judicial decision.” Animal Legal Def. Fund v. United

20 States Dep't of Agric., 935 F.3d 858, 866 (9th Cir. 2019) (citations omitted).

21

“[A] diversion-of-resources injury is sufficient to establish organizational standing

22 for purposes of Article III if the organization shows that, independent of the litigation, the

23 challenged policy frustrates the organization's goals and requires the organization to

24 expend resources in representing clients they otherwise would spend in other ways.” E.

25 Bay Sanctuary I, 932 F.3d at 765 (internal quotation marks and citations omitted).

26

Defendants argue that the Organizations fail to identify any injury they will suffer if

27 they do not divert resources towards addressing their concerns, apart from harm to the

28 health care they are able to provide to low income communities. For example, if they

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1 failed to divert resources, they would not face staff shortages or provide worse health

2 services.

3

In E. Bay Sanctuary I, the court found standing based on an organization partially

4 converting an asylum practice into a removal defense program, a prediction that

5 applications filed on behalf of the organizations’ clients would become more difficult and

6 reduce available funds for other activities, and education and outreach initiatives

7 regarding the new rule. 932 F.3d at 766; see also, e.g., El Rescate Legal Services, 959

8 F.2d at 748 (standing where legal services groups had expended “resources in

9 representing clients they otherwise would spend in other ways”); Fair Hous. Council of

10 San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)

11 (finding organizational standing where the plaintiff responded to allegations of

12 discrimination by “start[ing] new education and outreach campaigns targeted at

13 discriminatory roommate advertising”).

14

The Healthcare Organizations’ missions are to provide high quality health care to

15 low-income and immigrant communities. Castellano-García Decl. ¶ 5; García Decl. ¶ 3,

16 7–10. La Clínica and California-Primary-Care-Association-member-organization Asian

17 Health Services have diverted resources from their core missions to address community

18 and individual patient concerns about the public charge determination. García Decl.

19 ¶¶ 13, 16, 21; Quach Decl. ¶¶ 26–29 (evidence of $1 million diversion to education

20 campaigns about the Rule). These education efforts take away from their ability to serve

21 their core organizational purposes. Moreover, they will have to lay off employees and

22 change or cancel programs in response to the Rule. García Decl. ¶ 18; see also Ku

23 Decl. ¶ 65 (estimating nationwide community health center staffing losses of 3,400 to

24 6,100 employees).

25

The Legal Organizations’ missions are to provide advocacy and/or legal services

26 to their clients and members, including obtaining immigration relief and helping to secure

27 public benefits. Kassa Decl. ¶¶ 3–7; Ayloush Decl. ¶¶ 4–7; Sharp Decl. ¶¶ 4–7;

28 Goldstein Decl. ¶¶ 4–5; Seon Decl. ¶¶ 3– 7; Nakamura Decl. ¶¶ 3–8; Kersey Decl. ¶¶ 6–

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1 7, 14–20.

2

Plaintiffs have adequately alleged frustration of their purpose because many of

3 their clients will no longer be eligible for immigration relief, or will choose to not enroll or

4 to disenroll from benefits to remain eligible for immigration relief. The Rule plainly

5 hinders their clients’ ability to obtain immigration relief and/or public benefits.

6

Plaintiffs have also adequately alleged that they will have to divert funding

7 because those who may still be eligible for relief or choose to apply for benefits will

8 require additional time and resources from plaintiffs to address the effects of the Rule,

9 and this additional time and rising ineligibility or disenrollment means that plaintiffs will be

10 able to file fewer cases and help fewer clients. See Kassa Decl. ¶¶ 10–13, 16; Ayloush

11 Decl. ¶¶ 11–14; Sharp Decl. ¶¶ 12–15, 18; Goldstein Decl. ¶ 8; Seon Decl. ¶¶ 10–14;

12 Nakamura Decl. ¶¶ 12, 14–15; Kersey Decl. ¶¶ 23–30. Kassa Decl. ¶¶ 10, 12–13;

13 Ayloush Decl. ¶¶ 11–12; Sharp Decl. ¶ 13; Seon Decl. ¶¶ 10–14; Nakamura Decl. ¶¶ 14–

14 16; Kersey Decl. ¶¶ 34, 36.

15

Some plaintiffs also have increased operational costs as they address the impact

16 of the Rule on their services, such as by hiring additional staff or adding new programs or

17 services. Ayloush Decl. ¶ 14; Seon Decl. ¶ 14; Nakamura Decl. ¶¶ 13–14, 16–17;

18 Kersey Decl. ¶¶ 21, 26–30, 35. Some plaintiffs have had to divert resources from other

19 core services and priorities to staffing, training, education, and public outreach

20 addressing the Rule. Kassa Decl. ¶¶ 11, 14–17; Ayloush Decl. ¶¶ 13, 15–16; Sharp

21 Decl. ¶¶ 14–16; Goldstein Decl. ¶ 7–12; Seon Decl. ¶ 16–19, 21; Nakamura Decl. ¶¶ 13–

22 14, 16–17; Kersey Decl. ¶¶ 26–29, 35–36.

23

Defendants would have this court require more than the Ninth Circuit does for

24 standing. Here, it is enough for plaintiffs to allege that their goals of providing healthcare

25 and legal services to low-income immigrants are frustrated, and that the challenged

26 policy has stimulated the organizations into spending money on things they would not

27 otherwise have spent money on. Plaintiffs’ public education efforts, changes to their

28 programs, increased costs of assisting clients, and other diversions of resources qualify

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1 under the Ninth Circuit’s requirements.22

2

3. The Balance of Equities and Hardships Tip Sharply in Plaintiffs’ Favor

3

“A court must ‘balance the interests of all parties and weigh the damage to each’ in

4 determining the balance of the equities.” CTIA - The Wireless Ass'n v. City of Berkeley,

5 928 F.3d 832, 852 (9th Cir. 2019) (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109,

6 1138 (9th Cir. 2009)).

7

There is little question that the balance of equities and hardships tip sharply in

8 favor of the States and Counties. Defendants have been operating under a consistent

9 definition of “public charge” since at least 1999, when the INS issued Field Guidance

10 specifying “that ‘public charge’ means an alien . . . who is likely to become (for

11 admission/adjustment purposes) ‘primarily dependent on the government for subsistence,

12 as demonstrated by either (i) the receipt of public cash assistance for income

13 maintenance or (ii) institutionalization for long-term care at government expense.’” 64

14 Fed. Reg. at 28,689. That standard is specific and workable, and defendants have been

15 administering it for decades. In fact, defendants conceded that do not argue that they

16 would suffer any hardship in the face of an injunction prohibiting them from replacing

17 those standards with the new Rule until resolution of this case on the merits. Defendants’

18 only argument with respect to the balance of equities or hardships and the public interest

19 is that Congress has made a policy judgment that aliens should be self-sufficient, and the

20 executive should not be prevented from implementing a rule that advances that policy.

21

On the other hand, implementing the change defendants propose would upend

22 state and local governments’ operations as they support immigrants while determining

23 how to adjust to the new Rule and provide services that the federal government once

24 predictably assisted with. To the extent this factor is merged with the public interest and

25 considers the effects on non-parties, the most severely affected individuals are the aliens

26

27 22 As the issue was not meaningfully addressed by the parties, the court does not decide

28

at this time whether California Primary Care Association satisfies the requirements for associational standing.

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1 seeking LPR status themselves, who would face uncertainty regarding their access to

2 healthcare and subsidized nutrition as they learn to adapt to and attempt to navigate the

3 Rule’s deterrents.

4

In short, implementing the Rule after decades of a consistent policy prior to a

5 determination of this action on the merits—which defendants argue will be accomplished

6 in short order—does little to advance the defendants’ interests, and it would entirely

7 upend the plaintiffs’ (and the non-party aliens’) interests.

8

4. An Injunction Is in the Public’s Interest

9

“When the government is a party, the last two factors merge.” Azar, 911 F.3d at

10 575. Therefore, the public interest analysis is subsumed in the balance of equities and

11 hardships, addressed above, and the public interest therefore favors and injunction.

12

Even though the public’s interest generally merges with the balance of equities, it

13 can be “appropriate to consider the factors separately,” for example when intervenors

14 present distinct interests. League of Wilderness Defs./Blue Mountains Biodiversity

15 Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). In those instances, “[t]he

16 public interest inquiry primarily addresses impact on non-parties rather than parties.” Id.

17

Here, the public interest cuts sharply in favor of an injunction. Specifically, the

18 public interest supports continuing the provision of medical services through Medicaid to

19 those who would predictably disenroll absent an injunction, for numerous reasons.

20 Although the court has not reached the issue as to whether plaintiffs’ arguments

21 regarding the impacts on public health support their argument for imminent harm, the

22 parties and numerous amici have explained that the predictable disenrollment from

23 Medicaid absent an injunction would have adverse health consequences not only to

24 those who disenroll, but to the entire populations of the plaintiff states, for example, in the

25 form of decreased vaccination rates. The public certainly has an interest in decreasing

26 the risk of preventable contagion.

27

As such, the public interest supports preserving the long-standing status quo

28 pending final, coherent resolution on the merits.

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1

5. Scope of the Injunction Necessary to Redress Plaintiffs’ Imminent

2

Harms

3

a. Legal Standard

4

When a plaintiff satisfies its burden to demonstrate that a preliminary injunction

5 should issue, “injunctive relief should be no more burdensome to the defendant than

6 necessary to provide complete relief to the plaintiffs.” Califano, 442 U.S. at 702; accord

7 L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (injunction

8 “should be no more burdensome to the defendant than necessary to provide complete

9 relief to the plaintiffs before the court”) (internal quotation mark omitted); Lamb-Weston,

10 Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (“Injunctive relief . . . must

11 be tailored to remedy the specific harm alleged.”). “‘The purpose of such interim

12 equitable relief is not to conclusively determine the rights of the parties but to balance the

13 equities as the litigation moves forward.’” Azar, 911 F.3d at 582.

14

But “[t]here is no general requirement that an injunction affect only the parties in

15 the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987). “[A]n injunction is not

16 necessarily made over-broad by extending benefit or protection to persons other than

17 prevailing parties in the lawsuit—even if it is not a class action—if such breadth is

18 necessary to give prevailing parties the relief to which they are entitled.” Id. at 1170;

19 accord Regents of the Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476,

20 511 (9th Cir. 2018), cert. granted sub nom. Dep't of Homeland Sec. v. Regents of the

21 Univ. of California, 139 S. Ct. 2779 (2019).

22

With respect to immigration matters in particular, the Ninth Circuit has “consistently

23 recognized the authority of district courts to enjoin unlawful policies on a universal basis.”

24 E. Bay Sanctuary I, 932 F.3d at 779 (citing Regents of the Univ. of Cal., 908 F.3d at

25 511; Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev'd on other grounds and

26 remanded, 138 S. Ct. 2392 (2018); Washington v. Trump, 847 F.3d 1151, 1166–67 (9th

27 Cir.), reconsideration en banc denied, 853 F.3d 933 & 858 F.3d 1168 (9th Cir. 2017), and

28 cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017)). “These are,

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1 however, ‘exceptional cases.’” E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029

2 (9th Cir. 2019) (“E. Bay Sanctuary II”) (quoting City & Cty. of San Francisco v. Trump,

3 897 F.3d 1225, 1244 (9th Cir. 2018)). That is because, even though courts have the

4 authority to issue nationwide preliminarily injunctions, doing so still requires “an

5 articulated connection to a plaintiff’s particular harm[.]” Id. (“nationwide injunction is [not]

6 appropriate simply because this case presents a rule that applies nationwide”); see also

7 Azar, 911 F.3d at 582–84. That requirement is not lifted in the immigration context. E.g.,

8 E. Bay Sanctuary II, 934 F.3d at 1029 (“Under our case law, however, all injunctions—

9 even ones involving national policies—must be ‘narrowly tailored to remedy the specific

10 harm shown.’”); E. Bay Sanctuary I, 932 F.3d at 779 (nationwide scope appropriate

11 where it “is necessary to provide the plaintiffs here with complete redress” and district

12 court could not “have crafted a narrower remedy that would have provided complete relief

13 to the [plaintiffs]”) (quoting Regents of the Univ. of Cal., 908 F.3d at 512) (internal

14 quotation mark omitted).23

15

The Ninth Circuit has emphasized that any preliminary injunction must be

16 supported by evidence in the record identifying the likely effect the enjoined conduct

17 would have on the particular plaintiffs. E.g., San Francisco v. Trump, 897 F.3d at 1244

18 (the “record is not sufficient to support a nationwide injunction” where “the Counties'

19 tendered evidence is limited to the effect of the Order on their governments and the State

20 of California. . . . However, the record is not sufficiently developed on the nationwide

21 impact of the Executive Order.”); Azar, 911 F.3d at 584 (“On the present record, an

22

23

23 The Ninth Circuit requires an articulated connection to a plaintiff’s particular harms notwithstanding “the need for uniformity in immigration policy.” See Regents of the Univ.

24

of Cal., 908 F.3d at 511 (“Allowing uneven application of nationwide immigration policy flies in the face of these requirements.”); Hawaii v. Trump, 878 F.3d at 701 (“Because this

25

case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”); see also San Francisco v. Trump, 897 F.3d at

26

1244 (“These exceptional cases are consistent with our general rule that ‘[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the

27

specific harm shown’—'an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit ... if such

28

breadth is necessary to give prevailing parties the relief to which they are entitled.’”) (quoting Bresgal, 843 F.2d at 1170–71).

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1 injunction that applies only to the plaintiff states would provide complete relief to them. It

2 would prevent the economic harm extensively detailed in the record. Indeed, while the

3 record before the district court was voluminous on the harm to the plaintiffs, it was not

4 developed as to the economic impact on other states.”). “District judges must require a

5 showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose

6 litigation in other districts, from Alaska to Puerto Rico to Maine to Guam.” Azar, 911 F.3d

7 at 584.

8

Finally, although the scope of the injunction in this action is governed by the

9 controlling Ninth Circuit law explained above, the court notes that the Ninth Circuit and

10 the Supreme Court have both credited prudential considerations supporting their

11 admonition that nationwide preliminary injunctions are appropriate only in “exceptional

12 cases.” See San Francisco v. Trump, 897 F.3d at 1244; E. Bay Sanctuary II, 934 F.3d at

13 1029. First, nationwide injunctions unconnected to a plaintiff’s particular harm

14 “unnecessarily ‘stymie novel legal challenges and robust debate’ arising in different

15 judicial districts.” E. Bay Sanctuary II, 934 F.3d at 1029; see also Azar, 911 F.3d at 583

16 (“The Supreme Court has repeatedly emphasized that nationwide injunctions have

17 detrimental consequences to the development of law and deprive appellate courts of a

18 wider range of perspectives.”). That consideration is relevant here, where actions raising

19 similar changes are also currently pending in district courts in New York, Maryland, and

20 Washington, and perhaps more. Second, nationwide injunctions may fail to adequately

21 recognize “the equities of non-parties who are deprived the right to litigate in other

22 forums,” who “are essentially deprived of their ability to participate[.]” Azar, 911 F.3d at

23 583. Third, “[n]ationwide injunctions are also associated with forum shopping, which

24 hinders the equitable administration of laws.” Id.

25

b. Analysis

26

Here, the Counties and the States have demonstrated a likelihood of irreparable

27 harm based on their loss of Medicaid funding from the federal government and increased

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1 operational costs they are likely to carry.24 Those harms stem directly from disenrollment

2 of individuals seeking medical care in their jurisdictions, residing in their jurisdictions, and

3 enrolling in certain other public benefits in their jurisdictions (for example, school lunch

4 programs). Those harms, and the supporting record, are discussed in detail above. In

5 order to preserve the status quo pending resolution on the merits and to prevent certain

6 of these irreparable harms, it is necessary to enjoin implementation of the Rule with

7 respect to those who reside in the States and Counties any time following the date of this

8 order, until this action is resolved on the merits. Moreover, defendants must be

9 additionally enjoined from applying the Rule to any individual who is part of a household

10 (as defined in the Rule, 8 C.F.R. § 212.21(d)) that includes a person who has resided in a

11 plaintiff State or County any time following the date of this order, until this action is

12 resolved on the merits.

13

Defendants may, of course, continue to process applications and otherwise

14 operate pursuant to the standards employed prior to October 15, 2019—that is, pursuant

15 to the status quo.

16

The plaintiffs request a nationwide injunction based primarily on what they argue

17 would be the inadministrability of an immigration policy that is not administered uniformly

18 nationally. But a nationwide injunction is not “appropriate simply because this case

19 presents a rule that applies nationwide.” E. Bay Sanctuary II, 934 F.3d at 1029; accord

20 San Francisco v. Trump, 897 F.3d at 1244 (record must also be independently

21 “developed on the nationwide impact” and the statewide impact).

22

Plaintiffs also argue that a nationwide injunction is necessary to provide certainty

23 to the public and quell confusion about the implementation of the Rule. They argue that

24 general, nationwide confusion will cause disenrollment even in the States and Counties,

25

26 24 Because the Organizations have not demonstrated a likelihood of success on—or

27

serious questions going to—the merits of their APA causes of action (the only claims underlying their motion for preliminary injunction), they have not demonstrated that an

28

injunction should issue to prevent the harms they are likely to suffer, so the court does not consider their alleged harms in determining the scope of the injunction.

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1 causing the above-discussed harms. Plaintiffs have certainly demonstrated that

2 confusion about the nation’s immigration policies is a cause of disenrollment, even for

3 those who will not be subject to the public charge assessment. However, plaintiffs have

4 not demonstrated the marginal effect a nationwide injunction would have on curing that

5 confusion for their residents over and above an injunction limited to their own borders.

6 Although it is conceivable that a nationwide injunction pending resolution on the merits

7 would lead to less disenrollment due to confusion within California than this injunction

8 covering all of California (and the other States), it is plaintiffs’ obligation to demonstrate

9 the necessity of such relief. This court does not suggest that no evidence could support

10 such an injunction. Nor does the court suggest that the record evidence is necessarily

11 insufficient. Rather plaintiffs, by devoting only a few cursory paragraphs in their briefs to

12 the scope the injunction, have failed to sufficiently tie that evidence to the need for an

13 injunction beyond their borders in order to remedy the specific harms alleged and

14 accepted by the court as likely, imminent, and irreparable.

15

CONCLUSION

16

For the foregoing reasons, the States and Counties’ motion for a preliminary

17 injunction is GRANTED, as explained above. The Organizations’ motion is DENIED,

18 because they do not fall within the zone of interests of the statute forming the basis of

19 their APA claims.

20

PRELIMINARY INJUNCTION

21

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

22 Security, Kevin McAleenen as Acting Secretary of DHS, Kenneth T. Cuccinelli as Acting

23 Director of USCIS, and Donald J. Trump, as President of the United States, are hereby

24 enjoined from applying the Rule, in any manner, to any person residing (now or at any

25 time following the issuance of this order) in San Francisco City or County, Santa Clara

26 County, California, Oregon, the District of Columbia, Maine, or Pennsylvania, or to

27 anyone who is part of a household (as defined by the Rule, 8 C.F.R. § 212.21(d)) that

28 includes such a person. The injunction will remain in effect until a resolution of this action

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United States District Court Northern District of California

1 on the merits.

2

IT IS SO ORDERED.

3 Dated: October 11, 2019

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/s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge
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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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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.

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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 HAWAI‘I,
Plaintiffs-Appellees,

No. 19-35914 D.C. No.
4:19-cv-05210RMP
ORDER

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.

Filed December 5, 2019

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CITY & CTY. OF SAN FRANCISCO V. USCIS

Before: Jay S. Bybee, Sandra S. Ikuta, and John B. Owens, Circuit Judges.

Order; Concurrence by Judge Bybee; Partial Concurrence and Partial Dissent by Judge Owens

SUMMARY*

Immigration
The panel granted the Department of Homeland Security’s petitions for stays of two district court preliminary injunctions against the implementation of the Department of Homeland Security’s redefinition of the term, “public charge.”
Under the Immigration and Nationality Act (“INA”), any alien who, in the opinion of a relevant immigration officer, at the time of application for admission or adjustment of status, is likely at any time to become a public charge, is inadmissible. In 1999, the Immigration and Naturalization Service 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.” In August 2019, the Department of Homeland Security (“DHS”) adopted a new rule, redefining the term “public charge” to also require consideration of
* 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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certain non-cash benefits. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Final Rule”).

Various states, municipalities and organizations brought suits in California and Washington seeking a preliminary injunction against the Final Rule’s implementation. The California and Washington district courts issued preliminary injunctions based on plaintiffs’ claims under the Administrative Procedure Act (“APA”). DHS then sought stays of both preliminary injunctions before this court.

The panel first concluded that the injuries plaintiffs (“the States”) alleged – loss of federal funds and increase in operational costs related to individuals disenrolling from benefits – were sufficient for Article III standing. The panel also addressed mootness because district courts in Maryland and New York had issued nationwide injunctions of the Final Rule. The court concluded that, even if an injunction from another court has a fully nationwide scope, this court nevertheless retains jurisdiction under the exception to mootness for cases capable of repetition, yet evading review.

The panel next concluded that DHS had demonstrated a strong likelihood of success on the merits, explaining that the Rule’s definition of “public charge” is consistent with the relevant statutes, and DHS’s action was not arbitrary or capricious. In rejecting the States’ argument that the Final Rule is contrary to the INA, the panel concluded that the new definition of “public charge” was entitled to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). At Chevron step one, the panel explained that the statute is ambiguous, noting that Congress chose not to define “public charge” and, instead, described various factors

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to be considered “at a minimum.” The panel also concluded that the history of the use of the term demonstrated that the term does not have an unambiguous meaning. Addressing the fact that Congress twice considered, but failed to enact, a definition of “public charge” that is similar to the definition adopted in the Final Rule, the panel explained that 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 panel also rejected the States’ contention that DHS exceeded its authority by determining what makes a person “self-sufficient.”

At Chevron step two, the panel concluded that DHS’s interpretation of “public charge” is a permissible construction of the statute, explaining that: 1) the INA grants DHS considerable discretion to determine if an alien is likely to become a public charge; 2) there is no statutory basis from which to conclude that addition of certain categories of inkind benefits makes DHS’s interpretation untenable; and 3) the receipt of non-cash public assistance is relevant to the self-sufficiency principle underlying U.S. immigration law. The panel also rejected the States’ argument that the Final Rule is inconsistent with the Rehabilitation Act, which provides that a qualified individual with a disability cannot, solely by reason of that disability, be excluded from participation in Executive agency programs.

In rejecting the States’ argument that the Final Rule is arbitrary and capricious, the panel concluded that DHS had adequately explained the reasons for the rule because it was sufficient for DHS to consider whether, in the long term, the overall benefits of its policy change would outweigh the costs of retaining the current policy and because DHS addressed public health concerns.

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The panel noted that, were it reviewing the preliminary injunctions on direct review, its determination on the likelihood of success on the merits would be sufficient to reverse the district court’s orders. But because the panel was addressing DHS’s motion for a stay, it went on to consider the additional factors of irreparable injury, balance of the equities and the public interest. Addressing irreparable injury, the panel concluded that DHS had shown that it would be irreparably injured absent a stay, explaining that the preliminary injunctions would force DHS to irrevocably grant status to those who are not legally entitled to it.

Next, the panel explained that balancing the harms was particularly difficult in this case because the harms are not comparable and are also, to a degree, speculative. The panel concluded that it could not state with any confidence which set of harms was greater. The panel explained that the public interest in this case was likewise difficult to calculate with precision. In the end, the panel concluded that the “critical” factors were that DHS had mustered a strong showing of likelihood of success on the merits and some irreparable harm, and that those factors weighed in favor of granting a stay, despite the potential harms to the States. For that reason, the panel concluded that the stay was in the public interest.

Concurring, perplexed and perturbed, Judge Bybee wrote separately to note that: 1) even as the courts are embroiled in recent immigration controversies, no one should mistake the court’s judgments for its policy preferences; 2) given the fact that the courts may only review policy decisions for arbitrariness and caprice, the courts are not the proper foil to this or any other administration as it crafts immigration policies; and 3) because Congress is no place to be found in

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recent immigration debates, it is time for a feckless Congress to come to the table and grapple with these issues, instead of leaving the table and expecting the court to clean up.

Concurring in part and dissenting in part, Judge Owens concurred with the majority’s jurisdiction analysis, but otherwise dissented. In light of the: (1) government’s heavy burden due to the standard of review, 2) opaqueness of the legal questions before the court, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, Judge Owens would deny the government’s motions to stay and let these cases proceed in the ordinary course.

COUNSEL
Joseph H. Hunt, Assistant Attorney General; David L. Anderson, United States Attorney; Daniel Tenny, Gerard Sinzdak, and Joshua Dos Santos, Appellate Staff; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
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, City and County of San Francisco, San Francisco, California; James R. Williams, County Counsel; Greta S. Hansen, Chief Assistant County Counsel; Laura S. Trice, Lead Deputy County Counsel; Raphael N. Rajendra, Julia B. Spiegel, and H. Luke Edwards, Deputy County Counsel; Office of the County Counsel, County of Santa Clara, San

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Jose, California; for Plaintiffs-Appellees City and County of San Francisco, and 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, Julia Harumi Mass, Anita Garcia Velasco, Brenda Ayon Verduzco, and Anna Rich, Deputy Attorneys General; Office of the Attorney General, Oakland, California; for Plaintiff-Appellee State of California.

Karl A. Racine, Attorney General; Kathleen Konopka, Deputy Attorney General, Public Advocacy Division; Alacoque Hinga Nevitt, Assistant Attorney General; Office of the Attorney General, Washington, D.C.; for PlaintiffAppellee District of Columbia.

Aaron M. Frey, Attorney General; Susan P. Herman, Chief Deputy Attorney General; Office of the Attorney General, Augusta, Maine; for Plaintiff-Appellee State of Maine..

Ellen Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Nicole DeFever and Patricia Garcia Rincon, Assistant Attorneys General; Oregon Department of Justice, Salem, Oregon; for Plaintiff-Appellee State of 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 Plaintiff-Appellee Commonwealth of Pennsylvania.

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Robert W. Ferguson, Attorney General; Jeffrey T. Sprung, Assistant Attorney General; Rene D. Tomisser, Senior Counsel; Zachary P. Jones, Joshua Weissman, Paul M. Crisalli, Nathan K. Bays, and Bryan M.S. Ovens, Assistant Attorneys General; Office of the Attorney General, Kennewick, Washington; for Plaintiff-Appellee State of Washington.

Mark R. Herring, Attorney General; Michelle S. Kallen, Deputy Solicitor General; Ryan Spreague Hardy, Alice Anne Lloyd, and Mamoona H. Siddiqui, Assistant Attorneys General; Office of the Attorney General, Richmond, Virginia; for Plaintiff-Appellee Commonwealth of Virginia.

Phil Weiser, Attorney General; Eric R. Olson, Solicitor General; Office of the Attorney General, Denver, Colorado; for Plaintiff-Appellee State of Colorado.

Kathleen Jennings, Attorney General; Aaron R. Goldstein, State Solicitor; Ilona Kirshon, Deputy State Solicitor; Monica A. Horton, Deputy Attorney General; Office of the Attorney General, Wilmington, Delaware; for Plaintiff-Appellee State of Delaware.

Kwame Raoul, Attorney General; Liza Roberson-Young, Public Interest Counsel; Office of the Attorney General, Chicago, Illinois; for Plaintiff-Appellee State of Illinois.

Clare E. Connors, Attorney General; Lili A. Young, Deputy Attorney General; Department of the Attorney General, Honolulu, Hawai‘i; for Plaintiff-Appellee State of Hawai‘i.

Brian E. Frosh, Attorney General; Jeffrey P. Dunlap, Assistant Attorney General; Office of the Attorney General,

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Baltimore, Maryland; for Plaintiff-Appellee State of Maryland.

Maura Healey, Attorney General; Abigail B. Taylor, Chief, Civil Rights Division; David Urena, Special Assistant Attorney General; Angela Brooks, Assistant Attorney General; Office of the Attorney General, Boston, Massachusetts; for Plaintiff-Appellee Commonwealth of Massachusetts.

Dana Nessel, Attorney General; Fadwa A. Hammoud, Solicitor General; Toni L. Harris, First Assistant Attorney General; Michigan Department of Attorney General, Lansing, Michigan; for Plaintiff-Appellee Dana Nessel on behalf of the People of Michigan.

Keith Ellison, Attorney General; R.J. Detrick, Assistant Attorney General; Attorney General’s Office, St. Paul, Minnesota; for Plaintiff-Appellee State of Minnesota.

Aaron D. Ford, Attorney General; Heidi Parry Stern, Solicitor General; Office of the Attorney General, Las Vegas, Nevada; for Plaintiff-Appellee State of Nevada.

Gurbir Singh Grewal, Attorney General; Glenn J. Moramarco, Assistant Attorney General; Office of the Attorney General, Trenton, New Jersey; for PlaintiffAppellee State of New Jersey

Hector Balderas, Attorney General; Tania Maestas, Chief Deputy Attorney General; Office of the Attorney General, Santa Fe, New Mexico; for Plaintiff-Appellee State of New Mexico.

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Peter F. Neronha, Attorney General; Lauren E. Hill, Special Assistant Attorney General; Office of the Attorney General, Providence, Rhode Island; for Plaintiff-Appellee State of Rhode Island.

Edward T. Waters, Phillip A. Escoriaza, and Amanda N. Pervine, Feldesman Tucker Leifer Fidell LLP, Washington, D.C., for Amici Curiae Public Health, Health Policy, Medicine, and Nursing Deans, Chairs, and Scholars; The American Public Health Association; and The 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.

ORDER
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

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(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 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 long-standing 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 publiccharge purposes. Id.

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.

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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 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

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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. 19-35914, 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 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).

1 For clarity, we will refer to the plaintiffs below as “the States” and the defendants as “DHS.”

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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 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

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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 affidavit of support[3] under section 1183a of this title for purposes of exclusion under this paragraph.

Id.

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.
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.

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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 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.,

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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. 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

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.

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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 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 public-charge 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]

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. . .

(iv) Subsidized Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.

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 publiccharge 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

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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diagnosis that would likely require extensive medical treatment or interfere with the alien’s ability to be selfsufficient; and (4) receipt of benefits for 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

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

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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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.

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

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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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 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 healthrelated 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.

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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.

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 publichealth 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 immigrants who could not provide for themselves,” the court concluded that the States were within the INA’s zone of interests. Id.

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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 self-sufficiency. 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 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

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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 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.”

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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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).

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 [preliminaryinjunction] 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)).

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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 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. Similarly, the States have sufficiently alleged that they are facing new and ongoing operational costs

9 DHS raises no argument about the second and third elements of the standing analysis.

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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 in-person 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 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.

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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 (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.

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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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 Scripps-Howard 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 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

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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 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 injure 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

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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 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

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determined by the APA. As a reviewing court, we must “set 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

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

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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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 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

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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 now-repealed 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 determinations, our review is narrow. See MonteroMartinez 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 self-defining. That does not mean that officials

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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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 secondguessing 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).

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

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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 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) Historical 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 well-defined 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, idiot, or a[] person unable to take care of

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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/Diction ary/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 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).

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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” 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

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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)), 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,

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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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 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).

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

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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 three-part 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 likely to be institutionalized for any length of time and billed for the cost by the state. Id. at 589.

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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, 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

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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 noncash benefits or the receipt of special-purpose 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.

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-thecircumstances 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 selfsufficient. 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

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“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.

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

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phrase “means tested” was “unnecessarily uncertain.” S. Rep. No. 104-249, at 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 codify a particular interpretation of “public charge.”14

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

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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.

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 “selfsufficient.” 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

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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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. § 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.

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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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 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 untenable.17 And whether the change in policy results from

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

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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 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.

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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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 public-charge 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 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-ofthe-circumstances test. See 84 Fed. Reg. at 41,295, 41,368.

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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 incash and in-kind public assistance. DHS has shown that there is a strong likelihood that its decision to consider the receipt of in-kind government assistance as part of its totality-of-thecircumstances 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

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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. 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

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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.

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

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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 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=U SCIS-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

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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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 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 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

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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 statefunded 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 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

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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. 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

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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)) .

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,

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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 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 self-sufficient.

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

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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 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 from 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

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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 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. YuehShaio Yang, 519 U.S. 26, 32 (1996) (distinguishing “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 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

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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 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

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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” exclusions 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 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

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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 (9th Cir. 2007) (citing Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). We have discussed above the irreparable, nonmonetary harm to the government. On the other hand, the States contend that they face financial, public-health, 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

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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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 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.

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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 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.

VI. CONCLUSION

The motion for a stay of the preliminary injunction in Nos. 19-17213 and 19-17214 is GRANTED. The motion for stay of the preliminary injunction in No. 19-35914 is GRANTED. The cases may proceed consistent with this opinion.

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BYBEE, Circuit Judge, concurring, perplexed and perturbed:

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

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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.

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 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.

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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 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.

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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 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

Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-1, Page 76 of 76

76

CITY & CTY. OF SAN FRANCISCO V. USCIS

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.

OWENS, Circuit Judge, concurring in part and dissenting in part:
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)).

Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 1 of 11  Home
American Dictionary of the English Language

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Webster's Dictionary 1828

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Charge
CHARGE, verb transitive
123ipnr...deTTTicgoooeeprllsoeuttaasisb;ddhl,teoooarfnsoc;bhoautadormr;dgfeouaenrsllt;kthooetenctol;iamottyetrhoiddrNcooaanwiwontn,t.intaooCh1ocrnn9kiftt;,ao-oy1cretfato7siismlnp2l.t,edh1pwcro3iuCiastsealholtyoruticuhnwnhtatipitytovohpwewopfdhfidrxieSeceoshrda,nsoniobnDpragFpeyp;rrocoeaanwessnesm,dcteetsibsosr;;ecacaarohnss6,ad,vr,a.tbgno2Uae0laclSt1hrhomCa9erryIgsmSheceohtmtah.reogresytsowtmhiteahcerhunlweemisthya.nd
4. To set or lay on; to impose, as a tax; as, the land is charged with a quit rent; a rent is charge on the land. 5. To lay on or impose, as a task. The gospel chargeth us with piety towards God. 6. To put or lay on; as, to charge a building with ornaments, often implying superfluity. 7. To lay on, as a duty; followed by with. The commander charged the officer with the execution of the project. See Genesis 40:4 8. To entrust to; as, an officer is charged with dispatches. 9. To set to, as a dept; to place on the debit side of an account; as, to charge a man with the price of goods sold to him. 10. To load or lay on in words, something wrong, reproachful or criminal; to impute to; as, to charge a man with theft.

Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 2 of 11
11. To lay on in words; to impute to; followed by on before the person; as, to charge a crime on the offender; to charge evil consequences on the doctrines of the stoics.

12. To lay on, give or communicate, as an order, command or earnest request; to enjoin; to exhort.

In all this, Job sinned not, nor charged God foolishly. Job 1:22.

13. To lay on, give or communicate, as an order, command or earnest request; to enjoin; to exhort.

CHARGE them that are rich in this world, that they be not high-minded. 1 Timothy 6:17.

In this sense, when the command is given in the name of God, or with an oath, the phrase amounts to an adjuration.

To adjure; to bind by an oath. 1 Samuel 14:28.

14. To give directions to; to instruct authoritatively; as, the judge charged the grand jury to inquire respecting breaches of the peace.

15. To communicate electrical matter to, as to a coated vial, or an electrical battery.

CHARGE, verb intransitive To make an onset. Thus Glanville says, like your heroes of antiquity, he

charges in iron; and we say, to charge with fixed bayonets. But in this application, the object is

understood; to charge the enemy.
C1c2a..HrTTgAhhoRae.GtqEwu,hanincothiutynisolaf ipdoowncdieoterr,diNonr;iono.infC1pa9ito-ygw1ead7nne2erd1raa3Clnsadoerunbcnsaheltily,voeaorndfsySholoaontan,DduFesorecradebnmutcoribdsleoecanrod.6vI,at.

USCIS 2019
is the same word radically as
musket, cannon or other like

instrument.

3. An onset; a rushing on an enemy; attack; especially by moving troops with fixed bayonets. But it is used for an onset of cavalry as well as of infantry.

4. An order, injunction, mandate, command.

Moses gave Joshua a charge Numbers 27:19.

The king gave charge concerning Absalom. 2 Samuel 18:5.

5. That which is enjoined, committed, entrusted or delivered to another, implying care, custody, oversight, or duty to be performed by the person entrusted.

I gave Hanani charge over Jerusalem. Nehemiah 7:2.

Hence the word includes any trust or commission; an office, duty, employment. It is followed by of or over; more generally by of. Hence,

6. The person or thing committed to anothers custody, care or management; a trust. Thus the people of a parish are called the ministers charge

The starry guardian drove his charge away to some fresh pasture.

Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 3 of 11
7. Instructions given by a judge to a jury, or by a bishop to his clergy. The word may be used as synonymous with command, direction, exhortation or injunction, but always implies solemnity.

8. Imputation in a bad sense; accusation.

Lay not this sin to their charge Acts 7:60.

9. That which constitutes debt, in commercial transactions; an entry of money or the price of goods, on the debit side of an account.

10. Cost; expense; as, the charges of the war are to be borne by the nation.

11. Imposition on land or estate; rent, tax, or whatever constitutes a burden or duty.

12. In military affairs, a signal to attack; as, to sound the charge

13. The posture of a weapon fitted for an attack or combat.

Their armed slaves in charge

14. Among farriers, a preparation of the consistence of a thick decoction, or between an ointment and a plaster, used as a remedy for sprains and inflammations.

1w1oAf56hcg..ihclIIaahnnrsgtshehe.leeerocabftlerdlieacraryaed,lr,teshixsaaptrteehwriidrcmhtiiiystcee-thnisdnNtiixgssio,unpb.iaisoCg1hqrs9ineu,t-dyeae1nafua7rtcpnoi2htomdy1nc3oCootfnhnaoeteerualcecinahnconttiiylnvoroigtercoh;adfseloiSrxof.rlaunstihntdoDe,nFefcericog,aemuwnmrmcaeinsbsutecnrineroicgp6avrtt,e.wes2dUoe0nStp1otoCe9audInScodonsa.tthede

escutcheon, by jar, vial or pane

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Regulations.gov - Supporting & Related Material Document
Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 4 of 11

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This Supporting & Related Material document was issued by the U.S. Citizenship and Immigration Services (USCIS)
For related information, Open Docket Folder

Comments Not Accepted
ID: USCIS-2010-0012-63742

Content
View document:

Document Information
Date Posted: Aug 14, 2019
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Docket Information

citedNion.

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USCIS 2019

This document is contained in USCIS-2010-0012
Related Dockets: None
Related RINs: None
Related Documents: Inadmissibility on Public Charge Grounds; Correction Inadmissibility on Public Charge Grounds Inadmissibility on Public Charge Grounds

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https://www.regulations.gov/document?D=USCIS-2010-0012-63742[12/6/2019 4:05:57 PM]

Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 5 of 11

DEPARTMENT OF HOMELAND SECURITY [CIS No. 2637-19; DHS Docket No. USCIS-2010-0012]; RIN 1615-AA22 Final Rule: Inadmissibility on Public Charge Grounds Economic Analysis Supplemental Information for Analysis of Public Benefits Programs

The purpose of this document is to provide additional information and further details

about estimates DHS presents in the Inadmissibility on Public Charge Ground final rule

regarding public benefits programs included in the economic analysis. In order to estimate the

total economic impact of the final rule, it was necessary for DHS to estimate various aspects of

the populations that receive benefits from public benefits programs, the total amount of benefits

each public benefits program paid to recipients, and the average amount each recipient received

eitlnionktrbeaollelynrlmeetodfeiutdnscit.tsiieonDnnprHoiunSlblctlaoriilcartsneobfsodeNferneseioertngif.pmoiCta1saey9itnpmte-yrrd1ooealn7gtlhtmnr2sead1emppn3aoCstipdbaionuerbulccaaynahtpiuttoihyusvneebeolofodifecffdSrobteeheanrciansnilpeDffgiFieienotnrsacvatleespnrrrmtunochlmgiaebsrt.eecaanmFrortei6.ntvol,ai.klt2lUhey0el,Sy1DpC9tooHpISdSuilseaestnitoirmnolatlhteoadrt

forego the is

For each of the public benefits program in this economic analysis, DHS estimated the

total annual average enrollment based on a 5-year average, whenever possible. Table 1 shows

annual total enrollment figures for the most recent 5-year periods for which data are available as

reported by the benefits-granting agencies. In some cases, however, DHS was not able to base

its estimates on a 5-year average and, instead, had to rely on the most recent annual data

reported.

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Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 10 of 11
Source : USCIS analysis.
Notes: 1 DHS estimates the rate of disenrollment/foregone enrollment based on the number of foreign-born immigrants adjusting status as a percentage of the foreign-born non-citizen population in the United States. Calculation: (Individuals adjusting status / Estimated foreign-born non-citizen population) *100 = Rate of disenrollment/foregone enrollment. To estimate the population that could choose to disenroll/forego enrollment, DHS multiplied the population of members of households that include foreign-born non-citizens who may be receiving benefits or the number of households with at least 1 foreign-born non-citizen by 2.5 percent.
Finally, Table 5 shows the estimated total reduction in transfer payments paid by the federal government to the population of members of households that include foreign-born noncitizens, or households with at least 1 foreign-born non-citizen, that are likely to disenroll from or forego enrollment in public benefits programs due to the provisions of the final rule. The table also presents the previously estimated average annual benefit per person, or household with
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enrollment in a public benefits program.

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 Case 4:19-cv-04975-PJH Document 180 Filed 08/03/20 Page 1 of 43

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

STATE OF CALIFORNIA, et al.,

8

Plaintiffs,

Case No. 19-cv-04975-PJH

9

v.

10

U.S. DEPARTMENT OF HOMELAND

SECURITY, et al., 11

Defendants.

12

ORDER GRANTING IN PART, DENYING IN PART, AND DEFERRING RULING IN PART ON MOTION TO DISMISS
Re: Dkt. No. 160

13

14

Before the court is defendants the Department of Homeland Security (“DHS”), the

15 U.S. Citizenship and Immigration Service (“USCIS”), Chad Wolf,1 and Kenneth

16 Cuccinelli’s (collectively “defendants”) motion to dismiss. The matter is fully briefed and

17 suitable for decision without oral argument. Having read the parties’ papers and carefully

18 considered their arguments and the relevant legal authority, and good cause appearing,

19 the court hereby rules as follows.

20

BACKGROUND

21

This case involves a challenge to the implementation of the final rule entitled

22 “Inadmissibility on Public Charge Grounds,” published by DHS on August 14, 2019. See

23 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“the

24 Rule”). On October 10, 2018, DHS began the rulemaking process to create a new

25 framework for the public charge assessment by publishing a Notice of Proposed

26

27

1 Kevin McAleenen was originally named in the complaint, but as of November 13, 2019, Chad Wolf is the current acting secretary of DHS (see https://www.dhs.gov/person/chad-

28

f-wolf). Pursuant to Federal Rule of Civil Procedure 25(d), an officer’s successor is automatically substituted as a party.

Case 4:19-cv-04975-PJH Document 180 Filed 08/03/20 Page 2 of 43

United States District Court Northern District of California

1 Rulemaking (“NPRM”). See Inadmissibility on Public Charge Grounds, 83 Fed. Reg.

2 51,114 (Oct. 10, 2018). On August 14, 2019, DHS published the Rule in the Federal

3 Register. Id. at 41,292. The Rule was originally set to become effective on October 15,

4 2019.

5

Publication of the Rule resulted in several complaints filed in federal district courts

6 across the nation. Three such complaints were filed in the Northern District of California

7 and related before this court. Dkt. 24. The present motion involves one of the three

8 cases: State of California, et al. v. U.S. Department of Homeland Security, et al., Case

9 No. 19-cv-04975-PJH, wherein the States of California, Maine, and Oregon, the

10 Commonwealth of Pennsylvania, and the District of Columbia (the “state plaintiffs” or

11 “plaintiffs”) filed a complaint (“Compl.”) asserting six causes of action: (1) Violation of the

12 Administrative Procedure Act (“APA”), 5 U.S.C. § 706—Contrary to Law, the Immigration

13 and Nationality Act (“INA”) and the Illegal Immigration Reform and Immigrant

14 Responsibility Act (“IIRIRA”); (2) Violation of APA, 5 U.S.C. § 706—Contrary to Law,

15 Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794 (the “Rehabilitation

16 Act”); (3) Violation of APA, 5 U.S.C. § 706—Contrary to Law, State Healthcare Discretion;

17 (4) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious; (5) Violation of the Fifth

18 Amendment’s Due Process clause requiring Equal Protection based on race; (6) Violation

19 of the Fifth Amendment’s Due Process clause, based on a violation of Equal Protection

20 principles based on unconstitutional animus. Dkt. 1.

21

On October 11, 2019, this court issued a preliminary injunction enjoining

22 defendants from applying the Rule to any person residing in the City and County of San

23 Francisco, Santa Clara County, the States of California, Oregon, or Maine, the

24 Commonwealth of Pennsylvania, or the District of Columbia. Dkt. 120 at 92. Defendants

25 appealed the preliminary injunction on October 30, 2019. Dkt. 129. A three-judge panel

26 of the Ninth Circuit stayed the preliminary injunction on December 5, 2019.2 Dkt. 141;

27

28

2 The panel consolidated the three related cases before this court with a similar case from the Eastern District of Washington. That court issued a nationwide injunction of the

2

Case 4:19-cv-04975-PJH Document 180 Filed 08/03/20 Page 3 of 43

United States District Court Northern District of California

1 see City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773

2 (9th Cir. 2019). On February 18, 2020, the Ninth Circuit panel voted to deny plaintiffs-

3 appellees’ motions for reconsideration and for rehearing en banc. Dkt. 153. Other

4 district courts also issued preliminary injunctions prohibiting enforcement of the Rule, but

5 these were ultimately stayed by the Supreme Court. See Dep’t of Homeland Security v.

6 New York, 140 S. Ct. 599 (2020); Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020).

7 Accordingly, the Rule went into effect on February 24, 2020.

8

A broader summary of the relevant statutory framework and the changes

9 implemented by the Rule may be found in the court’s preliminary injunction order. Dkt.

10 120 at 6–10. To briefly summarize here, DHS promulgated the Rule pursuant to its

11 authority under the INA, 8 U.S.C. § 1101, et seq., which requires that all noncitizens

12 seeking to be lawfully admitted into the United States or to become lawful permanent

13 residents prove they are not inadmissible. 8 U.S.C. §§ 1361, 1225(a). A noncitizen may

14 be deemed inadmissible on any number of grounds, including that they are “likely at any

15 time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). The statute directs

16 immigration officials to form an opinion as to whether the applicant “is likely at any time to

17 become a public charge.” Id. In forming that opinion, immigration officers must consider

18 “at a minimum” five statutorily-defined factors: (1) age; (2) health; (3) family status; (4)

19 assets, resources, and financial status; (5) education and skills. 8 U.S.C.

20 § 1182(a)(4)(B)(i). The Rule would define the term “public charge” and set out various

21 criteria for government officials as part of their totality of the circumstances determination.

22

DISCUSSION

23 A. Legal Standard

24

1. Rule 12(b)(1)

25

A federal court may dismiss an action under Federal Rule of Civil Procedure

26

27 Rule on the same day as this court’s geographically limited preliminary injunction order.

28

Washington v. U.S. Dep’t of Homeland Security, 408 F. Supp. 3d 1191, 1224 (E.D. Wash. 2019).

3

Case 4:19-cv-04975-PJH Document 180 Filed 08/03/20 Page 4 of 43

United States District Court Northern District of California

1 12(b)(1) for lack of federal subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule

2 12(h)(3) similarly provides that a court “must dismiss the action” if it “determines at any

3 time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3). “Federal courts are

4 courts of limited jurisdiction” and the burden of establishing subject matter jurisdiction

5 “rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

6 511 U.S. 375, 377 (1994) (citations omitted).

7

A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer,

8 373 F.3d 1035, 1039 (9th Cir. 2004). When the attack is facial, the court determines

9 whether the allegations contained in the complaint are sufficient on their face to invoke

10 federal jurisdiction. Id. Where the attack is factual, however, “the court need not

11 presume the truthfulness of the plaintiff’s allegations.” Id.

12

When resolving a factual dispute about its federal subject matter jurisdiction, a

13 court may review extrinsic evidence beyond the complaint without converting a motion to

14 dismiss into one for summary judgment. McCarthy v. United States, 850 F.2d 558, 560

15 (9th Cir. 1988) (holding that a court “may review any evidence, such as affidavits and

16 testimony, to resolve factual disputes concerning the existence of jurisdiction”); see also

17 Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen a question of the District Court’s

18 jurisdiction is raised . . . the court may inquire by affidavits or otherwise, into the facts as

19 they exist.”). “Once the moving party has converted the motion to dismiss into a factual

20 motion by presenting affidavits or other evidence properly brought before the court, the

21 party opposing the motion must furnish affidavits or other evidence necessary to satisfy

22 its burden of establishing subject matter jurisdiction.” Safe Air for Everyone, 373 F.3d at

23 1039.

24

The Ninth Circuit has noted that “jurisdictional dismissals in cases premised on

25 federal-question jurisdiction are exceptional, and must satisfy the requirements specified

26 in Bell v. Hood, 327 U.S. 678 (1946).” Safe Air for Everyone, 373 F.3d at 1039 (quoting

27 Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983)). “In Bell, the

28 Supreme Court determined that jurisdictional dismissals are warranted ‘where the alleged

4

Case 4:19-cv-04975-PJH Document 180 Filed 08/03/20 Page 5 of 43

United States District Court Northern District of California

1 claim under the constitution or federal statutes clearly appears to be immaterial and

2 made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly

3 insubstantial and frivolous.’” Id. (quoting Bell, 327 U.S. at 682–83).

4

2. Rule 12(b)(6)

5

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the

6 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191,

7 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that

8 a complaint include a “short and plain statement of the claim showing that the pleader is

9 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule

10 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient

11 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th

12 Cir. 2013).

13

While the court is to accept as true all the factual allegations in the complaint,

14 legally conclusory statements, not supported by actual factual allegations, need not be

15 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer

16 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v.

17 Twombly, 550 U.S. 544, 555, 558–59 (2007).

18

“A claim has facial plausibility when the plaintiff pleads factual content that allows

19 the court to draw the reasonable inference that the defendant is liable for the misconduct

20 alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court

21 to infer more than the mere possibility of misconduct, the complaint has alleged—but it

22 has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ.

23 P. 8(a)(2)). Where dismissal is warranted, it is generally without prejudice, unless it is

24 clear the complaint cannot be saved by any amendment. In re Daou Sys., Inc., 411 F.3d

25 1006, 1013 (9th Cir. 2005).

26

Review is generally limited to the contents of the complaint, although the court can

27 also consider documents “whose contents are alleged in a complaint and whose

28 authenticity no party questions, but which are not physically attached to the plaintiff’s

5

Case 4:19-cv-04975-PJH Document 180 Filed 08/03/20 Page 6 of 43

United States District Court Northern District of California

1 pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon

2 Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999), superseded by statute on

3 other grounds as stated in In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 (9th Cir.

4 2017)); see also Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“[A] court can

5 consider a document on which the complaint relies if the document is central to the

6 plaintiff’s claim, and no party questions the authenticity of the document.” (citation

7 omitted)). The court may also consider matters that are properly the subject of judicial

8 notice (Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)), and exhibits

9 attached to the complaint (Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

10 1542, 1555 n.19 (9th Cir. 1989)).

11 B. Analysis

12

1. Standing

13

Federal courts may adjudicate only actual cases or controversies, U.S. Const.

14 art. III, § 2, and may not render advisory opinions as to what the law ought to be or

15 affecting a dispute that has not yet arisen. Aetna Life Ins. Co. of Hartford, Conn. v.

16 Haworth, 300 U.S. 227, 240 (1937). Article III’s “standing” requirements limit the court’s

17 subject matter jurisdiction. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004)

18 (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998)). The

19 burden of establishing standing rests on the party asserting the claim. Renne v. Geary,

20 501 U.S. 312, 316 (1991) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

21 546 n.8 (1986)). “In order to establish Article III standing, a plaintiff must have (1)

22 suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

23 defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

24 California v. Trump, 963 F.3d 926, 935 (9th Cir. 2020) (citing Lujan v. Defs. of Wildlife,

25 504 U.S. 555, 560–61 (1992)). “[A]t the pleading stage, the plaintiff must ‘clearly . . .

26 allege facts demonstrating’ each element.” Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547

27 (2016) (second alteration in original) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

28

“At least one plaintiff must have standing to seek each form of relief requested,

6

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1 and that party bears the burden of establishing the elements of standing with the manner

2 and degree of evidence required at the successive stages of the litigation.” E. Bay

3 Sanctuary Covenant v. Trump (“E. Bay Sanctuary I”), 932 F.3d 742, 763–64 (9th Cir.

4 2018) (internal quotation marks and citations omitted). They “need only establish a risk

5 or threat of injury to satisfy the actual injury requirement.” Id.; see also Dep’t of

6 Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (noting that future injuries to

7 states “may suffice if the threatened injury is certainly impending, or there is a substantial

8 risk that the harm will occur” (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,

9 158 (2014))).

10

Finally, “[s]tates are ‘entitled to special solicitude in our standing analysis.’”

11 California, 963 F.3d at 936 (quoting Massachusetts v. EPA, 549 U.S. 497, 520 (2007)).

12 “[A] state may sue to assert its ‘quasi-sovereign interests in the health and well-being—

13 both physical and economic—of its residents in general.’” Id. (quoting Alfred L. Snapp &

14 Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982)).

15

In the preliminary injunction order, the court found that the harm alleged by the

16 states was not too speculative and, for that reason, they had established standing. Dkt.

17 120 at 83. The court relied on DHS’s own assessments in the Rule and the NPRM that

18 projected a 2.5% disenrollment rate from federal programs, 84 Fed. Reg. at 41,463, and

19 that payments from the federal government to the states would decrease by over $1.5

20 billion, 83 Fed. Reg. at 51,267–69. The court found that plaintiffs had alleged sufficient

21 facts in their complaint, as well as evidence submitted in support of the motion for

22 preliminary injunction, to support a harm similar to that assessed by DHS. Dkt. 120 at 79.

23 The court also determined that the Rule would cause individuals to disenroll from or

24 forego enrolling in Medicaid, the cost of which is split between the federal and state

25 governments. Id. at 80 (“As individuals disenroll, the plaintiffs will no longer be

26 reimbursed for treating them. This will have obvious adverse budgetary

27 consequences.”).

28

Defendants argue that, with regard to aliens who disenroll from federal health

7

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1 benefits, federal health program participants would not distinguish between federal- and

2 state-funded health and social services and, therefore, utilization of all services would be

3 reduced. Mtn. at 5. Thus, in order for the states to suffer a harm, aliens would need to

4 disenroll from federal health benefits, then enroll in state health benefits, and the

5 increased amount of state expenses would need to be greater than the costs incurred but

6 for the Rule. Id. at 6. With regard to a reduction in Medicaid reimbursements,

7 defendants argue that a reduction in Medicaid funding would be commensurate with a

8 reduction in the provision of health services. In other words, utilization of healthcare paid

9 by Medicaid would decrease, which means the amount paid by plaintiffs would also

10 decrease.

11

Defendants’ renewed standing argument does not alter this court’s prior findings.

12 Both DHS’s own analysis and plaintiffs, in their complaint and evidence, demonstrate that

13 the Rule will cause individuals to disenroll or forego enrollment from federal health

14 benefits, including Medicaid. See 84 Fed. Reg. at 41,463. Defendants contend the

15 disenrollment in Medicaid will result in a corresponding decrease in the provision of

16 services and thus no (or speculative) harm. This proposition flies in the face of DHS’s

17 own analysis in the Rule and the evidence submitted by plaintiffs.

18

In the Rule, DHS received a comment stating that hospitals are compelled to

19 provide emergency services to individuals regardless of their ability to pay but those

20 services will go uncompensated if patients are disenrolled from Medicaid. Id. at 41,384.

21 While the Rule provides for an emergency services exemption, the commenter expressed

22 concern that different states would interpret the exemption differently resulting in

23 individuals who would be denied admission or avoid treatment. Id. In response, DHS

24 acknowledged that “increased use of emergency rooms and emergent care as a method

25 of primary healthcare due to delayed treatment is possible and there is a potential for

26 increases in uncompensated care in which a treatment or service is not paid for by an

27 insurer or patient.” Id.

28

Plaintiffs demonstrate that the cost of such uncompensated care will fall on the

8

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1 states. Plaintiffs’ complaint alleges “[i]ncreased emergency room use by the uninsured

2 leads to an increased financial burden on hospitals, which are required to provide care to

3 all patients—regardless of their ability to pay.” Compl. ¶ 242. In other cases, private

4 providers will pass along the cost of uncompensated care to public and private payers of

5 healthcare resulting in increased costs. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

6 519, 593 (Ginsburg, J., concurring in part) (“Health-care providers do not absorb these

7 bad debts. Instead, they raise their prices, passing along the cost of uncompensated

8 care to those who do pay reliably: the government and private insurance companies.”);

9 see also Decl. of Mari Cantwell, Dkt. 18-2, ¶ 40 (“The cost of uncompensated care would

10 be shifted to the broader healthcare delivery system resulting in higher costs for the state,

11 local entities, and private healthcare payers.”); Decl. of Patrick Allen, Dkt. 18-4, ¶ 47 (“If

12 the number of uninsured in Oregon were to increase and overall public health declines as

13 a result of the Rule, Oregon would incur a negative economic impact due to the

14 accompanying increase in uncompensated costs for hospital and emergency room

15 services that would follow. These uncompensated care costs would then be shifted to

16 the broader healthcare delivery systems resulting in higher costs for public and private

17 healthcare payers.”). By indirectly passing the cost of care to the states, the Rule creates

18 and reallocates costs to the states.

19

In sum, plaintiffs have plausibly alleged that a harm will occur—in this instance a

20 reduction in federal funds and a corresponding increase in state funds to cover costs

21 associated with healthcare. As the Ninth Circuit stated in its opinion, “disenrollment from

22 public benefits means a reduction in federal and state transfer payments, so the States

23 will realize some savings in expenditures. Nevertheless, we consider the harms to the

24 States, even if not readily quantifiable, significant.”3 City & Cty. of San Francisco, 944

25 F.3d at 807 (citation omitted). Because the court finds that plaintiffs have established

26

27 3 In their reply brief, defendants concede that the Ninth Circuit’s opinion is controlling on

28

the issue of standing and that the argument was made to preserve it for appeal. Reply at 1 n.1.

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1 standing, it does not address their remaining standing arguments. See Dkt. 120 at 81–83

2 (finding increased operational costs to provide a basis for standing).

3

For the foregoing reasons, the court DENIES defendants’ motion with respect to

4 standing.

5

2. Ripeness

6

“Ripeness is an Article III doctrine designed to ensure that courts adjudicate live

7 cases or controversies and do not ‘issue advisory opinions [or] declare rights in

8 hypothetical cases.’ A proper ripeness inquiry contains a constitutional and a prudential

9 component.” Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017)

10 (alteration in original) (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d

11 1134, 1138 (9th Cir. 2000) (en banc)).

12

“For a case to be ripe, it must present issues that are definite and concrete, not

13 hypothetical or abstract. Constitutional ripeness is often treated under the rubric of

14 standing because ripeness coincides squarely with standing’s injury in fact prong.” Id.

15 (internal quotation marks and citation omitted); see Thomas, 220 F.3d at 1138–39

16 (“Sorting out where standing ends and ripeness begins is not an easy task. . . . [I]n

17 ‘measuring whether the litigant has asserted an injury that is real and concrete rather

18 than speculative and hypothetical, the ripeness inquiry merges almost completely with

19 standing.’” (citation omitted)). Allegations that a “threat” to a “concrete interest is actual

20 and imminent” are sufficient to allege “an injury in fact that meets the requirements of

21 constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at 1154. Therefore, if plaintiffs

22 satisfy the Article III standing requirements under Lujan v. Defenders of Wildlife,

23 addressed above, the action here is ripe. See, e.g., Thomas, 220 F.3d at 1139

24 (“Whether the question is viewed as one of standing or ripeness, the Constitution

25 mandates that prior to our exercise of jurisdiction there exist a constitutional ‘case or

26 controversy,’ that the issues presented are ‘definite and concrete, not hypothetical or

27 abstract.’ . . . We need not delve into the nuances of the distinction between the injury in

28 fact prong of standing and the constitutional component of ripeness: in this case, the

10

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1 analysis is the same.” (citations omitted)).

2

“In evaluating the prudential aspects of ripeness, our analysis is guided by two

3 overarching considerations: ‘the fitness of the issues for judicial decision and the

4 hardship to the parties of withholding court consideration.’” Id. at 1141 (quoting Abbott

5 Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v.

6 Sanders, 430 U.S. 99 (1977)). When the question presented “is ‘a purely legal one’” that

7 “constitutes ‘final agency action’ within the meaning of § 10 of the APA,” that suggests

8 the issue is fit for judicial decision. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S.

9 803, 812 (2003). However, an issue may not be ripe for review if “further factual

10 development would ‘significantly advance our ability to deal with the legal issues

11 presented.’” Id. (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59,

12 82 (1978)).

13

In this case, the court has determined that plaintiffs have standing, therefore, it

14 follows that the case is constitutionally ripe for adjudication. See Thomas, 220 F.3d at

15 1139. The court has not previously addressed prudential ripeness. Defendants contend

16 that plaintiffs’ claims fail the prudential ripeness standard because the claims are

17 premised on speculation about the Rule’s operation in practice and further factual

18 development is required. Mtn. at 7. Plaintiffs assert that the prudential ripeness standard

19 is met because the Rule is final, and plaintiffs have already presented evidence of a

20 chilling effect. Opp. at 6.

21

“Determining whether administrative action is ripe for judicial review requires [a

22 court] to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to

23 the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808

24 (citing Abbott Labs., 387 U.S. at 149). When considering whether issues are fit for

25 review, the question should be a “purely legal one” and the agency action in question

26 should constitute a “‘final agency action’ within the meaning of § 10 of the APA.” Id. at

27 812 (quoting Abbott Labs., 387 U.S. at 149).

28

The second factor examines “the hardship to the parties of withholding court

11

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1 consideration.” Id. at 808. Generally, a showing of hardship requires demonstrating that

2 the regulation in question creates “adverse effects of a strictly legal kind.” Id. at 809

3 (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). Such

4 adverse effects do not arise if the regulation in question “do[es] not command anyone to

5 do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any

6 formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or

7 criminal liability; [and it] create[s] no legal rights or obligations.” Id. (alterations in original)

8 (quoting Ohio Forestry Ass’n, 523 U.S. at 733).

9

Here, the challenge to the Rule in this case “is a purely legal one,” i.e., whether the

10 INA was properly construed and implemented by DHS. See Abbott Labs., 387 U.S. at

11 149 (noting that “whether the statute was properly construed by the Commissioner” to be

12 a purely legal challenge). Next, the Rule constitutes a “rule” as defined by the APA. See

13 5 U.S.C. § 551(4), (13) (defining “agency action” and “rule”). The text of the Rule

14 confirms that its promulgation was an agency action. See 84 Fed. Reg. at 41,294 (“This

15 rule changes how the Department of Homeland Security (DHS) interprets and

16 implements the public charge ground of inadmissibility.”). This factor indicates the Rule

17 is ripe for review.

18

With respect to hardship, the Rule imposes potential adverse effects of a strictly

19 legal kind. If an alien falls within the Rule’s definition of a public charge as determined by

20 an immigration officer, then he or she is inadmissible. In other words, the Rule defines a

21 legal right—admissibility to the United States. Concurrently, it also defines the legal

22 powers and authorities of federal government officials in evaluating whether an alien is

23 admissible. Of course, the Rule does not define the legal rights of plaintiffs or create any

24 legal obligations directly impacting them. However, the potential adverse effects on

25 individuals cause a direct harm to plaintiffs, as discussed above with regard to plaintiffs’

26 standing.

27

Defendants, citing Habeas Corpus Resource Center v. United States Department

28 of Justice, 816 F.3d 1241, 1252 (9th Cir. 2016), contend that the court “would benefit

12

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1 from further factual development.” Mtn. at 7. They argue that plaintiffs’ claims are largely

2 based on speculation about the Rule’s operation in practice. Yet, plaintiffs have alleged

3 that the chilling effects of the Rule began before it was even finalized. For example,

4 plaintiffs allege that the District of Columbia’s Department of Health Care Finance

5 submitted a comment during the notice and comment period stating that the department

6 has already seen a 3.5 percent average decline in participation in local health care

7 programs that extend coverage to immigrants. Compl. ¶ 158. Moreover, because

8 appellate courts have stayed all preliminary injunctions enjoining the Rule, it is currently

9 in effect.4

10

Plaintiffs’ challenge is not speculative and further factual development of the

11 Rule’s impact is not needed for purposes of ripeness. Accordingly, the court DENIES

12 defendants’ motion with respect to ripeness.

13

3. Zone of Interests

14

In order to succeed on the merits, plaintiffs must be within the zone of interests of

15 the statute that forms the basis of their challenge. The zone of interests analysis asks

16 “whether Congress created a private cause of action in legislation,” Organized Vill. of

17 Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 964 (9th Cir. 2015) (en banc), such that “this

18 particular class of persons has a right to sue under this substantive statute,” Lexmark

19 Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is “not a

20 question of Article III standing” and “this inquiry . . . ‘does not implicate subject-matter

21 jurisdiction . . . .’” Organized Vill. of Kake, 795 F.3d at 964 (quoting Lexmark, 572 U.S. at

22 128 & n.4). “[I]n the APA context, . . . the [zone of interests] test is not ‘especially

23 demanding.’” Lexmark, 572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish Band of

24

25 4 The court understands that the district court for the Southern District of New York

26

recently issued a preliminary injunction staying the Rule for the duration of any declared public health emergency associated with the COVID-19 outbreak. See New York v. U.S.

27

Dep’t of Homeland Sec., — F. Supp. 3d —, No. 19 Civ. 7777 (GBD), 19 Civ. 7993 (GBD), 2020 WL 4347264, at *14 (S.D.N.Y. July 29, 2020). This stay does not affect the fact that

28

the Rule was effective from February 24, 2020 until July 29, 2020 such that plaintiffs’ challenge remains ripe.

13

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1 Pottawatomi Indians v. Patchak, 567 U.S. 209, 225–26 (2012)).

2

“Whether a plaintiff’s interest is ‘arguably . . . protected . . . by the statute’ within

3 the meaning of the zone-of-interests test is to be determined not by reference to the

4 overall purpose of the Act in question[,] . . . but by reference to the particular provision of

5 law upon which the plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175–76 (1997) (first

6 and second alterations in original) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v.

7 Camp, 397 U.S. 150, 153 (1970)). Put differently, “the plaintiff must establish that the

8 injury he complains of . . . falls within the ‘zone of interests’ sought to be protected by the

9 statutory provision whose violation forms the legal basis for his complaint.” Id. at 176

10 (alteration in original) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); and

11 citing Air Courier Conf. v. Postal Workers, 498 U.S. 517, 523–24 (1991); see also E. Bay

12 Sanctuary I, 932 F.3d at 768 n.9 (“‘[W]e are not limited to considering the [specific]

13 statute under which [plaintiffs] sued, but may consider any provision that helps us to

14 understand Congress’[s] overall purposes in the [INA].’” (alterations in original) (quoting

15 Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401 (1987))). “[F]or APA challenges, a plaintiff

16 can satisfy the test in either one of two ways: (1) ‘if it is among those [who] Congress

17 expressly or directly indicated were the intended beneficiaries of a statute,’ or (2) ‘if it is a

18 suitable challenger to enforce the statute—that is, if its interests are sufficiently congruent

19 with those of the intended beneficiaries that the litigants are not more likely to frustrate

20 than to further . . . statutory objectives.’ California, 963 F.3d at 941–42 (second and third

21 alterations in original) (quoting Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def., 87

22 F.3d 1356, 1359 (D.C. Cir. 1996)).

23

In the preliminary injunction order, this court determined that section 1183a’s

24 affidavit of support provision is incorporated in and has an integral relationship with the

25 public charge analysis (see 8 U.S.C. §§ 1182(a)(4)(B)(ii), 1183a) and therefore should be

26 considered as part of the zone of interests analysis. Dkt. 120 at 69. Section 1183a

27 explains that someone can sponsor an alien by guaranteeing to financially support him,

28 and thereby alleviate the concern that he may become a public charge. That statute also

14

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1 provides that any such sponsorship can only be considered in the public charge analysis

2 if it is supported by an affidavit that is “legally enforceable against the sponsor by . . . any

3 State (or any political subdivision of such State), or by any other entity that provides any

4 means-tested public benefit.” 8 U.S.C. § 1183a(a)(1)(B).

5

The court reasoned that by recognizing that states would be paying means-tested

6 public benefits to those subject to a public charge analysis, requiring that states have

7 legally-enforceable rights to recover those expenses when an alien is admitted based on

8 consideration of an affidavit of support, and guaranteeing state-court jurisdiction for such

9 enforcement actions, Congress clearly intended to protect states and their political

10 subdivisions. Dkt. 120 at 70. The court also determined that because states have the

11 right to recover payment from an affiant under section 1183a, Congress intended to

12 protect states’ financial interests. Id.

13

Defendants argue that individual aliens deemed inadmissible, rather than the

14 states, are in the INA’s zone of interest. Mtn. at 8. Defendants would distinguish the

15 court’s preliminary injunction finding because enforcement of affidavits of support does

16 not constitute an injury that falls within the zone of interests. Id. Plaintiffs first contend

17 that section 1183a demonstrates Congress’s intent to protect states by permitting states

18 to enforce affidavits of support. Opp. at 7. Second, in enacting the INA, Congress gave

19 states the discretion to allocate public benefits. Plaintiffs contend that the Rule disrupts

20 the provision of benefits to noncitizens, resulting in more costly emergency care. Id. at

21 7–8. Third, plaintiffs argue that defendants conflate their merits argument with the zone

22 of interests analysis by contending that the public charge provision is meant to reduce

23 aliens reliance on both states and the federal government. Id. at 8.

24

Defendants’ zone of interests argument does not alter the court’s prior

25 conclusions. Significantly, plaintiffs rely on section 1183a as a basis for their first claim

26 such that it is a relevant statute for the zone of interests test. Compl. ¶ 312. By

27 permitting states to recover payments under section 1183a, plaintiffs are intended

28 beneficiaries under the statute. Further, the injuries complained of by plaintiffs include

15

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1 harm to their coffers. See id. ¶ 233 (“The Public Charge Rule will cause direct economic

2 harm to Plaintiffs in the form of increased uncompensated costs for hospital care.”); ¶ 241

3 (“Immigrants who are chilled from accessing publicly funded health insurance programs

4 for which they are eligible will be more likely to defer primary or preventive healthcare.

5 Deferred care leads to more complex medical conditions later on that are more expensive

6 to treat.”). Harm to the financial well-being of the states falls within the zone of interests

7 protected by the statute. As stated in the prior order, the affidavit of support section

8 creates a legally enforceable contract against the sponsor and the states may bring an

9 action to compel reimbursement of government expenses. See 8 U.S.C. § 1183a(a)(1),

10 (b)(1)–(2).

11

In a footnote, defendants contend that plaintiffs’ Fifth Amendment claims fail the

12 zone of interests test because the Supreme Court has suggested that there is a

13 heightened zone of interests requirement for implied causes of action such as plaintiffs’

14 constitutional claim. Mtn. at 8 n.2. Yet, in the very case that defendants cite for this

15 proposition, Clarke v. Securities Industry Association, 479 U.S. at 400 n.16, the Court

16 cautioned that “[w]hile inquiries into reviewability or prudential standing in other [non-

17 APA] contexts may bear some resemblance to a ‘zone of interest’ inquiry under the APA,

18 it is not a test of universal application.” The Court went on to distinguish earlier dicta

19 suggesting a zone of interest inquiry was applicable to constitutional claims, stating “[w]e

20 doubt, however, that it is possible to formulate a single inquiry that governs all statutory

21 and constitutional claims.” Id. (citing Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

22 397 U.S. 150, 153 (1970)). As plaintiffs point out, the Ninth Circuit has also questioned

23 whether a zone of interests test can be applied in light of the Court’s decision in Lexmark,

24 which focused on Congress’s intent in creating statutory causes of action as opposed to

25 causes of action that arise under the Constitution. See Sierra Club v. Trump, 929 F.3d

26 670, 701–02 (9th Cir. 2019) (“[W]e doubt that any zone of interests test applies to

27 Plaintiffs’ equitable cause of action.”). Accordingly, the court declines to apply a zone of

28 interest test to plaintiffs’ constitutional claims.

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1

In sum, the zone of interests test is not “especially demanding,” Lexmark, 572 U.S.

2 at 130, and, “at the very least, the [states’] interests are ‘marginally related to’ and

3 ‘arguably within’ the scope of the statute.” E. Bay Sanctuary Covenant v. Trump, 950

4 F.3d 1242, 1270 (9th Cir. 2020) (quoting Pottawatomi Indians, 520 U.S. at 175–76). The

5 court, therefore, DENIES defendants’ motion with respect to zone of interests.

6

4. First and Fourth Claims—Contrary to Law and Arbitrary and

7

Capricious

8

Turning to defendants’ motion with regard to individual claims, the court addresses

9 plaintiffs’ first and fourth claims together as they present a related issue. In its

10 preliminary injunction order, the court determined that plaintiffs were likely to succeed on

11 the merits of their claim that the Rule was not in accordance with the INA. Dkt. 120 at 48.

12 After a lengthy review of the prior legislative, regulatory, and judicial history of the term

13 “public charge,” the court determined that DHS’s interpretation of the term “public charge”

14 was not reasonable at Chevron step two. In its order staying the injunction, the Ninth

15 Circuit determined that, at Chevron step one, the term “public charge” is not a term of art

16 and not self-defining—thus, it was ambiguous. City & Cty. of San Francisco, 944 F.3d at

17 792. At step two, the court also reviewed the lengthy legislative history and case law

18 surrounding the term “public charge” and concluded that there has not been “one fixed

19 understanding of ‘public charge’ that has endured since 1882.” Id. at 796. Instead, “[i]f

20 anything has been consistent, it is the idea that a totality-of-the-circumstances test

21 governs public-charge determinations. But different factors have been weighted more or

22 less heavily at different times, reflecting changes in the way in which we provide

23 assistance to the needy.” Id. In resolving the step two analysis, the Ninth Circuit

24 determined that the Rule was a reasonable interpretation of the INA. Id. at 799.

25

Also in its prior order, this court determined that plaintiffs were likely to succeed on

26 the merits that the Rule is arbitrary and capricious because DHS failed to consider costs

27 and benefits, including costs to state governments and health effects on state

28 populations. Dkt. 120 at 53. On appeal, the Ninth Circuit motions panel discussed both

17

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1 the cost-benefit issue and the public health effect issue. With regard to the former, the

2 court observed that DHS “addressed at length the costs and benefits associated with the

3 Final Rule.” City & Cty. of San Francisco, 944 F.3d at 801. With respect to public health

4 effects, the Ninth Circuit noted that “DHS not only addressed these concerns directly, it

5 changed its Final Rule in response to the comments.” Id. The court determined that

6 DHS could change its policy as long as DHS acknowledged the change and explained

7 the reasons for it. Id. at 805. In sum, the court held that DHS demonstrated that it was

8 likely to succeed on the merits of the arbitrary and capricious claim.

9

The Ninth Circuit motions panel decision to stay the preliminary injunction presents

10 novel procedural and substantive questions. The court requested supplemental briefing

11 on these issues, (Dkt. 176), to which both parties responded (Dkts. 177, 178). As a

12 procedural matter, defendants’ motion to dismiss comes after the motions panel’s opinion

13 staying the preliminary injunction but before the merits panel has issued its opinion on the

14 preliminary injunction. The merits panel may issue an opinion that comes out entirely the

15 same way as the motions panel, adopts an entirely contrary view, or lands somewhere in

16 between. The prospect of conflicting or confirming guidance indicates that deciding these

17 issues prior to the merits panel’s opinion may be premature.

18

With respect to the substantive issues, the Ninth Circuit motion panel opinion

19 implicates both the law of the circuit and the law of the case. Under the law of the circuit

20 doctrine, “[p]ublished decisions of [the Ninth Circuit] become law of the circuit, which is

21 binding authority that we and district courts must follow until overruled.” E. Bay

22 Sanctuary II, 950 F.3d at 1261. “Under the law of the case doctrine, a court will generally

23 refuse to reconsider an issue that has already been decided by the same court or a

24 higher court in the same case.” Gonzalez, 677 F.3d at 390 n.4. However, “[t]he Ninth

25 Circuit has instructed that a ‘district court should abide “by the general rule” that our

26 decisions at the preliminary injunction phase do not constitute the law of the case,’ but

27 that ‘[a]ny of our conclusions on pure issues of law, however, are binding.’” E. Bay

28 Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1106 (N.D. Cal. 2018) (alteration in

18

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1 original) (quoting Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v.

2 U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007)).

3

A motions panel opinion reviewing a motion to stay an injunction is not necessarily

4 binding on a future merits panel reviewing the substance of that injunction. See E. Bay

5 Sanctuary II, 950 F.3d at 1264 (“The decision whether to grant a stay—much like the

6 decision whether to grant a preliminary injunction—is a ‘probabilistic’ endeavor. We

7 discuss the merits of a stay request in ‘likelihood terms,’ and exercise a ‘restrained

8 approach to assessing the merits.’ Such a predictive analysis should not, and does not,

9 forever bind the merits of the parties’ claims.” (quoting Sierra Club, 929 F.3d at 688));

10 see also Innovation Law Lab v. Wolf, 951 F.3d 1073, 1081 (9th Cir. 2020) (citing E. Bay

11 Sanctuary II for proposition that “a motions panel’s legal analysis, performed during the

12 course of deciding an emergency motion for a stay, is not binding on later merits

13 panels”). While East Bay Sanctuary II indicated that an appellate decision regarding a

14 stay “should not, and does not, forever bind the merits of the parties’ claims,” 950 F.3d at

15 1264, this court is bound to follow opinions constituting law of the circuit, see id. at 1263

16 n.3 (“[T]he first panel to consider an issue sets the law . . . for all the inferior courts in the

17 circuit” and “future panels of the court of appeals . . . .” (first and second alterations in

18 original) (internal quotation marks omitted) (quoting Hart v. Massanari, 266 F.3d 1155,

19 1171 (9th Cir. 2001))).

20

Applying the motions panel’s opinion would also require determining the extent to

21 which the opinion is binding (or persuasive) on each of plaintiffs’ claims that defendants

22 now seek to dismiss in full. As plaintiffs point out in the supplemental brief, the motions

23 panel did not address all legal issues raised by the States and did not assess the

24 complete administrative record in reaching its decision. Alternatively, as defendants

25 note, if the court dismisses the first or fourth claims, such a decision would moot the

26 preliminary injunction appeal on those causes of action.

27

Given the minefield of potential issues, a cautious approach is warranted. As part

28 of its request for supplemental briefing, the court asked whether it should defer ruling on

19

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1 plaintiffs’ first and fourth claims until the Ninth Circuit merits panel has issued its opinion.

2 Dkt. 176 at 2–3. Both parties responded that they were not opposed to such a course of

3 action. Dkt. 177 at 9; Dkt. 178 at 10. Accordingly, the court DEFERS RULING ON

4 defendants’ motion to dismiss plaintiffs’ first and fourth causes of action until the Ninth

5 Circuit issues an opinion on the preliminary injunction or otherwise disposes of the case.

6

5. Second Claim—APA Contrary to Law, Rehabilitation Act

7

Defendants move to dismiss plaintiffs’ second claim, which alleges a violation of

8 the APA as contrary to the Rehabilitation Act. Under the APA, “the reviewing court shall

9 decide all relevant questions of law, interpret constitutional and statutory provisions, and

10 determine the meaning or applicability of the terms of an agency action. The reviewing

11 court shall . . . hold unlawful and set aside agency action, findings, and conclusions found

12 to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

13 law.” 5 U.S.C. § 706.

14

“In the usual course, when an agency is authorized by Congress to issue

15 regulations and promulgates a regulation interpreting a statute it enforces, the

16 interpretation receives deference if the statute is ambiguous and if the agency’s

17 interpretation is reasonable. This principle is implemented by the two-step analysis set

18 forth in Chevron.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016)

19 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

20

At the first step, a court must determine whether Congress has

“directly spoken to the precise question at issue.” If so, “that is

21

the end of the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

22

Congress.” If not, then at the second step the court must defer

to the agency’s interpretation if it is “reasonable.”

23

24 Id. at 2124–25 (quoting Chevron, 467 U.S. at 842–44).

25

“[I]f the statute is silent or ambiguous with respect to the specific issue, the

26 question for the court is whether the agency’s answer is based on a permissible

27 construction of the statute.” Chevron, 467 U.S. at 843; see also Michigan v. E.P.A., 135

28 S. Ct. 2699, 2707 (2015) (“Even under this deferential standard, however, agencies must 20

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1 operate within the bounds of reasonable interpretation.” (internal quotation marks and

2 citation omitted)). The Chevron analysis calls upon the court to “employ[] traditional tools

3 of statutory construction” to fulfill its role as “the final authority on issues of statutory

4 construction.” Chevron, 467 U.S. at 843 n.9; accord Epic Sys. Corp. v. Lewis, 138 S. Ct.

5 1612, 1630 (2018).

6

The Rehabilitation Act prohibits “any program or activity receiving federal financial

7 assistance” or “any program or activity conducted by any Executive agency,” from

8 excluding, denying benefits to, or discriminating against persons with disabilities. 29

9 U.S.C. § 794(a). “To establish a violation of § 504 of the [Rehabilitation Act (“RA”)], a

10 plaintiff must show that (1) she is handicapped within the meaning of the RA; (2) she is

11 otherwise qualified for the benefit or services sought; (3) she was denied the benefit or

12 services solely by reason of her handicap; and (4) the program providing the benefit or

13 services receives federal financial assistance.” Lovell v. Chandler, 303 F.3d 1039, 1052

14 (9th Cir. 2002) (citing Weinreich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th

15 Cir. 1997)).

16

In its prior order on plaintiffs’ motion for preliminary injunction, the court

17 determined that plaintiffs were unlikely to succeed on their Rehabilitation Act claim for

18 two reasons. First, the Rehabilitation Act requires that a plaintiff show that a disabled

19 person was denied services “solely by reason of her handicap.” The Rule does not deny

20 any alien admission into the United States, or adjustment of status, “solely by reason of”

21 disability. All covered aliens, disabled or not, are subject to the same inquiry: whether

22 they are likely to use one or more covered federal benefits for the specified period of

23 time. Even though a disability is likely to be an underlying cause of some individuals

24 qualifying for additional negative factors, it will not be the sole cause. As such, disability

25 is one non-dispositive factor. Dkt. 120 at 50.

26

Second, the INA explicitly lists “health” as a factor that an officer “shall . . .

27 consider” in making a public charge determination. 8 U.S.C. § 1182(a)(4)(B)(i). “Health”

28 includes an alien’s disability and whatever impact the disability may have on the alien’s

21

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1 expenses and ability to work. Congress, not the Rule, requires DHS to take this factor

2 into account. Courts have recognized that the RA cannot revoke or repeal a more

3 specific statute. See, e.g., Knutzen v. Eben Ezer Lutheran Hous. Ctr., 815 F.2d 1343,

4 1353 (10th Cir. 1987) (noting that section 504 may not “‘revoke or repeal . . . a much

5 more specific statute with an articulated program’ . . . absent express language by

6 Congress stating its intent to revoke or repeal that statute” (citations omitted)); Dkt. 120 at

7 50. The INA’s requirement to consider health was enacted subsequent to the RA and is

8 specific to the consideration of who constitutes a public charge. The Ninth Circuit

9 likewise found that Congress directed DHS to consider health—including an alien’s

10 disability—as a factor in public charge determinations. City & Cty. of San Francisco, 944

11 F.3d at 800. The court also reasoned that “[n]othing in the Final Rule suggests that

12 aliens will be denied admission or adjustment of status “solely by reason of her or his

13 disability.’” Id.

14

Defendants argue that plaintiffs’ second claim fails because the Rehabilitation Act

15 requires that a disabled person be denied services by reason of her disability and this

16 causal standard is strict. Mtn. at 15. According to defendants, plaintiffs cannot meet this

17 strict causal requirement because a medical condition may constitute one factor that is

18 considered as part of the totality of the circumstances test. Id. In response, plaintiffs first

19 point out that Congress did not exempt DHS from the Rehabilitation Act’s requirements.

20 Opp. at 13. According to plaintiffs, recipients of Medicaid for more than 12 months,

21 especially those with disabilities, are by definition a public charge. Id. at 14. Thus, the

22 Rule would deny such individuals meaningful access to immigration benefits because of

23 their disability-related needs. Id.

24

Plaintiffs’ arguments are unconvincing. Plaintiffs assert that the Rule is dispositive

25 with regard to a disabled alien’s public charge determination as long as the individual in

26 question is a Medicaid recipient for more than 12 months. Opp. at 14; Compl. ¶ 51. DHS

27 acknowledged the impact on those individuals with disabilities when it stated that it

28

understands that individuals with disabilities receive public

22

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benefits that are listed in the rule. However, Congress did not

1

specifically provide for a public charge exemption for

individuals with disabilities and in fact included health as a

2

mandatory factor in the public charge inadmissibility

consideration. Therefore, DHS will retain the designation of

3

Medicaid and SNAP as public benefits, notwithstanding the

potentially outsized impact of such designation on individuals

4

with disabilities.

5 84 Fed. Reg. at 41,368 (footnote omitted). While there may be a higher correlation

6 between Medicaid enrollment and having a disability, it does not follow that the disability

7 is the sole reason an individual is determined to be a public charge. When DHS

8 considers public benefits, such as Medicaid, the factor being considered is not the

9 disability but an individual’s “assets, resources, and financial status.” 8 U.S.C.

10 § 1182(a)(4)(B)(IV). Further, the Rule facially states that the applicable standard is a

11 totality of the circumstances test and a single positive or negative factor is never

12 determinative. 84 Fed. Reg. at 41,295.

13

Even if the court were to find that receipt of Medicaid was determinative for

14 individuals with disabilities, plaintiffs have not put forward a convincing argument that

15 DHS can disregard Congress’s mandate to consider an alien’s health as part of the public

16 charge determination. The court’s reasoning from the preliminary injunction order applies

17 here. Congress, not the Rule, requires DHS to take this factor into account. The Ninth

18 Circuit agreed with this rationale, observing that the 1996 amendment to the INA

19 requiring immigration officers to consider health occurred twenty-three years after

20 passage of the Rehabilitation Act. Thus, the court stated “[w]e cannot see how a general

21 provision in one statute constrains an agency given a specific charge in a subsequent

22 law.” City & Cty. of San Francisco, 944 F.3d at 800.

23

Thus, plaintiffs have not plausibly alleged sufficient facts to state a claim for an

24 APA cause of action as contrary to the Rehabilitation Act. The court GRANTS

25 defendants’ motion to dismiss plaintiffs’ second cause of action. Because no factual

26 allegations could alter the court’s determination, further amendment would be futile and

27 the dismissal is without leave to amend.

28 / / /

23

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1

6. Third Claim—APA Contrary to Law, State Healthcare Discretion

2

Defendants move to dismiss plaintiffs’ third claim for violation of the APA as

3 contrary to state healthcare discretion. The court did not previously address this claim as

4 part of the preliminary injunction order. The Ninth Circuit likewise did not address this

5 issue.

6

In the complaint, plaintiffs advance two theories in support of their third claim.

7 First, they contend that the Rule will effectively deprive plaintiffs of their statutory option

8 under the Children’s Health Insurance Program Reauthorization Act of 2009, Pub. L. No.

9 111-3, § 214, 123 Stat. 8, 56 (“CHIPRA”) to provide certain benefits to lawfully residing

10 children and pregnant women. Compl. ¶¶ 323–24. Second, plaintiffs argue that the

11 Public Responsibility and Work Opportunity Act (“PRWORA”), 8 U.S.C. §§ 1612–13,

12 1621(d), 1622(a); 7 U.S.C. § 2016(i), expressly gave states the discretion to decide

13 whether to provide many public benefits to noncitizens and the Rule will effectively

14 deprive the states of this option. Compl. ¶¶ 325–26.

15

Defendants argue that the Rule does not deprive the states of their statutory

16 option to extend program eligibility for lawfully residing children and pregnant women

17 under Medicaid and the Children’s Health Insurance Program (“CHIP”) during their first

18 five years in the U.S. Mtn. at 16. Defendants point out that the Rule explicitly excludes

19 CHIP from the definition of public benefit and also excludes public benefits received by

20 children eligible for acquisition of citizenship and Medicaid benefits received by aliens

21 under 21 or pregnant women through 60 days after the last day of pregnancy. Id. Thus,

22 the Rule does not deprive plaintiffs of their authority to provide these benefits.

23 Defendants also contend that the Rule does not limit or change an alien’s entitlement to

24 public benefits; rather, it requires immigration officials to consider the receipt of benefits

25 as part of the totality of the circumstances test. Id.

26

In response, plaintiffs argue that the Rule’s known and predictable chilling effects

27 will effectively deprive plaintiffs of their statutory option to extend program eligibility to

28 certain groups. Opp. at 15. Plaintiffs point out that several states have elected to

24

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1 automatically certify Medicaid enrollees for up to 12 months at a time, yet enrollment in

2 Medicaid for 12 months translates into a heavily weighted factor under the Rule. Id.

3 Individuals who are subject to both the public charge determination and the automatic

4 Medicaid certification face a particularly harsh choice—continue to enroll in Medicaid and

5 risk a negative public charge determination or disenroll from Medicaid. By causing

6 disenrollment and underutilization, plaintiffs contend the Rule interferes with their robust

7 safety net systems and benefits authorized by Congress. Id. at 16.

8

Plaintiffs’ arguments implicate Chevron step two, where “deference is not owed to

9 an agency decision if it construes a statute in a way that is contrary to congressional

10 intent or frustrates congressional policy.” CHW W. Bay v. Thompson, 246 F.3d 1218,

11 1223 (9th Cir. 2001) (citing Anaheim Mem’l Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir.

12 1997)). As an initial observation, the Rule does not facially detract from or limit the

13 authority with which Congress empowered the states under CHIPRA or PRWORA. As

14 defendants note in their brief, the Rule directly affects the rights and obligations of those

15 aliens that fall under the scope of the public charge provision. Plaintiffs acknowledge this

16 point as they argue that the Rule’s chilling effect will effectively deprive them of their

17 statutory options.

18

There are two reasons why plaintiffs fail to state a claim. First, the statutory

19 schemes referenced in the complaint are permissive, not mandatory. These are

20 programs that states may implement or extend to applicable individuals. See 8 U.S.C.

21 § 1612(b) (“[A] State is authorized to determine the eligibility of an alien . . . .”); § 1621(d)

22 (“A State may provide that an alien who is not lawfully present in the United States is

23 eligible for any State or local public benefit for which such alien would otherwise be

24 ineligible under subsection (a) only through the enactment of a State law after August 22,

25 1996, which affirmatively provides for such eligibility.” (emphasis added)); § 1622(a) (“[A]

26 State is authorized to determine the eligibility for any State public benefits . . . .”); 7

27 U.S.C. § 2016(i) (“[A] State agency may . . . issue benefits under this chapter . . . .”); 123

28 Stat. at 56 (“A State may elect . . . .”). Each state is free to choose whether, and the

25

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1 extent to which, it will exercise the authority granted to it by Congress.

2

Second, each individual is also free to choose whether he or she will accept public

3 benefits from the state. Plaintiffs have alleged that the Rule will have a chilling effect on

4 immigrants, including those who are not subject to the Rule. Compl. ¶¶ 145–46. For

5 purposes of a motion to dismiss, the court accepts as true the chilling effect of the Rule

6 on enrollment in public benefit programs. Yet, even so, plaintiffs have not demonstrated

7 that the Rule requires or prevents the states from undertaking a particular course of

8 action. Instead, the Rule impacts the choices of individuals who may or may not be

9 under the Rule’s purview. The opposition even refers to the “particularly hard choices”

10 faced by those subject to the Rule. Opp. at 15. Those individuals may be dissuaded or

11 chilled from participating in benefit programs, but the actions of such third parties do not

12 frustrate the availability of the benefits in the first instance. The states remain free to

13 offer benefits.

14

Thus, the Rule does not prevent the states from offering public benefit programs

15 authorized by Congress and is not contrary to law. Accordingly, defendants’ motion to

16 dismiss plaintiffs’ third cause of action is GRANTED. Because no factual allegations

17 could alter the court’s determination, further amendment would be futile and the dismissal

18 is without leave to amend.

19

7. Fifth and Sixth Claims—Equal Protection

20

Defendants move to dismiss plaintiffs’ fifth and sixth claims for violation of the

21 Equal Protection component of the Fifth Amendment. Neither this court nor the Ninth

22 Circuit addressed these claims when considering the preliminary injunction. The Equal

23 Protection Clause of the Fourteenth Amendment commands that no state shall “deny to

24 any person within its jurisdiction the equal protection of the laws,” U.S. Const. amend.

25 XIV, § 1, which amounts to a direction that all persons who are similarly situated should

26 be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The

27 equal protection component of the Fifth Amendment’s Due Process Clause imposes a

28 similar obligation on the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499–

26

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1 500 (1954); see also I.N.S. v. Pangilinan, 486 U.S. 875, 886 (1988) (considering “the

2 possibility of a violation of the equal protection component of the Fifth Amendment’s Due

3 Process Clause”).

4

Defendants argue that plaintiffs’ Equal Protection claims should be dismissed

5 because the Rule is facially neutral, and plaintiffs cannot establish discriminatory intent.

6 Mtn. at 19. Defendants contend that the Supreme Court’s decision in Trump v. Hawaii,

7 138 S. Ct. 2392, 2418 (2018), set a “deferential standard of review” that applies to

8 immigration policies. Mtn. at 20. According to defendants, the Rule is valid under either

9 Hawaii’s standard of review or rational basis review because the Rule is plausibly related

10 to DHS’s stated objectives. Id. Defendants also contend that the public statements by

11 government officials on which plaintiffs rely were not made by DHS officials and have no

12 express connection to the Rule. Id. at 21.

13

Plaintiffs respond that the applicable standard of review is provided by Village of

14 Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977),

15 under which they must produce direct or circumstantial evidence that a discriminatory

16 reason more likely than not motivated the defendants and that the defendants’ action

17 adversely affected the plaintiffs in some way. Opp. at 21. Plaintiffs argue that they have

18 alleged facts that are indicative of a discriminatory intent. These include: the Rule is

19 more likely to prevent immigrants of color from adjusting their status or changing their

20 visas compared to White immigrant counterparts, which DHS acknowledged, (id. at 22);

21 the Rule reflects a pattern of bias against non-White, non-European immigrants as

22 illustrated by pre- and post-election statements by the President and other statements by

23 decisionmakers (id. at 22–24); and plaintiffs allege that circumstantial evidence in the

24 form of the departure from the normal procedures and the manipulation by the White

25 House of DHS officials also support an inference of discriminatory intent (id. at 24).

26 Plaintiffs next argue that Trump v. Hawaii is not applicable where, as here, DHS’s

27 regulated activity applies to people already residing in the United States and national

28 security concerns are not present. Id.

27

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1

The parties’ dispute falls into two general camps. First, they disagree as to the

2 applicable framework to review plaintiffs’ Equal Protection challenge. Plaintiffs assert

3 that the court should apply the disparate treatment framework described in Arlington

4 Heights so that plaintiffs can demonstrate discriminatory intent. Defendants contend that

5 the deferential standard of review in Trump v. Hawaii applies here such that plaintiffs fail

6 to state a claims regardless of the facts alleged in the complaint. Second, the parties

7 dispute whether the factual allegations are sufficient to plausibly state a claim for an

8 Equal Protection violation. The court analyzes each in turn.

9

i.

Whether Trump v. Hawaii Applies to the Rule

10

Relevant to the public charge rule, there are two broad principles intricately

11 intertwined with the Supreme Court’s immigration law jurisprudence. First, the Court has

12 long recognized that Congress’s power concerning the initial entry of aliens into the

13 country is plenary. See Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has

14 repeatedly emphasized that ‘over no conceivable subject is the legislative power of

15 Congress more complete than it is over’ the admission of aliens.” (quoting Oceanic

16 Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). Second, once an alien arrives

17 in the United States and begins establishing ties to the country, the Court has recognized

18 certain constitutional protections extend to those persons, even if their presence is

19 “unlawful, involuntary, or transitory.” Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There

20 are literally millions of aliens within the jurisdiction of the United States. The Fifth

21 Amendment, as well as the Fourteenth Amendment, protects every one of these persons

22 from deprivation of life, liberty, or property without due process of law.” (citations

23 omitted)).

24

1. Plenary Power Jurisprudence

25

The Supreme Court’s recognition of Congress’s plenary power over immigration

26 first arose soon after the passage of the immigration legislation in the latter half of the

27 nineteenth century. In 1882, Congress enacted the Chinese Exclusion Act, Pub. L. No.

28 47-126, 22 Stat. 58, which prohibited entry of Chinese laborers into the United States.

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1 See Jennings v. Rodriguez, 138 S. Ct. 830, 866 (2018) (Breyer, J., dissenting). The

2 Court upheld the constitutionality of the Act in a series of cases, in particular Chae Chan

3 Ping v. United States, 130 U.S. 581 (1889), and Fong Yue Ting v. United States, 149

4 U.S. 698 (1893). Chae Chan Ping, 130 U.S. at 581–82, dealt with the exclusion of a

5 Chinese lawful permanent resident who left the United States and then was denied re-

6 entry and Fong Yue Ting, 149 U.S. at 729, involved the deportation of Chinese

7 immigrants because they could not demonstrate by the testimony of “at least one credible

8 white witness” (as required by the Chinese Exclusion Act) that they were lawful residents.

9 In Chae Chan Ping, Justice Field wrote that

10

[t]he power of exclusion of foreigners being an incident of

sovereignty belonging to the government of the United States

11

as a part of those sovereign powers delegated by the

constitution, the right to its exercise at any time when, in the

12

judgment of the government, the interests of the country require

it, cannot be granted away or restrained on behalf of any one.

13

14 130 U.S. at 609. In a passage that was later cited with approval by the Court in Fong

15 Yue Ting, Justice Field also expounded on Congress’s plenary power with regard to

16 different races of aliens:

17

The government, possessing the powers which are to be

exercised for protection and security, is clothed with authority

18

to determine the occasion on which the powers shall be called

forth; and its determination, so far as the subjects affected are

19

concerned, is necessarily conclusive upon all its departments

and officers. If, therefore, the government of the United states,

20

through its legislative department, considers the presence of

foreigners of a different race in this country, who will not

21

assimilate with us, to be dangerous to its peace and security,

their exclusion is not to be stayed because at the time there are

22

no actual hostilities with the nation of which the foreigners are

subjects.

23

24 Id. at 606; Fong Yue Ting, 149 U.S. at 706.

25

However, around the turn of the century, “the Court began to walk back the

26 plenary power doctrine in significant ways.” Castro v. U.S. Dep’t of Homeland Sec., 835

27 F.3d 422, 441 (3d Cir. 2016). In Kaoru Yamataya v. Fisher, 189 U.S. 86, 87 (1903), a

28 Japanese immigrant entered the United States but a few days later, an immigration 29

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1 officer sought her deportation because he determined that she was likely to become a

2 public charge. The Court, while acknowledging its plenary power as described in Fong

3 Yue Ting, stated that immigration officers could not “disregard the fundamental principles

4 that inhere in ‘due process of law’ as understood at the time of the adoption of the

5 Constitution.” Id. at 100. In Yamataya, the fundamental principle at stake was the

6 procedural due process right to be heard prior to being taken into custody and deported.

7 Id. at 101. As the Third Circuit recently described, Yamataya represented a “turning

8 point” in the Supreme Court’s plenary power jurisprudence such that Congress’s power

9 was qualified by basic constitutional considerations. Castro, 835 F.3d at 442 (quoting

10 Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An

11 Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1390 n.85 (1953)).

12

Though it was a turning point for immigrants inside the United States, Yamataya

13 did not alter Congress’s plenary power at initial entry because in United States ex rel.

14 Knauff v. Shaughnessy, 338 U.S. 537 (1950), and Shaughnessy v. United States ex rel.

15 Mezei, 345 U.S. 206 (1953), the Court upheld actions by immigration officials to exclude

16 two aliens “on the threshold of initial entry,” Mezei, 345 U.S. at 212, without the

17 procedural due process rights afforded in Yamataya. “Knauff and Mezei essentially

18 restored the political branches’ plenary power over aliens at the border seeking initial

19 admission.” Castro, 835 F.3d at 443. Thus, if the immigration action pertains to initial

20 admission, then Congress’s power is plenary. In Landon v. Plasencia, the Court

21 summarized these two competing interests, stating that it “has long held that an alien

22 seeking initial admission to the United States requests privilege and has no constitutional

23 rights regarding his application, for the power to admit or exclude aliens is a sovereign

24 prerogative. 459 U.S. 21, 32 (1982) (citing Knauff, 338 U.S. at 542; and Nishimura Ekiu

25 v. United States, 142 U.S. 651, 659–60 (1892)). “As we explained in Johnson v.

26 Eisentrager, 339 U.S. 763, 770 (1950), however, once an alien gains admission to our

27 country and begins to develop the ties that go with permanent residence his constitutional

28 status changes accordingly. Our cases have frequently suggested that a continuously

30

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1 present resident alien is entitled to a fair hearing when threatened with deportation.” Id.

2 (citations omitted).

3

With this framing in mind, the leading case cited by defendants, Trump v. Hawaii,

4 is properly viewed as an initial admission case. There, the Supreme Court examined an

5 Equal Protection challenge to an executive order issued by the President that restricted

6 entry into the United States by foreign nationals of select countries, nearly all majority-

7 Muslim countries. Hawaii, 138 S. Ct. at 2403–04. From the outset, the Court’s analysis

8 focused on admission and exclusion cases, citing the plenary power doctrine with regard

9 to initial admission: “the admission and exclusion of foreign nationals is a ‘fundamental

10 sovereign attribute exercised by the Government’s political departments largely immune

11 from judicial control.’” Id. at 2418 (quoting Fiallo, 430 U.S. at 792). The Hawaii court

12 discussed at length the standard of review articulated in Kleindienst v. Mandel, 408 U.S.

13 753, 756–57 (1972), which involved an Equal Protection challenge to the Attorney

14 General’s denial of a temporary nonimmigrant visa for a Belgian author. Mandel, too,

15 was an initial admission case as the Court cited the rule that “Mandel personally, as an

16 unadmitted and nonresident alien, had no constitutional right of entry to this country as a

17 nonimmigrant or otherwise.” Id. at 762 (emphasis added) (citing, e.g., Knauff, 338 U.S. at

18 542). Recognizing Congress’s plenary power over initial admission decisions, Mandel

19 upheld Congress’s delegation to the Executive the decision to exclude as long as “the

20 Executive gave a ‘facially legitimate and bona fide’ reason for its action.” Hawaii, 138 S.

21 Ct. at 2419 (quoting Mandel, 408 U.S. at 769).

22

The Hawaii court also framed the initial entry cases in the context of national

23 security, stating “Mandel’s narrow standard of review ‘has particular force’ in admission

24 and immigration cases that overlap with ‘the area of national security.’” Id. (quoting Kerry

25 v. Din, 576 U.S. 86, 104 (2015) (Kennedy, J., concurring)). In Hawaii, the rationale for

26 such a standard of review rested on the intersection of immigration and national security:

27 “‘[a]ny rule of constitutional law that would inhibit the flexibility’ of the President ‘to

28 respond to changing world conditions should be adopted only with the greatest caution,’

31

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1 and our inquiry into matters of entry and national security is highly constrained.” Id. at

2 2419–20 (quoting Diaz, 426 U.S. at 81–82).

3

Yet, despite the foregoing buildup, the Court specifically declined to determine

4 whether Mandel applied in the particular case concerning the President’s proclamation

5 and instead pivoted to a rational basis standard of review. Id. at 2420 (“For our purposes

6 today, we assume that we may look behind the face of the Proclamation to the extent of

7 applying rational basis review.”). In its rational basis analysis, the Court examined the

8 facts underlying the proclamation, id. at 2421 (rejecting the argument that five of seven

9 countries are Muslim-majority “given that the policy covers just 8% of the world’s Muslim

10 population and is limited to countries that were previously designated by Congress or

11 prior administrations as posing national security risks”), and the process by which it was

12 produced, id. (“The Proclamation, moreover, reflects the results of a worldwide review

13 process undertaken by multiple Cabinet officials and their agencies.”).

14

After the Hawaii decision, lower courts have recognized that the deferential

15 standard articulated in Mandel, and cited in Hawaii and Fiallo v. Bell, applies to initial

16 admission and exclusion cases but not to aliens who are lawfully admitted into the United

17 States. For example, several opinions concerning the revocation of temporary protected

18 status (“TPS”) for certain groups, distinguished Hawaii on the grounds that the plaintiffs

19 were “foreign nationals . . . [who] are lawfully present in the United States . . . .” Saget v.

20 Trump, 375 F. Supp. 3d 280, 367 (E.D.N.Y. 2019) (citing Centro Presente v. U.S. Dep’t of

21 Homeland Sec., 332 F. Supp. 3d 393 410–11 (D. Mass. 2018); and New York v. U.S.

22 Dep’t of Commerce, 351 F. Supp. 3d 502, 666 (S.D.N.Y.), aff’d in part, rev’d in part 139

23 S. Ct. 2551 (2019)). Similarly, in an opinion overturning the Administration’s decision to

24 rescind the Deferred Action for Childhood Arrivals (“DACA”) program, the Ninth Circuit

25 also distinguished Hawaii, citing, in part, “the physical presence of the plaintiffs within the

26 geographic United States.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec.,

27 908 F.3d 476, 519–20 (9th Cir. 2018), rev’d in part, vacated in part, 140 S. Ct. 1891

28 (2020) (citing Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc)).

32

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1 As a counterexample, the district court in S.A. v. Trump, 363 F. Supp. 3d 1048, 1094

2 (N.D. Cal. 2018), applied Hawaii to an Equal Protection challenge brought by plaintiffs

3 residing in the United States against a policy prohibiting their family members from

4 entering the United States. These opinions represent instances where the scope of the

5 challenged action could be cleanly divided: in the cases of TPS or DACA, the individuals

6 were all within the United States; in S.A. the family members were attempting to enter the

7 United States.

8

Here, the Rule applies to immigrants and nonimmigrants seeking initial admission

9 to the United States. 84 Fed. Reg. at 41,295. It also applies to aliens who are already in

10 the United States and are seeking adjustment of status. Id. Because the Rules applies

11 in part to aliens who are already in the United States, defendants cannot entirely rely on

12 the plenary power doctrine to uphold the Rule. Accordingly, the court proceeds to

13 determine whether an alien inside the United States can state an Equal Protection claim.

14

2. Constitutional Rights of Aliens Admitted to the United

15

States

16

As Yamataya and similar cases demonstrate, persons within the United States can

17 assert at least some rights guaranteed by the Fifth and Fourteenth Amendments. Early

18 cases only addressed whether persons had a procedural due process right to be heard

19 before the government imposed some legal action on them. See, e.g., Wong Wing v.

20 United States, 163 U.S. 228, 237 (1896) (“[T]o declare unlawful residence within the

21 country to be an infamous crime, punishable by deprivation of liberty and property, would

22 be to pass out of the sphere of constitutional legislation, unless provision were made that

23 the fact of guilt should first be established by a judicial trial.”). No procedural due process

24 challenge is alleged here; rather, plaintiffs challenge the Rule on Equal Protection

25 grounds. The issue may be stated as whether Congress or the Executive may

26 discriminate within different classes of aliens present in the United States based on the

27 race or ethnicity of the aliens.

28

In Mathews v. Diaz, the Court indicated that the equal protection component of the

33

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1 Fifth Amendment’s Due Process Clause extends to aliens who are physically present in

2 the United States. 426 U.S. at 77 (“The Fifth Amendment, as well as the Fourteenth

3 Amendment, protects every one of these persons from deprivation of life, liberty, or

4 property without due process of law.”). In Plyler v. Doe, 457 U.S. 202, 210 (1982)

5 (citations omitted), the Court stated “[a]liens, even aliens whose presence in this country

6 is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by

7 the Fifth and Fourteenth Amendments.” Then, the Court stated: “Indeed, we have clearly

8 held that the Fifth Amendment protects aliens whose presence in this country is unlawful

9 from invidious discrimination by the Federal Government.” Id. (citing Mathews, 426 U.S.

10 at 77). Plyler’s holding only applied to a state’s classification of aliens rather than the

11 federal government. Yet, in a footnote, the Court stated “[i]t would be incongruous to

12 hold that the United States, to which the Constitution assigns a broad authority over both

13 naturalization and foreign affairs, is barred from invidious discrimination with respect to

14 unlawful aliens, while exempting the States from a similar limitation. Id. at 201 n.9 (citing

15 Mathews, 426 U.S. at 84–86). While dicta, these two cases suggest that the Supreme

16 Court would hold that aliens within the United States are protected by the equal

17 protection component of the Fifth Amendment.

18

In a case closer to the question at issue here, in Kwai Fun Wong v. United States,

19 373 F.3d 952, 970–73 (9th Cir. 2004), the Ninth Circuit reviewed at length whether an

20 alien who has not “entered” the United States for purposes of the INA but has physically

21 entered the United States could state a discrimination claim under the equal protection

22 component of the Due Process Clause of the Fifth Amendment. The court held that non-

23 admitted (but physically present) aliens were not precluded

24

from coming within the ambit of the equal protection component

of the Due Process Clause. We cannot countenance that the

25

Constitution would permit immigration officials to engage in

such behavior as rounding up all immigration parolees of a

26

particular race solely because of a consideration such as skin

color. Although “Congress has ‘plenary power’ to create

27

immigration law, and . . . the judicial branch must defer to

executive and legislative branch decisionmaking in that

28

area, . . . . that power is subject to important constitutional

34

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limitations.” 1

2 Id. at 974 (alterations in original) (footnote omitted) (quoting Zadvydas v. Davis, 533 U.S.

3 678, 695 (2001)). Kwai Fun Wong distinguished initial entry cases on the grounds that

4 those cases were determinative of “the procedural rights of aliens with respect to their

5 applications for admission,” but initial entry cases have not been applied to “deny all

6 constitutional rights to non-admitted aliens.” Id. at 971. If Kwai Fun Wong establishes

7 that non-admitted, but physically present aliens can bring an Equal Protection challenge,

8 then it follows that admitted aliens subject to the Rule (who are further from Congress’s

9 plenary power) may also bring an Equal Protection challenge.

10

Read together, Mathews, Plyler, and Kwai Fun Wong stand for the proposition that

11 aliens who have been admitted to the United States are not precluded from bringing an

12 Equal Protection challenge on the theory that they were discriminated against on the

13 basis of their race or ethnicity.

14

3. Resolving the Applicable Standard of Review

15

Plaintiffs urge the court to apply the Arlington Heights inquiry to the Rule so that

16 they can assert an Equal Protection challenge on behalf of aliens who have been

17 admitted to the United States. An important point is worth noting at this juncture:

18 Arlington Heights did not address what level of scrutiny—i.e., strict scrutiny, heightened

19 scrutiny, or rational basis—a court should apply to an Equal Protection claim based on

20 racial or ethnic discrimination. Instead, Arlington Heights described a framework to

21 “[d]etermin[e] whether invidious discriminatory purpose was a motivating factor” by using

22 “a sensitive inquiry into such circumstantial and direct evidence of intent as may be

23 available.” 429 U.S. at 266. “Proof of racially discriminatory intent or purpose is required

24 to show a violation of the Equal Protection Clause.” Id. at 265. Conversely, if the

25 government action in question only has a “racially disproportionate impact,” then it may

26 not be unconstitutional. Washington v. Davis, 426 U.S. 229, 239 (1976). Accordingly, if

27 plaintiffs are able to demonstrate racial or ethnic discriminatory purpose to be a

28 motivating factor of the Rule, then the court would apply a strict scrutiny standard of

35

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1 review.

2

In Department of Homeland Security v. Regents of the University of California,

3 writing for a plurality with regard to the plaintiffs’ Equal Protection claim, Chief Justice

4 Roberts stated that “[t]o plead animus, a plaintiff must raise a plausible inference that an

5 ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision.

6 Possible evidence includes disparate impact on a particular group, ‘[d]epartures from the

7 normal procedural sequence,’ and ‘contemporary statements by members of the

8 decisionmaking body.’” 140 S. Ct. at 1915 (second alteration in original) (quoting

9 Arlington Heights, 429 U.S. at 266–68). This indicates that application of the Arlington

10 Heights framework is appropriate to evaluate whether plaintiffs plead discriminatory

11 animus. Further, the plurality sidestepped the issue of whether the Court’s opinion in

12 Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 488 (1999),

13 foreclosed a constitutional claim by an alien unlawfully present in the United States. See

14 Regents, 140 S. Ct. at 1915. Because the court has likewise determined that Trump v.

15 Hawaii (and the plenary power doctrine more generally) does not apply to the Rule in its

16 entirety, similar to Regents, it is appropriate to apply Arlington Heights in this instance.

17

Several recent district court opinions have also applied the Arlington Heights

18 framework to evaluate whether the federal government acted with discriminatory purpose

19 despite a facially neutral action. In Cook County, Illinois v. Wolf, No. 19 C 6334, 2020

20 WL 2542155, at *7 (N.D. Ill. May 19, 2020), the district court in the Northern District of

21 Illinois declined to apply Hawaii and instead applied what the court described as

22 “Arlington Heights-style strict scrutiny,” in evaluating a motion to dismiss the plaintiffs’

23 Equal Protection challenge to the Rule. The court reasoned that in “contrast to the

24 President’s national security and international relations justifications for the executive

25 order in Hawaii, DHS justified and continues to justify the Final Rule solely on economic

26 grounds.” Id.; see also CASA de Maryland, Inc. v. Trump, 355 F. Supp. 3d 307, 312, 324

27 (D. Md. 2018) (declining to apply Hawaii and Mandel to an Equal Protection challenge

28 against the federal government’s decision to TPS status for El Salvador).

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1

ii.

Whether Plaintiffs’ Allegations Plausibly State a Claim

2

“Under Arlington Heights, a plaintiff must ‘simply produce direct or circumstantial

3 evidence demonstrating that a discriminatory reason more likely that [sic] not motivated

4 the defendant and that the defendant’s actions adversely affected the plaintiff in some

5 way.’” Ave. 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493, 504 (9th Cir. 2016)

6 (internal quotation marks omitted) (quoting Pac. Shores Props., LLC v. City of Newport

7 Beach, 730 F.3d 1142, 1158 (9th Cir. 2013)); see also Regents, 140 S. Ct. at 1915. “A

8 plaintiff does not have to prove that the discriminatory purpose was the sole purpose of

9 the challenged action, but only that it was a ‘motivating factor.’” Ave. 6E Invs., (quoting

10 Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015)). While Arlington Heights describes

11 an evidentiary framework rather than a pleading standard, the Ninth Circuit has used its

12 factors in evaluating a district court’s dismissal of a complaint pursuant to Rule 12(b)(6).5

13 See id.

14

In Arlington Heights, the Court described a series of non-exhaustive factors that

15 guides the inquiry into whether a defendant’s actions were motivated by a discriminatory

16 purpose “by examining (1) statistics demonstrating a ‘clear pattern unexplainable on

17 grounds other than’ discriminatory ones, (2) ‘[t]he historical background of the decision,’

18 (3) ‘[t]he specific sequence of events leading up to the challenged decision,’ (4) the

19 defendant’s departures from its normal procedures or substantive conclusions, and (5)

20 relevant ‘legislative or administrative history.’” Pac. Shores Props., 730 F.3d at 1158–59

21 (alterations in original) (quoting Arlington Heights, 429 U.S. at 266–68; and citing Comm.

22

23 5 While not directly applicable to Equal Protection claims, the Supreme Court and the

24

Ninth Circuit have held that, for employment discrimination cases, the McDonnell Douglas evidentiary framework is a useful touchstone to evaluate whether a claim

25

survives a motion to dismiss; however, a plaintiff “is not required to plead a prima facie case of discrimination in order to survive a motion to dismiss.” Sheppard v. David Evans

26

& Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508–11 (2002)). Similar to McDonnell Douglas, the Arlington Heights

27

framework is an evidentiary burden-shifting regime. A Rule 12(b)(6) motion only requires plaintiffs to meet the requirements of Rule 8 and Twombly/Iqbal. See Kwai Fun Wong,

28

373 F.3d at 968 (applying Swierkiewicz to Equal Protection claim that immigration officials discriminated against the plaintiff on the basis of her race).

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1 Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 703 (9th Cir. 2009));

2 see also Avenue 6E Invs., 818 F.3d at 504 (applying Arlington Heights factors to an

3 Equal Protection claim dismissed pursuant to Rule 12(b)(6)).

4

1. Disparate Impact

5

Here, plaintiffs allege that the Rule is “more likely to prevent immigrants of color in

6 the United States from adjusting their status, or extending or changing their visas,

7 compared to their White immigrant counterparts.” Compl. ¶ 107. The complaint also

8 cites the Rule, where DHS stated that it “recognizes that it is possible that the inclusion of

9 benefits such as SNAP and Medicaid may impact in greater numbers communities of

10 color, including Latinos and [Asian-American, Pacific Islanders], as well as those with

11 particular medical conditions that require public benefits for treatment, and therefore may

12 impact the overall composition of immigration with respect to these groups.” 84 Fed.

13 Reg. at 41,369. Plaintiffs have plausibly alleged that the Rule will impact certain racial

14 groups more heavily than others.

15

However, the court notes that the plurality opinion in Regents found that the

16 disparate impact of the DACA rescission on Latinos was not sufficient to state a claim.

17 Writing for himself and three other justices, Chief Justice Roberts stated “because

18 Latinos make up a large share of the unauthorized alien population, one would expect

19 them to make up an outsized share of recipients of any cross-cutting immigration relief

20 program. . . . Were this fact sufficient to state a claim, virtually any generally applicable

21 immigration policy could be challenged on equal protection grounds.” Regents, 140 S.

22 Ct. at 1915. This reasoning is persuasive and the Rule’s disparate impact, while notable,

23 is not dispositive.

24

2. Statements by Decisionmakers

25

Next, plaintiffs cite evidence of potential bias exemplified by statements of the

26 President and his advisors. For example, as a candidate, President Trump called

27 Mexican immigrants “rapists” and “people who have a lot of problems.” Compl. ¶ 285.

28 After his inauguration, the President disparaged an immigration plan that would protect

38

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1 people from El Salvador, Haiti, and African countries, asking, “Why are we having all

2 these people from shithole countries come here?” Id. ¶ 292. Plaintiffs allege that the

3 President was widely reported to have expressed his preference for more immigrants

4 from places like Norway, where the population is over 90 percent white. Id. In May 2018,

5 the President called immigrants “animals” during a public White House meeting. Id.

6 ¶ 294. In addition to the President, plaintiffs allege that other senior administration

7 officials made statements indicative of racial bias. But they only offer one example;

8 defendant Kenneth Cuccinelli is alleged to have stated that Washington, D.C.’s animal

9 control policies were worse than U.S. immigration policies because, “You can’t break up

10 rat families.” Id. ¶ 299.

11

Defendants contend that these statements were not made by DHS officials and

12 have no express connection to the Rule. Mtn. at 21. It is notable that one of the alleged

13 statements is attributed to Kenneth Cuccinelli who is a named defendant in this case and

14 is alleged to be responsible for implementing and enforcing immigration laws. Compl.

15 ¶¶ 28, 299. However, that is the only statement offered by plaintiffs made by a

16 decisionmaker who was directly involved in the Rule’s promulgation and it is not clearly

17 tied to the Rule.

18

With regard to the President’s statements, in Regents, 140 S. Ct. at 1916, Chief

19 Justice Roberts’ plurality opinion found the President’s statements as “unilluminating” and

20 instead noted that “relevant actors were most directly [the] Acting Secretary [of Homeland

21 Security] and the Attorney General.” The opinion stated that “respondents did not

22 ‘identif[y] statements by [either] that would give rise to an inference of discriminatory

23 motive.’” Id. (alterations in original) (citation omitted). Next, Chief Justice Roberts found

24 the President’s statements were “remote in time and made in unrelated contexts” and did

25 not “qualify as ‘contemporary statements’ probative of the decision at issue.” Id. (quoting

26 Arlington Heights, 429 U.S. at 268). While a plurality opinion, this reasoning suggests

27 that the President’s statements, which have no direct connection to the Rule are not

28 relevant to the Equal Protection analysis.

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1

Applying here, plaintiffs allege both pre- and post-inauguration statements by the

2 President. The pre-inauguration statements, Compl. ¶¶ 285–87, are similar to those in

3 Regents that are more remote in time and not applicable to the agency action at issue.

4 The post-inaugurations statements pertain to the same time period as the beginning of

5 the rulemaking process but are not connected to the Rule. The closest statement

6 concerning an immigration plan was in reference to a draft plan that would have

7 protected individuals with TPS status. Id. ¶ 292. In sum, plaintiffs have identified a few

8 statements made in unrelated contexts by the President and only one comment from a

9 DHS official that did not appear to have any connection to the Rule or the rulemaking

10 process. They have not alleged sufficient factual matter concerning statements by

11 decisionmakers.

12

3. Departure from Normal Procedures

13

Plaintiffs also contend that the Rule departed from normal procedures as

14 evidenced by the efforts of White House advisor Stephen Miller’s comments to fast-track

15 the Rule to completion. Compl. ¶¶ 300–02. Defendants assert that the text of the Rule

16 provides the most reliable indicia of its intent and contends that the Rule is devoid of any

17 discriminatory justifications. Mtn. at 20. They also argue that the proposed rule,

18 extensive notice and comment process, and changes from the proposed to final rules

19 undermine allegations of improper bias. Id. at 20–21.

20

The text of the Rule, while a relevant factor, is not dispositive because the

21 Arlington Heights analysis presumes that the official government action in question is

22 facially neutral. 429 U.S. at 266 (“Sometimes a clear pattern, unexplainable on grounds

23 other than race, emerges from the effect of the state action even when the governing

24 legislation appears neutral on its face.” (citations omitted)).

25

However, plaintiffs’ allegations barely raise an inference of an improper departure

26 from the norm. Cf. Regents, 908 F.3d at 519 (“DACA received reaffirmation by the

27 agency as recently as three months before the rescission, only to be hurriedly cast aside

28 on what seems to have been a contrived excuse (its purported illegality). This strange

40

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1 about-face, done at lightning speed, suggests that the normal care and consideration

2 within the agency was bypassed.”). Plaintiffs’ allegations that the Rule was fast tracked

3 do not raise an inference of discriminatory intent. This rulemaking process was not a 3-

4 month about-face; the NPRM began a year before the final Rule was published. At most,

5 they plausibly allege that defendants wanted to implement the Rule sooner rather than

6 later.

7

In light of the foregoing, plaintiffs have not alleged sufficient factual matter to state

8 a claim for an Equal Protection violation. The court GRANTS defendants’ motion to

9 dismiss plaintiffs’ fifth cause of action. Because plaintiffs could allege additional factual

10 matter, the dismissal is with leave to amend.6

11

iii.

Sixth Claim—Unconstitutional Animus

12

In a footnote, defendants argue that plaintiffs’ sixth claim should be dismissed

13 because it fails to identify any protected class, rather, plaintiffs allege that the Rule was

14 adopted to harm a politically unpopular group. Mtn. at 21 n.9. In response, plaintiffs

15 attempt to clarify the claim, stating that the sixth claim incorporates by reference plaintiffs’

16 previous allegations including the allegation that the Rule is intended to target immigrants

17 of color. Opp. at 22 n.10.

18

In their complaint, plaintiffs’ sixth claim incorporates by reference the allegations

19 set forth in the preceding paragraphs of the complaint. Compl. ¶ 344. The sixth claim

20 goes on to allege that “[t]he classification here further violates equal protection principles

21 because defendants adopted it to harm a politically unpopular group and advance

22 unconstitutional animus, and therefore, it is without a permissible, rational basis.” Id.

23 ¶ 345.

24

It appears that plaintiffs are seeking to challenge the Rule under a heightened

25

26 6 Other district courts have found that plaintiffs in those cases have alleged sufficient

27

factual allegations to state a claim for violation of the Equal Protection component of the Fifth Amendment. See New York, 2020 WL 4347264, at *6; Cook Cty., Ill., 2020 WL

28

2542155, at *3–5. These other cases suggest that plaintiffs could allege additional facts such that amendment of their complaint is not futile.

41

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1 rational basis review. In Animal Legal Defense Fund v. Wasden, the Ninth Circuit stated

2 “[w]hen a law exhibits a desire to harm an unpopular group, courts will often apply a

3 ‘more searching’ application of rational basis review.” 878 F.3d 1184, 1200 (9th Cir.

4 2018) (quoting Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring).

5 However, the court indicated that this more searching review applies “[w]hen the

6 politically unpopular group is not a traditionally suspect class.” Id. (emphasis added)

7

There are two separate problems with the sixth claim. First, the unpopular group

8 referenced in paragraph 345 is non-White, non-European immigrants. Opp. at 22 n.10.

9 Yet, plaintiffs’ framing of this group is based on the group’s racial and ethnic composition,

10 a traditionally suspect class. See Compl. ¶ 305 (“The Administration has identified a

11 politically unpopular minority, namely non-White, non-European immigrants . . . .”). Thus,

12 the more searching rational basis of review is not available to them.

13

Second, the factual allegations for the fifth and sixth claims are the same.

14 Assuming plaintiffs are able to state a claim for violation of the Equal Protection

15 component of the Fifth Amendment in a future amended complaint, the court would then

16 determine whether the group is is a traditionally suspect class and what level of scrutiny

17 applies to that group. See Cleburne, 473 U.S. at 439–42 (describing standards of review

18 applicable to an Equal Protection clause challenge). For that reason, plaintiffs’ sixth

19 claim is entirely duplicative of their fifth claim because it involves the same facts and

20 requested relief.

21

Accordingly, the court GRANTS defendants’ motion to dismiss plaintiffs’ sixth

22 cause of action. Because the claim is duplicative of plaintiffs’ fifth claim, the dismissal is

23 without leave to amend.

24

CONCLUSION

25

For the foregoing reasons, the court DENIES defendants’ motion to dismiss with

26 respect to their standing, ripeness, and zone of interest challenges. Defendants’ motion

27 to dismiss plaintiffs’ second cause of action for violation of the APA, contrary to the

28 Rehabilitation Act, is GRANTED, and the claim is DISMISSED WITHOUT LEAVE TO

42

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1 AMEND; defendants’ motion to dismiss plaintiffs’ third cause of action for violation of the

2 APA, contrary to State Healthcare Discretion, is GRANTED, and the claim is DISMISSED

3 WITHOUT LEAVE TO AMEND; defendants’ motion to dismiss plaintiffs’ fifth cause of

4 action for violation of the Fifth Amendment is GRANTED, and the claim is DISMISSED

5 WITH LEAVE TO AMEND; and defendants’ motion to dismiss plaintiffs’ sixth cause of

6 action for violation of the Fifth Amendment is GRANTED, and the claim is DISMISSED

7 WITHOUT LEAVE TO AMEND. Further, the court DEFERS RULING ON defendants’

8 motion to dismiss plaintiffs’ first and fourth causes of action.7 Plaintiffs will be permitted

9 to file an amended complaint after resolution of the deferred claims.

10

IT IS SO ORDERED.

11 Dated: August 3, 2020

12

/s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

7 On April 1, 2020, the court granted in part and denied in part plaintiffs’ motion to compel discovery. Dkt. 159. The court also stayed discovery “until resolution of defendants’

28

forthcoming motion to dismiss.” Id. at 31. Because this order defers ruling on two of plaintiffs’ claims, the court’s prior stay order remains in effect.

43

 
 Case 4:19-cv-04975-PJH Document 187 Filed 01/20/21 Page 1 of 3
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF SANTA CLARA,
Plaintiffs-Appellees,
v.
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.

No. 19-17213 D.C. No. 4:19-cv-04717-PJH Northern District of California, Oakland
ORDER

STATE OF CALIFORNIA; DISTRICT OF COLUMBIA; STATE OF MAINE; COMMONWEALTH OF PENNSYLVANIA; STATE OF OREGON,
Plaintiffs-Appellees,
v.

No. 19-17214
D.C. No. 4:19-cv-04975-PJH Northern District of California, Oakland

Case 4:19-cv-04975-PJH Document 187 Filed 01/20/21 Page 2 of 3

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.

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,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as

No. 19-35914
D.C. No. 4:19-cv-05210-RMP Eastern District of Washington, Richland

2

Case 4:19-cv-04975-PJH Document 187 Filed 01/20/21 Page 3 of 3
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: SCHROEDER, W. FLETCHER, and VANDYKE, Circuit Judges. Defendants-Appellants have moved to stay the issuance of this Court’s
mandate pending resolution of a petition for a writ of certiorari in this case, which Defendants-Appellants intend to file if the Supreme Court grants certiorari in either or both of the two parallel cases named below. The motion is GRANTED as follows: the mandate is stayed pending the Supreme Court’s final disposition of Wolf v. Cook County, Illinois, petition for cert. pending, No. 20-450 (filed Oct. 7, 2020) and Department of Homeland Security v. New York, petition for cert. pending, No. 20-449 (filed Oct. 7, 2020). Fed. R. App. P. 41.
3

 
 City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

981 F.3d 742 United States Court of Appeals, Ninth Circuit.
CITY AND COUNTY OF SAN FRANCISCO; County of Santa Clara, Plaintiffs-Appellees,
v. 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. State of California; District of Columbia; State of Maine; Commonwealth of Pennsylvania; State of
Oregon, Plaintiffs-Appellees, 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.
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, 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.
No. 19-17213, No. 19-17214, No. 19-35914 |
Argued and Submitted September 15, 2020 San Francisco, California
1

| Filed December 2, 2020
Synopsis Background: Counties, cities, and states brought separate actions against the Department of Homeland Security (DHS) and related parties, challenging the validity of DHS’s rule expanding the definition of “public charge” under the Immigration and Nationality Act (INA) provision that deemed public charges inadmissible, on multiple grounds. The United States District Court for the Northern District of California, Phyllis J. Hamilton, Chief Judge, 408 F.Supp.3d 1057, granted preliminary injunction to enjoin implementation of the rule. The United States District Court for the Eastern District of Washington, Raosanna Malouf Peterson, J., 408 F.Supp.3d 1191, issued nationwide preliminary injunction. DHS appealed.
Holdings: The Court of Appeals, Schroeder, Senior Circuit Judge, held that:
plaintiffs alleged injury sufficient to confer standing to challenge DHS rule;
interests of counties, cities, and states were within INA provision’s zone of interests, as required to support APA challenge to DHS rule;
as a matter of apparent first impression, plaintiffs demonstrated likelihood of success on merits of APA challenge to validity of DHS rule;
plaintiffs demonstrated sufficient irreparable harm to support issuance of preliminary injunction; and
balance of equities and hardships tipped in favor of states and municipalities, for purposes of their motion for preliminary injunction.
Affirmed in part, and vacated in part.
VanDyke, Circuit Judge, filed dissenting opinion.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.

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West Codenotes
Validity Called into Doubt 8 C.F.R. §§ 212.21(a), 212.21(b)
Attorneys and Law Firms
*745 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 Defendants-Appellants.
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 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 Plaintiffs-Appellees State of California, District of Columbia, State of Maine, Commonwealth of Pennsylvania and State of Oregon.
2

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, 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

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

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.
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 Hazeltine-Shedd, 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, 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,
3

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.
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

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

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 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.
Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, Chief District Judge, Presiding, D.C. Nos. 4:19-cv-04717-PJH, 4:19-cv-04975-PJH
Appeal from the United States District Court for the Eastern District of Washington, Rosanna Malouf Peterson, District Judge, Presiding, D.C. No. 4:19-cv-05210-RMP
Before: Mary M. Schroeder, William A. Fletcher, and Lawrence VanDyke, Circuit Judges.
Dissent by Judge VanDyke
4

OPINION
SCHROEDER, Circuit Judge:
*749 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 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 *750

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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 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 self-sufficient. 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
5

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 “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.
*751 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.
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

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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 can render an immigrant likely to become a “public charge.” Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (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, 36 S.Ct. 2. 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 *752 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
6

I. & N. Dec. 131, 132 (BIA 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 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 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

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general public health and nutrition, promoting education, and assisting working-poor families in the process of becoming self-sufficient. 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 *753 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 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
7

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. 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 *754 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).

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The court there said 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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.
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.
8

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 long-term 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.
*755 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, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). The Supreme Court has described the test as “not meant to be especially demanding” and as “not requir[ing] any ‘indication of congressional purpose to benefit the would-be plaintiff.’ ” Id. at 225, 132 S.Ct. 2199 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399–400, 107 S.Ct. 750, 93 L.Ed.2d 757 (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, 107 S.Ct. 750).
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

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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] 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 *756 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. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (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.”
9

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, 36 S.Ct. 2, 60 L.Ed. 114, the Supreme Court found that the individuals in that case were 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 well-settled 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

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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 *757 inability to do so – is inconsistent with the traditional understanding 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 zero-tolerance 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

10

minimis benefits for a de minimis period of 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).
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 *758 itself, nor did it address the majority’s objection to

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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. 104-208, 110 Stat. 3009 (1996). The section of the affidavit provision that refers to public benefits serves as a post-admission 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, 121 S.Ct. 903, 149 L.Ed.2d 1 (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.
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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court explained the general rule:
*759 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, 103 S.Ct. 2856.
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.

11

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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, 103 S.Ct. 2856. 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/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/2019/11/FINA

L-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 Meyer 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.

12

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, 103 S.Ct. 2856. The Supreme Court held in State Farm that an agency may not, without analysis, *760 cite even “ ‘substantial uncertainty’ ... as a justification for its actions.” Id. at 52, 103 S.Ct. 2856; 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 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

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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 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-2010-0

012-45697; Hilltown Cmty. Health Ctr., Comments on

Inadmissibility on Public Charge Grounds (Dec. 2018),

https://www.regulations.gov/document?D=USCIS-2010-0

012-45675. 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, 103

S.Ct. 2856. 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 *761 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, 129 S.Ct. 1800, 173 L.Ed.2d 738 (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 providing subsistence income and
13

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, 129 S.Ct. 1800. 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, 129 S.Ct. 1800. DHS provides no justification, other than the repeated conclusory mantra that the new policy will encourage self-sufficiency. DHS in effect says that by creating a disincentive for immigrants to use available assistance, the Rule will “ensur[e] that [admitted immigrants] be self-sufficient 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, Long-Run 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

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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 *762 that Medicaid made it easier for recipients to work and find work).

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.

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).
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, 129 S.Ct. 365. 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
14

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.
*763 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 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

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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, ––– U.S. ––––, 140 S Ct. 599, 599–601, 206 L.Ed.2d 115 (2020) (Gorsuch, J., concurring); Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2424–29, 201 L.Ed.2d 775 (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.
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 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 *764 stays this year of injunctions virtually identical to those the majority today affirms4—I must respectfully dissent.
All Citations
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Footnotes

1

City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019).

2

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020).

15

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

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, ––– U.S. ––––, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020); Wolf v. Cook County, –––

U.S. ––––, 140 S. Ct. 681, 206 L.Ed.2d 142 (2020).

16

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

STATE OF CALIFORNIA, et al.,

8

Plaintiffs,

Case No. 19-cv-04975-PJH Case No. 19-cv-04980-PJH

United States District Court Northern District of California

9

v.

10

U.S. DEPARTMENT OF HOMELAND

SECURITY, et al., 11

Defendants.

12

13

14

LA CLINICA DE LA RAZA, et al.,

15

Plaintiffs,

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO COMPLETE THE RECORD AND GRANTING MOTIONS TO COMPEL DISCOVERY
Re: Dkt. Nos. 149 (No. 19-cv-04975-
PJH), 150 (No. 19-cv-04980-PJH)

16

v.

17

DONALD J. TRUMP, et al.,

18

Defendants.

19

20

21

Plaintiffs the State of California, State of Oregon, Commonwealth of Pennsylvania,

22 and District of Columbia’s (the “State plaintiffs”) and La Clínica de La Raza, African

23 Communities Together, California Primary Care Association, Central American Resource

24 Center, Farmworker Justice, Council on American-Islamic Relations-California, Korean

25 Resource Center, Maternal and Child Health Access, and Legal Aid Society of San

26 Mateo County’s (the “organization plaintiffs” and together with the State plaintiffs, the

27

28

1 “plaintiffs”)1 motions to complete the administrative record and compel discovery came on

2 for hearing before this court on March 4, 2020. State plaintiffs appeared through their

3 counsel, Julia Mass and Anna Rich, and organization plaintiffs appears through their

4 counsel, Mayra Joachin, Nicholas Espiritu, Tanya Broder, and Alvaro Harris. Defendants

5 U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland Security

6 (“DHS” or the “Agency”), President Donald J. Trump, Chad Wolf,2 as Acting Secretary of

7 DHS, and Kenneth T. Cuccinelli as Acting Director of USCIS appeared through their

8 counsel, Joshua Kolsky. Having read the papers filed by the parties and carefully

9 considered their arguments and the relevant legal authority, and good cause appearing,

10 the court hereby rules as follows.

11

BACKGROUND

United States District Court Northern District of California

12

On August 16, 2019, the State plaintiffs filed a complaint (“Compl.”) to enjoin

13 enactment of regulations promulgated by DHS entitled Inadmissibility on Public Charge

14 Grounds (the “Public Charge Rule” or “Rule”), 84 Fed. Reg. 41,292 (Aug. 14, 2019). The

15 Agency published the final rule in the Federal Register on August 14, 2019 with an

16 effective date of October 15, 2019. Id. at 41,292. State plaintiffs’ complaint asserts six

17 causes of action: (1) Violation of the Administrative Procedure Act (“APA”), 5 U.S.C.

18 § 706—Contrary to Law, the Immigration and Nationality Act (“INA”) and the Illegal

19 Immigration Reform and Immigrant Responsibility Act (“IIRIRA”); (2) Violation of APA, 5

20 U.S.C. § 706—Contrary to Law, Section 504 of the Rehabilitation Act; (3) Violation of

21 APA, 5 U.S.C. § 706—Contrary to Law, State Healthcare Discretion; (4) Violation of APA,

22 5 U.S.C. § 706—Arbitrary and Capricious; (5) Violation of the Fifth Amendment’s Due

23

24 1 Plaintiffs the City and County of San Francisco and County of Santa Clara (the “County

25

plaintiffs”) in the related case City and County of San Francisco v. U.S. Citizenship and Immigration Services, No. 19-cv-04717-PJH, have not filed a motion to compel and have

26

not joined in either the State plaintiffs or organization plaintiffs’ motions. 2 This action was originally brought against Kevin McAleenan in his official capacity as

27

Acting Secretary of Homeland Security. Compl. ¶ 27. As of November 13, 2019, Chad Wolf is the acting secretary of DHS (see https://www.dhs.gov/person/chad-f-wolf) and,

28

pursuant to Federal Rule of Civil Procedure 25(d), an officer’s successor is automatically substituted as a party.

2

1 Process clause requiring Equal Protection based on race; (6) Violation of the Fifth

2 Amendment’s Due Process clause, based on a violation of Equal Protection principles

3 based on unconstitutional animus. Dkt. 1.3 The organization plaintiffs’ complaint, also

4 filed August 16, 2019, asserts four causes of action: (1) Violation of APA, 5 U.S.C.

5 § 706—Contrary to the Statutory Scheme; (2) Violation of APA, 5 U.S.C. § 706—

6 Arbitrary, Capricious, or otherwise not in accordance with law; (3) Violation of the Fifth

7 Amendment based on Equal Protection for discriminating against non-white immigrants;

8 (4) under the Declaratory Judgment Act, seeking a determination that the Rule is invalid

9 because it was issued by an unlawfully-appointed agency director. No. 19-cv-04980-

10 PJH, Dkt. 1.

11

On August 26, 2019, plaintiffs (including the County plaintiffs) filed motions for

United States District Court Northern District of California

12 preliminary injunction (Dkt. 17), for which the court heard argument on October 2, 2019,

13 (Dkt. 109). On October 11, 2019, the court entered a preliminary injunction enjoining

14 defendants from applying the Rule to any person residing in the City and County of San

15 Francisco, Santa Clara County, the States of California, Oregon, or Maine, the

16 Commonwealth of Pennsylvania, or the District of Columbia. Dkt. 120, at 92. The court

17 also denied the organization plaintiffs’ motion on the basis that they do not fall within the

18 challenged statute’s zone of interest such that they do not have prudential standing to

19 bring an APA claim. Id. at 72, 92. The court did not rule on plaintiffs’ constitutional

20 claims as it was not within the scope of plaintiffs’ motion. Id. at 12 n.5.

21

Defendants appealed the preliminary injunction on October 30, 2019. Dkt. 129. A

22 three-judge panel of the Ninth Circuit stayed the preliminary injunctions issued within this

23 circuit on December 5, 2019.4 Dkt. 141; see City & Cty. of San Francisco v. USCIS, 944

24

25 3 Unless otherwise specified, references to the docket are to State of California v. U.S.

26

Department of Homeland Security, Case No. 19-cv-04975-PJH. 4 The panel consolidated the three related cases before this court with a similar case from

27

the Eastern District of Washington. That court issued a nationwide injunction of the Rule on the same day as this court’s geographically limited preliminary injunction order.

28

Washington v. U.S. Dep’t of Homeland Security, 408 F. Supp. 3d 1191, 1224 (E.D. Wash. 2019).

3

1 F.3d 773 (9th Cir. 2019). Two district courts outside the Ninth Circuit also enjoined

2 implementation of the Rule—a nationwide injunction and an injunction limited to the State

3 of Illinois. New York v. U.S. Dep’t of Homeland Security, 408 F. Supp. 3d 334 (S.D.N.Y.

4 2019); Cook Cty., Illinois v. McAleenan, 417 F. Supp. 3d 1008 (N.D. Ill. 2019). On

5 January 27, 2020, the Supreme Court granted the federal government’s application for a

6 stay pending appeal of the nationwide injunction of the Public Charge Rule issued by the

7 District Court for the Southern District of New York. Dep’t of Homeland Security v. New

8 York, 140 S. Ct. 599 (2020). On February 18, 2020, the Ninth Circuit panel voted to deny

9 plaintiffs-appellees’ motions for reconsideration and motions for rehearing en banc. Dkt.

10 153. Finally, on February 21, 2020, the Supreme Court granted an application from the

11 federal government for a stay of the injunction issued by the District Court for the

United States District Court Northern District of California

12 Northern District of Illinois. Wolf v. Cook Cty., Illinois, 140 S. Ct. 681 (2020).

13

As relevant to the current motions, on November 25, 2019, defendants served the

14 administrative record on plaintiffs via an online portal. After several attempts to meet and

15 confer to resolve their differences concerning the administrative record, plaintiffs contend

16 the record remains incomplete, resulting in the current motions. They also seek

17 discovery on their constitutional claims.

18

DISCUSSION

19 A. Legal Standard

20

The APA provides that a court’s arbitrary and capricious review shall be based on

21 “the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. The whole

22 administrative record “includes everything that was before the agency pertaining to the

23 merits of its decision.” Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d

24 1534, 1548 (9th Cir. 1993). Further, the whole record “consists of all documents and

25 materials directly or indirectly considered by agency decision-makers and includes

26 evidence contrary to the agency’s position.” Thompson v. U.S. Dep’t of Labor, 885 F.2d

27 551, 555 (9th Cir. 1989) (citing Exxon Corp. v. U.S. Dep’t of Energy, 91 F.R.D. 26, 33

28 (N.D. Tex. 1981)).

4

1

The administrative record submitted by the federal government is entitled to a

2 presumption of completeness, which is rebutted by clear evidence. Id. A court may only

3 consider extra-record materials in the following circumstances: “(1) if necessary to

4 determine ‘whether the agency has considered all relevant factors and has explained its

5 decision,’ (2) ‘when the agency has relied on documents not in the record,’ or (3) ‘when

6 supplementing the record is necessary to explain technical terms or complex subject

7 matter.’” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th

8 Cir. 1996) (quoting Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 703–

9 04 (9th Cir. 1996)). The Ninth Circuit also permits extra-record documents when a

10 plaintiff demonstrates bad faith by the agency. Id. (citing Nat’l Audubon Soc. v. U.S.

11 Forest Serv., 46 F.3d 1437, 1447 n.9 (9th Cir. 1993)). These exceptions are narrowly

United States District Court Northern District of California

12 construed and applied. Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005)

13 (citations omitted).

14 B. Analysis

15

1. Motions to Complete the Administrative Record

16

Generally, plaintiffs identify the following categories of missing documents for

17 which they seek the court to order defendants to produce as part of the administrative

18 record: (a) complete, unredacted copies of all policies, procedures, forms and guidance

19 related to the application of the public charge ground of inadmissibility or any other

20 aspect of the Rule or previous drafts of the Rule; (b) the USCIS article, “Public Charge

21 Provisions of Immigration Law: A Brief Historical Background,” dated August 14, 2019,

22 and all data the article references, including Immigration and Naturalization Service,

23 DHS, and Department of State consular processing statistics related to public charge

24 determinations; (c) inter- and intra-agency communications and Agency communications

25 with outside organizations related to the Rule, including records related to the Agency’s

26 development of forms related to public charge determinations and estimates regarding

27 the burdensomeness of forms; (d) White House communications to the Agency related to

28 5

1 the Rule; and (e) missing comments from the public.5 The court addresses each

2 category in turn.

3

a. Policy and Guidance Documents

4

Plaintiffs argue that defendants did not provide policies, procedures, forms and

5 guidance that were considered either directly or indirectly by the Agency during the

6 rulemaking process, but not included in the record. Mtn. at 5. Alternatively, plaintiffs

7 contend that these policies are relevant background information. Defendants respond

8 that plaintiffs have not demonstrated that the policies in question were considered by the

9 relevant decision-maker. Opp. at 5–6. Defendants also contend that adding document

10 as background material is only appropriate for explanation or clarification of technical

11 terms or subject matter. Id. at 7.

United States District Court Northern District of California

12

As an initial matter, defendants have agreed to produce a few policy documents as

13 part of the record and some of plaintiffs’ requests are now moot. In their motion, plaintiffs

14 seek inclusion of portions of the USCIS’s Adjudicator’s Field Manual (“AFM”) and

15 Volumes 7 and 8 of the USCIS Policy Manual (the “Policy Manual”). Mtn. at 5–6. In their

16 opposition, defendants agree to add the full version of the following portions of the Policy

17 Manual: Volume 7, Part B and Volume 8, Part B, Chapter 3. Opp. at 7. Defendants also

18 agree to add Chapter 10.8 of the AFM. Finally, defendants agree to add internal versions

19 of those sections of the USCIS Policy Manual and the AFM that they have already

20 provided for the record, with the exception of Volume 8, Part B, Chapter 3 of the Policy

21 Manual because the Rule cited the public version of the document. Id.

22

23 5 Plaintiffs also identified two additional categories of missing materials: (i) information

24

and data related to legal permanent residents who may undergo a public charge inadmissibility determination upon return from trips abroad and (ii) correct,

25

contemporaneous copies of websites included in the record. Mtn. at 3. In a footnote, plaintiffs explain that, with respect to data on legal permanent residents, defendants

26

informed them that such data was not before the Agency during the decision-making process. Id. at 4 n.1. Plaintiffs also state that they are not moving for corrected copies of

27

webpages referenced in the Rule but reserve the right to do so. Id. at 4 n.2. Because plaintiffs do not specify these categories in any further detail and do not advance an

28

argument as to why these categories should be included in the administrative record, the court does not address these issues.

6

1

Despite these concessions, plaintiffs respond that there are other portions of the

2 policy manual to which they still require access. Specifically, they seek: USCIS Policy

3 Manual Vol. 2, Part A, chapter 42; USCIS Policy Manual Vol. 7, Part A, chapters 1, 4, 5,

4 6, and 10; USCIS Policy Manual Vol. 7, Part R; USCIS Policy Manual Vol. 8, Parts A, G,

5 and L; the remainder of USCIS Policy Manual Vol. 8, Part B; USCIS Policy Manual Vol.

6 12, Part D, chapter 2; AFM, chapter 61.2; Chapter 12 of the Deportation Officer’s Field

7 Manual; Chapter 45 of the Inspector’s Field Manual; and Standard Operating Procedures,

8 Adjudicative Templates, and Appendices referenced in the above-listed policy documents

9 and in the policy documents Defendants disclosed on February 12, 2020. Reply at 5–6.

10

Plaintiffs contend that the policy manuals should be considered under either the

11 second or third Inland Empire exceptions, i.e., whether the agency considered

United States District Court Northern District of California

12 documents not in the record or whether the policy manuals constitute relevant

13 background information.

14

i.

Whether the Agency Considered Documents Not in the

15

Record

16

The second Inland Empire exception applies when an agency relied directly or

17 indirectly on documents not in the record. To meet this exception, the moving party must

18 “identify reasonable, non-speculative grounds for its belief that the documents were

19 considered by the agency and not included in the record.” Pac. Shores Subdivision, Cal.

20 Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006) (citation

21 omitted). The moving party “must do more than imply that the documents at issue were

22 in the agency’s possession.” Safari Club Int’l v. Jewell, No. CV-16094-TUC-JGZ, 2016

23 WL 7785452, at *2 (D. Ariz. July 7, 2016) (citing Sara Lee Corp. v. Am. Bakers Ass’n,

24 252 F.R.D. 31, 34 (D.D.C. 2008)). The question is whether plaintiffs have demonstrated

25 that the document in question “‘was so heavily relied on in the recommendations [of

26 subordinates] that the decision maker constructively considered it’ . . . even if there is no

27 evidence that the decision maker read the [document].” Sharks Sports & Entm’t LLC v.

28 Fed. Transit Admin., No. 18-cv-04060-LHK, 2020 WL 511998, at *4 (N.D. Cal. Jan. 31,

7

1 2020 (first alteration in original) (quoting Wildearth Guardians v. U.S. Forest Serv., 713 F.

2 Supp. 2d 1243, 1256 (D. Colo. 2010)).

3

Plaintiffs argue that the Agency relied on knowledge of its policies in order to draft

4 the Rule and that even materials that were indirectly considered should be included in the

5 record. Mtn. at 6. Defendants contend that they should not be required to produce

6 policies that are related to the general subject matter of the Rule and in the Agency’s

7 possession but were not considered by the Agency’s decision-makers. Opp. at 5.

8

After reviewing the Rule and the Cisneros Declaration, the court finds that plaintiffs

9 have not carried their burden to demonstrate that the policy documents were “so heavily

10 relied on” by the agency’s decision makers. Plaintiffs attempt to draw comparisons

11 between excerpts from the Rule and a corresponding policy manual section or chapter

United States District Court Northern District of California

12 that implicates, at a high level, the same topic as the excerpt. For example, the Rule

13 states that the Agency “reject[s] the assertion that the rule shifts emphasis away from the

14 affidavit of support.” 84 Fed. Reg. at 41,439. Plaintiffs contend that this sentence

15 implicates Volume 7, Part A, which covers adjustment of status policies and procedures,

16 including affidavits of support. Cisneros Decl. ¶ 27. As a second example, the Rule

17 states that it applies to legal permanent residents returning from a trip abroad that has

18 lasted for more than sixth months. See 84 Fed. Reg. at 41,326. Plaintiffs argue this

19 reference implicates Volume 7, Part R, which addresses legal permanent residents who

20 have been abroad for an extended period of time. Cisneros Decl. ¶ 37. As a final

21 example, the introduction to the Rule creates a new public charge bond process. 84 Fed.

22 Reg. at 41,295 (“This rule also revises DHS regulations governing the discretion . . . to

23 accept a public charge bond . . . .:). Plaintiffs suggest that this reference to the public

24 charge bond process implicates AFM, chapter 61, as well as chapters cross-referenced

25 in chapter 61, all of which deal with public charge bonds. Cisneros Decl. ¶ 62.

26

The inquiry here is necessarily one of degree. On one end of the spectrum are

27 documents that were not explicitly cited in the Rule but were so heavily relied on in the

28 Rule that the underlying document was constructively considered by the decision maker.

8

1 On the other end of the spectrum are documents that the Agency has in its possession

2 but were not heavily relied upon or considered in the Rule. The excerpts and references

3 cited by plaintiffs are not indicative of documents upon which a decision maker heavily

4 relied. Rather, the topics expressed in the excerpts and references are stated at a high

5 level of generality such that comparing those excerpts and references to equally high-

6 level policy manuals does not demonstrate the manuals were heavily relied upon.

7

Plaintiffs also contend that the policies are relevant to understanding the scope

8 and impact of the Rule’s policy changes. Mtn. at 6. In the supplemental Cisneros

9 Declaration, plaintiffs explain that on February 5, 2020, USCIS issued a “Policy Alert,”

10 which announced USCIS’s changes to portions of its Policy Manual to implement the

11 Rule. Dkt. 152-1, ¶ 31. According to plaintiffs, they evaluated the new versions of

United States District Court Northern District of California

12 Volume 7, Part A, chapters 4 and 6 of the Policy Manual against the prior version of the

13 policy manuals and determined that USCIS and DHS changed the policy manuals as a

14 result of the Rule. Plaintiffs renew their request to add the prior versions of the policy

15 manuals in order to evaluate whether defendants’ stated basis for departing from these

16 policies is sufficient as a matter of law. Reply at 3.

17

While it is permissible for plaintiffs to argue that defendants have departed from

18 prior policies without reasonable explanation (see, e.g., Fed. Commc’ns Comm’n v. Fox

19 Television Stations, Inc., 556 U.S. 502, 515 (2009)), they have not demonstrated that the

20 policy manuals are the appropriate prior policies by which to evaluate whether the Rule

21 departed from those prior policies. Generally, the “prior policies” in question are not the

22 policy manuals, but the prior public charge regulations. Thus, this case is distinguishable

23 from Grace v. Whittaker, 344 F. Supp. 3d 96, 113 (D.D.C. 2018), where the district court

24 permitted the plaintiffs to submit “government training manuals, memoranda, and a

25 governmental brief” as extra-record evidence. This evidence of past policies was directly

26 relevant to whether an Attorney General’s opinion and interim guidance implementing the

27 opinion departed from past policies. Here, because plaintiffs do not demonstrate that the

28 Agency directly or indirectly relied on the policy manuals, they have not demonstrated

9

1 that those policies are the relevant past policies that the court should consider.

2

To reiterate a critical point, plaintiffs have the burden to rebut, with “clear

3 evidence,” the presumption of completeness and, further, the exception is narrowly

4 construed and applied. Lands Council, 395 F.3d at 1030. Several decades ago, in

5 Action for Children’s Television v. FCC, 564 F.2d 458, 477 (D.C. Cir. 1977), the D.C.

6 Circuit discussed whether “every informational input that may have entered into the

7 decisionmaker’s deliberative process” should be produced in the administrative record.

8 The court opined

9

why not go further to require the decisionmaker to summarize

and make available for public comment every status inquiry

10

from a Congressman or any germane material say a

newspaper editorial that he or she reads or their evening-hour

11

ruminations? In the end, why not administer a lie-detector test

to ascertain whether the required summary is an accurate and

12

complete one? The problem is obviously a matter of degree,

and the appropriate line must be drawn somewhere.

13

United States District Court Northern District of California

14 Id. (citation omitted). Similar considerations are present here; the court must draw a line

15 somewhere. The record does not include “every scrap of paper that could or might have

16 been created” relating to the Rule. Golden Gate Salmon Ass’n v. Ross, No. 17-cv-01172

17 LJO-EPG, 2018 WL 3129849, at *4 (E.D. Cal. Jun 22, 2018) (quoting TOMAC v. Norton,

18 193 F. Supp. 2d 182, 195 (D.D.C. 2002)). In sum, plaintiffs have not met their burden to

19 demonstrate that the Agency relied on documents, here policy manuals, not in the record.

20

ii.

Whether the Policies Constitute Relevant Background

21

Information

22

The third Inland Empire exception applies to policies that may be produced as

23 relevant background information. This exception pertains to cases “in which

24 supplementation of the record through discovery is necessary to permit explanation or

25 clarification of technical terms or subject matter involving the agency action under

26 review.” Public Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982). Plaintiffs

27 contend that the policy manuals are also relevant background materials. Mtn. at 6. The

28 parties disagree whether it is appropriate to consider non-technical, non-scientific 10

1 background information as extra-record evidence. Opp. at 7; Reply at 2.

2

Generally, the appropriate basis to permit background material in the

3 administrative record is to illuminate and explain technical subject matter. Thus, the

4 Ninth Circuit in Love v. Thomas stated that a “court may consider, particularly in highly

5 technical areas, substantive evidence going to the merits of the agency’s action where

6 such evidence is necessary as background to determine the sufficiency of the agency’s

7 consideration.” 858 F.2d 1347, 1356 (9th Cir. 1988) (citing Asarco, Inc. v. U.S. Envtl.

8 Prot. Agency, 616 F.2d 1153, 1160 (9th Cir. 1980)). Likewise, in Bunker Hill Co. v. EPA,

9 572 F.2d 1286, 1292 (9th Cir. 1977), cited by plaintiffs, the background information in that

10 case dealt with sulfur dioxide emissions. The court there characterized the background

11 information as “clarification in dealing with a technical subject with respect to which [the

United States District Court Northern District of California

12 court was] not expert[].” Id. (emphasis added). Thus, the court permitted such

13 background material because “courts are not straightjacketed to the original record in

14 trying to make sense of complex technical testimony.” Id.; see also San Luis & Delta

15 Mendota Water Authority v. U.S. Dep’t of the Interior, 984 F. Supp. 2d 1048, 1060 (E.D.

16 Cal. 2013) (discussing Bunker Hill and other relevant Ninth Circuit case law and

17 concluding that the cases all involve challenges to EPA regulatory actions that involved

18 scientific and technical determinations).

19

Plaintiffs also cite Tenneco Oil Co. v. Department of Energy, 475 F. Supp. 299,

20 317 (D. Del. 1979), where the district court stated that it “strain[ed] the Court’s

21 imagination to assume that the administrative decision-makers reached their conclusions

22 without reference to a variety of internal memoranda, guidelines, directives, and manuals,

23 and without considering how arguments similar to [the plaintiff’s] were evaluated in prior

24 decisions by the agency.” The Tenneco Oil court’s reasoning does not support plaintiffs’

25 argument that internal policy manuals should be considered for background purposes.

26 Rather, this case speaks to the second Inland Empire exception concerning whether the

27 decision maker directly or indirectly considered a document. For the reasons explained

28 above, (supra section B.1.a.i), plaintiffs have not demonstrated a sufficient basis for the

11

1 court to apply reasoning similar to Tenneco Oil.

2

Permitting background information is most appropriate when there are technical or

3 scientific matters without which the court cannot determine whether the Agency

4 considered all relevant factors. Asarco, 616 F.2d at 1160. The Public Charge Rule and

5 immigration law generally does not deal with a highly technical area such that policy

6 manuals are needed to inform nonexpert judges. While there may be extenuating

7 circumstances where non-technical background material is proper to add to the

8 administrative record, plaintiffs have not demonstrated by clear evidence that such

9 information is needed in this case.

10

iii.

Materials Related to Development of Forms

11

In passing, plaintiffs request defendants to produce documents related to the

United States District Court Northern District of California

12 development of forms, specifically those related to Form I-944. Mtn. at 9 n.8.

13 Defendants take the position that they do not need to produce any further documents

14 relating to the forms because the complaint does not raise any claims concerning Agency

15 forms or the Paperwork Reduction Act. Further, it is unclear what additional documents

16 plaintiffs request. Opp. at 8. Plaintiffs respond that their general arguments regarding

17 the scope and impact of the Rule subsumes their arguments concerning any forms.

18 Reply at 9–10. They seek inclusion of records related to the development of Form I-944.

19 Id. at 10.

20

Plaintiffs first raised the argument concerning calculations of administrative burden

21 as part of their motion for preliminary injunction. Dkt. 17 at 27–29. They put forward this

22 argument under the broader thesis that the Rule is arbitrary and capricious. Id. at 19.

23 While plaintiffs did not list the administrative burden of forms as part of the complaint,

24 their arbitrary and capricious argument is broad enough to encompass arguments related

25 to these forms.

26

However, the only document that the plaintiffs identify with any particularity is the

27 supporting statement submitted by DHS to OMB to justify the collection of information for

28 Form I-944 (assuming such a document exists). See Reply 9–10; Dkt. 152-1, ¶¶ 57–59.

12

1 Accordingly, the appropriate relief must be tailored to plaintiffs’ specific request. If such

2 document (or documents) constituting a supporting statement for Form I-944 exists, then

3 defendants must provide that as part of the record.

4

For the foregoing reasons, the court GRANTS plaintiffs’ motions with respect to

5 the policies that defendants do not oppose (and have agreed to provide) and the

6 supporting statement for Form I-944. The court DENIES plaintiffs’ motions with respect

7 to those policy manuals that they have requested beyond those policy manuals that

8 defendants have agreed to provide.

9

b. Studies and Data Regarding Inadmissibility Decisions

10

Next, plaintiffs request an article titled “Public Charge Provisions of Immigration

11 Law: A Brief Historical Background,” which was published by the Agency the same day

United States District Court Northern District of California

12 as the Rule. Cisneros Decl. ¶ 67, Ex. 29. Plaintiffs also ask for studies and data

13 regarding inadmissibility decisions on public charge grounds that were referenced in the

14 article. Mtn. at 7. In their opposition brief, defendants agree to provide the article and the

15 materials cited by the article. Opp. at 8. They take issue with providing any sources that

16 plaintiffs think were omitted from the article but should have been included.

17

After the hearing, the parties filed a joint status report in which they report that

18 defendants have provided the article, sources cited in the article, including excerpts of

19 books and immigration data cited in the article. Dkt. 157 at 2. Plaintiffs state that the

20 article cites immigration data, but defendants did not produce data for the years 1920–65,

21 1981–82, 1988, 1990, and 2018. Defendants respond that USCIS did not consider such

22 data with respect to the Rule or the article. Id. Plaintiffs make a similar request for

23 Department of State visa approval data for fiscal years 1920–2018. Id. at 3.

24

As previously noted, the administrative record “consists of all documents and

25 materials directly or indirectly considered by agency decision-makers and includes

26 evidence contrary to the agency’s position.” Thompson, 885 F.2d at 555 (emphasis and

27 citation omitted). The statistical data plaintiffs request not only was not cited in the Rule

28 itself but was not cited in an article published the same day as the Rule. This line of

13

1 reasoning is too attenuated to demonstrate by clear evidence that defendants indirectly

2 considered the requested statistical data when drafting the Rule.

3

Because defendants do not oppose this request and have already provided much

4 of the relevant material, the court GRANTS plaintiffs’ motions with respect to the article

5 and materials directly cited in the article; however, defendants are not required to provide

6 materials that are not directly cited in the article. Further, defendants are not required to

7 produce any book in its entirety unless such book is not publicly available.

8

c. Intra- and Inter-Agency Communications

9

Plaintiffs request various pre-decisional, deliberative materials including intra- and

10 inter-agency communications, White House communications or agency communications

11 with non-government third parties. Mtn. at 9. While plaintiffs have identified limited

United States District Court Northern District of California

12 material from FOIA requests (primarily relating to U.S. Department of Agriculture

13 comments submitted to the Agency pertaining to the Rule), they generally do not put

14 forward a specific list of documents for defendants to provide. Thus, they also request a

15 privilege log in order to determine which communications, if any, should be added to the

16 record. Id. at 11. For their part, defendants attempt to cut this line of argument off, ex

17 ante, by arguing that deliberative communications should not be considered in APA

18 cases. Opp. at 9.

19

i.

Whether the Court Can Consider Any Deliberative

20

Material

21

Generally, judicial review under the APA is based on an agency’s stated reasons

22 and an “inquiry into mental processes of administrative decisionmakers is usually to be

23 avoided.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)

24 (citing United States v. Morgan, 313 U.S. 409, 422 (1941)), abrogated on other grounds

25 by Califano v. Sanders, 430 U.S. 99, 105 (1977). Yet, there is an inherent tension

26 between avoiding examination of a decisionmaker’s pre-decisional deliberative

27 communications and the court’s duty to “consider whether the decision was based on a

28 consideration of the relevant factors.” Id. at 417. As the Ninth Circuit has instructed, the

14

1 administrative record consists “of all documents and materials directly or indirectly

2 considered by agency decision-makers.” Thompson, 885 F.2d at 555–56.

3

Reflecting the tension between the deliberative process and reviewing the “whole

4 record,” district courts in the Ninth Circuit (as well as across the country) are divided over

5 whether deliberative communications should be permitted at any time to complete the

6 administrative record. There is a clear trend in district courts of the Northern District

7 permitting deliberative communications so long as plaintiffs rebut the presumption of

8 completeness. See, e.g., Ctr. for Env’tl Health v. Perdue, No. 18-cv-01763-RS, 2019 WL

9 6114513, at *2–3 (N.D. Cal. Nov. 18, 2019); Sierra Club v. Zinke, No. 17-cv-07187-WHO,

10 2018 WL 3126401, at *3 (N.D. Cal. June 26, 2018); Desert Survivors v. U.S. Dep’t of the

11 Interior, 231 F. Supp. 3d 368, 381 (N.D. Cal. 2017); Inst. for Fisheries Res. v. Burwell,

United States District Court Northern District of California

12 No. 16-CV-01574-VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017).

13

Conversely, there are cases in other districts such as ASSE International, Inc. v.

14 Kerry, No. SACV 14-00534-CJC(JPRx), 2018 WL 3326687, at *2 (C.D. Cal. Jan. 3,

15 2018), where the court found that “privileged materials are not part of the administrative

16 record in the first instance.” See also Comprehensive Cmty. Dev. Corp. v. Sebelius, 890

17 F. Supp. 2d 305, 312 (S.D.N.Y. 2012) (“[C]ourts have consistently recognized that, for the

18 purpose of judicial review of agency action, deliberative materials antecedent to the

19 agency’s decision fall outside the administrative record.”). There are two reasons cited

20 for this standard. First, a court’s APA review must be based on the agency’s stated

21 reasons for the agency action, absent a showing of bad faith or improper behavior. In re

22 Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279,

23 1279 (D.C. Cir. 1998) (citations omitted). Because a reviewing court should limit its

24 review the agency’s stated behavior, then courts such as ASSE International interpret

25 that rule as precluding any review of deliberative materials. See also Nat’l Ass’n of Chain

26 Drug Stores v. U.S. Dep’t of Health & Human Servs., 631 F. Supp. 2d 23, 27 (D.D.C.

27 2009) (“[I]nternal deliberative materials are not part of the administrative record.”).

28 Second, “excluding deliberative materials ‘prevent[s] injury to the quality of agency

15

1 decisions’ by encouraging uninhibited and frank discussion of legal and policy matters.”

2 Tafas v. Dudas, 530 F. Supp. 2d 786, 794 (E.D. Va. 2008) (alteration in original) (quoting

3 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150–52 (1975)).

4

The Ninth Circuit has not directly addressed whether the federal government must

5 produce a privilege log or whether the government may exclude deliberative documents

6 from the administrative record altogether in an APA case. In re United States, 875 F.3d

7 1200, 1210 (9th Cir.), vacated by 138 S. Ct. 443, 445 (2017) (per curiam). The Ninth

8 Circuit indirectly addressed this issue in In re United States, which came before the court

9 on a writ of mandamus petition filed by the federal government. Id. at 1204. In the

10 mandamus context, the court reviewed for clear error a district court’s order requiring the

11 government to produce a privilege log with in camera review of deliberative material. Id.

United States District Court Northern District of California

12 at 1210. The In re United States court cited the several district court opinions requiring a

13 privilege log and in camera analysis of deliberative materials in APA cases. Id. (citing,

14 e.g., Ctr. for Food Safety v. Vilsack, No. 15-cv-01590, 2017 WL 1709318, at *5 (N.D. Cal.

15 May 3, 2017)). Because of the absence of controlling precedent and the deliberative

16 materials did not involve the mental processes of individual agency members, the court

17 found that the district court’s order was not clearly erroneous. Id.

18

The Supreme Court vacated the Ninth Circuit’s opinion in part because portions of

19 the district court’s order were overly broad. The Court noted that the district court did not

20 resolve threshold arguments going to whether the agency action was committed to

21 agency discretion or whether the INA deprived the court of jurisdiction. In re United

22 States, 138 S. Ct. at 445. The Court, therefore, admonished the district court not to

23 “compel the Government to disclose any document that the Government believes is

24 privileged without first providing the Government with the opportunity to argue the issue.”

25 Id.

26

Reading the Supreme Court and Ninth Circuit’s opinions together, a court may

27 order a privilege log and include non-privileged deliberative documents in the record but

28 only after providing the federal government the opportunity to argue the issue. See

16

1 Sierra Club, 2018 WL 3126401, at *3 (noting that the Supreme Court’s decision in In re

2 United States “require[es] the resolution of facial challenges before addressing the

3 administrative record”). Further, such relief is only appropriate after plaintiffs rebut the

4 presumption of completeness. S.F. Bay Conservation & Dev. Comm’n v. U.S. Army

5 Corps of Eng’rs, No. 16-cv-05420-RS, 2018 WL 3846002, at *7 (N.D. Cal. Aug. 13, 2018)

6 (“Decisions from this district have consistently held that parties that intend to withhold

7 documents based on the deliberative process privilege must produce a privilege log, at

8 least where the presumption of completeness has been rebutted . . . .”). In the absence

9 of controlling Supreme Court or Ninth Circuit law to the contrary, the court is inclined to

10 compel the inclusion extra-record pre-decisional deliberative documents, but only to the

11 extent plaintiffs are able to rebut the presumption of completeness.6

United States District Court Northern District of California

12

ii.

Whether Plaintiffs Rebut the Presumption of

13

Completeness

14

The predicate step before applying the deliberative process privilege is for

15 plaintiffs to meet their burden to overcome the presumption of completeness. See

16 People of State of Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., No. C05-03508 EDL, 2006

17 WL 708914, at *2 (N.D. Cal. Mar. 16, 2006) (“Plaintiffs rebutted the presumption of

18 completeness with a strong showing that the Senate Report and the supporting

19 documents were at a minimum indirectly considered by the Forest Service in its decision-

20 making process for the [Rule at issue].”).

21

Sierra Club v. Zinke is helpful to understand what showing is required to

22 demonstrate clear evidence in this context. In Sierra Club, the plaintiffs sought to add to

23 the administrative record documents produced by the federal government in response to

24 the plaintiffs’ Freedom of Information Act (“FOIA”) requests. 2018 WL 3126401, at *4.

25 The court had previously determined that the plaintiffs challenged the rule on the ground

26

27 6 The court notes that defendants have not advanced a facial challenge to judicial review

28

similar to the arguments before the Supreme Court, i.e., that the Rule was committed to the Agency’s discretion or that the INA strips the court of jurisdiction to review the Rule.

17

1 that “its stated rationales [were] not legitimate and its justifications [were] inconsistent

2 with and not supported by the evidentiary record.” Id. (citation omitted). The court

3 examined each FOIA document to determine whether they pertained to the plaintiffs’

4 basis to challenge the rule. The FOIA documents were relevant to whether the rule was

5 supported by good reasoning and, thus, rebutted the presumption of completeness. Id.

6

Here, as the result of a FOIA request, plaintiffs produce several email

7 conversations from officials at the U.S. Department of Agriculture (“USDA”) in response

8 to requests from the Office of Management and Budget (“OMB”) for comments to the

9 Rule. Cisneros Decl. ¶ 86. One email, dated April 12, 2018, indicates that USDA

10 officials sent OMB officials some comments concerning the Rule, which had been

11 requested by OMB officials as part of a broader request to federal agencies. Id. ¶ 87, Ex.

United States District Court Northern District of California

12 37. USDA’s comment was not included in the administrative record, nor were comments

13 from other agencies. See id., Ex. 1. If OMB requested comments from various agencies

14 for this particular Rule and those agencies then provided those comments, the Agency

15 either directly or indirectly considered these comments. Thus, it is reasonable to assume

16 that if USDA submitted comments, then other agencies did so as well. This situation is

17 similar to Sierra Club, where plaintiffs used the FOIA process to identify potential

18 documents not in the administrative record and the court determined that the documents

19 identified through FOIA rebutted the presumption of completeness.

20

iii.

The Remedy to Which Plaintiffs Are Entitled

21

While the court has determined that plaintiffs have rebutted the presumption of

22 completeness, this is not license for a broad mandate to sweep in any and every

23 document, email, or memoranda that is conceivably related to the Rule. The court’s

24 finding is limited to the category of documents that plaintiffs were able to present clear

25 evidence to rebut the presumption, i.e., inter-agency communications providing

26 comments to DHS, and in DHS’s possession, concerning the Rule. The district court in

27 Golden Gate Salmon Association v. Ross, 2018 WL 3129849, at *4, aptly summarized

28 the appropriate relief:

18

1

Plaintiffs assert that the presumption is “lost” when a plaintiff

identifies wrongly omitted materials with specificity, and

2

provides reasonable grounds for the belief that those

documents were considered by the agency. This is true as to

3

the wrongly omitted materials, but to the extent Plaintiffs

suggest that rebutting the presumption as to one document (or

4

even an entire category of materials) changes how the Court

must review other materials . . . the Court does not agree.

5

6 Other courts have taken a similar category-by-category or document-by-document

7 approach to reviewing whether documents rebut the presumption of completeness. See,

8 e.g., Sharks Sports & Entm’t LLC v. Fed. Transit Admin., 2020 WL 511998, at *3;

9 California v. Bureau of Land Mgmt., No. 18-cv-00521-HSG, 2019 WL 1455335, at*3 (N.D.

10 Cal. Apr. 2, 2019); Sierra Club, 2018 WL 3126401, at *4, Desert Survivors, 231 F. Supp.

11 3d at 372. Because plaintiffs have only rebutted the presumption of completeness with

United States District Court Northern District of California

12 respect to inter-agency communications received by DHS relating to the Rule, the

13 appropriate relief is to complete the record only with respect to those types of documents.

14

Defendants contend that the deliberative process privilege shields from public

15 disclosure confidential inter-agency memoranda on matters of law or policy. Opp. at 16.

16 The question before the court is not whether the deliberative process privilege applies,

17 but whether plaintiffs have rebutted the presumption of completeness with clear

18 evidence. The cases cited by defendants stand for the proposition that the deliberative

19 process privilege can be asserted by the government in the context of inter-agency

20 documents. In National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1116

21 (9th Cir. 1988), the Ninth Circuit noted, in the context of a FOIA exemption review, that

22 the “‘deliberative process’ privilege . . . shields from public disclosure confidential inter-

23 agency memoranda on matters of law or policy.” However, the ultimate issue was

24 whether the district court erred in determining whether certain documents, after an in

25 camera review, should be released. Similarly, Hunton & Williams LLP v. U.S.

26 Environmental Protection Agency, 248 F. Supp. 3d 220, 247 (D.D.C. 2017), the district

27 court, also while reviewing a FOIA exemption request, noted that the deliberative process

28 privilege can apply between two agencies. Whether the privilege can or does apply to

19

1 any particular document are properly considered when the government produces the

2 document and claims the privilege.

3

Finally, the court notes that there are certain types of communications that are not

4 appropriate to consider, even if they fall within the category of documents that defendants

5 must produce. The Ninth Circuit has held that it would not be permissible for the court to

6 consider “the internal deliberative processes of the agency [or] the mental processes of

7 individual agency members.” Portland Audubon Soc., 984 F.2d at 1549; see also

8 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[S]uch

9 inquiry into the mental processes of administrative decisionmakers is usually to be

10 avoided.” (citation omitted)). Thus, while it would be appropriate for defendants to

11 provide items such as studies, data, and official memoranda, it would not be appropriate

United States District Court Northern District of California

12 to include communications codifying the internal deliberative processes of individual

13 agency members. See In re United States, 875 F.3d at 1210 (“Where . . . an agency is

14 headed by a multi-member board, the deliberations among those members are

15 analogous to the internal mental processes of the sole head of an agency, and thus are

16 generally not within the scope of the administrative record.” (citing Portland Audubon, 984

17 F.2d at 1549)). Thus, defendants are not required to submit the deliberative

18 communications of individual agency members. This limiting instruction reduces the

19 burden on defendants while also recognizing plaintiffs have met their burden in a specific

20 category of documents.

21

For the foregoing reasons, the court GRANTS plaintiffs’ motions to complete the

22 record with regard to inter-agency communications submitted to DHS and under DHS’s

23 control, relating to the Rule, and not involving the mental processes of individual agency

24 members.

25

d. White House Communications

26

Defendants take issue with disclosing any communications related to the White

27 House. Opp. at 14. They contend that White House communications raise “special

28 considerations” due to the “Executive Branch’s interest in maintaining the autonomy of its

20

1 office.” Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 385. Plaintiffs

2 reply that Cheney does not apply because they do not request discovery against the

3 President or Vice President. Reply at 11 n.12.

4

As an initial matter, it is not clear the extent to which White House communications

5 is an issue requiring the court’s adjudication. Plaintiffs have not directed the court to any

6 specific White House communications that rebut the presumption of completeness. It is

7 conceivable, however, that the court’s finding regarding inter-agency communications

8 could include communications from White House staff to DHS. For this narrow category

9 of documents, the court examines whether defendants must produce any White House

10 communications that meet the relief outlined above.

11

The parties cite Cheney v. U.S. District Court as the leading case on this question.

United States District Court Northern District of California

12 Cheney involved whether a court of appeals could exercise the writ of mandamus to

13 modify or dissolve discovery orders directing the Vice President and other senior

14 Executive Branch officials to produce information about a task force. 542 U.S. at 372.

15 The Supreme Court cited long-standing separation-of-powers considerations why such a

16 mandamus petition involving the President or Vice President would be treated differently

17 than other individuals. See id. at 381–82. The Court noted that the discovery order was

18 directed to the “Vice President and other senior Government officials who served on the

19 [panel] to give advice and make recommendations to the President.” Id. at 385. The

20 Court then stated that it has held on more than one occasion that, “[t]he high respect that

21 is owed to the office of the Chief Executive . . . is a matter that should inform the conduct

22 of the entire proceeding, including the timing and scope of discovery.” Id. (alterations in

23 original) (quoting Clinton v. Jones, 520 U.S. 681, 707 (1997)).

24

Thus, some deference in this area is certainly owed to the office of the Chief

25 Executive. Yet, several mitigating considerations are also relevant. First, Cheney’s

26 separation-of-power considerations were largely motivated by the inclusion of the Vice

27 President in the discovery order. Id. at 382 (“These separation-of-powers considerations

28 should inform a court of appeals’ evaluation of a mandamus petition involving the

21

1 President or Vice President.”). That consideration is not present here. Additionally,

2 Cheney did not involve the APA’s requirements to provide a complete administrative

3 record and, though the opinion was vacated on other grounds, In re United States

4 interpreted Cheney as not “imposing a categorical bar against requiring DHS to either

5 include White House documents in a properly-defined administrative record or assert

6 privilege individually as to those documents.” 875 F.3d at 1209. The final consideration

7 is that the remedy identified by the court is not to order the White House to produce

8 documents; rather, it is to order DHS to produce any communications meeting the court’s

9 criteria that DHS has in its possession. This solution is in accord with the Ninth Circuit’s

10 dicta in In re United States finding no clear error for a district court to require DHS to

11 produce White House documents considered by the DHS Secretary. Id. For the

United States District Court Northern District of California

12 foregoing reasons, the court GRANTS plaintiffs’ motions with respect to any White House

13 communications in DHS’s possession and meeting the court’s criteria discussed above,

14 supra, section B.1.c.

15

e. Missing Comments from the Public

16

In their reply brief, plaintiffs discuss the parties’ inability to resolve a discrepancy

17 between the number of public comments submitted during the rulemaking process and

18 the number of comments produced in the administrative record. Reply at 6. The

19 government’s website for comments, Regulations.gov, states that over 260,000

20 comments were submitted, but the administrative record includes only 213,959 separate

21 documents. Id. Plaintiffs ask the court to order defendants to provide accurate

22 accounting of the discrepancy. Defendants state in their opposition brief; “[t]he parties

23 are continuing to confer about public comments included in the administrative record to

24 ensure that all 266,077 public comments are included.” Opp. at 3 n.2. At the hearing,

25 defendants acknowledged the requirement to account for all comments and explained

26 that multiple comments may be included in one document.

27

Because defendants do not oppose this request, the court GRANTS plaintiffs’

28 motions with regard to the public comments. Defendants are to account for any

22

1 discrepancies between the comments submitted on the government’s website and those

2 provided in the administrative record.

3 2. Discovery on Constitutional Claims

4

Plaintiffs request discovery on their constitutional claims. They contend that

5 constitutional claims are reviewed independently of APA claims and, therefore, some civil

6 discovery is appropriate. Mtn. at 15. Defendants argue that constitutional claims are

7 subject to the terms and limitations of the APA and plaintiffs are entitled to nothing more

8 than the administrative record. Opp. at 16.

9

a. Whether the APA Governs Plaintiffs’ Constitutional Claims

10

In addressing whether the APA governs plaintiffs’ discovery request, the court

11 considers two predicate questions. First, may plaintiffs bring an equitable cause of action

United States District Court Northern District of California

12 for violation of the Constitution against any agency action? Second, if they have a cause

13 of action for a constitutional claim, is that claim necessarily governed by the APA? The

14 Ninth Circuit’s opinion in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), is controlling

15 on both questions. Sierra Club dealt with a challenge to the Department of Defense’s

16 use of funds that the President repurposed by proclamation to construct a border wall on

17 the southern border of the United States. Id. at 677–83. The plaintiffs brought both a

18 constitutional claim, alleging a violation of the Appropriations Clause, and an APA claim.

19 The federal government argued that the plaintiffs did not have a cause of action for either

20 claim. The court examined whether the plaintiffs could bring “an equitable action to

21 enjoin unconstitutional official conduct, or under the judicial review provisions of the . . .

22 APA, as a challenge to a final agency decision that is alleged to violate the Constitution,

23 or both.” Id. at 694 (citation omitted).

24

First, the court determined whether the plaintiffs could assert an equitable cause of

25 action against federal officers for violations of the Appropriations Clause. Beginning with

26 the constitutional claim, the court recognized that “‘federal courts may in some

27 circumstances grant injunctive relief against’ federal officials violating federal law.” Id. at

28 694 (quoting Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326 (2015)).

23

1 However, the court noted that Congress may revoke a federal court’s ability to enjoin

2 federal officials where a statutory provision expressly provides a method of enforcing a

3 substantive right or lacked a judicially administrable standard. Id. (citing Armstrong, 575

4 U.S. at 328). Barring clear and convincing evidence of congressional intent, the judicial

5 review of administrative action is the rule. See City of Chicago v. Int’l Coll. of Surgeons,

6 522 U.S. 156, 183 (1997) (Ginsburg, J., dissenting) (citing Califano v. Sanders, 430 U.S.

7 99, 106–06 (1977)). In Sierra Club, the court applied this rule to determine that Congress

8 had not intended to foreclose equitable relief for violations of the Appropriations Clause.

9 929 F.3d at 697.

10

Second, the court reviewed whether the plaintiffs had an APA cause of action,

11 stating that 5 U.S.C. § 706(2)(B) permits a federal court to “hold unlawful and set aside

United States District Court Northern District of California

12 agency action . . . found to be . . . contrary to constitutional right, power, privilege, or

13 immunity. Id. at 698. The court held that the plaintiffs could assert a cause of action

14 under the APA so long as Congress had not limited review through other statutes or

15 committed the administrative decision to agency discretion. Id. (citing 5 U.S.C.

16 §§ 701(a), 704, 706; and Bennett v. Spear, 520 U.S. 154, 175 (1997)). Neither applied to

17 the Sierra Club plaintiffs and they could bring a challenge under 5 U.S.C. § 706(2)(C).

18

Third, the Sierra Club court then dealt with the issue whether “the availability of an

19 APA cause of action precludes Plaintiffs’ equitable claim.” Id. at 699. The court noted

20 that there is a basic presumption that APA provides for judicial review of agency action,

21 but “this does not mean the APA forecloses other causes of action.” Id. (citing

22 Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018)). In Navajo

23 Nation, 876 F.3d at 1170 (citation omitted), the Ninth Circuit explained that “a court is

24 foreclosed by [APA section] 704 from entertaining claims brought under the APA seeking

25 review of non-final agency action (and not otherwise permitted by law),” but “no such

26 limitation applies to other types of claims (like constitutional claims . . . ).’” In

27 Presbyterian Church v. United States, allowed constitutional claims to proceed without

28 even deciding whether an APA cause of action was available. Sierra Club, 929 F.3d at

24

1 699 (citing Presbyterian Church, 870 F.2d 518 (9th Cir. 1989)). Considering these two

2 cases together, Sierra Club held that Navajo Nation and Presbyterian Church “clearly

3 contemplate that claims challenging agency actions—particularly constitutional claims—

4 may exist wholly apart from the APA.” Id. One other district court in this circuit has cited

5 Sierra Club’s holding and then concluded that review of the plaintiffs’ “constitutional

6 claims, independently of their APA claims, is appropriate.” Al Otro Lado, Inc. v.

7 McAleenan, 394 F. Supp. 3d 1168, 1217 (S.D. Cal. 2019).

8

Applying Sierra Club here, to determine whether plaintiffs have a cause of action,

9 the court examines whether Congress intended to displace an equitable constitutional

10 claim against an agency action. Plaintiffs bring causes of action for violations of the Due

11 Process Clause of the Fifth Amendment, which the Supreme Court has interpreted to

United States District Court Northern District of California

12 prohibit the federal government from denying equal protection of the laws. Bolling v.

13 Sharpe, 347 U.S. 497, 500 (1954). In Davis v. Passman, the Supreme Court explained

14 that

15

“it is established practice for this Court to sustain the jurisdiction

of federal courts to issue injunctions to protect rights

16

safeguarded by the Constitution and to restrain individual state

officers from doing what the 14th Amendment forbids the State

17

to do.” Indeed, this Court has already settled that a cause of

action may be implied directly under the equal protection

18

component of the Due Process Clause of the Fifth Amendment

in favor of those who seek to enforce this constitutional right.

19

20 442 U.S. 228, 242 (1979) (citations omitted). Thus, an equitable cause of action exists

21 for equal protection violations of the Fifth Amendment’s Due Process Clause.

22

This final agency action is not committed to DHS’s discretion and plaintiffs may

23 also bring a cause of action under the APA against agency actions that are contrary to

24 constitutional right, power, privilege, or immunity. 5 U.S.C. § 706(2)(C). Because

25 plaintiffs may bring either an equitable cause of action or an APA claim, Sierra Club’s

26 holding controls whether the cause of action is necessarily governed by the APA.

27 Plaintiffs’ claim “may exist wholly apart from the APA.” 929 F.3d at 699. It follows,

28 therefore, that if plaintiffs have a constitutional claim that exists outside of the APA, then 25

1 the APA’s administrative record requirement does not govern the availability of discovery.

2

b. District Courts Decline to Draw a Bright Line Rule

3

Defendants cite several cases for the proposition that courts routinely reject

4 attempts by plaintiffs to obtain discovery for constitutional claims against the government.

5 In reality, district courts have struggled to coalesce around a categorical rule and instead

6 apply a fact-specific inquiry to reach outcomes that have rejected discovery for

7 constitutional claims in some instances and permitted discovery in others. Further, the

8 cases cited by defendants presumed that the APA governed and did not have the benefit

9 of controlling circuit law on the issue of whether a constitutional claim may be brought

10 independent of the APA.

11

There are few appellate cases discussing this issue. In Harkness v. Secretary of

United States District Court Northern District of California

12 Navy, 858 F.3d 437, 451 & n.9 (6th Cir. 2017), the Sixth Circuit rejected an argument that

13 discovery was necessary because constitutional issues could not be decided on the

14 administrative record for two reasons. First, the court noted that 5 U.S.C. § 706(2)(B)

15 permits review of constitutional claims under the APA using the administrative record.

16 Second, the plaintiff’s Establishment Clause claim was not a standalone claim because

17 10 U.S.C. § 14502 provided a particular mechanism to challenge constitutional error in

18 promotion boards. Id. at 446 n.6. Harkness does not require a different outcome than

19 Sierra Club; both cases examined whether the plaintiff(s) could bring a standalone

20 constitutional claim. The statutory scheme in Harkness precluded an Establishment

21 Clause claim; the Appropriations Clause permitted a standalone challenge in Sierra Club.

22

Several district courts have determined that constitutional claims are governed by

23 the APA and, therefore, constitutional claims should be decided on the administrative

24 record without further discovery. See, e.g., Bellion Spirits, LLC v. United States, 335 F.

25 Supp. 3d 32, 43 (D.D.C. 2018); Chiayu Chang v. U.S. Citizenship & Immigration Servs.,

26 254 F. Supp. 3d 160, 161 (D.D.C. 2017) (collecting cases). Those cases have noted the

27 lack of applicable circuit law. For example, in Northern Arapaho Tribe v. Ashe, 92 F.

28 Supp. 3d 1160, 1171 (D. Wyo. 2015), the district court noted that “[w]hether a district

26

1 court must limit its constitutional review of agency action to the administrative record is [a]

2 question that has not been definitively answered by the Tenth Circuit or the Supreme

3 Court.”

4

On the other hand, several courts recognize that discovery may be appropriate for

5 a constitutional claim involving agency action. Mayor & City Council of Baltimore v.

6 Trump, —F. Supp. 3d—, No. CV ELH-18-3636, 2019 WL 6970631, at *7 (D. Md. Dec. 19,

7 2019) (collecting cases); New York v. U.S. Dep’t of Commerce, 345 F. Supp. 3d 444,

8 451–52 (S.D.N.Y. 2018); Grill v. Quinn, No. 10-cv-0757 GEB GGH PS, 2013 WL

9 3146803, at *6 n.8 (E.D. Cal. June 18, 2013). As the district court in Baltimore pointed

10 out, cases permitting discovery on constitutional claims are in accord “with the

11 foundational tenet of constitutional adjudication that ‘where constitutional rights are in

United States District Court Northern District of California

12 issue,’ courts must ensure that ‘the controlling legal principles [are] applied to the actual

13 facts of the case.’” 2019 WL 6970631, at *7 (alteration in original) (quoting Pickering v.

14 Bd. of Ed. of Twp. of High Sch. Dist. 205, Will Cty., 391 U.S. 563, 578 n.2 (1968)

15 (Douglas, J., concurring)).

16

The broad spectrum of opinions demonstrates a tension and broad disagreement

17 in the reasoning and outcomes in these types of cases. This is exacerbated by the lack

18 of controlling authority and usually results in a case-by-case approach to discovery. Most

19 courts decline to draw a bright line or categorical rule and instead examine the particular

20 facts of the claims involved and the discovery requested. See, e.g., Almaklani v. Trump,

21 —F. Supp. 3d—, No. 18-CV-398 (NGG) (CLP), 2020 WL 1282920, at *7 (E.D.N.Y. Mar.

22 17, 2020) (agreeing “that there may be circumstances in which discovery to supplement

23 the record may be necessary,” but declining to permit “broad ranging discovery under

24 Rule 26”); Jiahao Kuang v. U.S. Dep’t of Def., No. 8-cv-03698-JST, 2019 WL 293379, at

25 *2 (N.D. Cal. Jan. 23, 2019) (“[T]he welter of cases underlines the need for a flexible

26 approach, tailored to the facts and claims of the case.”); Bellion Spirits, 335 F. Supp. 3d

27 at 43 (“Given the dearth of caselaw on point in this circuit, the Court declines to adopt any

28 bright line or categorical rule.”). Given the lack of controlling authority, this approach is

27

1 sensible and appropriately focuses on the facts and claims of individual cases.

2

c. Facts and Claims of Plaintiffs’ Complaints

3

Accordingly, the court turns to an analysis of the particular facts and claims at

4 issue here. A few district courts faced with both APA and constitutional claims

5 determined that the constitutional claims “fundamentally overlap” with the APA claims

6 and thus discovery was unnecessary. Ala.-Tombigbee Rivers Coal. v. Norton, No. CV

7 01-S-0194-S, 2002 WL 227032, at *3-6 (N.D. Ala. Jan. 29, 2002); see also Bellion Spirits,

8 335 F. Supp. 3d at 43-44; Chiayu Chang, 254 F. Supp. 3d at 162 (finding that the

9 “plaintiffs’ constitutional claims here are fundamentally similar to their APA claims” and

10 denying discovery). Alternatively, some courts have permitted some discovery when the

11 APA and constitutional claims diverge in some meaningful way. For example, in Manker

United States District Court Northern District of California

12 v. Spencer, No. 18-cv-372, 2019 WL 5846828, at *19 (D. Conn. Nov. 7, 2019), the district

13 court permitted discovery where the plaintiffs challenged the general course of conduct of

14 the Naval Discharge Review Board, but the agency sought to limit review to the

15 administrative record pertaining only to the plaintiffs. Thus, the court reasoned ““[w]here

16 a plaintiff challenges an agency’s general course of conduct rather than a discrete

17 adjudication, limited discovery . . . may be necessary where the administrative record

18 does not contain evidence of the challenged action.” Id.

19

In Vidal v. Duke, No. 16-cv-4756, 2017 WL 8773110, at *3 (E.D.N.Y. Oct. 17,

20 2017), the plaintiffs sought discovery in an action challenging the government’s decision

21 to end the Deferred Action for Childhood Arrivals (“DACA”) program and also challenging

22 collateral decisions affecting DACA beneficiaries on constitutional grounds. The

23 collateral decisions included a due process claim for failure to provide individualized

24 notice to DACA recipients who were eligible to renew their deferred action and equitable

25 estoppel claims against the government’s use of information from DACA applications for

26 immigration enforcement purposes. Id. at *2. The court noted that the constitutional

27 claim and equitable estoppel claims “do not challenge the decision to end the DACA

28 program, but instead challenge how Defendants communicated that decision to DACA

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1 beneficiaries.” Id. The court then permitted discovery on the grounds that the

2 administrative record was limited to the decision to end the DACA program and “sheds

3 no light on why the Government allegedly made these collateral decisions.” Id.

4

This case falls somewhere in between cases like Vidal and Manker that permitted

5 discovery due to the divergence of APA and constitutional claims and cases such as

6 Alabama-Tombigbee Rivers Coalition and Chiayu Chang where the APA and

7 constitutional claims fundamentally overlapped. Reviewing plaintiffs’ complaints

8 demonstrates that they are alleging different factual allegations between the APA claims

9 and the constitutional claims. While plaintiffs’ APA and constitutional claims challenge

10 the same Rule and request the same relief (thus, this case is not squarely in line with

11 Vidal and Manker), the claims do not fundamentally overlap.

United States District Court Northern District of California

12

In the State plaintiffs’ complaint, paragraphs 111 through 126 discuss the State

13 plaintiffs’ claims that the Rule is contrary to law and paragraphs 127 through 141 discuss

14 the State plaintiffs’ claims that the Rule fails to offer adequate justification. Beginning

15 with paragraph 281, the State plaintiffs’ complaint7 sets forward allegations that the Rule

16 is motivated by racial and ethnic animus toward non-white, non-European immigrants.

17 These allegations include numerous statements and actions by the President that

18 purportedly demonstrate improper racial animus. See, e.g., Compl. ¶ 292. The

19 allegations also involve senior administration leadership, including Acting USCIS Director

20 Cuccinelli. Id. ¶ 299. The complaint also alleges that the White House, in particular

21 senior advisor Stephen Miller, improperly manipulated the agency process. Id. ¶¶ 302,

22 306. Similarly, the organization plaintiffs allege that “L. Francis Cissna was directed to

23 step down as director of USCIS, in part because Stephen Miller had been ‘agitating for

24 Mr. Cissna’s removal for months’ due to Mr. Miller’s stance that Mr. Cissna was ‘moving

25 too slowly in implementing’ the Regulation.” No. 19-cv-04980-PJH, Dkt. 1, ¶ 126 (citation

26 omitted). These allegations are different than plaintiffs’ APA allegations that the Agency

27

28

7 The organization plaintiffs’ complaint contains similar allegations in paragraphs 119 through 127. No. 19-cv-04980-PJH, Dkt. 1.

29

1 promulgated a rule that was contrary to law or the procedure followed by the Agency was

2 flawed. Ultimately, these allegations demonstrate that the administrative record is limited

3 to the Agency’s rulemaking process and sheds no light on actions taken by senior

4 administration officials.

5

Defendants, relying on Trump v. Hawaii, 138 S. Ct. 2392 (2018), also contend that

6 the court should apply highly deferential constitutional standard of review and under a

7 rational basis standard, discovery is inappropriate. Opp. at 18–19. Plaintiffs, citing

8 Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S.

9 252 (1977), argue that the court should apply a more searching standard of review and

10 accompanying sensitive inquiry into circumstantial and direct evidence of potential

11 unconstitutional behavior. Mtn. at 13. It is entirely understandable why each party seeks

United States District Court Northern District of California

12 to establish a foothold regarding the appropriate constitutional standard of review in this

13 case. See Saget v. Trump, 375 F. Supp. 3d 280, 366–67 (E.D.N.Y. 2019) (discussing

14 applicability of Hawaii and Arlington Heights to Equal Protection claims against agency

15 action). Yet, the court declines to determine such a standard in the context of a motion to

16 compel where the parties have not fully briefed this issue. Cf. Baltimore, 2019 WL

17 6970631, at *9–12 (determining applicable standard of review and declining to permit

18 discovery based on rational basis review). Moreover, defendants have not cited any

19 controlling case that prohibits discovery even in cases governed by rational basis review.

20 The court does not foreclose the possibility that discovery may not be appropriate if

21 rational basis review applies to this case, but simply notes that it is premature to make

22 such a finding at this stage when the court has not addressed the applicable standard of

23 review. Accordingly, plaintiffs’ motions to take discovery on their constitutional claims is

24 GRANTED.

25

This brings the court to the appropriate remedy. Plaintiffs oppose a stay pending

26 defendants’ forthcoming motion to dismiss because they bring “a straightforward claim

27 that Defendants were motivated by racial animus when advancing the Rule.” Mtn. at 19.

28 Defendants contend that the court should defer discovery until resolution of defendants’

30

1 forthcoming motion to dismiss that may be dispositive of the complaint. Opp. at 20. The

2 court agrees with defendants; permitting discovery prior to assessing viability of plaintiffs’

3 claims and directly addressing the appropriate standard of review and the implications of

4 that standard would be premature. As noted by a different court, “even where plaintiffs

5 have asserted constitutional claims, ‘wide-ranging discovery is not blindly authorized at a

6 stage in which such an administrative record is being reviewed.’” Tafas, 530 F. Supp. 2d

7 at 802 (quoting P.R. Public Housing Admin. v. U.S. Dep’t of Housing & Urban Dev., 59 F.

8 Supp. 2d 310, 327 (D.P.R. 1999)).

9

CONCLUSION

10

For the foregoing reasons, the court GRANTS IN PART and DENIES IN PART

11 plaintiffs’ motions to complete the record and GRANTS plaintiffs’ motions to compel

United States District Court Northern District of California

12 discovery. However, the court STAYS discovery until resolution of defendants’

13 forthcoming motion to dismiss. Should defendants choose not to file a motion to dismiss,

14 the parties may file an appropriate request to resolve the stay.

15

IT IS SO ORDERED.

16 Dated: April 1, 2020

17

/s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

18

United States District Judge

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